Marriage Protection Orders
It has been widely reported this week that the estranged wife of the ruler of Dubai – one of the most high-profile leaders in the Middle East – has asked for a forced marriage protection order in a UK court.
Sheikh Mohammed Al Maktoum’s wife, Princess Haya Bint al-Hussein, is the third female member of his court to apparently try to run away.
Sir Andrew McFarlane ruled there was “a public interest in the public understanding, in very broad terms, proceedings that are before the court“.
The Sheikh is represented by Helen Ward (Stewarts Law) and the Princess by Fiona Shackleton (Payne Hicks Beach).
What is a “Marriage Protection Order” and how can they protect?
This brief overview describes how a Forced Marriage Protection Order could help you if you are being forced into marriage or are in a forced marriage. It explains who can apply for an order, describes what you need to do and tells you what will happen once the court receives your application.
What is a forced marriage?
A forced marriage is a marriage that takes place without the full and free consent of both parties. Force can include physical force, as well as being pressurised emotionally, being threatened or being a victim of psychological abuse. Forced marriages are not the same as arranged marriages. In an arranged marriage families take the lead in selecting a marriage partner but the couple have the free will and choice to accept or decline the arrangement.
How can a Forced Marriage Protection Order help me?
A Forced Marriage Protection Order can help if you are:
- being forced into marriage; or
- already in a forced marriage.
A Forced Marriage Protection Order is unique to each case and contains legally binding conditions and directions that change the behaviour of a person or persons trying to force someone into marriage. The aim of the order is to protect the person who has been, or is being, forced into marriage. The court can make an order in an emergency so that protection is in place straightaway.
How can they protect me?
The court can:
- Make a Forced Marriage Protection Order to protect a person facing forced marriage or who has been forced into marriage
Applications for Forced Marriage Protection Orders can be made at the same time as a police investigation or other criminal proceedings. Someone who disobeys a court order can be sent to prison for up to two years for contempt of court; but breach of a Forced Marriage Protection Order is also a criminal offence with a maximum sentence of five years’ imprisonment.
Where can I apply for an order?
An application for a Forced Marriage Protection Order can be made at the Family Court, which covers England and Wales. You can make these applications at a number of court centres.
Who can apply for an order?
- The person who is to be protected by the order
- A relevant third party
- Any other person with the permission of the court.
A Relevant Third Party is someone appointed by the Lord Chancellor to make applications on behalf of others.
Adults or children (those under 18) can apply for a Forced Marriage Protection Order. Children may have a ‘next friend’ or someone to assist them, but do not have to, if they have a legal representative or if the court agrees.
If you are worried about attending court
Write your concerns on your application form or make your request in writing to the Court Delivery Manager as soon as possible or there may be a delay in hearing the application.
Courts may be able to offer:
- Separate court waiting rooms;
- Separate court entrances and exits;
- Parking on court premises to facilitate easy access to the court building for intimidated witness.
Witness protection facilities may also be available in some courts.
If you are worried about giving evidence in the court room
Tell the court about your concerns in your application form. The court will decide what is appropriate and may order:
- Screens to ensure that witnesses cannot see the respondents in court (in this type of case the respondents are the person or persons alleged to be trying to force someone into marriage) – screens are placed around the witness box within the court so that the witness cannot see the respondents, and the respondents cannot see the witness whilst they are giving evidence.
- Video recorded evidence – this allows an interview with the witness, which has been recorded before the hearing, to be shown as the witness’s main evidence during the hearing, i.e. the witness does not have to report again what they have already said, but they must still be available to be cross examined if necessary.
- Live TV/video links, allowing the witness to give evidence from outside the courtroom – this allows a witness to give evidence via a TV link from another room in the court building or from another building altogether. Although the witness does not come into the courtroom, those present in court will see the witness giving evidence on TV monitors.
It is for the court to decide what is appropriate, if anything, in each case.
The court may be able to provide the following additional facilities:
- If you have a disability and require assistance or special facilities, please contact the court to ask what help is available. A list of court centres and telephone numbers is provided at the end of this leaflet.
- If you require an interpreter because you do not speak English, you need to notify the court so that one can be arranged, identifying the language and dialect.
How much will it cost?
