Do we all have the basic right to choose to marry?

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Some would say this is a given. But, unfortunately, in some cultures, it is not. The law now finally offers protection to those who are most vulnerable in these circumstances.

The Forced Marriage (Civil Protection) Act 2007 in force from 25th November 2008 has been inserted into the Family Law Act 1996 as a new part 4A. A court order made under this section can protect anyone from being forced into marriage, any attempt to be forced into marriage, or already forced into a marriage.

To clarify, forced marriages differ from arranged marriages; at least one party does not consent to a forced marriage and there is some element of duress which may be physical and/or emotional.

The order the court can make is known as Forced Marriage Protection Order (FMPO). The court must consider all the circumstances of the case including the need to secure the health, safety and wellbeing of the person being protected. The court therefore must consider that persons wishes and feelings. The court order may contain such restrictions or requirements as the court considers appropriate.

The court order can be far reaching in that it can relate to conduct anywhere in the world. The court order can also affect third parties who are involved in the forcing of the marriage.

The act itself only creates civil remedies. The civil standard of proof applies to FMPO applications. However, like many family court orders, breaches of such order must be established to a criminal standard.

The court has the power to make a FMPO on application or on its own initiative if it believes such protection is required through hearing any other family application. An application for a FMPO can be made without notice to the other party.

Instead of a FMPO being made by the court, an undertaking can be accepted by the court but a power of arrest cannot be attached to it. However, an undertaking cannot be accepted if a power of arrest would otherwise have been attached to FMPO. The court must attach a power of arrest if the other party has used or threatened to use violence against the person to be protected.

A FMPO with a power of arrest attached must be delivered to the police; best practice being to ask the court to specify in the order that the order should be delivered to the police station which as a domestic violence unit.

The police are able to arrest someone who they believe has breached a FMPO with power of arrest attached. The person arrested must be brought before the court within 24 hours of the arrest.

Currently, applications for FMPO can only be brought in the High Court or a County Court; Magistrates do not yet have jurisdiction.

Although this is relatively new law, it is an important social reforming Act, protecting the basic right to marry by choice.