On Saturday the Telegraph reported that Simon Hughes, Minister of State for Justice and Civil Liberties, had told the Liberal Democrat spring conference that England and Wales should move towards the separation of civil and religious marriage with a secular, state-regulated ceremony following which the couple could exchange religious vows if they so wished:
“We should do what the Belgians do and the French do. It can be done even in the same building, on the same day, but you would have a ceremony by which the state recognises the marriage, the wedding, and then the faith community has the ceremony which gives that the authority”.
According to the Telegraph he added afterwards that the two processes would be combined in one wedding ceremony but it would have to be clearly divided into religious and state elements and said that he hoped the proposal would not “trespass on people’s faith beliefs.”
Of course he was speaking as a party politician, not as a Minister of State – but he is by no means alone in his views. His problem, again according to the Telegraph, is with the Supreme Court’s ruling in R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages  UKSC 77 that the Church of Scientology could register its central London chapel as a place of meeting for public religious worship and conduct religious weddings. Hughes was quoted as saying that Hodkin had left marriage law as a “terrible muddle”.
Various points arise.
First, any change of the kind contemplated by Simon Hughes would be for England and Wales: Scots and Northern Irish marriage law are matters for the Scottish Parliament and the Northern Ireland Assembly and, in any case, operate very differently from the law in England and Wales.
Secondly, it is difficult to see what difference the ruling in Hodkin (on which we have previously commented at some length) made to marriage law. Hodkin was about the registration of buildings as places of public worship and turned on whether or not Scientology is a “religion” and whether or not what Scientologists do is “worship”. The fact that the cause of the litigation was Ms Hodkin and Mr Calcioli wanting to get married in a religious ceremony at the chapel of the Church of Scientology where they habitually worshipped was secondary.
Thirdly, if marriage law in England and Wales is a “terrible muddle” that is because it is a terrible muddle, not especially because of the ruling in Hodkin. A very cursory search of the statute law database reveals no fewer than thirty pieces of primary legislation (both Acts and Measures) relating to marriage and matrimonial causes since the passing of the Marriage Act 1949, starting with the Marriage Act 1949 (Amendment) Act 1954 and ending with the Marriage (Same Sex Couples) Act 2013. The law has not been consolidated since 1949 and the result is a maze of amendments superimposed on the 1949 Act.
In my view the law could do with a proper consolidation at the very least and, for preference, it could do with systematic reform as well. At its most basic, the 1949 Act is predicated on the assumption that there are four kinds of religious marriage in England and Wales: Anglican marriages, Quaker marriages, Jewish marriages – and “everyone else” marriages, from Ahmadi Muslims to Zoroastrians. And society is no longer like that – if indeed it was like that in 1949, which I very much doubt.
Moreover, it would appear that the complexity of the current law can lead to unintentional error, sometimes with unfortunate consequences for the parties. In MA v JA and the Attorney General  EWHC 2219 (Fam) (on which we have posted previously) the couple thought that they had contracted a valid marriage at their mosque in Middlesbrough. The mosque had been registered for the solemnisation of marriages in 1992, in accordance with s 41 of the Marriage Act 1949: unfortunately, however, the imam who married them had not been certified as an “authorised person” under s 43. The result was that the couple had to seek a declaration pursuant to s 55(a) Family Law Act 1986 “that the marriage was at its inception a valid marriage”, on the grounds that it had been concluded according to sharia law and that the couple genuinely believed that they were properly married in accordance with English law and had accordingly lived together as husband and wife.
Fortunately, the court was prepared to grant the declaration sought, on the grounds that:
- the ceremony had been within the scope of the 1949 Act;
- it had created a potentially valid marriage; and
- because the parties had not “knowingly and wilfully” married in breach of the requirements of s 49 of the Act the marriage was not void.
But given the complexity of the current law, I could not help wondering at the time how many defective marriages there might be of which the parties remain totally unaware. After all, it was only by accident that the parties in MA found out that their marriage had never been registered.
The obvious model to adopt would be the Scottish one – but maybe that is for another post.
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