There is no court fee for making an application for a Forced Marriage Protection Order for yourself or on behalf of someone else. Similarly, there is no court fee for any additional court procedures associated with your case such as:
- applications to vary or discharge an order
- applications to the Family Court to consider how the person who has breached the order should be dealt with
- requests for a court bailiff to serve the order.
Can I get legal aid?
Yes. Legal aid is available for applications for Forced Marriage Protection Orders and committals for breaching an order. A solicitor, or a member of a law centre or Citizens Advice, will be able to advise you about whether you have a reasonable case. Further information about legal aid and how to find a legal advisor is available either online at www.gov.uk/legal-aid or by calling 0845 345 4 345 (Monday to Friday, 9am – 6:30pm).
Can I apply for a Forced Marriage Protection Order by myself?
Yes, or you can get a solicitor to do this for you. If you apply yourself, you must be prepared to complete the relevant forms and statements and explain your case to the court. If you need help to complete forms, but do not know a friend or relative who can help, you should go to see a solicitor or Citizens Advice. Court staff can help by explaining court procedures, but they cannot provide legal advice on the merits of individual cases, or give advice about the probable outcome.
What forms will I need?
- You will need an application for a Forced Marriage Protection Order (form FL401A)
- If you need the court’s permission to apply on behalf of someone else complete Form FL430 Application for leave to apply for a Forced Marriage Protection Order All of these forms are free. You can get them from any of the court centres that deal with applications for Forced Marriage Protection Orders or you can download the forms from our website at www.hmctsformfinder.justice.gov.uk
Making an application for a Forced Marriage Protection Order
If you are the person to be protected by the order or a relevant third party (appointed by the Lord Chancellor) you should complete Form FL401A Application for a Forced Marriage Protection Order. You can find further details on how to complete the form at the back of Form FL401A. You will need enough copies to serve on all named respondents.
- Include details of how you want the court to protect you e.g. stop you from being taken abroad to enter a forced marriage.
- Include details if there has been any violence used or threatened.
- Complete Form C8 Confidential contact details if you do not wish to reveal your address or the address of anyone mentioned in the application form to the respondents. You can get this form from the court centres listed in this leaflet or from our website at www.hmctsformfinder.justice.gov.uk
- If you are applying on behalf of a person to be protected you must complete Form FL430 Application for leave to apply for a Forced Marriage Protection Order asking for the court’s permission to apply for an order.
- Make a sworn statement if you are asking for the application to be heard without notice being given to the respondents in an urgent or emergency situation (see below).
What should I do if I need an order quickly?
You can ask the court to consider your application straightaway and make an order without the respondents being served with any documents. This is known as an ex-parte or without notice order.
If a without notice order is made by the judge, you will be given a further hearing to attend at the court. The respondents will be entitled to be present at this hearing so that the judge can then listen to everyone before deciding whether to make another order.
If you are applying for an order without notice you must make a sworn statement. If you are representing yourself make a written statement, setting out why you need protection and take it to the court with your application Form FL401A. At the court you should ask to swear the statement that you have completed. This means you will be asked to sign the statement in front of a member of the court staff and confirm on oath that the information it contains is true.
What should I do when I have filled in the forms?
- You should submit the completed forms and copies to the court.
What will happen when I hand the forms to the court?
- The court will check the forms and give you a Notice of proceedings for a Forced Marriage Protection Order (FL402A). This will tell you the date of your appointment before the judge.
- It is in your own interest to attend the court on the date shown on the form. You should be ready to give any evidence which you think will help you to put your side of the case.
- The application form (FL401A) and notice of proceedings (FL402A) must be served on the respondents and other persons. If a solicitor is helping you, the forms will be sent to them to serve.
- You can ask the court to serve the documents for you. The court will ask you to complete form D89 – ‘Request for personal service by a court bailiff’ for this. The court will then arrange for a copy of your application and other documentation to be served by the bailiff.
What should I do if I serve the documents myself?
If you are an individual applicant, you MUST NOT serve the documents yourself on the person you are wanting protection from. You must arrange for someone (e.g. a process server) to serve a copy of the application form FL401A together with notice of any hearing or directions appointment in Notice of Proceedings form FL402A on the respondents, the person who is the subject of the proceedings (if not the applicant), and any other person directed by the court personally not less than 2 days before the date on which the application will be heard. However, the court may reduce this period.
