On Saturday, 4 July 2015, it was revealed that two of the three teenage girls who had travelled from London to Syria earlier this year to join ISIS, were now married.
The Guardian reported that when the girls arrived in Syria they were locked in a compound for widows and would-be brides while their loyalty to ISIS was tested. It is understood that the girls were given a ‘catalogue’ of men deemed suitable for ISIS marriage, from which they selected a husband. This suggests that marriage to an ISIS member was a means of demonstrating their commitment to the organisation. In addition, marriage may have been considered necessary as young, single females are vulnerable to rape and sexual assault.
The girls are now living with their husbands and as a result, hope that they will return to the UK has diminished. But if they do so, will their marriages be recognised by the law in England and Wales?
If a marriage is valid, a divorce is required to dissolve the union and to permit remarriage (unless the spouse has died). If the marriage is void or non-existent, no steps are necessary, as the marriage never existed in the eyes of the law. In contrast, if a marriage is voidable, a decree of nullity must be obtained from the courts. The status of the marriages that have taken place in Syria is dependent upon whether the girls were domiciled in England and Wales or in Syria at the time of the marriages and the question of domicile is a complex one. If the girls are domiciled in England and Wales, their capacity to marry is determined by the law in England and Wales, even though the marriage took place overseas.
S.2 of the Marriage Act 1949 provides that the minimum age for marriage in England and Wales is sixteen and that the marriage of a person under sixteen is void. Two of the three girls are fifteen years old, which means that at least one of the girls has married in contravention of s.2 of the Marriage Act. However, it should be noted that there is no minimum age for marriage under Shariah law, which means that the girls may be considered married within their community: they may therefore need to approach the Shariah courts to have the marriage terminated.
It is possible that one of the girls who has married, is sixteen years old. S.3 of the Marriage Act 1949 requires a person aged sixteen or seventeen to obtain parental consent, but failure to do so does not invalidate the marriage. Although the marriage is not void under English law it may be voidable on the ground of lack of consent due to duress under s.12(1)(c) of the Matrimonial Causes Act 1973. A voidable marriage must be annulled by the court and the petition must normally be submitted within three years of the marriage. This may not be possible in a case such as this, but the courts are willing to declare forced marriages to be non-existent if the victim is not able to petition for an annulment due to the expiration of three years. Again, it may be necessary to contact the Shariah courts in order to ensure that the marriage is terminated under Islamic law.
If the girls are domiciled in Syria, their capacity to marry is determined by Syrian law. The Law of Personal Status 1953 sets the minimum age for marriage at eighteen for males and seventeen for females, but there is judicial discretion to allow marriages of boys aged fifteen and girls aged thirteen. As Syria is a plural legal system which recognises civil and religious laws, the discretion may be applied to accommodate shariah law, which, as explained above, does not contain a minimum age for marriage. It is not evident whether the requisite permission has been obtained, nor is it apparent whether the correct marital formalities were complied with in Syria. The validity of the marriages under Syrian law is thus unclear, but even if they are valid, it is possible that the courts in England and Wales would declare them to be non-existent on public policy grounds, if the girls returned to the UK and applied to the courts for a declaration.
About the author: Dr. Ruth Gaffney-Rhys is a Reader in Law, specialising in Family Law. She is the co-director of the Centre for Gender Studies in Wales.
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