A forced marriage is not the same as an arranged marriage. In an arranged marriage whilst the family take the lead in selecting the partners, the couple have the free will and choice to accept or decline the arrangement. A forced marriage is one where one (or both) the parties are forced to enter into a marriage against their will.
Forced marriages are an abuse of human rights, a form of violence against both men and women and, where it affects children, child abuse and, where it affects those with disabilities, abuse of vulnerable people.
An estimated 8,000 young women each year are forced into marriage. The pressure put on people to marry against their will can be physical, emotional and psychological.
Under the Forced Marriage (Civil Protection) Act 2007, which came into force in 2008, the Court can make an order for the purposes of protecting:-
- a person from being forced into a marriage or from any attempt to be forced into a marriage; and
- a person who has already been forced into a marriage.
This Act applies where a person (A) is forced into a marriage if another person (B) forces them into a marriage without full and free consent. It does not matter whether the conduct of (B) which forces (A) to enter into a marriage is directed against A, B or another person.
A Forced Marriage Protection Order (FMPO) can contact such prohibitions, requirements and restrictions as the Court considers appropriate. By way of example, a Court can make an order:-
- to prevent a forced marriage from occurring;
- to hand over passports or travel documents;
- to stop someone from being taken abroad;
- to stop intimidation or violence;
- for the local authority where appropriate, the police and legal representatives of the person to be protected to have access to that person;
- for the return of the person to be protected;
- for the disclosure of whereabouts of a person
The Court Order can apply within the jurisdiction of England and Wales or abroad, in certain circumstances.
When making a FMPO the Court has to consider various factors before making an order e.g. the need to secure the health, safety and well being of the person to be protected. The Court has to take into account a person’s wishes and feelings in light of their age and understanding.
Under the present law the Court must attach a power of arrest to one or more of the provisions of the Order unless it considers that in all the circumstances of the case that there is adequate protection without such power. The breaching of a FMPC is currently contempt of Court and punishable by up to two years in prison.
At the moment, forcing someone to marry is not a criminal offence but under the Government’s recently announced proposals this will change and it will be a criminal offence to force someone to marry. This will then mean that a person guilty of the offence of forcing another person to marry will be tried through the criminal Courts and, if convicted of the offence, will have a criminal record and could face a period of imprisonment.
There is concern amongst lawyers practising in this field that the change in the law will mean that fewer people will be willing to apply for the FMPO as potentially this could mean that their parent or other relative could be sent to prison and have a criminal record for forcing a marriage to occur.
This article was written by Lisa Tuckwell and Andrea Godfrey, Solicitors in the Family Department at QualitySolicitors FJG. For more information or to book an appointment with us, please get in touch with our experts in our Colchester office on 01206 217575, our Chelmsford office on 01245 890110 or our Clacton office on 01255 323103. You can also email us on email@example.com.