Scottish Government

4 The Law on Marriage in Scotland

In Scotland a couple cannot be legally married unless both parties are at least 16 years old on the day of the marriage, and both must be capable of understanding the nature of a marriage ceremony and of consenting to the marriage. Parental consent is not required.

Under section 20A of the Marriage (Scotland) Act 1977 a marriage is void if either party was forced to marry against their will, and therefore did not give their true consent. A void marriage is regarded as never having taken place. Parties to a forced marriage may apply for a court order declaring the marriage null and void (called a "declarator of nullity"). A forced marriage may also be dissolved by a decree of divorce, but nullity, is often the preferred option as it gives legal acknowledgement that the marriage was never valid.

Section 36 of the Family Law (Scotland) Act 2006 enables Scottish courts to apply Scottish rules about capacity to consent to marriage, regardless of whether the marriage was performed in Scotland or elsewhere.

Existing legal protection in Scotland for victims of forced marriage

At present, there is no law expressly prohibiting forced marriage in Scotland and it is not a specific criminal offence. However, there is a range of current criminal offences and civil remedies which may be relevant in relation to forced marriage. The relevant criminal offences are listed in Annex E of this paper.

Given the outcome of the A Wrong Not A Right consultation, this consultation will focus on the civil remedies available in Scotland in relation to forced marriage, which are:

• A common law interdict with power of arrest under the Protection from Abuse (Scotland) Act 2001
• An interdict or 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 (available within marriage, against the spouse only)
• An exclusion order under the 1981 Act (available within marriage, against the spouse only)
• A declarator of nullity of marriage
• Divorce

Common law interdicts

An interdict is a judicial remedy forbidding an act or course of action. An interdict cannot be granted to prevent or put a stop to actions that are unwelcome or harmful, but otherwise legally permissible; there must be an actual or threatened legal wrong which infringes the complainant's rights.

An interdict is always a prohibitory order, i.e. it can only be used to stop someone from doing something, not to make someone do something. Evidence must be presented to the court of a threatened or continuing infringement of the pursuer's rights and the pursuer must state precisely what it is the defender must stop doing.

Breach of interdict is enforced through the civil courts by the person on whose behalf the interdict was granted. Breach of interdict is treated as a failure to obey the court's legal instruction - a "contempt of court" - and may be punished by way of a fine or imprisonment.

The Protection from Abuse (Scotland) Act 2001 allows a court to attach a power of arrest to any interdict granted for the purpose of protection from abuse. The police may arrest a person without warrant if there is reasonable cause to suspect a person of being in breach of the interdict, and if there is considered to be a risk of abuse if the person is not arrested. There is no requirement for the applicant to be in any particular relationship to the abuser.

How can interdicts be used in cases of forced marriage?

- When the marriage has not yet taken place

A common law interdict could be granted to prohibit unlawful behaviour associated with forced marriage, such as assault or threatening behaviour.

- When the marriage has taken place

A common law interdict could be sought in order to put a stop to ongoing behaviour such as violence or abuse.

A matrimonial interdict is very similar to a common law interdict but has a statutory basis and is only available within marriage. The distinction between matrimonial and common law interdicts is less significant now that powers of arrest can be attached to both and on the same basis under the Protection from Abuse (Scotland) Act 2001.

Non-harassment orders

The Protection from Harassment Act 1997 imposes an obligation on persons not to:

"pursue a course of conduct which amounts to harassment of another which is either intended to amount to harassment of that other or occurs in circumstances where it would appear to a reasonable person that it would amount to harassment of that other"

In the 1997 Act, 'harassment' includes causing a person alarm or distress. 'Conduct' includes speech, and a 'course of conduct' requires conduct on at least two occasions.

In an action raised under the 1997 Act, the court may award damages, grant interdict, or grant a non-harassment order. An interdict may have a power of arrest attached under the Protection from Abuse (Scotland) Act 2001. Breach of a non-harassment order is a criminal offence, punishable by up to 5 years' imprisonment, or an unlimited fine, or both.

