Conflict of Marriage Laws - Consent

Consent

In Western cultures, other than the age of consent, the issue of consent is also considered of fundamental importance and, if it is not freely given, it can prevent a valid marriage from ever coming into existence: see nullity. In Canada, "common law marriages" do not require consent to be recognized and often a stipulated "passage of time in eligible cohabitation" is the only requisite to becoming a formally recognized "marriage". The "capacity to marry" includes the fundamental a priori reasoning that both persons must not be married to others (the exception is Saskatchewan Canada). The only stipulation to this rule of thumb is that both partners must be eligible to marry in the first place. In Islamic law, a nikah contract is not valid if the parties do not consent, although there are differences in juristic opinion about exactly how the consent can be manifested. This supposedly lack of clarity has led some Western cultures to question the general morality of "arranged marriages", often stigmatizing the system as being open to abuse and sometimes leading to forced marriages. In the English case of Szechter v Szechter, Sir Jocelyn Simon P. said that for duress to vitiate a valid marriage, it must be proved that:

• the will of one of the parties had been overborne by a genuine and reasonably held fear;
• this fear was caused by a threat of immediate danger for which the party was not himself or herself responsible, usually amounting to a threat of physical or fatal injury, or false imprisonment.

The test requiring an immediate danger never matched the practical realities facing individuals where the consequences of a refusal to marry might not be immediate, but nevertheless serious. In Hirani v Hirani (1982) 4 FLR 332, the Court of Appeal considered the case of a nineteen year old Hindu woman who was dating a Muslim man. Her parents told the petitioner that unless she married a Hindu of their choosing, she would be ostracized socially from her family and left to fend for herself. Under the circumstances, the Court agreed that the petitioner had acted without full consent in marrying her parents' choice of husband. Thus, it is for the courts of all countries to strike a balance between well-intentioned parental authority to arrange marriages in the face of a reluctant child, and unreasonable threats that would overbear the will of any reasonable person, while maintaining the trust of local communities whose cultures have included arranged marriages for centuries. As to transnational recognition, it will be difficult to disturb the validity of the marriage if no complaint of coercion was made around the time the ceremony was performed in the lex loci celebrationis or immediately the parties entered the state where proceedings were commenced. It would be more usual to use the local divorce system to terminate the relationship.