Forced Marriage Protection Orders: mental capacity and marriage


5th October 2021

What are Forced Marriage Protection Orders and when can they be used? Family Law solicitor Rachel Knight takes a look.

In a recent case in the Court of Protection, Re BU,[1] the daughter of a woman with dementia was successful in obtaining a Forced Marriage Protection Order (FMPO) against her mother’s partner. This ban means that the partner is banned from seeing, marrying or entering into a civil partnership with the woman for 12 months, and if he attempts to do so, he could face jail.

The case was brought by the daughter due to serious concerns that the partner wanted to marry her mother to gain access to her £1million fortune. Mrs Justice Jennifer Roberts heard evidence of the partner’s chequered criminal history, including several periods of imprisonment for fraud, theft and blackmail, and concluded that she found him ‘to have engaged on a deliberate and calculated attempt to subvert any independent decision-making on [the woman’s] part.’[2]

Mrs Justice Roberts also heard medical evidence as to the woman’s mental capacity and whether she could freely consent to marriage or civil partnership. It was held that she would not have any understanding of the fact that she may be being coerced into marriage, and therefore it was decided that the court must take steps to prevent this from happening in the form of a FMPO.

 

A marriage is a forced marriage if one or both of the parties have not been able to freely choose who they marry, when they marry, or if they marry at all. This may occur through physical pressure to marry such as threats, physical violence, sexual violence or emotional or psychological pressure.

The victim themselves can apply to the Family Court for a FMPO, or as in the case of Re BU, any third party can apply to the court for permission to apply for a FMPO, where they suspect that someone is being forced, or is at risk of being forced, into marriage.

It is more common to see FMPOs being made in cases where a woman is being forced into marriage for cultural or religious reasons, however the case of Re BU highlights the vulnerability of people who lack mental capacity and the importance of ensuring that anyone who enters into a marriage is fully aware of the nature of marriage and its consequences. As Mr Justice Parker made clear in 2016, ‘the wisdom of marriage is irrelevant’ but there must be a full understanding of the commitment and its consequences.[3]

[1] Re BU [2021] EWCOP 54

[2] Re BU [2021] EWCOP 54, Para 91

[3] London Borough of Southwark v KA & Ors [2016] EWCOP 20

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