The law that governs how and where couples in England and Wales can marry is badly in need of reform, according to the Law Commission.
In March 2015, at the request of the government, the Law Commission began work on an initial scoping review of marriage law. The purpose was to consider whether the current law provides a fair and coherent legal framework for enabling people to marry, and to identify areas of the law that might benefit from reform.
In its scoping paper, Getting Married, published today (17 December 2015), the Law Commission says that existing marriage law is unnecessarily restrictive and outdated and fails to serve today's diverse society. The solution, it says, lies in full-scale reform of this area of law. At this stage the Law Commission is not making specific proposals for how the law should change. Instead, its scoping paper outlines the questions that would need to be examined to achieve a modern law of marriage.
Marriage law in England and Wales has evolved over many years to become confusing and inconsistent. Designed to meet the needs of the early nineteenth century, it does not cater adequately for the many faiths and non-religious beliefs that make up twenty-first century society. Consequently, many people feel that the law is unfair.
The law is also overly restrictive, according to the Commission. Where and how marriages can take place is tightly regulated. Civil marriages must happen in a register office or on approved premises and cannot contain religious content such as readings from holy books. With certain exceptions, religious ceremonies must take place within a registred place of religious worship. Many people would like the opportunity to marry somewhere more personal or meaningful to them, including outdoors. For some religions, the place of worship is not necessarily the place where people of that faith would choose to marry.
There is also a lack of clarity in the existing law, which can make it difficult to know whether a valid marriage has taken place or not. This uncertainty has led to some people unexpectedly finding that their marriage is not legally recognised, often at a point of crisis such as separation of bereavement. The Commission recognises that marriage law needs to protect the interests of the state and individuals in preventing sham and forced marriages, ensuring that only those free and eligible to do so are able to marry, and keeping a proper record of all marriages that take place. However, within that necessary legal framework, the Commission considers that it is important for people to be able to marry in accordance with their wishes and beliefs.
Professor Nicholas Hopkins, Law Commissioner for property, family and trust law, said today:
'The Law Commission believes that a modern law of marriage should allow couples to get married in the way they want and in a place that is meaningful to them, while continuing to recognise the interests of society and the state in protecting the status of marriage.
'The law of marriage in England and Wales is now out of date, inconsistent and overly restrictive. Our modern society deserves a clearer set of rules that gives all couples greater choice and certainty, while providing protection from the abuses involved in sham and forced marriage.'
For further details see, 'Law of marriage' by Nicolas Hopkins, Law Commissioner and Rebecca Probert, Specialist advisor on the project, in the 2016 January issue of Family Law.
The following documents are available for download: