Marriage Law in England and Wales – Some Reflections

Marriage Law in England and Wales-Current Framework and Proposed Reform

Jurisdiction

• Marriage law (and family law more generally) in England and Wales is distinct from that in Scotland.
• This is not a recent development arising from devolution, but due to the agreement prior to the Act of Union, according to which Scotland would be permitted to keep its own legal system.
• The analysis below relates exclusively to England and Wales, except where otherwise indicated.
• Although Anglicanism was formally disestablished by the Welsh Church Act 1914, for the purposes of marriage law, the Church in Wales largely continues to operate as an established Church.
• However, it should be noted that disestablishment means that the Church in Wales has no power to amend the civil law framework. It is completely dependent on Parliament in this regard.

Current Framework

• For historical reasons, there are four distinct routes to a legally binding marriage:  Anglican Marriage; Quaker and Jewish Marriages; Civil Marriage; and Other Forms of Religious Marriage where a faith group has opted-in (hereafter referred to as “Opt-In Marriages” in this paper).
• Marriages outside of these four categories are not illegal in the sense of being prohibited, but they will NOT create a legally binding marriage in English/Welsh law.
• Marriages which take place in other jurisdictions are ordinarily treated as creating a legally binding marriage in England/Welsh law, provided that they were legally valid according to the rules of the State in which they were celebrated.
• Opt-In Marriages are performed by an authorised person, but must take place in a building registered for religious worship.
• This means that there is no provision for Humanist marriages, nor any scope for faith groups which do not meet in a registered building, either because they lack sufficient members and money, or because their practices involve worshipping at home or in outdoor settings.

Problems with the Current Framework

• As a headline, it is unduly complex and bureaucratic.
• Some parties to non-binding religious marriages are unaware that they have no legal protection until their relationship breaks down. It is only at that point that they learn that they were simply cohabiting, and are, therefore, entitled to no financial relief.
• Individuals for whom English/Welsh is a second language are at increased risk of confusion.
• Local decision making on opting-in may add to the confusion; it is not always enough to ask what faith community performed the ceremony, e.g. a Muslim marriage or a Sikh marriage might or might not be legally binding, depending on whether the community in question had opted-in.
• A significant number of non-legally binding religious marriages are taking place. This leads to unequal outcomes should the relationship break down, or one of the parties die without leaving a will. It can also trap vulnerable people in abusive relationships, especially women. The lack of access to financial relief may make it very difficult for a person to leave their partner, if they have no housing and are economically dependent. The situation is exacerbated still further if they are from a cultural background which stigmatises separation, and their families and friends are unable/unwilling to offer support.

Proposals for Reform

• The Law Commission has proposed significant reforms:

1)         Regulation of the Officiant instead of the venue (i.e. an end to the need to celebrate Opt-In marriages in a registered building).

2)         Universal rules for ALL weddings

• Couples would be able to give notice of their intended wedding online, and to choose the registration district where they would then be interviewed by a registration officer.
• Notice of upcoming weddings would be published online so that the information was accessible to the wider community.
• There would be great accommodation of the diversity of beliefs e.g. It would be possible to have a religious ceremony in a venue other than a place of worship and without having to incorporate prescribed words into the ceremony. It is suggested that there should also be an option for couples of different faiths to have a religious ceremony led by an interfaith minister that contains aspects of each of the couple’s beliefs. Finally, the rigid division between civil and religious marriages would be axed, allowing couples to have some religious elements, such as hymns and prayers, incorporated into their civil ceremony (as long as the ceremony remained “identifiably civil”.)

Implications for Same Sex Marriage and the Church of England

• This does not directly impact on same sex marriage and the Church of England, but there are a number of indirect implications.

1)         This supports McLean’s thesis of “marriage” being a legal institution offered and regulated by the State, even though it may choose to delegate the ceremonial and administrative elements to third parties, including faith groups.

2)         Respecting the diversity of beliefs present in contemporary society is a key element of the proposals, and no denomination would be forced to offer marriage ceremonies to all comers on an equal basis. It would clearly violate Article 9 of the ECHR and the rules of statutory interpretation, if any legislation enacted on the basis of the Law Commission proposals were interpreted as requiring all Anglican clergy to offer same sex marriages, or demanding that Roman Catholic priests and Orthodox Rabbis perform wedding ceremonies for non-Catholic/Jewish atheists or members of the Church of the Flying Spaghetti monster.

3)         The Church of England (and indeed all faith groups) would have to decide how to respond to the possibility of its clergy being involved in interfaith ceremonies, or providing “religious elements” of a civil ceremony, where the parties to the marriage were of the same sex. Given the scope for considerably increased flexibility in respect of wording and ceremonies, it is easy to see how Anglican clergy could be effectively “performing” same sex marriages hosted by a friendly neighbouring denomination, or conceivably even in the context of a civil ceremony, depending on how the “identifiably civil” part was interpreted. The church would have to decide how it wanted to respond to this.

4)         With a much freer wedding economy, couples would have far greater scope to have a religious/Christian backdrop to their ceremony without going to the local parish church.  Consequently, if the Church of England wanted to continue to encourage weddings as potential opportunities for evangelism/outreach, and source of income, then it would do well to ponder how excluding same sex couples would affect perceptions of Anglicanism and Anglican marriage.

• It must be stressed that not all proposals of the Law Commission become law, and even those that do often undergo substantial transformation before being enacted.
• There is a considerable pressure for reform of wedding law, particularly in light of some recent high-profile litigation in relation to a woman seeking some mechanism to obtain financial relief when leaving a non-legally binding religious marriage. The conclusion of the appellate court was that neither divorce nor nullity could help. For the reasons outlined above, the vulnerability of people in this situation means that there is now an urgent reason to overhaul an idiosyncratic and piecemeal system which has been evolving in a haphazard fashion since the eighteenth century.
• The collateral implications of all of this for same sex marriages in an Anglican setting are indirect, but very significant.