Family Law: Forced Marriages in Scotland

The Scottish Parliament passed the Forced Marriage etc (Protection and Jurisdiction)(Scotland) Act in 2011. The general purpose of the act is to protect people from being forced to marry without their free and full consent as well as to provide remedies for those who have been forced into marriage. This article explores the definition of Forced Marriage, how the Forced Marriage Act works, the purpose of Forced Marriage Protection Orders and how we can help.

What is a Forced Marriage?

Firstly it is important to understand what is meant by a Forced Marriage. A Forced Marriage is a marriage in which one or both spouses do not (or, in the case of children/young persons/adults at risk, cannot) consent to the marriage due to duress. Duress can include physical, psychological, financial, sexual and emotional pressure, threatening conduct, harassment, threat of blackmail, use of deception and other means. In this context force includes knowingly taking advantage of a person's incapacity to consent to the marriage or their inability to understand the nature of the marriage. Duress may be applied by the person's parents, other family members or indeed the wider community.

It is important to differentiate between a Forced Marriage and an arranged marriage and the two should not be confused with one another. An arranged marriage is one in which third parties, be it family members or members of the wider community,  take a  role in introducing the parties and arranging the marriage but the prospective spouses have the choice of whether or not to accept the arrangement. However, if the prospective spouses were to change their minds and they are forced into the arrangements, this would be considered a Forced Marriage.

A Forced Marriage is often associated with other forms of domestic abuse and "honour - based violence". The term "honour - based violence", "honour crime" and "Izzat" embrace a variety of incidents and offences of violence, including physical abuse, abduction and in extreme cases murder, where the person is being punished by their family or their community. Victims are punished for actually, or allegedly, "undermining" what the family or community believes to be the correct code of behaviour. "Honour - based violence" is often considered by the perpetrator to be justified in order to protect or restore the "honour" of the family.

"I felt I had no option. Once they have taken me out of the country there was nothing I could do. I had no contact with anyone but my family. My mother was caught between my feelings and the community's expectations. They had made me feel that I would dishonour my family if I didn't marry him." Anonymous

Victims of Forced Marriage are usually women but men can be victims too (often adults with learning or physical disabilities). People with physical and learning disabilities may be forced into marriage by families wanting to ensure their long-term care.

"People don't realise that men can also find themselves in this situation. I don't know if I could have told anyone even if I had the chance to. Its not exactly macho, is it, admitting that you were held hostage by your family and forced to marry someone you had never met…" Anonymous

Lesbian, gay, bisexual and transgender (LBGT) people can also be affected. Perpetrators often force LBGT victims into marriage to conceal the victim's sexuality. LBGT victims are forced to marry because their families disapprove or refuse to accept their sexuality. The impact for many LBGT victims is twofold. They not only experience a sense of loss from the rejection or ejection by their family and possibly the wider community, but they may also be struggling to come to terms with their sexual orientation without love, support and guidance which parents may have offered previously.

"My family were shocked and very angry when they found out I was gay. They were violent towards me and called me names…I felt guilty that I had caused them pain and let them down. They made me feel as if I owed them. They really believed that if I married who they wanted, I would stop being gay." Anonymous

While it is important to be aware of the motives which drive some to perpetrate Forced Marriage, it should not be accepted as justification. There are no excuses.

How the Forced Marriage Act works

The Forced Marriage Act is a relatively new piece of legislation and came into force on 28^th November 2011. The main provisions of the Act are:

• To protect people from being forced to marry without their free and full consent.
• To protect those who have already been forced into marriage without consent.
• To clarify the authority of the Sheriff Court for annulling (declaring invalid) such marriages.
• To introduce Forced Marriage Protection Orders (FMPO) to protect people being forced to marry or have already been so forced.
• To allow the following categories of persons to apply for an FMPO: The victim, anyone on behalf of the victim, as long as they obtain the court's permission to make an application or a "relevant third party" who can apply on behalf of the victim but does not need to seek leave of the court. Relevant third parties are defined as a Local Authority, the Lord Advocate, and any other person specified by the Scottish Ministers.
• To allow the court to grant a FMPO as part of other civil/criminal proceedings.
• To make it a criminal offence to breach an FMPO.

Forced Marriage Protection Orders - what they do

FMPO's are designed to prevent the Forced Marriage from occurring or to offer protective measures when a Forced Marriage has taken place. The court's powers are wide ranging allowing the court to tailor the terms of the Order according to the specific needs of the victim. Examples of the types of conditions that may be specified within a FMPO are:

• To stop the protected person from going through the marriage ceremony.
• To hand over to the court documents such as passports, birth certificates and travel documents.
• To stop violent, threatening and intimidating conduct.
• To disclose the whereabouts of a victim.
• To stop someone from being taken to a specific place in Scotland or the UK, or abroad.
• To facilitate or enable a person to return to Scotland within a specified period.
• To allow the protected person to be taken to a place of safety designated in the Order.

Orders may also be made against third parties who are not named as respondents in the application. These can be third parties who are not directly involved but are aiding, abetting, counselling, encouraging or assisting another person to force, or to attempt to force, a person to enter a marriage. The FMPO will last as long as required. The court can also make an interim order if necessary.

Breach of an FMPO is a criminal offence and punishable by imprisonment for up to two years and/or a fine of up to £10,000.00. The police may arrest without warrant any person whom they have reason to believe is committing or has committed a breach of an FMPO (not just a person named on the order).

Ending a Forced Marriage

Depending on the circumstances of the marriage, a Forced Marriage may be legally valid until the court grants a decree of divorce or a declarator of nullity. In other cases, a marriage may never have been legally valid in the first instance and a party to that marriage may wish to seek a declarator of nullity to put the position beyond doubt and to show that the marriage never existed. In such circumstances legal advice should be sought.

How we can help

Our Sheriff Court Department and Family Law Team are experienced solicitors who can assist you. We can act on behalf of victims and/or relevant persons who may find they need to raise a Forced Marriage Protection Order. We offer a safe and quiet environment with complete confidentiality. We have practitioners who are fluent in other languages including Urdu and Punjabi. We can also act in relation to applying for various other civil orders to protect those threatened with, or already in, a Forced Marriage. We have experience in other civil remedies which may be a suitable alternative to a FMPO but would still offer protection or assistance to a victim, such as:

• A common law Interdict with Power of Arrest under the Protection from Abuse (Scotland) Act ("the 2001 Act").
• An Interdict or Civil Non-Harassment Order under the Protection from Harassment Act 1997.
• A matrimonial Interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 with Power of Arrest under "the 2001 Act".
• A domestic Interdict under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 with Power of Arrest under "the 2001 Act".
• An Exclusion Order under the Matrimonial Homes (Family Protection) (Scotland) Act 1981.
• A "Domestic Abuse" Interdict with a Power of Arrest under Domestic Abuse (Scotland) 2011 with a Power of Arrest under the 2001 Act. Breach of such an order is a criminal offence punishable by a fine or imprisonment or both.
• A Declarator of Nullity of Marriage (that the marriage is void meaning that it is considered legally never to have existed). This can be obtained in the Sheriff Court under the Forced Marriage etc (Protection and Jurisdiction) (Scotland) Act 2011.
• Divorce. A spouse can apply for a divorce if the marriage has broken down irretrievably: this can be with or without the consent of the other spouse. Exclusion Order after Divorce under section 14(ii) (d) of the Family Law (Scotland) Act 1985.

If you wish to discuss the above in more detail and in complete confidence please contact our switchboard on 0131 226 5151 and ask for a member of the Family Law Team.