Exclusion orders

Under the Matrimonial Homes (Family Protection) (Scotland) Act 1981, both spouses have the automatic right to live in the marital home even if they are not the legal owner or tenant of the property. Either spouse has the right to apply to the court for an exclusion order, which may be granted if the court considers it is necessary for the protection of the person who applied for it or any child of the family. An exclusion order means that the spouse against whom it is directed no longer has a right to occupy the family home - a warrant can be obtained for their ejection from the home and an interdict can be granted prohibiting them form entering the home or removing any property from it.

Declarator of nullity

Where a marriage has been entered into without true consent, either spouse may apply to the court for an order declaring the marriage void. The effect of this is that, for most purposes, the marriage is deemed never to have happened.

Divorce

Alternatively, either spouse may apply to the court for a divorce under the Family Law (Scotland) Act 1985.

Regardless of whether the marriage is brought to an end by annulment or divorce, the court may make an order for financial provision. In making financial awards, the courts seek to share matrimonial property fairly, taking account of such factors as each spouse's financial contribution to the marriage and the degree to which one is financially dependent on the other.

Question 1: Are there any difficulties in accessing existing civil remedies in forced marriage cases - YES, NO, or DON'T KNOW?

• (1a) What access difficulties exist AND why do you think these difficulties exist?

Question 2: Once accessed, are there any difficulties using existing civil remedies in forced marriage cases - YES, NO, or DON'T KNOW?

• (2a) What difficulties exist AND why do you think these difficulties exist?

Question 3: All the civil remedies currently available in Scotland must be sought directly by the victim, whereas English and Welsh legislation allows third parties to apply for orders on the victim's behalf. Do you think allowing third party involvement is a good idea - YES, NO, or DON'T KNOW?

• (3a) If YES, why do you think allowing third party involvement is a good idea?
• (3b) If NO, why do you think allowing third party involvement is not a good idea?

Question 4: In Scotland, interdicts, and non-harassment orders can only be used to prohibit specific actions. Do you think the law should be able to positively require a person to do something - YES, NO, or DON'T KNOW?

• (4a) If YES, with reference to examples, why do you think the law should positively require a person to do something?
• (4b) If NO, why do you think the law should not be able to positively require a person to do something?

Question 5: The UK Forced Marriage (Civil Protection) Act allows orders to be directed against anyone aiding, abetting, encouraging or conspiring with the principal perpetrator, should this be introduced in Scotland - YES, NO, or DON'T KNOW?

• (5a) If YES - if introduced, what do you think the benefits would be?
• (5b) If NO, why do you think such orders should not be introduced?

Question 6: The UK Forced Marriage (Civil Protection) Act allows a power of arrest attached to an order to be used against anyone who seems to be breaching the terms of the order, not just the person against whom the order is primarily directed. Should this be introduced in Scotland - YES, NO, or DON'T KNOW?

• (6a) If YES - if introduced, what do you think the benefits would be?
• (6b) If NO, why do you think a power of arrest should not be introduced?

Question 7: Following on from Question 6, do you think a power of arrest should be used against someone who may be unaware of the existence of such an order or its contents - YES, NO, or DON'T KNOW?

• (7a) If YES, why do you think a power of arrest should be used?
• (7b) If NO, why do you think a power of arrest should not be used?

Question 8: Where no power of arrest is initially attached to an order, the UK Forced Marriage (Civil Protection) Act allows the person protected by the order to apply to the court for an arrest warrant if they believe the order has been breached. Should this be introduced in Scotland - YES, NO, or DON'T KNOW?

• (8a) If YES - if introduced, what do you think the benefits would be?
• (8b) If NO, why do you think such applications for an arrest warrant should not be introduced?

Question 9: On balance, in relation to forced marriage, do you think existing civil remedies are sufficient - YES, NO, or DON'T KNOW?

