Forced and servile marriage: a proposal for law reform in the Commonwealth

Abstract

This article analyses the constitutive elements of forced and servile marriage and proposes a nuanced and multi-faceted approach. I discuss the meaning of forced and servile marriage, distinguishing it from sham or arranged marriages. In this regard I underscore the relevance of consent in identifying such marriages and the development of the legal understanding of consent in international law. I also engage the international instruments that address forced and servile marriage and that are binding on Commonwealth member states. I identify three forms of forced and servile marriage: trans-border forced marriage, domestic forced and servile marriage and forced and servile marriage that occurs in armed conflict. Bearing in mind the cultural context in which many instances of forced and servile marriage occur, I propose a three-part approach to a multi-state response. These are: a legal response, in terms of which I advocate for effective civil rather than criminal sanctions; the allocation of resources to community organisations and education initiatives; and, finally, political steps, such as inter-state collaboration, the establishment of specialised forced and servile marriage units and the acceptance of forced and servile marriage as a basis for asylum.