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Forced Marriage

November 9th, 2018

This year has seen a revolutionary case in which a couple were charged and convicted for the crime of forced marriage – the first conviction since the offence was created in 2014.[1] The mother and father were found guilty of deceiving their daughter into travelling to Bangladesh, where, unknowingly to her, she was to be married to her first cousin.[2] The victim was even threatened with extreme violence after she refused to be married, her father saying he would ‘slit her throat’. 

Sadly, cases such as this are more common than we may think. According to gov.uk, the Forced Marriage Unit reported 930 cases of forced marriage in 2017. 77.8% of these involved women and 21.4% involved males.[3]

However, the conviction has set an encouraging precedent that forced marriage is a serious crime and will be taken as such by the police and Courts. Furthermore, it also brings to light the legal considerations and options for victims who, ultimately, need help to both protect themselves from those who are posing threats and also, where relevant, to end the marriage and its legal consequences.

In terms of countering threats, the law provides protection for victims in the form of a Forced Marriage Protection Order which can be obtained through the Family Courts. These can be obtained to protect anyone who is being forced into marriage or anyone that is already in a forced marriage. An Order applies conditions which, if breached, are punishable by up to five years imprisonment.[4]

Where concerns the ending of the marriage, it is noteworthy that consent is a vital requirement of a valid marriage in England and Wales, and any marriage where one party did not consent will be voidable under the Matrimonial Causes Act Section 12(1)(c). This section provides that consent is not given when in consequence of ‘duress, mistake, unsoundness of mind or otherwise’.

A Court will take into account the source of the pressure, the nature of the pressure and its effect on the petitioner. The source of the pressure could be anyone from the proposed spouse, family members or even the government.[5] The nature of the pressure relates to the threat itself and is where the law recently changed. Previously, there was a very high bar to proving duress in this way and it had to be more than simply an arranged marriage where some parental pressure was applied. Rather, it had to be proven that the individual to be married was threatened with immediate danger to their ‘life, limb or liberty’.[6]

However, the law surrounding duress in this sense changed nearly 40 years ago with an important case which recognises the fragility of people who are being forced into marriage. In the case of Hirani,[7] a 19 year old Hindu woman, who was very dependent upon her family, was told by her parents to stop seeing a Muslim whom she was interested in. She was told that, unless she married a Hindu, she would be forced to leave the family home. The Court ruled that the threat had overborne her will to validly consent. This decision was reached by the Judge considering the effect of the threat – its impact on the individual concerned – rather than the seriousness of it. This decision helps to protect those who are more vulnerable; who may be seen as less likely to be able to resist being pushed into a marriage.

While it is extremely concerning that forced marriage is still occurring in the UK, there is some security in the knowledge that the law recognises the pressing need to treat those who did not validly consent to a marriage differently from those who did. Certainly, if the law was not framed as it is, it would seem perverse to have these persons go through the usual divorce process with no acknowledgement of the fact that they did not both consent to the legal implications or, indeed, to the very foundation of what a marriage represents.

If you or someone you know has been, or is at risk of being forced into marriage, please consult the government page at https://www.gov.uk/stop-forced-marriage for useful links to support services.

For further advice, our team at Hawkins Family Law would be happy to assist and are contactable on 01908 262 680 or by emailing enquiries@hawkinsfamilylaw.co.uk.

 

[1] The Anti-social Behaviour, Crime and Policing Act 2014, S121

[2] The Independent, ‘Couple who tricked daughter into forced marriage in Bangladesh jailed for eight years’ (Harriet Agerholm, 30th July 2018)

[3] Home Office, Foreign & Commonwealth Office ‘Forced Marriage Unit Statistics 2017’

16 March 2018

[4] Family Law Act 1996 S63CA

[5] H v H [1954] P 258

[6] Szechter v Szechter [1971] P 286

[7] Hirani v Hirani (1982) 4 FLR 232

 


 

Written by

Holly Mullen

PA

Having recently graduated with her first class honours degree in law from the University of Bedfordshire, Holly is keen to explore her interest in Family Law. She has previously volunteered with public legal advice services and hopes to eventually qualify as a family Solicitor. Holly joined Hawkins Family Law in August 2017.

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    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

    Talk To One Of Our Legal Experts

    01908 262680

    enquiries@hawkinsfamilylaw.co.uk

    enquiries@hawkinsfamilylaw.co.uk

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