Declaration of non-recognition of forced marriages

Mary Welstead Visiting Professor in Family law University of Buckingham

In a complex judgment relating to the forced marriage of SA a seriously mentally impaired woman Moylan LJ recounted the history behind the enactment of the Family Law Act 1986 (‘FLA 1986’) and revealed the hotchpotch nature of the current law on declarations of marital status. He stressed the difference between void and voidable marriages and explained the distinction between decrees of nullity and declarations of non-recognition of marriage. In his highlighting of the public policy considerations in applications for declarations under the inherent jurisdiction the nebulous nature of public policy becomes apparent.  

Moylan J reiterated that public policy in respect of forced marriages was clear. It was reflected in the sanctions provided by both the civil and criminal law for those who forced a person to marry. The concept of forced marriage includes facilitating the marriage of a person who lacks capacity to...