Why should family lawyers who deal with the breakdown of relationships and marriages be interested in the law relating to marriage itself? Well, if it were not for marriage, there would be no divorce!

The Law Commission are proposing far-reaching changes to the law in relation to marriage and weddings. The Report itself is 472 pages long and the summary, 40 pages. In this article I only try to address the core issues.

As family lawyers we are increasingly having to consider issues about the formation of the marriage itself. We may all be familiar with the Mick Jagger and Jerry Hall argument as to whether or not there was a valid marriage and many of us will have dealt with the issue of whether or not a marriage was valid where usually the wealthy partner claims that it was not. There is increasing evidence reflected by the Law Commission in their report of religious only marriages where there has been a religious marriage without the civil authority or (as needed in most religions) an accompanying and separate civil marriage. In the event of a breakdown of a religious only marriage the vulnerable party can be left in a dire situation as currently these are seen as “non-marriages”. The report also highlights an increase in what they call predatory marriages.

The current law – where the problem lies

Weddings and marriages in England and Wales are currently governed by the Marriage Act 1949. There is a complex maze of rules governing different types of ceremonies dependant on the particular type of building or religion in which the wedding is to take place. It is only when organising a wedding that people find how complex these situations can be.

The central elements of the current law date from the 18th and 19th centuries. Couples must choose between a civil wedding and a religious wedding. Religious weddings are further divided by law into different types. Anglican weddings; Jewish or Quaker weddings; and the rest - any other religious groups. There is inconsistency and complexity.

Anglican weddings must generally take place in a church or public chapel; all other religious weddings (other than Jewish and Quaker) must take place in a registered place of worship and in a registered building. Jewish and Quaker weddings can take place in any location provided that they are also attended by a marriage secretary authorised to sign the civil documentation.

The notification of proposed marriage procedure is also in efficient. The couple must individually give notice in person in the Register Office in the registration district in which they have resided for the last seven days. The notice can be given together and the opportunity to check on whether there is any element of duress or undue influence or indeed if this is a marriage of convenience, is very limited. Notice of the forthcoming marriage is then meant to be made public. How? By posting it on a poster in the local register office itself. Who is likely to see this? Anglican marriages use the process of publication of banns, again with limited actual public notice given.

The Regulations in relation to applying for a building to be a registered building for marriages is complex and costly and many appropriate venues find the process too difficult and expensive. The law requires couples to have either a religious wedding or a civil wedding and there is no option to have a wedding according to beliefs that are non-religious (such as humanist). The law also does not enable couples who have different beliefs to have a religious wedding incorporating both beliefs. Whilst it may be possible to have a ceremony of this nature, there would have to be a civil wedding separately for the marriage to be valid. A civil wedding can also not incorporate any element of religious belief under the current law.

These restrictions are not in keeping with social requirements of the latter 20th Century, let alone the 21st, and lead to people sometimes deciding not to marry, or to having their own devised ceremonies that do not count as marriages, with severe consequences if the couple separate.

In addition to concerns about religious only marriages that do not count as valid marriages under the current law, the Law Commission highlight concerns in relation to what they call predatory marriages. This is where elderly people including sometimes with dementia have married without the knowledge of their families. This then has the effect of revoking the person’s Will so that the spouse inherits rather than the family as under a Will.

The new scheme

The Law Commission are recommending a complete reform from the foundations up. The recommendations are intended to ensure as far as possible that the same legal rules will apply to all weddings, whether civil or religious, and to all religions. They suggest they should also apply to non-religious beliefs such as humanists.

The crucial change is the creation of the authority of an “Officiant” who must be a part of, the wedding process, whether conducting the wedding or simply being present to ensure the correct process is followed. The officiant will have the civil authority to deal with the signature by the couple of the necessary schedule, which confirms that the marriage has taken place, that the appropriate consents have been given, and that there have been witnesses. The use of a schedule issued by the Register Office is a process that has been in place since April 2021 and has replaced the signing of Registers. The officiant also has the duty to ensure that the marriage is properly registered, by sending it to the Register Office in the district the couple marry.

There will continue to be two stages of a valid marriage. The civil preliminaries of giving notice and then the ceremony itself.

