As we await the final report by the Law Commission on reform of the law on getting married, there have been two further developments in the Westminster Parliament.
First, there has been a further written question and answer on wedding law reform. Conservative MP Crispin Blunt tabled a question:
‘To ask the Secretary of State for Justice, what recent assessment he has made of the potential merits of legally recognising humanist marriages.’
Tom Pursglove MP, Parliamentary Under Secretary of State (Ministry of Justice) (jointly with Home Office), replied:
‘The Law Commission will present options for how the law should be reformed in relation to who can solemnize a marriage, including how marriage by humanist and other non-religious belief organisations could be incorporated into a revised or new scheme. The Government will consider the Commission’s recommendations very carefully.’
This is a welcome response not only in that it reaffirms that the Government will carefully consider the Law Commission’s proposals but also because it is recognised that there is a need to consider ‘other non-religious belief organisations’.
It is noticeable that, although the question focused on humanist marriages, the answer frames the issue wider than that.
As I argue in my book, and as the Law Commission made clear in their preliminary consultation paper, the need for marriage reform does not only affect humanist celebrants.
However, the term ‘other non-religious belief organisations’ is potentially too narrow. If recognition is afforded only to belief organisations then the question of the definition of belief will become vital and controversial. This has already proved to be the case in discrimination laws with respect to laws forbidding discrimination on grounds of religion or belief. It has also caused issues in Scotland where marriage laws have been reformed on this basis.
Furthermore, such an extension would continue to exclude independent celebrants. This would be to simply replace one form of discrimination with another. For this reason, the Law Commission schema in their consultation suggested a separate process for such celebrants to be recognised. In my book I argue that recognition needs to be afforded to ‘organisations’ rather than to just ‘religion or belief organisations’ to nominate officiants so to include independent celebrants this way.
It is slightly concerning that the reply talks about ‘a revised or new scheme’. To remove the discriminatory provisions in the current law, which are the product of historical quirk, a new scheme is needed. Simply adding to the current structure will not work.
This is because the current law also discriminated against some forms of religious marriage. Unlike weddings by belief organisations and independent celebrants, religious weddings can currently be legally recognised under the Marriage Act 1949. However, the problem is that the thresholds imposed by the Act in order to be recognised means that many such marriages are not recognised – the problem of unregistered religious marriage.
The basic problem with the Marriage Act is that it regulates buildings rather than people. This means it indirectly discriminated against those religions who either have no building or have a tradition of weddings taking place elsewhere. This has become an issue in some Muslim communities.
This is reflected in the second Parliamentary development. A petition by the Muslim Women’s Advisory Council has been rejected. The petition stated that:
‘Muslim Women’s Advisory Council is a voluntary organisation working towards women’s rights in marriage. We are campaigning for Islamic marriages (Nikah) registration to be mandatory. This is the first basic right of a woman when she gets married.’
The Petition was rejected on 4th November 2021 for ‘not being a Government or Parliamentary matter’. Although this seems strange, it appears that the reasoning behind this is that Islamic marriages can already be registered provided that the requirements are met. As thePetition Committee commented:
‘Petitions must call for a specific action that the UK Government or Parliament are directly responsible for. A Nikah is not recognised as a legally valid marriage unless there is an additional civil ceremony, which already needs to be registered. We could accept a petition calling on the Government to recognise a Nikah as a legal form of marriage, so that existing requirements for registration of marriages apply to Nikahs.’
The issue is not, however, about recognising a Nikah as a legal form of marriage. The Marriage Act already does this, provided it takes place in a registered place of worship.
Recognising all Nikah ceremonies as legally binding would be problematic given that there would be no safeguards to ensure consent and eligibility to marry and there would then be no way to know who was married.
The answer surely is to remove the discriminatory thresholds that prevent many Nikah ceremonies from complying with the Marriage Act.
A move from a focus on regulating buildings to one regulating officiants, as suggested by the Law Commission in their consultation paper, would achieve this. It is hoped that their final report will echo this recommendation and that the Westminster Government will then act to bring our marriage law into the twenty-first century.
For further discussion on the needed reform see my policy briefing.