International
Family Law

Forced marriages should not be confused with arranged marriages. Arranged marriages take place with both parties’ full consent to the marriage and they only differ to other marriages by the fact the couple are introduced to each other by family, friends or another member of their community.

After the initial introduction, the couple comes to the decision themselves to marry each other. Forced marriages are fundamentally different. Forced marriages are those where one or neither party to the marriage consent to it and the marriage takes place under duress.

Duress is a form of pressure. Quite often pressure is used by telling the person being forced to marry that they will bring shame and dishonour on their family if the marriage does not take place. In this situation there may be threats to pressurise one or both parties to the marriage. Sometimes a person is taken abroad for the purposes of forcing them into marriage and they are held there and prevented from returning to England until the marriage has gone ahead. The type and amount of pressure that then leads to the forced marriage will depend on the characteristics of the individual.

Since the end of 2008, the Court has had the power to make Forced Marriage Protection Orders under the Forced Marriage (Civil Protection) Act 2007. There are a number of things that the Court can include in a Forced Marriage Protection Order to protect a person. The application for a Forced Marriage Protection Order does not have to be made by the actual person being forced into marriage and can be made by a third party on their behalf, for example by a public authority, a friend or family member.

This recognises that the actual people needing protection are not always able to make the Court application themselves, particularly if they are being held abroad. It also recognises that the person being forced into marriage may need and want the Court’s protection but would rather than a third party to seek the Court’s help for them as they do not wish to be further ostracised by their family and community.

Disobeying a Forced Marriage Protection Order can result in a sentence of up to 5 years in prison.

Forced marriage is also a criminal offence but the fact that the English family courts have the ability to protect people in these situations means that those people who simply want protection and not for their family members to be punished in the criminal courts, can still seek help to the extent they feel comfortable.

Stranded spouse cases are those in which the family travel abroad together, usually with their children, for what is thought to be a holiday, often to visit relatives. Usually one of the spouses is British and the other is a foreign national or originally from the country to where the holiday is taking place.

Once the family have arrived in the foreign country, one of the spouses finds themselves abandoned, with all their travel documents having been removed from them. They then come to the realisation that their spouse has stranded them in the foreign country with no means to return home while they themselves have returned to England with the children. The returning spouse will then claim that the other has abandoned them and the children.

There is usually an overlap between family and immigration laws in these cases and urgent action is needed, especially the children may have been separated from the parent that usually cares for them. In these situations, proceedings would be started at the High Court in London to make the children Wards of the Court which would then mean the High Court would be the children’s guardian and no important steps in relation to the children can then be taken without the consent of the Court.

In these legal proceedings, the Court will make those Orders that it considers necessary for the children’s welfare and in doing so it will consider the stranded parent’s situation and make any Orders it considers necessary to facilitate the parent’s return to England. The situation is more complex if the stranded spouse has been abandoned abroad with the children or there are no children of the family.

If you or your spouse live outside of the UK or are not originally from the UK there can be extra issues to consider. You need an expert family lawyer to help and advise you through the process which is something we can do.

Common Scenarios:

• You are originally from England or Wales, but currently living elsewhere in the world and would like the English Courts to deal with your divorce;
• You have only recently returned to live in the UK after living elsewhere in the world;
• You are originally from outside the UK but are now living here and wish to divorce here;
• Your spouse lives outside the UK and there may be issues concerning how to trace them or in which country the proceedings should be issued.

What Makes it Possible to Divorce in the UK:

• Domicile
• Habitual residence

Domicile is a legal point which takes into account not only where you were born, but also where you are living now and what your intentions are for the future. Habitual residence on the other hand refers to where you live and are based for the majority of time. These concepts can be complicated and confusing for which specialist legal advice is advisable.

Even if you and your former spouse have already been granted a divorce in another country, if you have strong links with England it may be possible for the English Courts to deal with any financial matters arising from your divorce. Using the English legal system is often much quicker, cheaper and more effective than attempting to use your local jurisdiction abroad and in many instances expats can be prevented from doing so.

Another important point worth noting is that it may be financially advantageous to divorce in England, so it is important to seek specialist legal advice concerning expat and international divorce law before issuing divorce proceedings abroad.