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Marital Problems: The Law Commission's ‘Getting Married’ Consultation Paper and Non-Qualifying Wedding Ceremonies

Published online by Cambridge University Press:  27 April 2021

Russell Sandberg
Affiliation:
Professor of Law, Cardiff University

Abstract

This article explores the Law Commission's proposals on how and where people can get married in England and Wales as found in their ‘Getting Married’ Consultation Paper. It examines the extent to which the Commission's proposals will deal with or mitigate concerns expressed about two types of non-qualifying wedding ceremonies: ‘unregistered religious marriages’ where the couple undergo a religious ceremony that does not comply with the requirements of the Marriage Act 1949, and ‘non-religious marriages’ where the ceremony is conducted by celebrants representing a belief organisation (such as Humanists UK) or by independent celebrants and so is also outside the Marriage Act 1949 and not currently legally binding. The article largely welcomes the Commission's proposals but expresses concern about the proposed officiant system and how it defines belief organisation; the proposed changes to the law on validity; and the creation of a new criminal offence. The article develops these three points further and contends that, while a transformed weddings law could recognise non-religious marriages and reduce the number of unregistered religious marriages, the introduction of statutory cohabitation rights upon separation is needed to truly deal with concerns over unregistered religious marriages.

Type
Articles
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of Ecclesiastical Law Society

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Footnotes

1

This article is based on a presentation given to the Ecclesiastical Law Society's Day Conference on 20 March 2021. I am grateful to Dr Sharon Thompson and Frank Cranmer for their comments on this in draft.

References

2 Health Protection (Coronavirus Restrictions (No 2) (England) Regulations 2020, enacted on 24 September 2020.

3 Health Protection (Coronavirus Local COVID-19 Alert Level) (Medium) (England) Regulations 2020.

4 Williams, R, ‘Civil and religious law in England: a religious perspective’, (2008) 10 Ecc LJ 262282Google Scholar. Empirical studies have included Shah-Kazemi, S, Untying the Knot: Muslim women, divorce and the shariah (London, 2001)Google Scholar; Bano, S, Muslim Women and Shari'ah Councils (Basingstoke, 2012)CrossRefGoogle Scholar; and Douglas, G, Doe, N, Gilliat-Ray, S, Sandberg, R and Khan, A, Social Cohesion and Civil Law: marriage, divorce and religious courts (Cardiff, 2011)Google Scholar. For instance, the Cardiff University research found that over half of the cases dealt with by the Sharia Council in our study involved couples who either had not married under English civil law or had married abroad and whose marital status in English law was unclear.

5 Law Commission, Getting Married: a scoping paper (2015), <https://www.lawcom.gov.uk/app/uploads/2015/12/Getting_Married_scoping_paper.pdf>, accessed 15 February 2021; Woolf Institute, Living with Difference: community, diversity and the common good, Report of the Commission on Religion and Belief in British Public Life (Cambridge, 2015); Home Office, The Independent Review into the Application of Sharia Law in England and Wales, CM 9560 (2018). On the Council of Europe's Resolution, see R Sandberg and F Cranmer, ‘The Council of Europe and sharia: an unsatisfactory resolution?’, (2019) 21:2 Ecc LJ 203–212.

6 Home Office, Independent Review, p 5. For criticism, see R Akhtar, ‘Religious-only marriages and cohabitation: deciphering differences’, in R Akhtar, P Nash and R Probert (eds), Cohabitation and Religious Marriage (Bristol, 2020), pp 69–84 at pp 76–78. Marriage Act 1949 (Amendment) Bill 2020–21.

7 [2018] EWFC 54.

8 Her Majesty's Attorney General v Akhter [2020] EWCA Civ 122. See R Sandberg, ‘Unregistered marriages are neither valid or void’, (2020) 79:2 Cambridge Law Journal 237–240.

9 The move stalled because it was thought too important to enact by secondary legislation and there was no suitable Bill before Parliament to include such suggestions: HC Written comment, 1 March 2005, vol 431, col 77WS.

10 Lord Harrison's Marriage (Approved Organisations) Bill 2012–13.

11 Ministry of Justice, Marriages by Non-Religious Belief Organisations: Summary of Written Responses to the Consultation and Government Response (2014).

12 Law Commission, Getting Married: a scoping paper, para 1.40.

13 All-Party Parliamentary Humanist Group, ‘Any Lawful Impediment?’ A Report of the All-Party Parliamentary Humanist Group's Inquiry into the Legal Recognition of Humanist Marriage in England and Wales (2018), p 6, <https://humanism.org.uk/wp-content/uploads/APPHG-report-on-humanist-marriage.pdf>, accessed 15 February 2021. Baroness Meacher's Marriage (Approved Organisations) Bill was introduced in the House of Lords for a First Reading on 9 February 2020; the Marriage (Approved Belief Organisations) Bill, sponsored by Rehman Chishti, received its First Reading on 22 October 2020.

14 R (On Application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin) at para 107.

15 See S Cretney, Family Law in the Twentieth Century: a history (Oxford, 2003).

16 All-Party Parliamentary Humanist Group, ‘Any Lawful Impediment?’, p 9. S Pywell, ‘The day of their dreams: celebrant-led wedding celebration ceremonies’, (2020) 32:2 Child and Family Law Quarterly 177–99. The figure for independent celebrants is an estimate based on responses received, which assumes that those who did not respond are as active as those who did.

