Introduction

Australia takes forced marriages very seriously as a legal issue. Both Commonwealth and New South Wales laws make it a crime. These laws aim to protect people from being pushed into marrying without agreeing to it. It’s all about keeping their rights and freedoms safe.

This guide provides an overview of the legal framework surrounding forced marriages in Australia and NSW. It explores the definitions, legal offences, penalties, and the distinctions between forced and arranged marriages, offering practical guidance for those affected and highlighting the importance of legal protection against such practices.

Understanding Forced Marriage

Definition and Examples

Forced marriage occurs when a person is compelled to marry without their free and full consent—often through threats, pressure or deception. It is a serious crime in Australia, applying equally to legally recognised marriages and to cultural or religious ceremonies.

Unlike arranged marriage, where both parties agree to the union, forced marriage involves one party’s consent being overridden. Examples include:

• Being tricked into marrying someone under false pretences
• Facing threats directed at oneself or one’s family
• Succumbing to pressure from community expectations

Methods of Coercion

Forced marriages often rely on a range of coercive tactics, such as:

• Physical coercion: Using violence or threats of violence to force someone into marriage
• Psychological coercion: Employing emotional manipulation or threatening harm to the person or their family
• Deception: Misleading someone about the nature of the marriage or the circumstances surrounding it

Moreover, these methods can extend to threats against a person’s reputation or financial well‑being, and may exploit cultural or religious beliefs to increase the pressure.

Legal Framework for Forced Marriage in Australia and NSW

Commonwealth Legislation

Under section 270.7B of the Criminal Code 1995 (Cth), forced marriage is a criminal offence across Australia. It carries a maximum penalty of seven years’ imprisonment. However, if the offence is considered aggravated—such as when:

• the victim is under 18 years of age,
• the victim has been subjected to cruel, inhuman or degrading treatment, or
• the offender was reckless as to the danger of death or serious harm—

the penalty increases to nine years.

Furthermore, the Marriage Act 1961 (Cth) provides that a marriage may be void if one or both parties did not give their free and full consent. This includes situations where consent was obtained through coercion, threat or deception, or where a party was incapable of understanding the nature and effect of the ceremony. The Act also sets strict age requirements:

• no person under 16 can legally marry in Australia, and
• those aged 16–17 require both parental consent and a court order to marry.

Additionally, under the Marriage Act 1961 (Cth), it is an offence for a person to solemnise a marriage if they have reasonable grounds to believe that one of the parties is not of legal age. This offence carries a penalty of up to six months’ imprisonment.

NSW-Specific Laws

In New South Wales, section 93AC of the Crimes Act 1900 (NSW) specifically criminalises the organisation or coercion of a forced marriage involving a person under the age of 16. This offence carries a maximum penalty of seven years’ imprisonment, or nine years if it is deemed aggravated.

Offences and Penalties for Forced Marriage in NSW and Australia

Offence Provisions

Under Australian law, a forced marriage occurs when one or both parties enter into a marriage without freely and fully consenting. This lack of consent can result from:

• coercion
• threats
• deception
• incapacity to understand the nature and effect of the marriage ceremony

Both Commonwealth and New South Wales legislation establish clear criteria for what constitutes a forced marriage. The offence applies to:

• Legally recognised marriages, including those under Australian law, foreign law, or cultural/religious ceremonies
• Marriages occurring in Australia, or involving individuals brought to or taken from Australia for the purpose of forced marriage
• Any person involved in organising the forced marriage, such as family members, friends, marriage celebrants, or third‑party facilitators

The offence also applies to servile marriages, where a person is treated as a possession or exploited within the relationship.

Sentencing and Penalties

The penalties for forced marriage offences vary depending on the circumstances of the case, reflecting the seriousness with which Australian law treats this practice.

