Choice, Culture and the Politics of Belonging: The Emerging Law of Forced and Arranged Marriage
| Date | 01 May 2009 |
| Author | Máiréad Enright |
| Published date | 01 May 2009 |
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00747.x |
THE
MODERN LAW REVIEW
Volume 72 May 2009 No 3
Choice, Culture and the Politics of Belonging:The
Emerging Law of Forced and Arranged Marriage
Ma
Łire
Ład Enright
n
The article discusses recent legal and policy initiatives aimed atpreventing forced marriage, pla-
cing them in the broader context of the exclusionary governanceof British Muslim cultural di f-
ference. It argues that forced marriage is understood almost entirely as a product of cultural
di¡erence.Thus, attempts to prevent forced marriage focus on the control of cultural pressures
at the point of marriage.This near-exclusive focus on culture has twoconsequences for women.
First, inadequate attention is paid to the social and economic problems which intersect with and
aggravate cultural factors restricting women’s marital choice. Second, this problematisation of
culture has generatedpaternalistic legislation with the consequence that young womenwho wish
to follow cultural practice and fully consent to an arranged marriage may be prevented from
marrying as they choose.
INTRODUCTION
In the United Kingdom, over the past ¢ve years or so, arranged marriage has
become the focus of signi¢cant and vigorous intervention by all three branches
of government.Two related issues around arranged marriage have attracted atten-
tion.The ¢rst is forced marriage; a marriage in which at least one of the spouses,
whether by reason of physical, emotional or psychological pressure, did not give
consent to be married.The second is transnational arranged marriage. Such mar-
riagesbegin with a match-making process inwhich the spouses arechosen for one
another by third parties to the marriage such as parents or elder relatives. One
spouse migrates to join the other in his or her countryof residence. Atone time,
these issues were almost solely the concern of the law of nullity, and, to a lesser
extent, thelaw of immigration. Now the courts’ already expansive jurisdictionto
prevent and end forced marriages has been supplemented bya plethora of initia-
tives; from the work of the Forced MarriageUnit at the Foreign and Common-
n
Ma
Łire
Ład Enright, BCL (NUI) MA (Lond.) BL (King’s Inns) is a PhD candidate at the Centre for
Criminal Justice and Human Rights at the Faculty of Law, University College Cork.Than ks to Siob-
ha
Łn Mullally,Fiona de Londras, Sharron Fitzgerald, DeirdreDu¡y, AoifeO’Donoghue and the Modern
Law Review’s anonymousreviewers for their comments on earlier drafts.Thanks also to Lord Lester of
Herne Hill QC for materials.The research for this article is funded by an IRCHSSscholarship held i n
conjunction with the thematicrese archproject in Gender, Multiculturalism and the Law in Ireland at
University College Corkand by the NUI EJ Phelan Fellowship in International Law.
r2009 The Author.Journal Compilation r200 9 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 7 2(3) 331^ 359
wealth O⁄ce, to the Forced Marriage (Civil Protection) Act 2007, and then to
more recent developments a¡ecting immigrantsi n arranged marriages with Brit-
ish residents.
This article aims to put recent legal developments in the area of forced and
arranged marriage in their political context. The repeated reference to ‘forced
and arranged marriage’ requires some explanation at the outset. Many of the
policy documents on which this article will draw insist that forced and arranged
marriage are, and must be, conceptually distinct. Following that distinction, it
mightbe said that the initiatives mentionedabove focus on forced marriage rather
than on arranged marriage more generally. This article disputes the easy ritual
distinction sooften drawn between forced and arranged marriage.While it is cer-
tainly possible to identify a forced or an arranged marriage in its individual con-
text, the task of de¢ning these concepts in more general terms is a complexone.
In practice, substantial slippage occurs across the forced ^ arranged divide. Thus,
while forced marriage is the ostensible target of recent policydrives, increasingly
transnational arranged marriages come within their ambit ^ especially in the
immigration arena.The article therefore usesthe phrase ‘forcedand arranged mar-
riages’ where appropriate,i norder to illuminatethe connections in the expanding
governance of each, and to take its analysisbeyond the rules of engagement habi-
tually set by law-makers.
This article is concerned with the impact of legal and policy developments
around forced and arranged marriage on young British women of South Asian
Muslim origin. It is necessary to justify what might be considered this unduly nar-
row focus. In the ¢rst place, as a purelyempirical matter, both forced marriage and
arranged marriage are strongly, though not exclusively, associated with Muslims of
South Asian origin.
1
Similarly, the regulation of forced marriage is a profoundly
gendered issue.The available data suggests that women vastlyoutnumber men in
the pool of those whos eek assistance in avoiding or exiting forced marriage.
2
Thus,
whether or not Muslim women of South Asian origin are expressed to be the
1 As regards forced marriage,90 per cent of those assisted by the Forced Marriage Unit at the For-
eign and CommonwealthO⁄ce identi¢ed themselves as being of either Pakistani or Bangladeshi
Muslim origin. Ministry of Justice, Forced Marriage (Civil Protection) Act 2007: relevant third party
(London: Ministry of Justice, 2007) 23. See also N. Khanum, Forced Marriage, Family Cohesionand
Community Engagement: NationalLearningThrougha Case Study of Luton(Lo ndon:Equality in Diver-
sity, 2008) 9.The Muslim Arbitration Tribunal asserts that an element of coercion is present in
some 70 per cent of marriageswhere one partner is British and the other is from the Asian sub-
continent: Muslim ArbitrationTribunal, Liberation from ForcedMarriages (London: Muslim Arbi-
tration Tribunal, 2008) 9. In some Pakistani and Bangladeshi communities the tradition is to
marry between patrilineal subgroups. For instance some 50 per cent of marriages among the
Pakistani community in Bradford are conducted with apartner from overseas. Y. Samad andJ.
Eade, Community Perceptions of Forced Marriage (London: FCO, 2003)48.
2 The Forced MarriageUnit reports that 85 per cent of those seeking assistance from it are women,
the majority of whomare between the ages of 16 and 24. Forced Marriage Unit, Forced Marriage: A
Wrong, Not A Right(London: FCO, 2005)3.While the position of immigrants who cometo Brit-
ain for the purposes of marriage will be considered in passing, they are not a central focus of this
article. Equally, British chi ldren and women with learning di⁄culties attract a separate range of
legal provisions and a full consideration of these is for another place.For more detail on this area
of law see B. Clark and C. Richards,‘The Prevention and Prohibition of Forced Marriage: A
Comparative Approach’ (2008) 57 ICLQ 501,515^518.
Choice, Culture and the Politics of Belonging
332 r2009 The Author. Journal Compilationr20 09 The ModernLaw Review Limited.
(2009) 72(3) 331^359
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