The Law Commission for England & Wales has published Getting Married: A Scoping Paper. In December 2014 the Government asked the Commission to conduct a review of the law governing how and where people can marry in England and Wales. The underlying question was whether the current law provides a fair and coherent legal framework for enabling people to marry. Does the law allow people to marry in a way which meets their needs and wishes while recognising the interests of society and the state in protecting the status of marriage? The Commission conducted a preliminary study involving research into domestic and comparative law and engagement with key stakeholders to identify and provide an initial analysis of the issues that needed to be addressed in order to develop proposals for reform.
The scoping paper
The scoping paper, of which there is also an Executive Summary, does not set out specific proposals for reform: rather, it sets out a complete list of the questions, covering each of the stages of getting married, that would need to be considered in any review. In summary, these questions include the following:
- Preliminaries: What does the state need to know before people can legally marry? Who should receive that information and how and where should it be provided?
- Ceremony: If the ability to solemnize marriages is extended beyond religious groups and the state, how could this be done? Can the rules be made more coherent? Is there scope to expand the range of locations in which a marriage ceremony can take place? For example, should marriages be able to take place outdoors?
- Registration: What should be the process of registration? Who should be responsible for ensuring that a marriage is registered?
- Generally: What should be the minimum requirements for a valid marriage? What offences or sanctions are needed to uphold a reformed law of marriage? Should aspects of the law governing the formation of civil partnerships be aligned with the law governing the solemnization of marriages?
There are certain areas that would lie outside the scope of any review.
- Who can be married; so there would be no consideration of changing the age of consent or the restrictions on marrying within prohibited degrees of kinship.
- The question of whether or not religious groups should be obliged to solemnize marriages of same sex couples. This matter was recently decided by Parliament following wide public debate.
- The question of whether or not non-religious belief groups should be obliged to solemnize marriages of same-sex couples (should such groups be able to solemnize marriages following any reform).
- The rights or responsibilities which marriage imparts, such as the financial entitlements of surviving spouses or the consequences of divorce.
- The duty of the Church of England and the Church in Wales to marry their parishioners.
- How the law of England and Wales deals with marriages that have taken place overseas.
The Commission has also identified two key policy areas which would feature in the reform of marriage law but which are questions for the Government rather than for the Commission itself.
- Whether or not the current categories of those able to solemnize marriages should be expanded, and, if so, to which other groups or individuals. The Commission could consider how any expansion of the current categories the Government decided to make could be incorporated in a new system.
- How far any changes made to the law governing the solemnization of marriage should be reflected in changes to the law governing the formation of civil partnerships. The Commission could consider how certain reforms could operate for both marriage and civil partnership, but whether any such alignment should be undertaken is a decision for Government.
The next step is for Government to respond to the Commission’s recommendations for further work. Should the Government wish to continue the review of marriage law, the Commission will discuss with Government its role in any such ongoing review. If the Commission continues to undertake the review then detailed terms of reference, including a timetable for the remainder of the review, will be agreed between it and Government. The next stage of any review by the Law Commission would be to work towards producing a consultation paper containing proposals for reform of the law.
I submitted an opinion to the Ministry of Justice consultation on marriage in August 2014.
It was based upon my personal knowledge of the procedure in Austria.
In this matter Austria is far ahead of England and Wales.