Commentary on Sections Section 63A Forced marriage protection orders
18.Subsection (1) sets out the purpose of making an order under the Act. An order may be made either to protect a person from being forced into a marriage, or from any attempt to force a person into a marriage, or to protect a person who has been forced into a marriage.
19.Subsections (2) and (3) set out the issues that the court must consider when deciding whether to make an order and the type of order that should be made. These issues include the health, safety and well-being of the person to be protected. In considering the well-being of the person to be protected regard must be given to their wishes and feelings, as far as it is possible to ascertain them. For example if a person is incarcerated it may not be possible for the court to ascertain their wishes. The section also provides that the court should only give as much weight to the wishes and feelings of the person to be protected as it considers appropriate in light of their age and understanding. For example the court may consider it appropriate to attach less weight to a very young person’s wishes.
20.Subsection (4) describes what a forced marriage means in these circumstances, namely that a forced marriage is one that is entered into without the person’s free and full consent.
21.Subsection (5) sets out that the conduct which forces a person into marriage does not have to be directed against that person, but can be directed against another or against the perpetrator. For example, this would cover circumstances where the perpetrator threatened to commit suicide if the person did not submit to the marriage.
22.Subsection (6) provides that the conduct includes coercion by threats or other psychological means. This recognises that the type of force used in these circumstances can be verbal, physical or mental.