By Gabriella Chan
Hong Kong, 14 June 2023: Forced marriage is a long-standing issue in Hong Kong. Anecdotal evidence from social workers and NGOs points to it being a recurring problem among certain ethnic minority groups, particularly South Asians, and especially so among lower-income families.
What exactly is forced marriage? Simply, a union in which either or both parties have not given their full and free consent. Child marriage, in which at least one party is under 18, is also considered a form of forced marriage.
There are cultural, educational and social influences behind the practice. In some cases, once parents have arranged a union, those affected are expected to obey to safeguard the family’s reputation or ease financial problems. Refusal can bring threats, intimidation and even physical abuse. In Hong Kong, the problem is complicated by there being no specific law concerning forced marriage.
Hence, the interest surrounding a recent landmark judgment by the city’s Family Court which marked Hong Kong’s first instance of forced marriage nullity.
The case concerned a Petitioner Wife (referred to in court as W) who sought nullity on the ground of lack of consent to her marriage to her Respondent Husband (known as H) in May 2020. W, a 22-year-old Pakistani, came to Hong Kong aged three and lived in public housing with her parents and siblings. She studied at the University of Hong Kong and is now in full-time employment here.
The court was told her family had travelled infrequently to Pakistan. On one such trip, in March 2020, she was told to marry her paternal first cousin. Despite her strong objections, she was placed under immense pressure by her father and relatives. Finally on 29 May 2020, having been beaten by her father with a cane, she conceded to marrying H unwillingly and in fear of further punishment. A Pakistani marriage ceremony was conducted the following day. The marriage was not consummated and W returned to Hong Kong some weeks later without H, who had no right of abode here.
After obtaining legal aid in February 2021, W initiated three proceedings: a petition for nullity in the absence of the Pakistani marriage certificate; application for a non-molestation order under section 3A of the Domestic and Cohabitation Relationships Violence Ordinance (Cap 189) against her father; and another petition based on nullity for lack of consent to the marriage.
Her lawyers took advice to ensure the papers were served in accordance with the law of Pakistan. H replied some weeks later with a letter claiming any nullity decree would be meaningless as W would remain his legal wife under Sharia Law and that Hong Kong did not have jurisdiction to rule on the matter. Thereafter, he took no further part in the proceedings.
W’s application was pursuant to section 20(2)(c) of the Matrimonial Causes Ordinance (Cap 179), which declares a marriage shall be voidable if it is found that either party did not validly consent to it as a consequence of duress. Her counsel, Azan Marwah, guided the court to the landmark English case on the matter, Hirani v Hirani [1983] 4 FLR 232(CA). The court noted H had not filed any formal papers in opposition to the application despite being given opportunity to do so.
In granting a decree nisi of nullity, Her Honour Judge Thelma Kwan remarked: “[W’s] will was overborne by genuine and reasonably held fear of physical harm, and her agreement to the marriage was overshadowed by this fear so as to ‘destroy the reality of her consent’.’
In summary, as noted by counsel Mr Marwah, the judgment marks the first time the Family Court has exercised jurisdiction over a religious Muslim marriage from a Sharia country. It also shows that while the problem of forced marriage continues in Hong Kong, in relatively isolated circumstances, those who fall victim to it may – if they can summon the courage – find legal recourse.
Gabriella Chan is a Senior Associate with BC&C. She focuses her practice on Family Law, being proficient in a wide range of matters arising from the matrimonial context, and is also active in the Hong Kong Family Law Association. She can be contacted at Gabriella@boasecohencollins.com.
