This month we will be considering the Law Commission’s scoping paper ‘Getting Married’, a review of marriage law that was done at the request of the Government. The key conclusion of the Commission’s paper was that the law was badly in need of reform. Marriage law should provide a fair and coherent legal framework for people to marry, but sadly the Commission identified that the existing marriage law is unnecessarily restrictive and outdated.
The current law can be divided into three stages: firstly, what people must do before marriage (the ‘preliminaries’); secondly, the rules as to how and where a marriage can take place; and finally, the rules on how a marriage must be registered with the state.
• The preliminaries that must be followed before a couple marries revolve around giving notice of their intention, in order to allow any objections to be made. A couple is expected to provide information about themselves and details of where and when they are to be married. If you are going to have a non-Anglican marriage, then you have to give notice to the superintendent registrar and will have a 28-day waiting period. If you are having an Anglican ceremony, then you can ask for the banns of matrimony to be read out over three consecutive Sunday services before the marriage ceremony. If either party is in hospital, housebound or terminally ill, then different rules apply. So far, so simple!
• The ceremony must take place either at a registered office or on approved premises. This ‘building-based’ system differs from many other legal jurisdictions that focus on authorising who may conduct a legally valid marriage.
• Registering the marriage is a key step as far as the state is concerned. In every ceremony a particular person is responsible for ensuring that a copy of the entry in the marriage book is sent to the local register office. The current process originated in 1837 and is widely considered to be cumbersome and inefficient.
The Issues with the Law
Calling the law on marriage outdated may be a fair point, as the existing law was designed to meet the needs of the early 19th century. The current Marriage Act 1949 is in many ways the same as the Marriage Act 1836. You can even trace back the granting of marriage licences to legislation from 1533. Now, having an old law is not in itself a bad thing, but these rules were not designed to meet the needs of our time.
Consider the decline in church attendance. Is publishing a notice of an intention to marry really an effective way to ensure any objections are made? What about those who do not have any particular religious belief but feel that a civil ceremony is not meaningful enough for them? Does a couple now have to have two weddings, one which is legally effective (e.g. a register office wedding) and a ‘real’ wedding ceremony that is meaningful to the couple?
As well as being outdated, the law on marriage is complex. Different rules apply for different groups. The rules for the civil marriage in a register office and on approved premises are the same, but there are nearly 20 different paths into marriage if you have a religious marriage.
These complexities perversely bring uncertainty to some aspects of the law. For example, the law does not specifically state that a ceremony needs to be in a language that a couple understands. Nor does it say exactly when in the ceremony the couples are officially married. This lack of clarity has led to some people unexpectedly finding that their marriage is not legally recognised. The law should not be uncertain about an important issue such as marital status, particularly as any problem may be uncovered only when the couple is in crisis due to separation or bereavement.
In addition to an individual’s needs, marriage law also has to protect the interests of the state. These interests include
• preventing sham and forced marriages;
• ensuring that only those free and eligible to do so are able to marry; and
• keeping a proper record of all marriages that take place.
So any reform to the law will have to balance the interests of the state with the desire to allow people to marry in accordance with their wishes and beliefs. At this stage the report has not made any concrete recommendations, but it does identify key issues that should be considered if the law were to be changed. Top of the list for any full-scale reform of the law would be to give greater choice for marrying couples within a simpler legal framework. Beyond this, we do not know what might happen next, but it is clear that there are issues with the current law. The Government does not have to act upon the recommendations of the Law Commission, but we will watch this space as the Government may be persuaded that the time for reform is overdue.