As Gillian Douglas has pointed out, all societies have rules governing entry into and exit from marriage ‘and the question of who has the power to set and apply these rules has always been the subject of dispute’, since it ‘enables control to be exerted over the imposition and enforcement of obligations between individuals’ (Douglas, 2015: 53). That power may lie with the state, or with religious groups, or indeed individuals. The rules that are laid down may require compliance with specific formal requirements or rituals, or may accord the status of ‘marriage’ to those who have demonstrated an intention to be married, or lived their lives in a certain way. If we review practices across the globe, we can find examples of all of these different ways of regulating marriage.
So it is worth bearing in mind, as we contemplate how the law might regulate marriage in the future, that there is nothing inevitable about either the current law or indeed religious rituals. Wendy Leeds-Hurwitz quite rightly points out that ‘[r] ituals have meaning for us because we conveniently forget that we ourselves have designed them’ (Leeds-Hurwitz, 2002: 29) and the same point can be made, with equal force, about the legal requirements.
The history of marriage law in England and Wales is one of religious regulation gradually being replaced by legal regulation. Weddings in the Anglican church may involve no direct contact with the state by the couple themselves – they are not obliged to go to the register office to give notice, for example – but it still takes place within a legal framework. Jewish and Quaker weddings, while more lightly regulated than those of other religious groups, must be still preceded by notice. At the same time, the law does accommodate religious diversity. Legally binding marriages can take place according to such rites as the couple may choose as long as they are conducted in a place of worship that has been registered for the purpose.