Recent reports of under-age marriages in Australia are evidence that the authorities need to do more to enforce marriage laws in Western nations, and in particular to restrict the practice of unregistered 'clandestine' religious marriages, particularly Islamic marriages.
Two cases recently came to public attention of NSW girls being married to older men in unregistered religious ceremonies, allegedly with the approval of their guardians. The first case was of a 14-year-old girl who reported she was deceived into marrying a 21-year-old. After being subjected to years of sexual and physical abuse she fled the relationship. Her case came to light in October, 2013, when she needed to pursue custody of her daughter through the courts.
The second case was of a 12-year-old married to a 26-year-old overseas student by her father, an Australian-born convert to Islam. Imam Riaz Tasawar, who allegedly conducted the ceremony, has been charged by the police, which is remarkably the first prosecution in NSW for at least 20 years of someone for solemnizing a marriage without being an authorized marriage celebrant. The father has also been charged with procuring his daughter for sexual intercourse and being an accessory to a sexual offence against a child.
The Daily Telegraph has reported an 'epidemic' of young girls becoming 'child brides' or being in de facto relationships in NSW. The state Community Services Minister, Pru Goward, commented "I understand there are actually a significant number of unlawful, unregistered marriages to under-aged girls in NSW, particularly in western Sydney, southwest Sydney and the Blue Mountains."
The Australian Marriage Act 1961 (paragraph 101) makes it a crime for anyone to conduct a marriage without being authorized by the state. It is also an offense for an authorized celebrant to conduct a marriage without receiving proper notice of intention, ensuring on the basis of the information provided that the parties are eligible to be married, and registering the marriage with the state.
It is crystal clear from the legal history of marriage's evolution in the West that the reason for public registration of marriages was to protect vulnerable women — and their children — from predatory and dishonest men. As Sir Roger Ormrod stated in Collett vs. Collett ), "The control of the formation of marriage in this country has a long statutory history, much of it intended to prevent clandestine marriages:" marriage laws were designed to to guarantee that marriages, through public registration, met minimum legal requirements in order to prevent abuses against women.
The public registration of marriages was first introduced in Western jurisdictions through canon (i.e. church) law: the Council of Trent ruled in the 16th century that a wedding must be preceded by public notices read out in church services; there had to be at least two witnesses; and an official wedding register had to be maintained. These provisions were justified on the grounds that 'clandestine' (unregistered) marriages put women at risk of exploitation.
In England registration of marriages was enforced by the state in the Marriage Act of 1753, which was formally titled "An Act for the better preventing of clandestine Marriages". The whole focus on this law was the prevention of private marriages – which had become a scandal in England – and again the reason given was the protection of women. Severe penalties were provided for clergy who solemnized illegal marriages.
In the light of the history of marriage laws, it is hardly surprising that one result of neglect in enforcing them would be a rise in exploitative, abusive relationships which disadvantage women, including forced and underage marriages. The Australian Islamic underage marriages which have attracted so much recent attention are but the tip of the iceberg of unregistered religious marriages across Western jurisdictions.
The practice of conducting unregistered religious ceremonies has become so widespread that in some cases those who solemnize or are a party to illegal religious marriages may not even be aware that they are committing an offence. When a former Muslim told me recently about his unregistered marriage in Australia, entered in to while he was still following Islam, he was shocked to learn that the marriage had most likely been illegal.
The proliferation of unregistered religious marriages in recent years is a sign that the Australian authorities need to do much more to enforce the provisions of the Australian Marriage Act.
In the wake of the recent cases, it was to the credit of the Australian National Imams Council that it was outspoken in rejecting underage marriages. However the Imams should also have spoken out against unregistered marriages, because it is a culture of unregistered unions which is placing Australian women and girls at risk of exploitation through forced and underage marriages. The whole point of registration has always been to help prevent such abuses.
The Imams Council also stated that 'any religion … should not be held accountable for violations by its followers.' It could be objected that many Islamic authorities have argued that the marriage of young girls is permissible in Islam. However this is beside the point: for the authorities it ought to be irrelevant whether a particular religion's teachings condones the marriage of young girls or forced marriages: the point is that these practices should not be tolerated in Australia, irrespective of what particular religions may or may not teach.
It is not just Muslims who are engaging in unregistered marriages in Western jurisdictions. The unregistered polygamous marriages of some Mormon sects present serious challenges for the authorities in the United States; Melbourne academic Sheila Jeffries in Man's Dominion has criticized a growing polygamous trend on the fringes of American protestant Christianity; and UK courts have also had to deal with the issue of unregistered Hindu marriages.
In the UK Muslim leaders have become concerned about the trend for Islamic unions not to be registered, because of the impact this has upon women. According to muslimmarriagecontract.org, a project of the Muslim Parliament of Great Britain, "it is clear that many thousands of [Muslim] couples, for one reason or another … are only in what is locally known as a nikah – a marriage that is not accompanied by a civil marriage and is therefore not recognized by the law in Britain. It is equally clear that this lack of proper legal status often results in problems for the couple and suffering, especially for the woman…" The site contrasts the situation in the UK with Canada, where Muslims 'almost always' register their marriages with the state.
The UK has badly mismanaged the issue of non-Christian religious marriages for decades. Although it is a felony in England to solemnize a marriage without meeting the requirements of the Marriage Act of 1949, Islamic marriages have proved to be beyond the reach of the law. In a key legal decision from the 1960's (R v Bham), a court of appeal ruled that a Mr Bham, who solemnized an unregistered Islamic marriage with a Christian woman, was not in violation of the English Marriage Act because the ceremony was not "a marriage of the kind allowed by English law" (see here): in effect the court found that because the union was not a Christian one, or purporting to be like a Christian marriage, it was not actually a 'marriage' at all, which had the effect that its solemnization was not regulated by the state.
