In May last year the Journal reported in an article called “Family Practice: Time for a Change? – No Fault Divorce”, on the Law Commission’s scoping paper “Getting Married”. The Commission’s paper reviewed marriage law in the UK and made several proposals. Despite the paper concluding that the law was badly in need of reform, on 26 October 2017 Justice Minister Dominic Raab wrote to the Commission to say that it was not the right time for a full review of marriage law. Obviously this will be disappointing to those who support the Law Commission’s view that current marriage law is unnecessarily restrictive and outdated.
The following is a recap on some of the Law Commission’s main findings:
• The law was outdated as it was contained in the Marriage Act 1949 a statute designed to deal with the issues of a different era.
• The rules on marriage were overly complex, with nearly 20 different paths into marriage.
• Despite the complexity, problems existed with how marriages are registered.
• The current laws fail to sufficiently protect people from undergoing forced marriage and does not prevent sham marriages.
• There were issues with who can conduct marriages and the restrictions on where a marriage can take place. This, in effect, means that couples have a choice between a religious and a civil ceremony but some religious ceremonies might not be legally recognised.
The Government has not ruled out further work in the future but has indicated that any new laws in the area of family law would focus on protecting vulnerable children and families.
Law Commissioner Professor Nick Hopkins said: “Getting married can be one of the best days in someone’s life. But our Victorian laws haven’t kept pace with the modern world. Reform has the potential to allow all couples to marry in a way that’s meaningful to them.
“We understand parliamentary time is precious at the moment but don’t believe that the need for reform will go away.
“We hope we can continue our work in this area in the future, and welcome the Minister’s promise to keep the situation under review.”
Despite the Government having asked the Law Commission to conduct its review into marriage law, it seems likely that there will be no changes or further research by the Commission. The Commission is bound by protocol to work only where there is a “serious intention to reform the law”, so no change to marriage law should be expected, despite the issues with the current law.
Reminder of the current law on marriage
As we are likely to be using the rules set out in the Marriage Act 1949 for the foreseeable future, we will conclude this article with a brief reminder of the three key stages in any legal marriage:
• The preliminaries that must be followed before a couple marries revolve around them 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, you have to give notice to the Superintendent Registrar and will have a 28-day waiting period. If you are having an Anglican ceremony, 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, 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, but sadly it will remain unchanged for the moment.