In an article cross-posted with permission from The Conversation, Teaching Fellow in Law at SOAS, University of London, highlights a growing problem…
Getting married is a major life event. Not only is it a public affirmation of one person’s commitment towards another but it also results in significant life-changing obligations. The marriage ceremony should mean something to both people, as well as being valid and enforceable in law. But at the moment, English law does not allow all citizens to get married in a way that meets their needs.
In order to be married, British Muslims and Hindus and other minority faiths have to perform two forms of marriage – one religious and one legal. Effectively, they need to marry the same person twice. For Jews, Christians and Quakers, no such separate “marriage” needs to be completed – their religious marriage is capable of conferring the legal status of matrimony in one go if the right rules are followed.
The current law relating to marriage in England and Wales was enshrined in the Marriage Act 1949, but based on conventions from the 19th century. It was never built to cover the current range of diversity of faiths present in British society.
I believe that a change to the law to allow professionally registered celebrants to marry two people, wherever they choose, is long overdue and could help create equality for all faiths under the law.
As my ongoing research has found, for the vast majority of young British South Asians, marriage is regarded as vital, aspirational and indispensable. For Hindu and Muslim communities, a traditional marriage is the “real marriage” as they wish to maintain and celebrate links with their inherited culture. Simply signing a piece of paper in a civil registry office does not seem to be enough – even though it offers protective mechanisms to the financial weaker party in the event of marriage breakdown.
In 1994, the rules on where people could have a civil marriage were relaxed. As well as at a registry office, civil marriages can now take place at “approved premises” such as hotels, banqueting suites and stately homes, so long as they are appropriate and dignified. But such ceremonies cannot be religious, as it is only the civil ceremony, and not the religious one, that creates the marriage. This means that for a Hindu or Muslim wedding taking place in an hotel, there would have to be two ceremonies – a religious and a civil one.
Forced to marry twice
But many Muslim couples are currently failing to marry twice, and therefore do not complete the civil registration process.
In England and Wales, a nikah ceremony – a form of Muslim marriage – is not capable of creating a legally binding marriage. This can cause legal issues in the event of a marriage breakdown if a couple does not also have a civil ceremony. An emerging trend from recent case law seems to show that Muslim marriages that are not appropriately registered under the law are more likely to be considered “non-marriages” by the English courts.
A non-marriage usually happens if a civil marriage is not performed in an appropriate building, or a civil ceremony of marriage does not take place alongside the religious. Usually the realisation that a marriage is not legally binding only comes to light at the end of the relationship, when one party is seeking to leave and perhaps evade the protective mechanisms that marriage is meant to create.
Call for a celebrant system
To solve this problem, I suggest that the law is changed to introduce a celebrant-based marriage system, and that the requirement to marry in a prescribed building is removed. This two-fold simplification would allow couples to marry as they wish, wherever they wish, in a single ceremony. This would eliminate future unregistered marriages by placing the responsibility of marriage registration on a single professional person – the celebrant. I would argue that the celebrant could be from any recognised religious group.
In Scotland, which has a celebrant system, the marriage ceremony does not need to follow a particular form, giving a couple freedom of choice when it comes to the language the ceremony is conducted in. The Scottish system, while not perfect, does not stipulate a prescribed building either, meaning couples are able to marry anywhere, including private homes. It is this combination that allows virtually all couples to marry in a way that suits their personal needs. I think removing the prescribed place of marriage in England and Wales would be a positive start to reducing the issue of unregistered marriages. A celebrant system would also place the burden of compliance with pre-marriage formalities on a professional celebrant, rather than the couple.
If incorporated in England and Wales, such measures would give the best platform for Muslims – and other minorities – to engage with the legal system and would hopefully lead to a reduction in the number of unregistered marriages, and the injustices suffered as a result. For example, some Muslim women have been treated as strangers by their husbands despite having a long relationship, while others have been left with no money after marriage breakdown.
Updating the law of marriage is now a pressing requirement and will ensure genuine equality before the law. The rights and obligations arising from the institution of marriage should be provided to all who seek it.
This article was originally published in The Conversation. Read the original here.