Prison for “husband” in under-age marriage

It has just been reported that a 27-year old man has been jailed here in Australia for 10 years after pleading guilty to “persistent sexual abuse of a child”. The man, from Lebanon, had seen a 12-year-old at his local Newcastle mosque and began “pursuing” her to marry her. The leaders of the mosque he attended quite rightly told him that they would not perform the ceremony, as it was illegal under Australian law, but he managed to find another self-described “cleric”, Sheikh Muhammad Tasawar, an Iranian based at a different mosque, who agreed to perform the “ceremony” at a local house. Disgracefully, the girl’s father agreed. The man took his “bride” to Sydney and had sex with her on a number of occasions.

I commented about this case in a press report in February 2014, when at the time it had been reported that the “groom” had been arrested but there was no mention of the liability of the “cleric”. I noted at the time:

Section 100 of the Marriage Act 1961 makes it an offence for a person to “purport to solemnise a marriage, if the person has reason to believe that there is a legal impediment to the marriage or if the person has reason to believe the marriage would be void.” Anyone who carried out a wedding ceremony involving a 12 year old girl in Australia would have “reason to believe” that the marriage would be void, as they would be aware of the age of the child. They should be aware because s 42 of the Act requires a “notice of intended marriage” to be provided, which must be accompanied by a birth certificate for each of the parties. Section 99 of the Act also makes it an offence for an “authorised celebrant” to solemnise a marriage without requiring such a notice.

As it turned out, even on the day my opinion piece was published (so that I can’t take credit for it!), the police had already arrested the cleric. The latest article notes that

In March 2014,  Tasawar, 35, pleaded guilty to the offence of solemnisation of a marriage by an unauthorised person. He was fined $500 and his religious leader visa was cancelled.

The sentence of the husband was not for his breach of the Marriage Act 1961, although as I noted he had indeed breached that Act. But it seems a sensible decision to charge him, as was done, with the more serious offence of sexual relations with a minor. Sadly the report notes that the 12 year old girl was later hospitalised with an ectopic pregnancy, and miscarried. It is good to see that the court handed down a serious sentence for this terrible behaviour.

I concluded my previous note as follows:

Is this an interference with the right to free exercise of religion? Yes, it is to some extent. The right to religious freedom is a fundamental and important right, recognised in international law under Article 18 of the International Covenant on Civil and Political Rights, to which Australia is a party. Religious freedom under Commonwealth law is also recognised by the important s 116 of our Constitution. But all those provisions are read subject to the importance of balancing out other rights. And in Western societies for many years, the right of a child not to be pushed into an early marriage and sexual relations has been recognised as a good and proportionate reason for qualifying religious freedom.

The authorities in Australia should be concerned if any religious group is conducting “marriage ceremonies” leading to relationships that are not regarded as valid marriages under Australian law. Doing so only leads to confusion and heartbreak when the consequences of the ceremony are not as people may have thought. Leaders of religious groups and authorised celebrants need to be very clear when any ceremony they conduct “looks like” a marriage service but cannot lead to a recognised marriage under the law of Australia. As well as the under-age “marriage” involved here, another example would be a ceremony conducted purporting to allow someone to take more than one wife in polygamy. The law of Australia does not allow a polygamous marriage to be entered into in this country, or by people who usually live here who might resort to other jurisdictions to evade the Australian law.

It is good to see that leaders of the major Islamic organisations have unreservedly condemned the alleged “marriage”. But individual celebrants, or those acting as celebrants, who are found to be conducting such ceremonies should be prosecuted to send a clear message about the law, and in the interests of the vulnerable children or women who may be harmed by entering what they think are marriages, but are not.

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