Preliminaries

The civil preliminaries will be simplified but at the same time the process given greater credibility. Each of the couple will need to give notice to a registration officer. It cannot be given jointly. That notice does not need to be in any specific registration district and could even be given online. However, as part of the preliminaries process the couple will be required to be interviewed by a registration officer in person and separately from each other. This in-person interview plays an important role in helping to identify forced or coerced marriages or where there is a lack of capacity. Notice can be given at the same time as the interview, but if a notice is given online the individual interview must take place a minimum of five days before the schedule authorising the wedding is issued.

The notice itself is not just stuck on a wall but will be made available on the internet and there must be at least a 28-day waiting period between the giving of the notice and the granting of authority to marry by the issue of the schedule. It will also be possible for someone who is concerned that a person may be vulnerable to a predatory marriage to enter a caveat against that person getting married before notice of a wedding is given. This will be searchable by the Registrars.

The officiants then have an important role to play in confirming that the marriage has taken place validly, that the schedule issued by the Registrar for signature has been appropriately signed and also has a number of other duties, including ensuring informed consent and that there are witnesses.

Who can be an officiant?

Anglican clergy will automatically be recognised as officiants. In relation to other religions and religious organisations, the officiant will need to be nominated by a religious organisation and, of course, must be persons of good standing. The appointment will be made through the General Register Office who must be satisfied that the proposed officiant is fit and proper.

What is a religious organisation? As described by the Supreme Court a religion is a spiritual or non-secular belief system held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite. Individual temples, synagogues, mosques and other groups will all be able to apply to nominate an officiant for their organisation, provided that it is a body which has members from at least 20 households.

This most important proposal will mean that in practice every religious organisation of whatever nature will be able to apply and will be likely to apply to have an officiant appointed. All other religions in addition to the current Anglicans, Jews and Quakers, will be able to appoint officiants enabling marriages to take place anywhere, not just in a registered building. This does not need to be the religious leader and may well not be for many organisations.

A consequence of this will be that if a couple (or one of them) asks to be married by a religious only ceremony there is likely to be, or should be, a major question raised by their religious body as to why proper notice has not been given so that the officiant of that organisation can deal with the civil part of the marriage as well. This could well prevent vulnerable individuals, usually wives, being led to believe that the marriage they are entering into is a fully valid marriage rather than just being a religious only marriage.

It should also be noted that the Law Commission propose that where there has been a religious only marriage, without the necessary civil preliminaries having been followed, that it should be clear that such a marriage will be void if one of the parties believed that it was also a valid civil marriage rather than as currently being a non-marriage. This would mean that if the marriage breaks down, that the jurisdictional process would be through nullity, enabling the court to make the same Orders that it could make on a divorce in relation to finances.

In relation to Civil marriages only, the officiant will either be a registration officer employed by the local council or (possibly) independent officiants if this is allowed by any proposed legislation. An independent officiant would have to satisfy the General Register Office that they were fit and proper persons and that their motive for becoming an officiant was not just commercial. There is a final category of maritime officiants allowing marriages to take place at sea in international waters, but this is unlikely to be of major import.

The ceremony

In order to be married the couple will still need to have a wedding ceremony. This will need to be more than simply signing a marriage document and marriage schedule. The officiant has a duty to ensure that there is an expression of consent. This will not need to be in any specific formula in a religious ceremony provided that the consent is clear. Within some religions this can be given by conduct in what is a traditional way. The officiant must also ensure that there are at least two witnesses who will need to sign the schedule and the officiant also has a duty to then register the schedule duly completed. Implicit within this is the fact that the couple will need to produce at the ceremony or more normally, beforehand, the schedule itself to the officiant confirming that the civil preliminaries have been complied with. In the case of a civil ceremony, consent will still need to be given using required words.

The proposals also will allow religious and non-religious belief content in civil weddings. This is also important as there are many couples who get married civilly, who have some religious belief and who would like to use some traditional prayers or statements as a result of their heritage. It is often an irritation to couples now that in Civil ceremonies no religious content is permitted, however small.

Conclusion

These are far-reaching changes, but changes that will both simplify the archaic system we have now and correct many of the problems which currently arise. It creates equality of treatment of different religions and allows a wedding day to truly represent the wishes of the couple (or their families). It will also go a long way to solve the problems of non-marriages and predatory marriages. Let’s hope that it receives sufficient Government time to be brought into force far more speedily than the changes to the divorce law!