Non-Qualifying Marriages and the COVID Regulations: The End of the Saga?

Following the controversy over whether humanist marriages and other marriage ceremonies outside the Marriage Act (such as those by independent celebrants) were exempt from the rule of six, the latest COVID Regulations in England make express mention of the issue. 

Different Regulations have been made for the three different tiers but the ‘medium’ tier Regulations (which applies to the majority of England) can be used as an exemplar. 

The marriage exception is now found under paragraph 3 of schedule 1 to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020

This provides for ‘exception 8’: 

(9) Exception 8 is that the gathering consists of no more than 15 persons and—

(a) it is for the purposes of—

(i) the solemnisation of a marriage, formation of a civil partnership or conversion of a civil partnership into a marriage, in accordance with the Marriage Act 1949, the Marriage (Registrar General’s Licence) Act 1970, or the Civil Partnership Act 2004, or

(ii) an alternative wedding ceremony (see paragraph 7(5)), and

(b) the gathering organiser or manager takes the required precautions in relation to the gathering (see paragraph 6).

Exception 9 then applies to a gathering ‘for the purposes of a wedding reception, a reception following the formation of a civil partnership or a reception following the conversion of a civil partnership into a marriage’ provided that this ‘takes place in premises other than a private dwelling’.

The reference to an ‘alternative wedding ceremony’ is defined in paragraph 7(5) as applying if a gathering: 

(a) it is for the purposes of a ceremony, including a ceremony based on a person’s faith or belief or lack of belief, to mark the union of two people, other than a ceremony conducted for a purpose mentioned in paragraph 3(9)(a)(i), and

(b) it takes place—

(i) at premises, other than a private dwelling, which are operated by a business, a charitable, benevolent or philanthropic institution or a public body,

(ii) at premises, other than a private dwelling, which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body, or

(iii) in a public outdoor place not falling within sub-paragraph (i) or (ii).

Note that restrictions as to place apply to alternative wedding ceremonies but not to gatherings for the solemnisation of marriage. 

The definition of alternative wedding ceremony as ‘including a ceremony based on a person’s faith or belief or lack of belief, to mark the union of two people’ clearly includes humanist ceremonies, providing statutory recognition of such ceremonies for the first time (though they do not have legal effect). The fact that the Regulations recognise ‘alternative’ wedding ceremonies at all shows how the current law on solemnisation of marriage is outmoded. 

It is also clear that unregistered religious marriages would benefit from this reception provided that they met the requirements as to place. A religious wedding at home would not meet these requirements, for instance.

It is still not completely clear, however, whether marriage ceremonies by independent celebrants are covered. The evidence against is the requirement that the ceremony must be ‘based on a person’s faith or belief or lack of belief’. Some ceremonies by independent celebrants would meet this requirement but a wide interpretation of this requirement might be needed to include others. Aside from this, however, the term ‘alternative wedding ceremony’ would seem to be an accurate summary of what independent celebrant ceremonies do and so it would be perverse if they were to be excluded.

The reference to faith and belief, however, does continue to show that the Government are thinking in these terms and this may be a bad omen in terms of marriage law reform since this focus might continue to exclude independent celebrants.

Exceptions 8 and 9, applying to marriages and receptions respectively, both require the gathering organiser or manager to take the required precautions under paragraph 6. These are twofold: they must carry out a risk assessment that would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999(a) (whether or not the organiser or manager is subject to those Regulations) and they must take ‘all reasonable measures to limit the risk of transmission of the coronavirus’, taking into account the risk assessment and ‘any guidance issued by the government which is relevant to the gathering’. This last point is of interest since it effectively makes the guidance legally binding.

Overall, in relation to the issue of non-qualifying marriages, these Regulations are an improvement on what they replaced. There is now a legal basis upon which the rule of 15 applies to humanists and it is likely that this applies to independent celebrants: though given the Regulations’ unnecessary focus on ‘faith and belief’, the continued confusion in that respect is problematic. In drafting these provisions, the focus has not been on independent celebrants and that is concerning in terms of future law reform. The explicit reference to ‘alternative wedding ceremony’ is significant not only in providing protection but also in that it provides statutory recognition of such ceremonies for the first time and therefore could be said to represent a concession that the current law on marriage is no longer fit for purpose or at least does not reflect social practice.

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