17 This false presumption is true of the Independent Review and the Council of Europe Resolution, for instance.

18 See S Mohee, ‘Young British South Asian Muslim women: identities and marriage’ (PhD thesis, University College London, 2011), p 211.

19 Law Commission, Getting Married: a consultation paper on weddings law, Consultation Paper 247 (2020). Further references to the consultation paper are given in the text.

20 Ibid para 1.14.

Ibid

21 Each member of the couple would need to give at least 28 days’ notice and this would take the form of two steps: ‘(1) the initial giving of notice, which might take place remotely (for example, by post or online); and (2) an in-person meeting with a registration officer’. These steps could be taken at the same time or separately: see paras 3.11–3.13. The consultation paper asks whether common preliminaries should apply to Church of England and Church in Wales weddings, which would mean that the current Anglican preliminaries such as the calling of banns would no longer have legal effect (para 3.23).

22 This would include ‘(1) ensuring that the couple freely consent to the marriage; (2) ensuring that any requirements of the ceremony have been met; and (3) ensuring that the register (or schedule) is signed’ (paras 5.51–5.52).

23 The possibility of ‘an optional scheme for pre-approval’ would also be considered so that ‘some venues would already have been determined to be safe and dignified, removing any need for an officiant to make their own assessment’ (para 3.66).

24 This argument draws on S Pywell and R Probert, ‘Neither sacred nor profane: the permitted content of civil marriage ceremonies’, (2018) 30:4 Child and Family Law Quarterly 415–436.

25 The fifth category is maritime officiants (discussed in paras 3.54–3.56) and that need not concern us here.

26 R (on the Application of Hodkin) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77, on which see R Sandberg, ‘Defining the divine’, (2014) 16:2 Ecc LJ 198–204; R Sandberg, ‘Clarifying the definition of religion under English law: the need for a universal definition?’, (2018) 20:2 Ecc LJ 132–157.

27 Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT, on which see R Sandberg, ‘Is the National Health Service a religion?’, (2020) 22:3 Ecc LJ 343–354.

28 Pywell, ‘Day of their dreams’; S Pywell, ‘Beyond beliefs: a proposal to give couples in England and Wales a real choice of marriage officiants’, (2020) 32:3 Child and Family Law Quarterly 215–238.

29 Civil Registration Act 2004, s 45A.

30 [2020] EWCA Civ 122 at para 66.

31 [2018] EWFC 54.

32 Under this section, where the victim lacks capacity to consent (as defined under the Mental Capacity Act 2005), the offence is ‘capable of being committed by any conduct carried out for the purpose of causing the victim to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form coercion)’.

33 S Rocker, ‘Landmark case sees woman obtain get after launching private prosecution against husband for coercive control’, JC, 13 January 2020, <https://www.thejc.com/news/uk-news/landmark-case-sees-woman-obtain-get-after-launching-private-prosecution-against-husband-for-coercive-1.495362>, accessed 16 February 2021.

34 Ibid.

Ibid

35 Family Law (Scotland) Act 2006; Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (Ireland); Law Commission, Cohabitation: the financial consequences of relationship breakdown, Law Com no 307 (2007), available at <https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage-11jsxou24uy7q/uploads/2015/03/lc307_Cohabitation.pdf>, accessed 16 February 2021. The matter has also been the subject of two Private Members’ Bills: Lord Lester's Cohabitation Bill in 2009 and Lord Marks's Cohabitation Rights Bill, which was first introduced in 2013 and most recently re-introduced in February 2020. See also the speech by Baroness Hale in Gow v Grant [2012] UKSC 29, discussing the Scottish model and the Law Commission proposals. Reform has also been championed by academic research such as A Barlow, S Duncan, G James and A Park, Cohabitation, Marriage and the Law: social change and legal reform in the 21st century (Oxford, 2005); and A Barlow and J Smithson, ‘Legal assumptions, cohabitants’ talk and the rocky road to reform’, (2010) 22:3 Child and Family Law Quarterly 328–350.

36 J Miles, ‘“Cohabitants” in the law of England and Wales: a brief introduction’ in Akhtar, Nash and Probert, Cohabitation and Religious Marriage, pp 27–38, at pp 27, 35.

37 Law Commission, Cohabitation, para 1.5.

38 Some systems provide more details as to the definition of the term ‘cohabitants’ than others but the definition tends to be satisfied if the couple have had a child together or have lived together for a certain amount of time. Most approaches require evidence of an advantage or disadvantage, with a range of slightly different factors then given for the court to consider in determining this.

39 Any opt-out agreement would also need to be looked at in the same way.

40 This is a concern that Sharon Thompson has raised in relation to prenuptial agreements. She has put forward a new approach, which she terms ‘feminist relational contract theory’, which explicitly factors in how the relationship has changed over time, with particular focus on the gendered dimensions. See Thompson, S, Prenuptial Agreements and the Presumption of Free Choice: issues of power in theory and practice (Oxford, 2015)Google Scholar; and Thompson, S, ‘Feminist relational contract theory: a new model for family property agreements’, (2018) 45:4 Journal of Law and Society 617645CrossRefGoogle Scholar.

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