City of Edinburgh Council v S. Forced Marriage in Scotland: The Legal Response
| Date | 01 January 2016 |
| Author | |
| Pages | 86-94 |
| Published date | 01 January 2016 |
| DOI | 10.3366/elr.2016.0326 |
Scots choice of law rules regarding annulment of marriage rest partly on common law and partly on the Family Law (Scotland) Act 2006 (“the 2006 Act”). Common law principle, echoed in the 2006 Act, provides that a forum must analyse the alleged marriage defect, and classify it as pertaining to essentials or form.
The nature and extent of free will necessary to create a valid marriage are matters of substance for decision by the parties' personal law(s). Section 38(2)(b) of the 2006 Act provides the rule on party consent, directing that the question whether a person who enters into a marriage consented to enter into it shall be determined by that person's ante-nuptial domicile.
Subject, however, to the saving in s 38(3).
The rule is supplemented by section 2 of the 2006 Act, which inserts, as section 20A of the Marriage (Scotland) Act 1977, a provision on void marriages solemnised in Scotland: where a party who was capable of consenting to the marriage purported to give consent, but did so by reason only of duress or error, the marriage shall be void. Similarly, where, at the time of the marriage ceremony, a party was incapable of understanding the nature of marriage and of consenting, the marriage shall be void.See also s 20A(4), concerning sham marriages.
As is well known, parties may marry, not with the Scottish requirement of free will, but rather out of a sense of family duty, if that is the pattern or expectation of their cultural background. If a court is satisfied that the threat to, or coercion of, either party to the purported marriage was sufficient to cause the pursuer's will to be overborne and to vitiate his/her consent to marry, decree of nullity will be granted.
E.g.
Forced marriage has been defined as:
Scottish Government
… a marriage in which one or both spouses do not (or, in the case of children and some adults at risk, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure.
For England and Wales, and Northern Ireland,
In respect of which, see
Family Law Act 1996 s 63R.
The 2007 Act has no application to Scotland. For Scotland, legal protection against being forced into marriage has been afforded to “protected persons” by the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (“the 2011 Act”). The 2011 Act was passed by the Scottish Parliament on 22 March 2011 to provide a specific civil remedy for individuals who are threatened with forced marriage, and for persons already in such a marriage. The Act, which came into force on 28 November 2011, closely resembles the 2007 Act.
Part 1 of the 2011 Act enables the Court of Session or sheriff court to make a forced marriage protection order (“FMPO”) for the purposes of protecting a person (adult or child) from being forced into marriage without his/her free and full consent; and to protect a person who has been forced to enter into marriage without such consent.
Section 1(1).
A person (“A”) is regarded as forced into a ceremony of marriage if another person (“B”) forces A to enter into a ceremony of marriage without A's free and full consent.Section 1(4).
Section 14.
Section 1(2) of the 2011 Act is very widely drawn and simply provides that:
In deciding whether to make such an order and, if so, what order to make, the court must have regard to all the circumstances including the need to secure the health, safety and well-being of the protected person.
By section 1(6), “force” is defined as including coercion, by physical, verbal or psychological means, threatening conduct, or harassment; and knowingly taking advantage of a person's incapacity to consent to marriage or to understand the nature of the marriage. The conduct which forces a person to marry need not necessarily be directed against him/her personally.Section 1(5).
A FMPO may be sought by the “protected person” or any relevant third party,
Section 3(1).
or may be grantedSection 4.
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