• (9a) If YES, why do you think existing civil remedies are sufficient?
• (9b) If NO, why do you think existing civil remedies are not sufficient?

Question 10: Do you think the Scottish Government should introduce specific civil remedies in relation to forced marriage - YES, NO, or DON'T KNOW?

• (10a) If YES, why do you think the Scottish Government should introduce specific civil remedies AND what specific civil remedies do you think the Scottish Government should introduce?
• (10b) If NO, why do you think the Scottish Government should not introduce specific remedies?

Question 11: Another feature of the Act 2007 is that it provides for the UK Government to issue statutory guidance to all agencies dealing with forced marriage issues, do you think there is a need for this in Scotland - YES, NO, or DON'T KNOW?

• (11a) If YES, why do you think there is a need for this in Scotland?
• (11b) If NO, why do you think there is not a need for this in Scotland?

Children and young people under 16

The existing legal framework affords protection to children at risk of being forced into marriage above and beyond the civil and criminal legal measures available to protect adults from a forced marriage.

Child protection service providers would be expected to respond to the needs of a child facing forced marriage, or who has already been forced into marriage in an appropriate and culturally sensitive way. The best interests of the child would always be the primary concern. Where a concern about a child comes to the attention of child protection services, they would carry out a risk assessment and if necessary put into place a care plan which includes removing the child from a dangerous family situation.

The Children (Scotland) Act 1995 provides a range of protection which could be used to prevent the removal and safeguard a child where there is concern that there is a risk of harm to the child (child being principally someone under 16).

Section 22 of the Children (Scotland) Act 1995 imposes a general duty on local authorities to safeguard and promote the welfare of children in their area. The Children's Hearings System, also specified in the Act above, is capable of being used to protect children where compulsory measures of supervision are required. Grounds such as either being "exposed to moral danger" or being "likely to suffer unnecessarily or be impaired seriously in their health or development, due to a lack of parental care" can result in referral to a children's hearing to determine whether and what compulsory measures could apply.

Temporary or emergency measures will sometimes be necessary such as warrants or child protection orders (under section 57 of the Children (Scotland) Act 1995) whereby a child could be removed from their home to a place of safety or the prevention of the removal of a child from a specified place. Supervision Requirements are the most common outcome of this process and place a duty on a parent to give notice to the Principal Reporter in the hearings system and the relevant local authority of any proposal to take the child to live out with Scotland not later than 28 days prior to doing so. This proposal would then be considered by a reconvened hearing.

There are alternative ways of safeguarding a child's safety, including an emergency protection order. If there is less urgency a child assessment order under section 55 of the Children's (Scotland) Act 1995 can be sought which can also provide for the removal of a child to a place of safety for a short time. Children's hearings also have powers to issue warrants to keep a child in a place of safety pending the hearing or disposal of the case. A child (in this case, someone under 18) could also under section 38 of the Act request that the local authority provide them with short-term refuge.

The Sexual Offences (Scotland) Bill, which was introduced in Parliament in June 2008, contains provisions which criminalise persons engaging in sexual activity with children under the age of 16, whether the conduct is apparently consensual or not. In contrast with existing legislation, it is not a defence to these offences that the accused was married to the child.

Missing schoolchildren and forced marriage

Child protection is everybody's responsibility and education staff clearly have a key role to play in identifying where children and young people may be at risk of harm and taking appropriate action. A child not attending school may be the result of illness or truancy, but it can also be an indicator of other serious problems. Children missing from education are children and young people who are not on a school roll and are not being educated otherwise (at home, privately or in an alternative provision). They have usually not attended school for a substantial period of time (usually agreed as 4 weeks, or considerably less for vulnerable children).

When it has been established that a child is missing from education and local searches have been exhausted, schools may take a formal referral to Children Missing from Education (Scotland), which supports local authorities in tracing missing children, and co-ordinates searches across Scotland and beyond where appropriate.

