The Next Reform after No Fault Divorce

Following the excellent news that the Divorce, Dissolution and Separation Bill has finally passed all of its Parliamentary stages and that fully no-fault divorce will become law, attention now needs to turn to other aspects of the law on adult intimate relationships which are badly in need for reform.

The Ministry of Justice tweeted yesterday to herald ‘the biggest shake-up of divorce laws in 50 years’. But it is not only the law on the termination of marriage that needs reform, the law on formation is badly in need of a shake-up.

Thankfully the Law Commission is currently carrying out a review of weddings, as I noted in a previous post There is a need, for instance, to include humanist ceremonies.

One of the most pressing issues, however, concerns unregistered religious marriage. Numerous pieces of empirical research have highlighted this as an issue.

This concerns couples who are married in the eyes of their faith but who have not complied with the law on marriage registration. Such couples have little redress under English law if their relationship breaks down. And so often they have nowhere to go but the Sharia Council or other form of religious adjudication.

The recent Court of Appeal decision in Akhter v Khan shows that such couples are in a legal no-man’s land, as I noted in a recent Blog

The response to this problem has been the suggestion that celebrants of religious marriages should be penalised but this is the wrong solution: as I explain in this briefing it is the answer to a different problem and would do nothing to provide rights to those in unregistered religious marriages.

Unregistered religious marriages prompt concern as to voluntariness and consent. This requires looking at existing laws on coercive control and domestic violence before examining whether new provisions are needed to deal with this in particular.

But unregistered religious marriages also prompt concern that the details of marriage law have become outdated and no longer reflect our diverse twenty-first century society.

The position of cohabiting couples also shows how out of date the current law is.

While such couples are afforded rights in a range of other jurisdictions, in England and Wales they are denied legal protection. Again, this means on relationship breakdown there is little legal redress outside the technicalities of trusts law.

These two issues are connected. Laws protecting cohabitation would mitigate the issue of unregistered marriages.

Both of these problems are pressing and both could be dealt with by cohabitation reform. (See further this article co-authored with Dr Sharon Thompson).

Now that we have a divorce law that reflects twenty-first century needs, we need to turn attention from termination to formation. There is much work that urgently needs to be done.

– My new book – Religion and Marriage Law: The Need for Reform – will be published by Bristol University Press in 2021.

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