I am delighted to be invited to contribute to the Sunday programme on Radio Four today to talk about religion and marriage law reform, the topic of my recent book, Religion and Marriage Law: The Need for Reform.
The episode can now be listened to online. The discussion on unregistered religious marriages is at about 10 minutes in.
This blog post summaries the main arguments of my book in terms of the problem and the proposed solution.
The law on marriage has failed to keep up with the social reality of how people marry today. A number of forms of relationship now exist outside the Marriage Act 1949.
This includes what may be styled as ‘unregistered religious marriages’ or ‘religious only marriages’. These exist where the couple undergo a religious ceremony that does not comply with the Marriage Act 1949. Religious marriages are recognised under the Act but in relation to religious weddings other than Church of England, Church in Wales, Quaker and Jewish ceremonies the ceremony must take place in a registered place of religious worship in order to be legally binding. Otherwise, though the couple are married in the eyes of their faith, they are not married in the eyes of the law.
There are several reasons why couples might have unregistered religious marriages: it may be the choice of the parties (in some communities, religious marriages effectively allow the couple to date, to be together without a chaperone), it may be because the parties are unsure of the law or it might be because it is difficult or impossible for a religious ceremony reflecting their beliefs to be held in a way that is compatible with marriage law requirements. Marriage law discriminates, therefore, against those religions who are without a building or who have a tradition of marriages taking place outside places of worship.
There are also what may be styled ‘belief marriages’ or as ‘non-religious marriages’. These ceremonies are conducted by belief organisations such as Humanists UK or by independent celebrants. Marriage law provides no means by which these can be legally binding in their own right.
Couples who enter into either category of weddings need to undergo an additional civil marriage ceremony in order to become legally married. This causes additional expense and is viewed by many, not least the couple themselves as being unnecessary: who refers to their wedding as the happiest days of their life?
Unless and until they undergo a civil ceremony, their marriages are not legally recognised. This means that they are in the same legal position as cohabiting couples. They have no redress on relationship breakdown. The husband is under no legal duty to provide for the wife and so wives may feel trapped or may become destitute if they split up.
Many people are unaware of this. Almost 50% of those surveyed by a British Social Attitudes survey thought that common law marriage existed and that couples who lived together for years accrued rights. This is not true. Unlike many jurisdictions, there are limited rights afforded to them on relationship breakdown in England and Wales.
My book argues that we do not (and indeed cannot) ban all unregistered marriages. In my view, unregistered religious marriages are only unproblematic where they result from a free and voluntary choice by both parties. The law needs to change, however, in order to remove discriminatory requirements that prevent some religious traditions from complying with marriage law because they have no place of registered religious worship or have a tradition of marriages taking place elsewhere, such as in community centres, outside or at home.
My book Religion and Marriage Law: The Need for Reform, synthesises the debate to date and argues how a new legal framework on intimate adult relationships could be developed.
The law on getting married in England and Wales is currently being reviewed by the Law Commission. They will produce their final report in July 2022 but their consultation paper, published in September 2020 suggested that there is a need to move from a system that regulates buildings to one that regulates officiants. I agree.
They said that it will be up for Government to decide whether belief organisations and independent celebrants will be covered in the new scheme. I have argued that they should be and it should be up to any organisation to nominate officiants who should then be subject to the same rigorous training.
This could solve the concerns around non-religious marriages and would lessen concerns about unregistered religious marriages since the discriminatory requirements that prevent some religious weddings from complying with the law would be removed. There would be no need for marriages to take place in registered places of religious worship.
However, there would still be some unregistered religious marriages – and some of these would not result from a voluntary and witting choice by both of the parties. The introduction of limited cohabitation rights on separation would deal with this. Adoption of a system similar to the current Scottish model would provide an opt-out system that would allow parties on separation to allow a cohabitant to seek a financial order in circumstances where they have suffered a financial detriment as a result of the relationship coming to an end.
What Happens Next?
The key date in relation to England and Wales is July 2022 when the Law Commission will produce its final report. However, prior to that the key thing is awareness raising so that MPs know that this is an important issue and they need to act upon the Law Commission’s report once it is published.
In Northern Ireland, the question of extending the law to belief marriages is currently subject to a consultation by the Department of Finance.
Under the Marriage (Northern Ireland) Order 2003, religious marriages can be solemnised only by an officiant while civil marriages are those solemnised by a person appointed under Article 31. Article 31 provides that ‘additional persons’ may also be appointed.
Following litigation in Smyth, in which it was held that that being married by a humanist celebrant was a manifestation of the applicant’s religion or belief under Article 9, it was held that the law was human rights complaint since humanist ministers could be appointed as ‘additional persons’.
As the Consultation Paper makes clear, this was very much a temporary fix and they are now consulting on whether rather than humanist celebrants being temporary registrars, belief marriage should be recognised on a permanent basis. The consultation closes on 18 February.
If you have any questions, feel free to contact me on social media (@sandbergrlaw) or email me at SandbergR@cardiff.ac.uk