1. INTRODUCTION

Writing in 2013, under the ironic title of ‘Marriage: A Modest Proposal’, John Eekelaar advanced what he acknowledged was in fact a ‘truly radical’ solution for the reform of marriage law. In it he advocated that the law should allow a legal marriage to take place anywhere within England and Wales, and in any form, the only legal requirements being that it be ‘attested by two witnesses’ and preceded by rigorous formalities designed to ensure that the parties were eligible to marry. As he noted:

It was an imaginative and sensitive way of dealing with the variety of beliefs that exist in England and Wales today, and the corresponding variety of ways in which couples might wish to express their consent to marry. This sensitivity to both the religious context and individual preferences reflected other aspects of his scholarship, including his work on multiculturalism and his long history of empirical research.

At the same time, his suggested solution also acknowledged the need for both legal certainty and a somewhat simpler set of rules than exists at present, which he quite fairly described as ‘bizarre’ and ‘confused’. While, as he acknowledged, it is ‘not dishonourable’ that the law governing entry into marriage ‘has developed by making a series of accommodations with various groups and points of view’, such accommodations have certainly done little for its coherence.

In this contribution, I would like to explore four different aspects of the argument advanced by Eekelaar in his article.

On 3 April 1979, BBC2 broadcast an episode of the TV current affairs and documentary series Man Alive focusing on the growing number of couples living together outside marriage. Its title – The Unholy Alliance – reflected the continuing uncertainty among commentators at the time as to whether cohabitation was a matter for concern. Its key focus, however, was the way in which the law was gradually starting to recognise couples who were living together. And explaining the legal status of cohabiting couples – with her characteristic force and lucidity – was a young Brenda Hoggett.

Asked if the increasingly popular term ‘common law marriage’ had any legal force, her trenchant answer was ‘No, you’re either married or you’re not married.’ She went on to clarify the legal differences between marriage and cohabitation – the fact that children enjoyed no automatic legal relationship with their father, the lack of mutual support obligations, the lack of entitlement to a widow’s pension – but explained that a woman might get a share in the house if the man had made promises to that effect. When the presenter, Nick Ross, ventured to suggest that the advantages lay with the woman, she firmly corrected him, noting that protection focused on dependency rather than gender.

The conception and design of the Marriage Act 1836 was shaped by the various unsuccessful proposals for reform that were advanced between 1819 and 1835. Protestant Dissenters were deeply divided on the question of what shape reforms should take. Some proposals for reform applied only to specific religious groups, while others were general in scope. Some focused on regulating marriages in places of worship, while others proposed a new secular alternative. The challenge for lawmakers was to establish a process that was sufficiently rigorous to assuage any concerns about a new law being used as a cloak for clandestinity and sufficiently independent of the existing Anglican structures to satisfy Dissenters. The solution was found in the machinery of the New Poor Law, which provided the basis for a new system of civil registration. Yet the 1836 Act’s reliance on this machinery was to pose problems, the most pressing being that it was not yet in place in most parts of the country. The implementation of the New Poor Law had to be speeded up, generating considerable opposition, and various makeshift provisions had to be put in place for the parishes that remained outside its ambit.

On a Saturday morning in December 1971, my parents were married in Coventry register office. My mother wore a long crimson velvet dress; a suitable choice for a cold winter’s day, and also a reflection of the fact that those marrying in a register office were advised not to wear white. The register office was located in Cheylesmore Manor, formerly a medieval royal palace, and its stone steps provided an attractive backdrop for the photos. The ceremony itself took place in a small but charming room, in front of a number of guests in addition to their two witnesses. The cost of the entire process was £2.75. Afterwards, they drove to the village where my mother lived for a blessing at her local church. The civil ceremony had clearly taken less time than they expected, as they were too early for the church service and had to go to the pub next door in the meantime. By 12.30 p.m. they were sitting down to a modest lunch with their guests.

With the emergence of new and more informally organised Nonconformist groups, evidence of noncompliance within the Greek Orthodox community and among Jewish immigrants, and the first recorded Muslim marriage ceremonies, the prospect of radical reform faded. It was clear that delegating control over weddings to religious groups would result in considerable uncertainty about marital status. Divisions between Catholics and Nonconformists, and among different Nonconformists, meant that even the more limited issue of dispensing with the registrar could not be resolved simply by conferring authority on priests and ministers. The solution adopted in the Marriage Act 1898 was to allow ‘authorised persons’ to register marriages. While this seemed to accommodate the interests of different religious groups, the removal from the bill of any reference to authorised persons ‘solemnizing’ marriages, the regulations governing their appointment and actions, and the form of the new registers dispatched to them all served to undermine their status and make the role less attractive. The 1898 Act also added a yet further layer of complexity to the law governing weddings, with new distinctions between Catholics and Protestants, and between Christian and non-Christian groups.

Decisions made in the nineteenth century continue to have an impact on how couples marry in the twenty-first. But so much of the current law regulating weddings has come about by chance. Legislators have responded to specific problems and situations by making what might seem to be minor amendments to the legislation but which at best create new anomalies and at worst change the options available to couples entirely. Examining how and why particular provisions were included reveals how many were stop-gap measures that were never intended to be permanent, or were introduced as afterthoughts, without full consideration of their implications, or were intended to serve an entirely different purpose from that which is now attributed to them. The law should reflect how twenty-first-century couples wish to marry, rather than how nineteenth-century lawmakers thought they should.

