In a guest post, Daniel Hill, Senior Lecturer in the Department of Philosophy at the University of Liverpool, makes a radical contribution to the debate about marriage law.
Princess Diana famously remarked that there were three people in her marriage to Prince Charles. Sometimes it feels that way for the rest of us—as though the state is intruding itself as a third party into our marriages. Indeed, the Supreme Court of North Carolina actually went so far as to say in 1945, ‘There are three parties to a marriage contract—the husband, the wife, and the State’. In England and Wales (I do not discuss here the different legal systems of Scotland or Northern Ireland) the state is involved in marriage in three ways: first, in order to have a legally recognized marriage one must usually (Quakers and Jewish people are exempt) go through a ceremony before a state registrar or state-approved person such as an Anglican minister, secondly, the state records all marriages contracted in the UK and, thirdly, the state makes laws concerning marriage, such as the bigamy law, which criminalizes any attempt to marry another person while already married, and the law giving tax breaks to married couples.
One may well wonder whether the state really needs to be involved in marriage in these various ways. For example, why is the state allowed to discriminate on the basis of marriage? I know a couple that, for personal reasons, have chosen not to go through a legally binding ceremony of marriage. In consequence, they are not eligible for the tax breaks the law provides. But their commitment to each other (and their commitment to their children) does not seem to me less than the commitment to each other of many legally married couples. And probably you know many couples like this too. So, what justifies the state in discriminating against them?
And if we discount such discriminatory legislation, why is it necessary for the state to keep a record of marriages at all? What business is it of the state’s whether I am married or single? Marriage is the most intimate and personal of all relationships—so why is it of any concern to the state? Some may appeal to the fact of children, but not all marriages produce children, and many parents are unmarried. In fact, children need to be separately registered whether or not their parents are married, and the legislation for the welfare of children in the UK is quite separate from the legislation concerning marriage.
And why is it thought necessary for there usually to be someone present acting on behalf of the state in order for a couple to get married? In Scotland, it used to be possible for anyone to get married without there being any state representative present, and that is still possible in some states of the USA. TV comedian Paul Merton went through a ceremony of marriage with Sarah Parkinson, just the two of them, on a beach in the Maldives in 2000. Very romantic, one might think. Yet the state will not count it as a marriage because of the lack of any state representation. While historically understandable, it also seems somewhat arbitrary that the law still maintains an exemption just for Jewish people and Quakers: nobody else.
It’s not as though we all agree with what the state counts as marriages. Many UK citizens, and many UK faith communities, disagree with the state about who can get married, who can get divorced, how many marriages one can have at once, and on what one has to do to get married or divorced. And many other jurisdictions, including Scotland, disagree with the law of England and Wales on one or more of these points. Although few people from England and Wales still run off to Gretna Green to get married, Scotland, unlike England and Wales, still allows anyone over sixteen to get legally married without parental permission.
It is tempting to respond that marriage is so deeply entrenched in our laws that the proposal to remove it from the statute book is simply impossible to implement. But recent far-reaching changes to the law of marriage in England and Wales have shown what can be done if Parliament has a mind for it.
Of course, many people are in favour of the laws about marriage because they think that the laws promote marriage and the family. In fact, however, whether someone is married in the eyes of the state is normally of little concern to us. When a couple is introduced as a married couple, we do not inquire about where their marriage was solemnized, or who the registrar was. We do not ask to see their marriage certificate. We take their word for it, and we do not insist in treating them in any legally specified way. It is a myth to assume that having a marriage certificate from the state will make someone a better spouse or a better parent. It is also a myth to assume that domestic abuse is less likely to occur if the abused party can lay hold of a marriage certificate. The basic point is that there are thousands of relationships that are just like what the law counts as marriages—except that the parties don’t have certificates from the state. But we know from the phenomenon of sham marriage that some of these certificates aren’t worth the paper on which they are written.
In J B Priestley’s play When We Are Married, three respectable couples in Edwardian Yorkshire celebrating what they think is their shared Silver Wedding anniversary are informed that there was a paperwork error with their weddings twenty-five years previously. The comedy in the play comes from the fact that this simple clerical mistake is taken by the protagonists as calling into question twenty-five years of domestic partnership. But the point is clear: marriage is not a certificate from the state, it is a form of shared life, and to think it could vanish in the instant of a misplaced signature is a crass fixation on paperwork over reality.
An objection suggests itself. Is it really possible for the Government to implement this proposal, given that it is signed up to the European Convention on Human Rights, which states in Article 12: ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’? (Similar provision may also be found in the EU Charter of Fundamental Rights, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.) It is hard to say how the European Court of Human Rights would rule on such a matter; such a question has never come before the Court, and all the countries in the Council of Europe do have marriage laws. If we take the text literally, however, my proposal does not go against the Convention, since I am not proposing that people should lose the right to marry, merely that the state should cease to interfere with or register the exercises of that right. Most of the cases heard by the Court concerning Article 12 are cases of discrimination: the state has refused to recognize one person’s marriage while recognizing another’s. But on my proposal, the state would not recognize anyone’s marriage, so there would be no discrimination: everyone would be treated alike.
There is another difficulty here, though: if the UK implemented my proposal then would not its citizens be disadvantaged when moving to other jurisdictions, since they would not be able to present official proof of marriage? While the ideal would obviously be that every jurisdiction would adopt the proposal, this is not realistic, and it is understandable that no country would want to jump first, before the others. The UK government is prepared to accept evidence of the existence of a foreign marriage other than an official state certificate, such as a statutory declaration or an affidavit. It is to be hoped that this approach would be widely replicated if the proposal suggested here were adopted.
This proposal could easily be misinterpreted as an unromantic proposal to abolish marriage, but it is in fact the exact opposite. The proposal is for marriage to be set free from the romance-killing hand of the state and returned to the people to be celebrated where it belongs, in the religious or secular communities where the parties find their homes.
What would the legal situation look like if this happened? What protections could there be for cases of intestacy, relationship breakdown, child protection etc? That will have to await a separate blog post.
Many thanks to Frank Cranmer for his help in drafting this post, though it should not be assumed that he agrees.
Cite this article as: Daniel J Hill, “The State and Marriage: Cut the Connection” in Law & Religion UK, 21 June 2018