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Edward Bennett
Edward Bennett
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PSL Essential update – Getting married: A scoping paper
Date:17 DEC 2015

The Law Commission has published a report following a scoping project about getting married.

The report is 97 pages long and contains some pretty outstanding infographics in the shape of wedding cakes topped with swans.  Are you busy in the run up to Christmas?  Have all your children cases kicked off?  Are your clients desperate to get their consent order finalised before Christmas?  Are you desperate to get home for some mince pies and mulled wine? Good news, the report isn’t absolutely essential reading right now, even better news – it has a 12 page executive summary available here.

I will summarise it further very briefly below for those in a real rush and pick out a couple of things that I think family lawyers might be interested in.

A brief summary

The report, of course, doesn’t change the law, it doesn’t even make any specific concrete recommendations, instead it identifies the issues that would need to be considered before proceeding to any public consultation on options for reform.

The Law Commission undertook an in depth-analysis of the problems in the law and came to the following conclusions:

  • The law is out of date, complex and uncertain.
  • It is out of date because changes in society over the years mean that the law governing marriage no longer meets the needs of our time.
  • The law is complex because there are different rules for different groups (civil, Anglican, Jewish, other religions) at every stage of getting married (the preliminaries, the ceremony and registration).  There are currently nearly 20 different paths into marriage.
  • The law is uncertain because even though it is over-regulated there are still bits of it that are hazy.  For example, the law does not specifically state that the couple must be present in the same room, that the ceremony needs to be in a language that they understand, or at what point in any given ceremony a couple are married. 
  • There should be full scale reform of the law.
  • The objective of the reform should be to give greater choice for marrying couples within a simpler legal framework.
  • The following options are not a good idea:
    • legislating solely for non-religious belief organisations
    • legislating for universal civil marriage.
  • The reformed law should, while taking account of the history of marriage, strike the right balance between freedom for couples to get married in the way and in a location that they want and that is meaningful to them, while protecting against the abuses involved in sham and forced marriages.
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Family Law Update 2016
Family Law Update 2016
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Interesting points 

It’s a funny one isn’t it, a lot of family law is about relationships and marriages, but family lawyers are generally involved in the end of marriages, not in the beginning.  However, this has of course started to change, with pre-nuptial agreements becoming more and more common. Apart from pre-nups, when else do family lawyers have to think about the ins and outs of getting married rather than ending the marriage?

Family lawyers have to think about it when there are questions over whether the client is actually married at all.  Clients have had perhaps more than one ceremony or have had had a spiritual ceremony.  Alarm bells start ringing when a marriage certificate isn’t forthcoming. Is there a marriage at all? Which ceremony was the real thing, the first one? The second one? Neither? Sometimes it will be straight forward, sometimes it won’t. Is there a valid marriage or is it void? Or is it voidable? Or is it one of those tricky things – a ‘non-marriage’.  This is when the intricacies of marriage law can have a significant impact – because parties to a void marriage can still make financial claims against each other whereas if there is a ‘non-marriage’ they can’t.

The Law Commission report gives the example of one case where a couple had neither given notice nor registered their marriage but were found to be validly married as their ceremony happened to take place in a registered building at a time when an authorised person was, by coincidence(!), present.  The report concludes that the law should not leave such things to chance. If you do have a case with void/voidable/non-marriage type issues, paragraphs 2.65 to 2.77 of the report might be worth a quick read.

Does the paper go far enough?  The paper notes that the options for a religious ceremony are more limited for same sex couples.  However, the scoping paper and any further work done by the Law Commission does not and will not re-consider this position, which has only recently been established following wide public debate. Some will no doubt be of the view that this is a missed opportunity to further the debate.

The paper states that questions about the status of civil partnerships are also out of scope.  The paper does not consider whether civil partnerships should continue to exist as a status, what should happen to existing civil partnerships, whether couples should continue to be able to form new civil partnerships and who can form civil partnerships.  These issues were covered in other recent government consultations (Civil Partnership Review (England and Wales) (2014)).

An article on marriage reform just wouldn’t be complete without the now common question family law professionals continue to ask – reform of marriage sounds great but … what about reform of the law for cohabitants?  I doubt that people choose not to get married because the law is too out of date, complex or uncertain. I’d be surprised if reform of marriage law sees scores of unmarried cohabitants heading to the register office (or the beach, garden, park or wherever else people would be able to get married), but I could be wrong.

What happens next and  when?

In a nutshell – we’re not sure and we don’t know.

The Law Commission explains that there are two key policy areas that would be involved in marriage law reform that the Government would need to make decisions on.  These are:

  • whether the class of groups able to conduct legally binding marriages should be expanded and, if so, how far (for example to include the British Humanist Society, other organisations or independent celebrants)
  • how far rules for the formation of a civil partnership should be aligned with any reformed rules for marriage.

The report states that the Law Commission plans to discuss with the Government how the project can be designed so as to enable the project to proceed against this policy backdrop.

The report doesn’t give any indication of what the timescale for discussions or any further work will be, so it’s a case of watch this space.

I’ll round up this Essential Update by noting that those involved in producing the report are clearly fans of reality TV, with Don’t Tell the Bride getting a special mention.  Wholesale reform of the law might eventually enable happy couples to officially get married on a beach dressed as pirates – which I, for one, am all for (ahoy!).

To download the Law Commission Getting Married scoping paper click here.

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