The Forced Marriage (Protection and Jurisdiction) (Scotland) Act 2011, which came into force on 28th November 2011, provides a specific civil remedy for those threatened with forced marriage and for those already in such a marriage. The court may make an order for the purposes of protecting a person from being forced into a marriage or from any attempt to force the person into a marriage. The objective of the legislation is to ensure that people who are eligible to marry or enter a civil partnership have the right to do so freely and without coercion and to protect citizens from pressure, harassment or threats aimed at forcing them into a marriage or civil partnership, which they have not consented to, or which they are not capable of consenting to. Breaching such an order is a criminal offence, punishable by a fine, an up to two-year prison sentence, or both.
A Forced Marriage is defined as a marriage which takes place without the full informed consent of either or both parties. The Forced Marriage Statutory Guidance 2014 clarifies the definition and states that "the element of force can include coercion by physical, verbal or psychological means, threatening conduct, harassment or other means, and/or by knowingly taking advantage of a person's incapacity to consent to marriage or understand the nature of marriage". It is important to distinguish between a forced marriage and an arranged marriage. In an arranged marriage, families take the lead in selecting a marriage partner but the couple have the free will and choice to accept or decline the arrangement.
Drummond Miller recently acted for one of the opponents in one of Scotland's first ever cases regarding the application or interpretation of the Forced Marriage Etc. (Protection and Jurisdiction) (Scotland) Act 2011. This case was in relation to an application by Edinburgh City Council for a Forced Marriage Protection Order, where they believed that there was a significant risk that the "protected person" would be forced into a marriage or that an attempt would be made to force her into marriage by the opponents. The Council believed that there was clear evidence of the significant risk.
Section 1(2) of the 2011 Act is very widely drawn and simply provides that 'the court must have regard to all the circumstances including the need to secure the health, safety and wellbeing of the protected person'. On the basis of the evidence, the Sheriff found that there was no reliable and credible evidence to support the application made by the Council. The Sheriff was not persuaded that the orders sought by the Council should be granted. The judgement is likely to be scrutinised and analysed for any future applications.
If you wish to know more about Forced Marriage Protection Orders, or indeed if you need advice in this area, then please do not hesitate to contact a member of our Family Law Team.
The Drummond Miller Family Law Team is extremely experienced in dealing with all aspects of Family Law including separation and divorce, financial matters and issues regarding contact and residence of children. If you would like further information and advice please get in touch with our experienced Family Law Solicitors in Edinburgh, Dalkeith, Musselburgh and Bathgate.