I thank the noble Lord and the noble Baroness for their interventions and will return to that point before I conclude my comments. The point is well made and understood, but I will continue while I await clarification. My understanding on this issue is that any person taking part in a marriage would have to give their consent. The view is
that, if no consent is given, it would not be deemed to be a valid contract. However, as I said, I will clarify that point in a moment.
I turn to Amendments 87A and 87B tabled by the noble Baroness, Lady Tonge. I shall explain that these amendments relate to the process by which a young person aged 16 or 17 may consent to the marriage. Following the Committee stage, I have had the opportunity to meet the noble Baroness and I welcome the opportunity again to discuss this important issue today. These amendments would make it an offence for the parent or guardian to consent to a marriage of a person or persons before the age of 18 unless the written consent of both parties to the marriage has been obtained. The offence would also extend to marriages contracted outside the UK.
I understand that the noble Baroness is concerned that under the current law parents may give consent to force marriage on a 16 or 17 year-old who may not wish to marry. However, I do not believe this amendment is necessary because the law already provides adequate safeguards for children who are aged 16 to 17 and are entering into marriages.
The law in England and Wales, as contained in Section 2 of the Marriage Act 1949, provides that if a marriage, be it civil or religious, is solemnized and either or both of the parties is under the age of 16 that marriage will be void. If the child is aged 16 or 17, Section 3 of the Marriage Act 1949 requires the consent of the child’s parents or guardians, unless the child is a widow or a widower.
I appreciate that Amendment 87A seeks to add additional safeguards to the current law rather than preventing the marriage of 16 and 17 year-olds outright. However, I consider that the additional need for the written consent of parties is unnecessary. If any person is forced into a marriage without their consent, the provisions in this Bill which will make it a criminal offence to seek to force someone to marry will apply regardless of the age of the party concerned. In addition, any forced marriage would be voidable under Section 12(c) of the Matrimonial Causes Act 1973 on grounds of lack of valid consent.
If someone is being forced into marriage, it is foreseeable that they could be forced to provide written consent. Therefore, I do not believe that this provision would achieve the noble Baroness’s desired effect of preventing forced marriages. However, I understand totally the noble Baroness’s concerns and I share her desire to ensure that we do everything we can to protect 16 and 17 year-olds—as well as others—from forced marriage. In regard to the points made by the noble Baroness, I will keep the provisions in the Bill under review and, as we have previously discussed, consider the issue of how the legislation is currently drafted to see whether there is something more that we can return to at Third Reading.
Turning to the application of such a provision to marriages contracted outside the United Kingdom, there is no legislation in England and Wales on this issue and matters of recognition of such marriages in England and Wales are for the courts to determine. However, I consider that the courts already have the necessary powers to provide adequate safeguards for children entering into marriages outside the UK. Generally
speaking, the validity of a marriage contracted outside the UK will be governed by the law of the country in which it was contracted. However, if there were questions as to the capacity or age of one or both parties to such a marriage, the courts in England and Wales could refuse to recognise the marriage for the purposes of England and Wales law.
I therefore consider that the need for the written consent of parties is unnecessary in respect of marriages contracted outside the UK. We also do not believe that applying this sort of provision to marriages contracted outside the UK would be practical or appropriate. For example it would, in our view, be extremely difficult to enforce.
Finally, I turn to Amendment 87B, which seeks to make identical provision to Amendment 87A in respect of Scotland. This is a devolved issue, as the noble and learned Lord, Lord Hope of Craighead, underlined.
Perhaps I may turn to the issue just raised on Section 109. The Forced Marriage Unit carried out a full review of the cases dealt with in relation to victims with learning disabilities and mental health issues and could not find any cases in which there was no element of coercion. Where there is an element of coercion, we do not wish to criminalise the behaviour concerned. Rather, the appropriate recourse is for the individual to apply to the court for the marriage to be declared void under Section 12 of the Matrimonial Causes Act.