Where a member of school staff becomes aware of a child protection concern, including concerns around forced marriage or abduction, a referral must be made to social work through the school's Child Protection Co-ordinator.

The Scottish Government is taking forward work to improve protection of children who go missing. The HMIE-led joint inspection of child protection services in Scotland specifically monitors how well service providers share information and intervene to protect children at risk, including children who have gone missing. The Scottish Government has recently consulted on Safeguarding children in Scotland who may have been trafficked. The document provides guidance for Scottish agencies and staff in identifying and supporting the needs of children who may have been trafficked. The responses to the consultation are currently being analysed.

Question 12: Is there enough protection in Scotland for children and young people under 16 affected by forced marriage - YES, NO, or DON'T KNOW?

• (12a) If NO, what gaps do you think there are in protection AND how do you think these gaps could be filled?

Civil partnerships

The 2005 consultation, Forced Marriage: A Wrong Not A Right sought respondent's views on whether any new law on forced marriage should also apply to forcing a civil partnership.

We have no reason to believe that someone would be forced into a civil partnership for cultural reasons. However, it is possible that someone would force another person into a civil partnership for financial gain.

Question 13: If we introduce legislation on forced marriage, do you think we should also extend it to forcing someone into a civil partnership - YES, NO, or DON'T KNOW?

• (13a) If YES, why do you think legislation should be extended to cover civil partnership?
• (13b) If NO, why do you think legislation should not be extended to cover civil partnership?

Practical problems in accessing legal support

There are issues which victims of forced marriages face in accessing the available legal provisions, which have been previously identified in reports such as A Choice by Right (1999):

• Victims may not know of the legal provisions, or may be unable to use them.
• Family pressures may make it very difficult to challenge the situation.
• Women married abroad may face difficulties in financing proceedings, providing instructions and evidence, remaining protected during the proceedings, and enforcing a declarator of nullity in the country where they live.

Immigration issues

Many forced marriages do have an international dimension involving a spouse from overseas. A British national is either taken to live in their spouse's country (where they often have antecedents) or they are to act as a sponsor for their spouse's immigration to the UK. Women have described the fear that compelled them to support their spouse's immigration to the UK. Often family members have directly threatened them before their interview with an immigration officer. This fear prevented most women from putting on record that their marriage was forced.

The report of the UK Working Group on Forced Marriage - A Choice by Right (1999) identified that some women who had been brought to the UK for a forced marriage have spoken of the hardship they had suffered because of their unsound immigration status. Not being able to speak English and not having any family or friends to support them in the UK often added to these women's problems. In some cases young women have been taken (sometimes forcibly, sometimes through deception) overseas for the purposes of a forced marriage. Often these women reported having their documents, including passports, taken away from them on their arrival. In some cases, parents had taken the extreme action of drugging their daughter to ensure that she travelled overseas without complaint.

Legislation covering immigration and nationality, including asylum and issue of travel documents is reserved to the UK Government. In Scotland, there are very different economic, demographic and social issues relevant to population and immigration. Within the United Kingdom, it might be difficult to devolve responsibility for immigration and citizenship to Scotland, but for example, increased powers to attract new migrants could allow the Scottish Government to address Scotland's needs in an appropriate way.

The current Scottish Government believes that the best future for Scotland is as an independent, sovereign country. However, this is a decision that only the Scottish people can make for themselves. The Scottish Government has therefore begun a national conversation about Scotland's future, which will allow all the options for developing the governance of the country to be fully discussed by the people of Scotland before reaching a decision in a referendum to be held in 2010.

