There are many instances where a marriage can be voidable (set aside) or ‘void’ where the marriage is treated as though it has never taken place. Examples include non-consummation of marriage, due to either inability or wilful refusal. There are other reasons relating to unawareness that the bride is already pregnant or that one party has a serious STD. More commonly, these days, it may be that one of the parties may not have the legal capacity to consent to the union or may be entering it under duress or have suffered undue influence.
The latter appears to relate to the recent case highlighted in the Daily Mail involving a sixteen year old girl who had the protection of a Court Order which banned the arrangement of her marriage. The Order was backed by a Power of Arrest. It is alleged that, in spite of the Court Order, the girl was forced to marry a man she had met only once under a threat from her father to kill her (which would apparently be explained as suicide) if she refused to comply. She is reported to have turned up at a local police station in her pyjamas on her wedding night in a distressed state.
The Forced Marriage Unit (FMU) is raising awareness about forced marriages across the public sector to professionals and lay clients alike. Marriage shall be entered into only with the free and full consent of the intending spouses (Universal Declaration of Human Rights, Article 16(2)). FMU goes on to say that No marriage shall be legally entered into without the full and free consent of both parties and a woman’s right to choose a spouse and enter freely into marriage that is central to her life and dignity and equality as a human being (Recommendation 21 Comment Article 16 (1) (b) UN Convention on the Elimination of All Forms of Discrimination Against Women).
This unfortunate 16 year old lady is due to appear in Court where, presumably, the persons alleged to have threatened her and organised the marriage despite the Court orders and powers of arrest will have to account for their actions. Duress includes actions perpetrated against a victim for physical, psychological, sexual, financial or emotional reasons and such pressure tends to be consistent and wholly unacceptable. In 2008 over 1,600 cases in the UK were reported involving South Asian and other families. It is important to remember that many go unreported. This often starts when the victim is quite young when during school there are often prolonged absences that are not properly explained, requests for extended leave, with the victim showing anxiety as the school holidays and breaks come nearer. Often they are not allowed to join after-school activities or forge a friendship with other children or their families. This can result in self-harm, feelings of depression and isolation and can result in unreasonable restrictions at home. Incidents as being beaten by a parent for ‘looking at a boy’ can often result in confiscation of a mobile phone and being forced to go back to the originating country often to meet the prospective ‘husband’.
If the victim is a British National and also holds the nationality of another country, they are considered a dual national. This may mean that in the country of their other nationality the authorities there may view them as being solely or primarily nationals of that country and treat them accordingly. This could mean that the authorities there will not recognise that the British Embassy or High Commission has any right to assist them or may not permit any assistance to be given. However where it is considered there are humanitarian grounds, there are usually offers of assistance to dual nationals in the country of their other nationality. Forced marriages are one of the instances where assistance is usually given if there is a danger to the victim or their welfare.
In such cases the police need to be involved as soon as possible to ensure no crime is or has been committed and a solicitor seen also as quickly as possible. They can assist in obtaining Court orders or injunctions or both so that ward ship proceedings can be entered into under the inherent jurisdiction, assuming the case meets the criteria. Young people can be rescued by the British High Commission to live somewhere suitable where they are not in an oppressive or dangerous situation, like a sympathetic relative. Victims of intended forced marriages or ones that have been carried out can gain protection and relief from the legislation ‘Forced Marriage (Civil Protection) Act 2007, additionally.
By Family Law Solicitor Caroline Harvey.