A series of English rulings have reinforced this approach (see the review here). For example in Gandhi vs Patel  Judge Park decided that a
"Hindu ceremony did not give rise to a 'void marriage'. Rather it created something which was not a marriage of any kind at all, not even a marriage which was void. It might be described as a 'non-marriage' rather than a void marriage. … In the present case the Hindu ceremony … purported to be a marriage according to a foreign religion, and it made no attempt to be an English marriage within the Marriage Acts."
In a similar vein, in AAA v Ash  it was accepted by the court that an Islamic marriage held in a mosque was a non-marriage in English law: English law distinguishes between a valid marriage and a 'void' marriage – both of which are regulated by the marriage laws – and 'non-marriages' which fall outside the scope of the law.
Such legal decisions were only possible because English marriage laws are constructed around the marriage ceremonial of the Church of England and its Christian understanding of marriage. The outcome is that in the UK today Christian marriages are far more rigorously controlled by the state than Islamic marriages.
In A-M vs A-M  Judge Hughes commented that if the parties to a religious marriage were all fully aware that it was polygamous, then this could mean that "it in no sense purported to be effected according to the Marriage Acts, which provide for the only way of marrying in England." In other words, solemnizing a religious polygamous union in the UK would not be in breach of the marriage laws if the parties all understood that the union was not a legal marriage as defined by English law! This strays a long way indeed from the intended purpose of the marriage laws.
To treat Christian and non-Christian marriages differently disrespects non-Christian religions because their unions are considered 'non-marriages,' and not even 'void' marriages. More importantly, it puts the women who enter such unions at risk because the failure of the state to regulate their marriages makes them vulnerable to the very abuses which the centuries-old marriage laws were meant to to prevent.
It was the Islamic character of the ceremony which proved critical in the appeal's court decision in R v Bham that no 'marriage' had taken place, and thus there had been no felony of conducting an unauthorized solemnization of a marriage. Such legal decisions have been detrimental to the state of marriage in England. By declaring certain religious marriages to be beyond the regulatory power of the marriage laws, they have validated the proliferation of unregistered religious ceremonies. This has helped foster a culture of non-registration of (non-Christian) religious marriages which, through the privacy of such unions, can serve to conceal and validate abuses such as underage marriages and polygamous unions.
It remains to be seen what the outcome will be in the prosecution of Imam Riaz Tasawar in New South Wales. Will the union in question prove to be a 'void' marriage and thus against the law, or a 'non-marriage' and thus outside the scope of the law? A crucial difference is that, in contrast to the English situation, Australian marriage laws are not tied to the concept of a state church or any particular religion, so there is a much sounder basis for prosecution than there would be in the UK. In any case against Imam Riaz Tasawar will be an important test of Australia's apparently neglected marriage laws.
The central place of the established Church of England in the English Marriage Act of 1949 has attracted a good deal of recent attention in the deliberations of the English Parliament over revising marriage laws to allow same-sex unions. The debate has focussed on the tension between parliament's intention to change the marriage laws on the one hand, and the Church's rejection of same-sex unions on the other. A pressing question for the UK is whether the interests of vulnerable women and children would be better served by decoupling English marriage laws from a particular religion altogether, so that all religious marriage ceremonies can be placed on an equal footing under the one law, and Islamic marriages in particular can be regulated to the same extent as Christian or secular marriages.
If this were to happen, a key issue would be what constitutes a marriage. The comment of a 1973 Law Commission report on marriage laws in England and Wales is no less relevant today: "Unfortunately, the Act gives little indication of what are the minimum requirements of a form known to and recognised by our law … as capable of producing … a valid marriage."
Since the ceremonies of the Church of England can no longer be taken to be the yardstick by which a 'valid marriage' is defined – a situation which has become even clearer with the extension of marriage in England and Wales to same-sex couples – it should become a matter of some urgency for UK legislators to construct an agreed definition of marriage which will encompass non-Christian religious unions, so as to ensure there is equal protection afforded by the marriage laws to women in non-Christian marriages, and to allow the prosecution of those who conduct unregistered religious ceremonies.
There has been a great deal of debate in Western states about the function and purpose of marriage in recent years, much of it around same-sex unions. What is often forgotten is that the public registration of marriages, developed over centuries, was always intended as a device to prevent men from abusing women – and their dependent children – through poorly documented relationships. The recent rise in forced and underage religious marriages in Australia, and in other Western jurisdictions, underscores the need for greater vigilance on the part of the authorities to uphold and strengthen marriage laws. We can all learn a lesson from the shambolic failure of UK marriage laws to provide reasonable protection for women in non-Christian religious marriages.
It is concerning that in NSW no-one has been prosecuted for conducting an unregistered marriage in at least 20 years. It is equally troubling that despite the intense efforts devoted to extending marriage to same-sex couples in the UK, nothing has been done to bring non-Christian religious marriages under the scope of the marriage laws. This is despite the fact that the reasons for the state to enforce marriage laws through a transparent system of public registration by properly authorized celebrants are no less valid today than they were in centuries past. Not to do so is a failure of compassion. Why should women in Islamic marriages be treated as second class citizens, with fewer rights before the law than women in Christian or secular non-religious marriages?
Mark Durie is a Shillman/Ginsburg Writing Fellow at the Middle East Forum.