If you would like to contribute to the national conversation, specifically in relation to the issues surrounding immigration, or more generally, visit the national conversation website at www.anationalconversation.com or e-mail: joinin@anationalconversation.com. Responses can also be sent by post to:

A National Conversation
Constitution Unit

Legal Aid

Applications for civil legal aid have to meet the statutory tests for eligibility of probable cause, reasonableness and financial qualification as set down in the Scottish Legal Aid Board's governing legislation unless special provisions apply either dispensing with some or all of these tests or excluding proceedings from civil legal aid. Where an application satisfies these tests civil legal aid will be made available irrespective of the nature of the case.

Question 14: Are there any difficulties, in accessing civil legal aid for the current civil remedies described in this consultation - YES, NO, or DON'T KNOW?

• (14a) If YES, what difficulties exist in accessing civil legal aid?

Question 15: Following on from Question 14, would the same issues arise in relation to any new statutory civil remedies that may be developed following this consultation - YES, NO, or DON'T KNOW?

• (15a) If YES, why do you think the same issues would arise?
• (15b) If NO, why do you think the same issues would not arise?
• (15c) Do you think different issues would arise (please explain why)?

The Forced Marriage Network and Service Provision for Victims of Forced Marriage

In 2005 the Scottish Executive established the Forced Marriage Network, which brought together statutory and voluntary practitioners to share knowledge and expertise and help to progress work to tackle forced marriage. The full list of Network members is available at Annex F.

The Network was instrumental in the 2005 consultation Forced Marriage: A Wrong Not a Right, undertaken jointly with the UK Government (see Section 3: Why We Are Consulting) and continues to play a key role to further the Scottish Government's work in this area.

Currently, the Scottish Government directly funds a range of organisations working to support those affected by forced marriage:

• Amina - The Muslim Women's Resource Centre's PPP Project provides support to women experiencing domestic abuse and increases their understanding of domestic abuse and knowledge and confidence in mainstream support systems. The Project also trains agencies that provide services to Muslim women.
• Hemat Gryffe Women's Aid is a Glasgow-based organisation which provides a range of refuge, advocacy and outreach services to Black and Minority Ethnic ( BME) women and their children experiencing domestic abuse. The organisation also offers training and advice to a range of agencies to help build their capacity to meet the needs of BME communities. The Scottish Government previously funded Hemat Gryffe to deliver awareness raising work on forced marriage.
• Shakti Women's Aid is an Edinburgh-based organisation which provides a range of refuge, advocacy and outreach services to Black and Minority Ethnic ( BME) women and their children experiencing domestic abuse. The organisation also offers training and advice to a range of agencies to help build their capacity to meet the needs of BME communities. Shakti was also funded by the Scottish Government to deliver awareness raising work on forced marriage.

In addition to the above specialist BME organisations, support to victims of forced marriage is currently offered through mainstream providers such as the police, legal services and local authorities. The broader network of Women's Aid organisations, including Scottish Women's Aid, also work with women who may be affected by this issue. For a number of years education work with young people in schools has been undertaken in some local authority areas, using locally developed tools such as No Dowry No Date¹ in Glasgow.

The Council for British Pakistanis (Scotland) have also previously been funded to carry out awareness raising work on forced marriage by conducting a series of meetings and seminars throughout Scotland on the issue. The Council also provide direct support to victims of Forced Marriage.

Awareness raising work and training around issues affecting BME women and children is also been carried out via Scotland's Violence Against Women Training Consortia who have responsibility for implementing the Scottish Government's Preventing Domestic Abuse: A Training Strategy (2003).

Question 16: Are you/your organisation currently working to address forced marriage - YES or NO?

• (16a): If YES, what work are you/your organisation undertaking?

Question 17: The Scottish Government funds a range of organisations working to support those affected by forced marriage, what other non-legislative action do you think the Scottish Government should take to tackle forced marriage in Scotland?

Question 18: Do you think there is a need for agencies in Scotland to improve their response to cases of forced marriage - YES, NO, or DON'T KNOW?

• (18a) If YES, which agencies need to improve their response AND how do you think these agencies could improve?

Question 19: Please provide any additional comments on any aspects of this consultation.