The Marriage Act 1994 introduced the possibility of marrying on ‘approved premises’. Within a decade of it coming into force, such weddings accounted for half of all civil weddings, and by 2017 almost 70 per cent of all weddings were taking place in such venues. There was a corresponding decline in weddings in Anglican churches and register offices. The fact that couples were increasingly choosing a civil wedding did not, however, indicate that they were rejecting religion: the period also saw the rise of ‘celebratory ceremonies’ held separately from the legal wedding where there were particular obstacles to couples marrying in accordance with their beliefs or wishes. Some couples, meanwhile, married according to religious rites alone, sometimes unaware that such ceremonies had no standing in law. The courts struggled with the question of how such ceremonies should be classified, while official concerns focused in particular on Muslim marriage practices. Finally, in 2020, the restrictions imposed by COVID-19 exposed many of the problems with the current law and brought out the distinction between the celebratory and legal aspects of getting married.

The number of religious and civil weddings gradually converged, with parity being achieved in the late 1970s. Yet those marrying in a register office did not necessarily regard marriage as a civil matter. While some were motivated by their lack of religious belief, many more did so because they were unable to marry in accordance with their beliefs. For Anglicans, it was the restrictions placed by the church on the remarriage of those who had been divorced that was the key constraint. For other denominations and faiths, it was primarily the lack of places of worship in which weddings could legally take place. Such legislative changes as did occur during this period were limited to very specific issues: new laws gave Liberal Judaism the same status as Reform Judaism, modified some of the preconditions for places of worship to be registered, enabled Anglicans and other denominations to celebrate weddings in the same building, and provided all couples with an alternative to the Anglican special licence in specific situations. More wide-ranging reform was clearly needed, but proposals to simplify the law came to nothing.

The Marriage and Registration Act 1856 responded to a number of specific grievances, making changes to civil preliminaries and allowing those in charge of registered places of worship to decide who could marry there. It also provided that Anglican clergy could no longer be compelled to marry a couple after civil preliminaries, prohibited the inclusion of a religious service in register office weddings, and allowed the West London synagogue to certify its own secretaries and those of other Reform synagogues. Other reforms in this period allowed Anglican clergy to refuse to remarry any person who had been divorced on the basis of their adultery, opened Quaker weddings to non-Quakers, and removed the restriction that only Christian places of worship could be registered for weddings. Even wider-ranging reform was considered by a Royal Commission in the 1860s; had its recommendations been enacted, there would have been a uniform marriage law for the whole of the United Kingdom and Ireland, organised around the person conducting the marriage rather than the place of marriage, and the subsequent history of marriage law would have been very different.

The reactions to the 1836 Act were just as diverse and complicated as the campaign for reform had been. The new civil preliminaries – required unless a couple were marrying in the Anglican church – were not calculated to encourage take-up. Nonetheless, some couples actually chose civil preliminaries over Anglican ones, leading to conflict between clergy and registration officials. Catholics were more likely to register their places of worship for marriage and to get married there, although some priests got into trouble when they conducted ceremonies in such registered chapels otherwise than in accordance with the law. Protestant Dissenters were proportionately far less likely to register their places of worship for marriage, or to marry there. Few married in a register office, although those who did were able to include prayers and Bible readings, underlining how this particular option was intended to complement that of marrying in a registered place of worship. Quaker weddings continued much as before, although falling numbers meant that individual Quakers were limited in their choice of spouses. Jewish weddings similarly continued as before, but the breakaway Reform synagogue found itself refused recognition by the Board of Deputies and its members had to resort to the register office.

The first two decades of the twentieth century saw new challenges to the laws governing both marriage and weddings emerging on all sides. Involving in turn Anglican, Catholic, Jewish, Sikh, Hindu, and Muslim conceptions of marriage, these different challenges all involved the question of the relationship between the law as set out in statute and the law of an individual’s own religion. Whenever this issue came before the courts, the judges were clear that there was one single conception of marriage in England and Wales, and that this was the same regardless of the religion of the parties or how they had married. In this respect the Church of England was in the same position as any other religious group: its clergy had the right to refuse to conduct the marriages of individuals within the formerly prohibited degrees, but not to refuse to recognize such marriages as valid. Nonetheless, the insistence by the courts that English law recognised only Christian marriage did send a very clear message that not all religions were equal in its eyes. While the term ‘Christian’ was at one level merely shorthand for monogamous marriage, it conveyed much more than this.

A perusal of the statute book might suggest that there was little change to weddings law during the 1920s and 1930s. There were, however, numerous Church of England Measures that altered the rules governing its weddings and caused them to diverge from those applicable to the newly disestablished Church in Wales. And there were even more orders validating marriages that had not taken place in accordance with the law, illustrating how often mistakes were made. There were also changes in how couples married, with the balance between Anglican and civil weddings shifting in the light of the church’s growing reluctance to conduct the remarriages of the divorced and the changing implications of marrying in a register office. While the Marriage Act 1949 finally brought all of the laws regulating marriage and weddings together into a single statute, it did very little by way of recasting the terms in which the law was stated, even less by way of removing anomalies, and absolutely nothing by way of reconsidering the way in which different types of marriages were regulated in different ways. All it achieved was to consolidate the complexity of the existing law.