In July 2019, Princess Haya of Jordan, the estranged sixth wife of Dubai's Sheikh Mohammed bin Rashid Al Maktoum, appeared in a London court to file for a forced marriage protection order for one of her minor children. This surprise legal move made headlines around the world, raising the visibility of an often overlooked human rights violation.

Forced marriage is a marriage that takes place without the consent of one or both parties as the result of fraud, coercion, duress or other malfeasance. Under some interpretations, forced marriage refers to any marriage of a person below the age of legal consent (aka "child marriage"). Forced marriage also encompasses marriages in which a spouse is blocked from pursuing separation or divorce. An unfortunate and common thread in forced marriage is physical, emotional and sexual abuse, and marital rape.

The United Nations recognizes forced marriage as a form of human rights abuse. According to the U.N.'s Universal Declaration of Human Rights, a person's right to choose a spouse and enter freely into marriage is central to his/her life and dignity, and his/her equality as a human being.

Princess Haya had been living in the United Arab Emirates before seeking asylum in the U.K. It's tempting to think that forced marriage is something that cannot happen in the United States—but this just isn't true.

According to a 2011 survey by the Tahirih Justice Center, as many as 3,000 cases of forced marriage were identified in the U.S. in just two years. A follow-up study spearheaded by The Urban Institute estimated a prevalence rate of over 11% in sampled marriages. Collected statistics show that forced marriage is not limited to any particular group, but does appear to be more common in certain African, Asian, South Asian and Middle Eastern immigrant communities; some non-immigrant communities in the American South; and both immigrant and non-immigrant communities whose members belong to conservative religious groups. According to the U.S. State Department, the risk for entering a forced marriage is highest between the ages of 13 and 30. The majority of victims are women and girls, but men, especially gay and transgender men, are also impacted.

The data on forced marriage in the U.S. is alarming. It also demands us to answer a very central question: Are we in the legal community really doing everything we can to prevent and protect victims of forced marriage?

The Underlying Causes of Forced Marriage

In answering this question, we need to first understand common dynamics in forced marriage. Pressure to marry off children before they reach the age of majority is pervasive within certain communities, and younger people are particularly vulnerable to social pressures imposed by parents and other relatives, as well as by religious or community leaders. Forced marriage can sometimes overlap with arranged marriage, a long-standing tradition in several countries. Couples often happily consent to arranged marriage, but lack of consent can transform such an arrangement into a forced one.

Other reasons for forced marriage include family or community pressure to hide an "unacceptable" sexual orientation, provide cover for another person's residence or citizenship claim, and in some particularly egregious cases, to halt criminal rape or statutory rape investigations. Pressure on both men and women to marry can be especially strong when an unplanned pregnancy is the impetus. Tradition may view marriage as the best solution.

Child Marriage Laws

The main hurdle to protecting victims of forced marriage in the U.S. is the lack of statutory recognition of forced marriage. According to the University of Denver's Human Trafficking Center, only nine states have legal provisions in which the term "forced marriage" is even used. New Jersey is not one of these nine states.

To help outlaw child marriage, many states have revised older laws that permitted minors to marry. Still, loopholes remain. For example, in most states, minors may be allowed to marry with parental or judicial consent, or when they are expecting a child. In 2018, New Jersey became only the second state (after Delaware) to raise the minimum age of marriage to 18 without exceptions (N.J.S. §371-6). While this is a positive step, the law cannot protect a minor from an unlicensed religious or customary marriage, or a marriage performed out of state; nor does the law protect those forced into marriage who are of legal age.

Remedies for Forced Marriage in NJ

Available legal help for forced marriage can feel scattered and not quite the best fit. Depending on the facts, ending a forced marriage in an annulment may be an available option. In New Jersey, annulment allows for alimony and child support, but it does not permit distribution of marital property, which could be disadvantageous to some petitioners.

