Addressing extraterritorial jurisdiction

  • Drafters should be aware that prosecuting forced marriage offences may cause perpetrators to remove women and girls to a third country for purposes of forced marriage. Should drafters choose to criminalize forced marriage, they should make provision for the extraterritorial application of the law. Similarly, governments have changed their laws to confer jurisdiction over FGM crimes committed by their citizens or permanent residents in other countries. (See: Female Genital Mutilation) Laws should allow for the prosecution of any citizen or permanent resident who commits or assists in bringing about forced marriage in another country, or assists another person in bringing about the forced marriage of a victim, who is a citizen, in another country.
  • Drafters should review civil laws recognizing marriages that take place outside of the country. When granting legal recognition of a marriage contracted in a foreign country, laws should require the free and full consent of both parties to the marriage. 

Promising Practices:

Norway promulgated new rules governing marriages outside of Norway when at least one of the spouses is a Norwegian citizen or permanent resident. A marriage that takes place outside of Norway will not be recognized in Norway if:

  • One of the parties is under the age of 18 at the time of the marriage;
  • The marriage is entered into without both parties being physically present during the marriage ceremony, e.g. a marriage by proxy or telephone marriage, or;
  • One of the parties is already married.

If any of the conditions are met, the couple may be denied family reunification to live in Norway. Basing the spouses’ ages on the time of marriage, rather than the application for family reunification, is an important safeguard against child marriages. The rules are available in Norwegian, English, Somali, Sorani, Arabic and Urdu.

Tunisia: Policymakers should work with other ministerial bodies when publishing guidelines concerning marriage contracts. Such guidelines should require public officials to inform women who intend to marry foreign men of their right to include clauses in their marriage contract to better protect their interests and human rights. Tunisia’s Ministry of Justice issued recommendations to Civil Status Officials to inform Tunisian women of the option to provide conditions in their marriage contract prior to marrying a man of foreign nationality. (See: Conditions, Not Conflict: Promoting Women’s Human Rights in the Maghreb through Strategic Use of the Marriage Contract, Global Rights, 2008, p. 27)