Gretna Green revisited?

A consequence of Lord Hardwicke’s Marriage Act (An Act for the Better Preventing of Clandestine Marriages, 1753, 26 Geo. c.32) was the growth in popularity in couples under 21 seeking to get married in Gretna Green.  Whilst the Act set the minimum age for marriage at 14 for men and 12 for women, parental consent was required if either of the couple was under 21.  Marriage by licence without consent was null and void, and although this did not apply to marriage by banns, it was likely to be challenged in the couple’s own parish.  The alternatives were marriage at another parish were their ages were not known, or in Gretna Green.  The Act did not apply in Scotland, and Gretna Green was the town in Scotland that was closest to the border, although Haildon Hill, Coldstream Bridge and Lamberton Toll Bar were also popular venues.

In Scotland, marriage required couples to be over 16 and make a declaration to be husband and wife in the presence of two witnesses.  In 1939 Scots law was changed to reflect the English provisions, but at the present time about 20% of marriages in Scotland are between couples who are not resident there.  Nevertheless, it will be a surprise to some to read in the Scottish Government’s Consultation Paper, The Registration of Civil Partnerships: Same Sex Marriage, the suggestion that:

‘The proposals contained in this paper might encourage more people to visit Scotland to register a civil partnership or get married’, [para. 4.08].

Comment

The prospect of a change to the institution of marriage being introduced using the spin-off commercial advantages as part of the argument may seem offensive to some.  Whilst the Church of England’s Weddings Project and the introduction of the ‘qualifying connection’ in the 2008 Marriage Measure  appears to have resulted in an increase in the number of marriages conducted by the Church of England – a 4% increase in 2010 against an overall trend of reduced number of marriages – these did not change the institution of marriage and had the objective of attracting more couples to church weddings.  [Owing to the disestablished nature of the Church in Wales, the extension of these provisions to the Principality through the Marriage (Wales) Act 2010 was dependent upon Alun Michael’s Private Members Bill].

Nevertheless, in the United States the availability and recognition of same-sex marriage have been shown to have significant financial implications.  Badgett and Sears note that in the mid-1990s, significant concerns were raised regarding ‘marriage tourism’ that would be encouraged following Hawaii’s recognition of same-sex marriage, and

‘[i]n response to the Hawaii Supreme Court’s ruling, forty states eventually passed laws or constitutional amendments stating that they would not recognize the out-of-state marriages of same-sex couples, and Congress passed the Defense of Marriage Act (DOMA) to allow states to do so, as well as to affirm the federal government’s policy of only recognizing marriages of different-sex couples under federal law’.

A more liberal/less protectionist view is now prevalent, and the same authors have conducted research on the fiscal impact of marriage for same-sex couples on: Washington, New Mexico; New Hampshire; California; Connecticut; Colorado; New Jersey; Massachusetts; Vermont; Maryland; and Iowa.  In the case of California, they calculate that extending marriage to same-sex couples will boost state and local government revenues by over $63.8 million.

Given that English is the lingua franca within Europe, and even following Denmark’s recent legislative changes, there are only 8 countries within the Council of Europe that permit same-sex marriage – Norway; Belgium; Portugal; Spain; Sweden; Netherlands; Iceland, (27 June 2010); Denmark, (15 June 2012) – the prospect of ‘marriage tourism’ is not unrealistic. However, this is dependent upon mutual recognition of same-sex marriage within Europe.  Advice on the Europa web site states that ‘marriage is guaranteed to be recognised in all other EU countries – but this does not fully apply to same-sex marriages’.  It also notes ‘[d]ifferent rules apply to partnerships other than marriage, such as registered partnerships and de facto unions

Footnote

Nevertheless, ‘same-sex marriage tourism’ is probably more palatable than the cremation tourism that exists in Germany: to avoid restrictions in some states which stipulate the mandatory use of a cemetery, friedhofszwang, the bereaved arrange for the cremation to take place in the Netherlands or Switzerland, where laws are more relaxed.  Provided that the urn returned to Germany does not carry an ID tag or registration number, the authorities are unlikely to intervene, thereby giving the bereaved greater freedom in the disposal of the ‘ashes’.

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