If a party suffers harm as a result of actions related to a forced marriage, such as marital rape or false imprisonment, a tort claim may be an option. Unfortunately, tort claims tend to be expensive, slow and procedurally complex, all discouraging to victims who may lack access to financial resources. In addition, the "single controversy doctrine" may require a spouse going through a divorce in New Jersey to raise any claim for marital tort in conjunction with the divorce action or risk losing the right to raise it later.

In some cases, the actions intended to force the person into marriage may be criminal (i.e., physically assaulting the victim until they acquiesce to the marriage), but in many other cases, the duress or coercion does not amount to a clear crime. Even when it does, a victim may be loath to turn to law enforcement for help if that would subject family or community members to prosecution. Law enforcement officers also may be reluctant to interfere in situations perceived as family or cultural matters.

In the absence of a statute tailored to prevent forced marriage, some victims might be able to obtain protective orders under New Jersey's Prevention of Domestic Violence Act (N.J.S. §2C:25-17 et seq.). The Act sets out specific protections and allows a court to order "any relief necessary to prevent furtherance of abuse" (N.J.S. §2C:25-29). Among the 19 specific offenses outlined in the Act are kidnapping, criminal restraint, sexual assault, false imprisonment, stalking and terroristic threats.

The Act applies to current or former spouses, household members, dating partners and co-parents (including a future co-parent if one party is pregnant). But there are still loopholes: the category of "dating partner" would not necessarily include a fiancé who is currently either a stranger or a mere acquaintance. And further, unemancipated minors are not protected against current or former household members, and therefore cannot, for example, use the Act against a parent making physical threats or assault to force the child to marry.

The only available action against an alleged perpetrator who is a parent is through the Division of Child Protection and Permanency (DCP&P) (N.J.S. §2C:14-14.b(2). A parent attempting to coerce a minor child into marriage (or any marriage-like relationship) may be guilty of child endangerment under N.J.S. §2C:24-4.

Like law enforcement personnel, child abuse and neglect investigators may have difficultly discerning where the line is between child abuse and a "cultural dispute." Children may also be unlikely to report the matter to anyone outside the family. The new law that prevents a parent from permitting a child under 18 to obtain a marriage license is all the more important in this context. As noted above, however, the power of the state to restrict marriage licenses does not prevent unlicensed marriages or licensed marriages performed in another state or country.

Why NJ Should Emulate the UK's Forced Marriage Policies

As New Jersey law currently stands, there are many gaps in protection from forced marriage. A comprehensive statute is needed to address the complexities of this issue. The United Kingdom acknowledged this in 2007, when it passed the Forced Marriage (Civil Protection) Act, the law Princess Haya is now relying on to protect her child.

Under the Forced Marriage Act, an individual who is being forced, is facing attempts to be forced, or has been forced into a marriage can seek a special forced marriage protective order (FMPO). Threats and psychological coercion are included in the definition of "force." A court can issue an order based on conduct either inside or outside the U.K., and individuals, including minors, can appear on their own or through another individual or a designated agency. FMPOs can restrain anyone directly attempting to force a marriage and anyone who assists, counsels, encourages or conspires with such a person. Appropriate remedies are largely left to the courts and may include prohibitions against planning a marriage ceremony or applying for or using passports to remove a party at risk from the U.K. Orders can also protect third parties, such as current or former dating partners.

Courts in the U.K. consider all the circumstances in making decisions about FMPOs, including the health, safety, wishes and feelings of the person to be protected. This is an important point, as it moves the focus to the needs of victims rather than the intent of offenders. Ex parte relief is available in appropriate emergency situations.

The UK model is one that can and should be emulated. New Jersey has already shown it can take a leading stance in this area with the passage of 2018's marriage age revision. It's time to take another important step forward with more and comprehensive laws that protect consent.

Bari Weinberger is the owner and managing partner of Weinberger Law Group, with offices throughout New Jersey, specializing in divorce and family law. She is certified by the Supreme Court of New Jersey as a Matrimonial Law Attorney.