Under Commonwealth law, the maximum penalties are:

• Standard Offences: 7 years’ imprisonment for forcing someone into marriage
• Aggravated Offences:
  • 9 years’ imprisonment if the victim is under the age of 18
  • 25 years’ imprisonment if the victim is taken overseas

Meanwhile, under NSW law, organising a forced marriage of a person under 16 carries:

• A maximum penalty of 7 years’ imprisonment
• Or 9 years’ imprisonment if the offence is aggravated

These penalties ensure strong legal protections for victims and accountability for those involved in forced marriage.

Key Differences Between Forced Marriage and Arranged Marriage

Consent and Legal Distinctions

Although forced marriage and arranged marriage are often confused due to their similarities, they differ fundamentally in terms of consent, legality and societal acceptance. Understanding these distinctions is crucial for legal and cultural clarity.

Forced marriage occurs when one or both parties are coerced into the union without their free and full consent. This coercion can take many forms:

• physical, emotional or financial pressure
• threats or deception

Under Australian law, forced marriage is a criminal offence under both Commonwealth and New South Wales legislation, and is considered a serious violation of personal rights and freedoms.

By contrast, arranged marriage involves the introduction of potential spouses by a third party—often family members—but both parties must provide their full and free consent to the marriage. Arranged marriages are legal in Australia, provided that there is no form of coercion or duress.

Key legal distinctions include:

• Forced Marriage: Lacks consent and involves coercion, making it a criminal offence.
• Arranged Marriage: Involves mutual consent and is legally recognised.

Implications on Practice

The legal consequences of forced marriage are severe. Under the Criminal Code 1995 (Cth):

• the maximum penalty is seven years’ imprisonment, increasing to nine years for aggravated offences
• in New South Wales, organising a forced marriage involving a person under 16 can result in up to seven years’ imprisonment, or nine years if aggravated

On the other hand, arranged marriages are legal and widely practised in many cultures. They remain valid as long as both parties consent freely, and the law protects their rights by ensuring that consent is genuine and uncoerced.

Furthermore, under the Marriage Act 1961 (Cth), forced marriages are voidable if one or both parties did not give free consent. This provision gives victims recourse to annul the marriage if necessary.

In summary, the key difference lies in consent: forced marriage is illegal and involves coercion, while arranged marriage is legal and based on mutual agreement. Understanding this distinction is vital for upholding legal protections and respecting cultural practices.

Legal Advice and Consultation for Forced Marriage Cases

Benefits of Legal Consultation

Seeking legal advice is crucial for anyone affected by forced marriage. A qualified lawyer can provide guidance on your rights and the legal steps available to protect you.

Legal consultation offers several key benefits:

• Understanding Your Rights: A lawyer can explain your legal rights and the options available to you, helping you make informed decisions.
• Navigating Complex Laws: Forced marriage laws can be complex, especially with both Commonwealth and NSW legislation to consider. A legal expert can help you understand how these laws apply to your situation.
• Developing a Strategy: Legal advice can help you develop a strategy to address your situation, whether it involves leaving a forced marriage or seeking protection.
• Support and Resources: Lawyers can connect you with support services and resources to help you through this challenging time.

A lawyer can also help you assess evidence, understand the implications of different legal actions, and guide you through the process of seeking a protection order or annulment. Contact Daoud Legal, an experienced criminal law firm, for ironclad and personalised support regarding these severe offences.

Conclusion

In conclusion, forced marriage is a serious legal issue in Australia, criminalised under both Commonwealth and New South Wales laws. These laws are designed to protect individuals from being coerced into marriage without their consent, ensuring their rights and freedoms are upheld. The legal framework clearly distinguishes forced marriages from arranged marriages, emphasising the importance of consent. Victims of forced marriage have access to legal protections and support, including annulment options and penalties for those involved in organising such marriages.

If you or someone you know is affected by forced marriage, it is crucial to seek legal advice promptly. Daoud Legal, a criminal law firm in Sydney, specialises in handling these cases with sensitivity and expertise. Their team is committed to protecting your rights and providing the support needed to navigate this challenging situation. Contact Daoud Legal today to ensure you receive the legal protection and guidance you deserve.

Frequently Asked Questions