After the documents have been served the person serving the papers must complete a statement of service (Form FL415) and file this with the court. Form FL415 states who was served, how and where they were given the documents and on what day and time. This form can be obtained at any of the court centres listed in this leaflet or from our website at www.hmctsformfinder.justice.gov.uk
If you are unable to find the address of those to be served or it appears that they are avoiding service, you may ask the court to serve the papers in some other way (for example, at a place of employment).
What will happen at the hearing?
The hearing of an application for a Forced Marriage Protection Order will be heard in private (this is normally called ‘in chambers’), unless the court otherwise directs and a record of the hearing will be made. The court may allow other people to be present at court, for example, a friend or independent adviser, for support. Applicants may be required to give oral evidence to the court. The length of a hearing varies, depending on the complexities of the case and whether the respondents dispute the allegations.
Once the judge understands both parties’ points of view, they can decide any of the following:
- that they need further information about you, and all the respondents. You will be told what extra information to provide.
- that they need further information, but are prepared to make a short term (‘interim’) order until all of the extra information has been provided. You will be given a new appointment, an interim order, and told what extra information to provide.
- that they are prepared to make an order for a certain period of time, after which the court will reconsider the case. You will be given a new appointment date and a copy of the court order.
- that they are prepared to make an order. The order will continue until you or the respondents ask the judge to reconsider the case. You will be given a copy of the order.
- to make no order but accept an undertaking from the respondents in terms that have been agreed (see below).
What are ‘undertakings’?
An undertaking is a promise made to the court to do, or not to do, certain things. Breaking an undertaking is contempt of court and is punishable with up to two years in prison.
What happens after the hearing?
If the court has made a Forced Marriage Protection Order the applicant serves a copy of the order and any other court documents on the respondents, the person who is the subject of the proceedings (if not the applicant), and any other person named in the order personally as soon as reasonably practical. You can ask the court to serve the documents for you (see above). You must also serve the order on the police together with a statement showing that the respondents and any other persons directed by the court have been served with the order or informed of its terms. The order must also be delivered to the police by email at the Vulnerability Coordination Unit: [email protected] You can ask the court to serve the documents for you (see above).
What if I want to vary, extend or end the order?
You can make an application to vary, extend or discharge a Forced Marriage Protection Order at a later time. You will need to complete Form FL403A Application to vary, extend or discharge a Forced Marriage Protection Order.
What if the respondent does not obey the order?
A breach of a Forced Marriage Protection Order can be dealt with in the Family Court or a criminal court. Under section 63CA of the Family Law Act 1996, which came into force on 16 June 2014, the breach of an order is a criminal offence with a maximum penalty of 5 years’ imprisonment. This means the police can arrest a person who fails to obey (or ‘breaches’) an order without the need for the court to attach a power of arrest or for the victim to apply to the Family Court for an arrest warrant.
Following a police investigation of the breach, the Crown Prosecution Service will decide whether to proceed with a prosecution by applying the two-stage test in the Code for Crown Prosecutors: whether there is sufficient evidence to provide a realistic prospect of conviction; and, if so, whether a prosecution is in the public interest. However, if you do not want to deal with the breach using the criminal route, or if the Crown Prosecution Service decides not to prosecute, you can apply to the Family Court for an arrest warrant. The application for a warrant of arrest must be supported by a sworn statement setting out how the order or undertaking has been breached. The application must be made on Form FL407A Warrant of Arrest Forced Marriage Protection Orders. A fee may be charged.
Where a person is in breach or contempt of an order the court will deal with them under its powers of contempt of court, which can include sending them to prison for up to two years.
Therefore, you can either call the police to have the breach dealt with within the criminal courts, or you can make an application to the Family Court to have the breach dealt with as a contempt of court.
However, if someone has been convicted of the breach in a criminal court they cannot be punished for contempt of court and vice-versa.
If I don’t want to apply for an order can I get further help?
You can contact the Forced Marriage Unit (FMU) on its confidential helpline 020 7008 0151. The FMU is a joint Foreign & Commonwealth Office/Home Office team, which provides practical support and information to people at risk of being forced into marriage and those already forced into marriage. All information will be treated in the strictest confidence.
Paradigm Family Law have a team of experienced lawyers to help guide you through the process of divorce, just waiting to hear from you.
If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank, Evelyn or Paul. Paradigm Family Law offers a free initial consultation and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected].