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  • Author or Editor: Russell Sandberg x
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The Need for Reform

Marriage law in England and Wales is a historical relic which reflects a bygone age.

Successive governments have made a series of progressive but ad hoc reforms, most notably the introduction of civil partnerships and same-sex marriage. However, this has resulted in a legal framework which is complex and controversial, especially in relation to religion.

This book provides the first accessible guide to how contemporary marriage law interacts with religion and identifies pressure points in relation to non-religious organisations and unregistered religious marriages. It reveals the need for the consolidation, modernisation and reform of marriage law and sets out proposals for how the transformation of these laws can be achieved.

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This book argues that the law relating to marriage and the regulation of adult intimate relationships in England and Wales is in desperate need of reform. The number of marriages is falling. Office for National Statistics (ONS) data1 shows that the marriage rate by 2017 (the number of marriages per 1,000 unmarried men and women aged 16 years and over) has decreased, by 75% for men and by 69% for women since 1972, to be the lowest on record (since 1862) and the number of marriages of opposite-sex couples has decreased by 45%. This decline is particularly pronounced in relation to religious marriages. While in 1900 religious ceremonies accounted for 85% of all marriages, and by the late 1970s were 49% of all marriages, by 2017 only 22% of all marriages were religious ceremonies, the lowest percentage on record, with civil marriages having outnumbered religious marriages every year since 1992.

By contrast, the number of cohabiting couples has risen sharply. ONS data shows that the proportion of non-married women aged 18 to 49 who were cohabiting increased from one in ten in 1979 to over a third in 2011. Of those living in a couple, 21.9% were now cohabiting, and among those aged 16 to 29 years this figure rose to 69.2%. Moreover, the ‘common law marriage myth’ remains prevalent, with a British Social Attitudes Survey conducted in 2018 showing that almost half those surveyed (46%) explicitly agreed with the incorrect statement that ‘couples who live together for a period of time have a common law marriage which gives them the same rights as married couples’.2 Moreover, this figure rose to 55% in relation to households with children.

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This chapter begins our discussion of the current position on how adult intimate relationships are governed by the law of England and Wales, with particular reference to how it affects religion. It examines the legal regulation of opposite-sex marriage, placing the current law as found in the Marriage Act 1949 within its historical context to explore why the Church of England has been placed in a special legal position and why the current position of other religious weddings is often misunderstood. Given these misunderstandings, this chapter will begin with a discussion of the current law before placing this within its historical context.

Religious groups may conduct marriage ceremonies, but for a marriage conducted in England and Wales to be legally binding it needs to comply with the requirements laid out in marriage law.1 The Marriage Act 1949 differentiates between marriages solemnised according to the rites of the Church of England/Church in Wales and marriages otherwise solemnised. This second category of marriages otherwise solemnised includes: (1) civil marriages in a register office or in approved premises; (2) marriages ‘according to the usages of the Society of Friends’; (3) marriages ‘between a man and a woman professing the Jewish religion according to the usages of the Jews’; and (4) marriages in any place of worship registered under the Places of Worship Registration Act 1855 and section 41 of the Marriage Act 1949.

All religions (other than the three specifically named in the Act: the Church of England/Church in Wales, Society of Friends and Jews) fall under this last category.

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For a legal status which has existed for less than 20 years, the law concerning same-sex partnerships and religion has had a turbulent and somewhat confusing history. This chapter examines the story so far. The first part examines how the Civil Partnership Act 2004 originally ignored religion, copying the template of civil marriage. It then charts how this approach fell apart with the introduction of religious civil partnerships. The second part looks at the Marriage (Same Sex Couples) Act 2013 that built upon the existing structure for opposite-sex marriage rather than using the opportunity to craft a modernised, rationalised and codified law on marriage. This has led to an increasingly complex legal framework as shown by the ‘quadruple lock’ that permits but does not oblige religious groups to conduct same-sex marriages.

The Civil Partnership Act 2004 was introduced in response to two private Member’s bills, which interestingly both sought to introduce a mechanism for both homo- and heterosexual couples.1 However, unlike these Bills, the Civil Partnership Act 2004 provided recognition and protection only in the case of ‘a relationship between two people of the same sex’ (section 1(1)). Much of the Civil Partnership Act 2004 used ‘civil marriage as a template for the processes, rights and responsibilities that go with civil partnership’.2 The restrictions on who could enter a civil partnership replicated those for marriage, but for the requirement that the partners had to be of the same sex (sections 3 and 4). Using the template of civil marriage meant that significant confusion existed as to the differences between the two statuses. In Wilkinson v Kitzinger 3 it was stated that the Act bestowed upon civil partners ‘effectively all the rights, responsibilities, benefits and advantages of civil marriage save the name’.

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This chapter explores the debate on unregistered religious marriages. It will fall into three sections. The first part will outline how the unregistered religious marriage issue has arisen in public debate, looking at the empirical studies that highlighted the issue and the numerous reviews that have taken place which have highlighted it as a problem and sought to solve it. The second part will then examine and critique a particular reform proposal that has come to the fore: a new criminal offence penalising celebrants. The chapter will conclude with discussion of a high-profile case – the Family Court and Court of Appeal decisions in Akhter v Khan 1 – which highlighted the problem of unregistered religious marriages and the lack of legal relief for those in such marriages and the need for legislative rather than judicial reform.

While public debate about the accommodation of minority religious cultures is long standing, the current impetus for reform can be dated back to a lecture by the then Archbishop of Canterbury, Rowan Williams, at the Royal Courts of Justice in 2008.2 Williams’ lecture was not about marriage law but, rather, about the general accommodation of religious law by State law and, in particular, the operation of religious tribunals. In his lecture, Williams raised the question of ‘what it is like to live under more than one (legal) jurisdiction’ and how (and how far) the civil law of the land should recognise or accommodate a legal pluralism based on religious adherence. He suggested that ‘we have to think a little harder about the role and rule of law in a plural society of overlapping identities’.

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This chapter explores the other main concern that has arisen in recent years: the exclusion of non-religious belief marriages under the Marriage Act 1949. This chapter will fall into three sections. The first will introduce the issue, while the second will examine how this issue has arisen in the public debate, exploring the campaign of Humanists UK during the parliamentary passage of the Marriage (Same Sex Couples) Act 2013 and subsequent legal and political developments. The final section will then discuss the High Court challenge of the current law in R (On Application of Harrison) v Secretary of State for Justice,1 which concluded that the law interfered with the applicant’s human rights but that this was justified by the fact that the law was currently under review by the Law Commission.

English law has struggled with the recognition of non-religious beliefs. This is reflected in a series of unprincipled and contradictory Employment Tribunal decisions on how belief is to be defined for the purpose of employment law. Beliefs in independence for Scotland2 and veganism3 have been protected, while the wearing of a poppy4 and vegetarianism5 have not, for instance.6 In relation to marriage law, the problem is rather different: non-religious belief systems are simply excluded. Section 41(1) of the Marriage Act 1949 provides that a ‘proprietor or trustee of a building, which has been certified as required by law as a place of religious worship may apply … for the building to be registered for the solemnization of marriages therein’. The provision of protection only on grounds of religion is socially, politically and legally outmoded.

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The previous chapters have laid out the need for reform: the Marriage Act 1949 is unprincipled and unequal, providing a legal framework which is the product of historical quirk and not only reflects the Christian origins of marriage law but also indirectly discriminates against some religious traditions. The welcome progressive reforms of recent years have been bolted on to this antiquated framework in a way that makes the law overly complicated and also shows that the focus has been only on regulating particular forms of relationships. The antiquated, ineffective and unjust nature of the law has led to a number of marriages taking place extra-legally and this has led to two specific issues of concern: unregistered religious marriages and non-religious marriages. In short, the law on marriage no longer reflects the social reality of adult intimate relationships in the 21st century.

Given this, it is unsurprising that while the Law Commission’s task for their scoping paper was to make the case for reform, their focus in their consultation paper has been instead to argue what reforms are needed.1 This chapter explores and analyses the reforms suggested by the Law Commission’s consultation paper, published in September 2020, which proposes a transformation of the law on how people get married. The consultation paper proposes ‘an officiant-focused scheme’ which would replace the current law’s focus on registered buildings. The Law Commission’s main proposals can be summarised as follows.

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This chapter turns to the question of reform, proposing specific reform proposals showing in detail how the consolidation, simplification and modernisation of the law on intimate adult relationships should be achieved. These will rest on our two points of principle. The first is that the legal redress should be provided to those in unregistered religious marriages where the failure to comply with registration requirements is unwitting or is not truly voluntary by one of the parties. The second is that non-religious ceremonies including those conducted by independent celebrants should be legally binding.

The Law Commission’s proposals, examined in the last chapter, would mark an important step forward but would not be sufficient, for two reasons: first, the Law Commission is hampered by its terms of reference, meaning that, as it concedes, it can only mitigate the unregistered marriage issue; second, there are a few shortcomings in what the Law Commission proposes, especially in relation to the definition of belief systems and the fact that independent celebrants are treated differently. This means that the Law Commission’s proposals will not completely fulfil either of the two points of principle. Moreover, there is a significant risk that the Law Commission’s recommendations may be cherry-picked by the government rather than enacted in full. This would be disastrous, given that the strength of the Law Commission’s proposals is that they come as a complete package.

The reform proposals discussed in this section also come as a complete package. They develop and refine the Law Commission’s proposals, drawing upon comparative examples. However, they go further than the Law Commission’s terms of reference. The focus needs to be not just on weddings law reform or even marriage law but on the law regulating intimate adult relationships.

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This chapter turns to the fourth and fifth reform proposals. While the proposals discussed in the last chapter were directly concerned with how people get married, the proposals discussed here are concerned with related laws which concern the effect and regulation of marriage: looking at the law on what constitutes a valid marriage and possible criminal offences. The proposals discussed in the previous chapter will not be sufficient to overcome the problem of unregistered religious marriages which are entered into unwittingly or involuntarily. The proposals discussed here and in the next chapter serve as backstops to provide further protection in such a scenario.

The two backstops discussed here, the law on validity and criminal offences, would be needed less if the sixth proposal is enacted and there is reform of cohabitation rights. For that reason, cohabitation law reform is discussed separately in the next chapter. Of the two backstops discussed in this chapter, the law on validity is the most crucial. However, new criminal offences have been seen as the answer to the problem of unregistered marriages, most notably by the Independent Review and a number of commentators, as well as in the provisions of Baroness Cox’s Marriage Act 1949 (Amendment) Bill. Yet, criminal offences will have a very limited effect, limited to just preventing and discouraging certain forms of behaviour. The most appropriate remedy is not criminal at all but is about providing appropriate rights on relationship breakdown. The reforms presented in this part are designed as a package: implementing just the criminal law provisions would have very little effect.

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This chapter turns to the sixth reform proposal and this is in many ways the most important one. The introduction of the kind of cohabitation rights found in neighbouring jurisdictions would do much to alleviate the problem of unregistered religious marriages. Modernisation of wedding law should reduce the number of unwitting unregistered religious marriages or such marriages that occur because existing legal formalities provide a hurdle. By contrast, cohabitation rights on relationship breakdown would provide a remedy to those who are in unregistered religious marriages where the decision not to enter into a legal marriage has not been entered into voluntarily or where the relationship has changed over time so that one party has become reliant on the other or has suffered a detriment as a result of the relationship. This would apply, for instance, where one party has given up paid work, reduced their hours or forgone promotion in order to raise children, keep the home and/or to look after the other party. These detriments are likely to be gendered and can often be subtle.

However, it is also important not to take a too paternalistic approach. It is vital that cohabitation rights do not trample upon the free choice of the parties. If the parties have made an autonomous choice not to marry and be subject to the rules and obligations that come with marital status, then this should be respected. The lead of other jurisdictions should be followed to allow couples to opt out of such cohabitation-based protection while also ensuring that this is voluntary and fair.

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