In a second guest post, Daniel Hill, Senior Lecturer in the Department of Philosophy at the University of Liverpool, elaborates on his proposal to end the state’s involvement in the institution of marriage.
In my previous post, I argued that the connection between the state and the institution of marriage should be cut, in such a way as to leave no laws regarding the formation, nature, or even existence of marriage on the statute book. In this post, I try to explore how things might look if there were no such laws.
In what follows I use phrases like “legal marriage” and “spouse at law” because I am not making the totalitarian proposal that marriage itself should be abolished, but rather the more modest proposal that the state (including government, legislature, judiciary, and the law itself) should cease trying to meddle with it. On my proposal, people will still continue to get married but do so outside the purview of the state, as is possible even now, in my opinion.
Registration of marriage
On my proposal, while registration of births and deaths would continue, registration of marriages would not be continued. The current legal requirement (and, indeed, possibility) either for there to be someone acting as a state representative (such as a registrar) at the solemnization of a marriage or for a record of the marriage to be submitted afterwards to the state would not be continued.
How would things look in practice? Weddings would probably look very much the same: vows or declarations would still be made, albeit without legal force, and religious bodies would probably still maintain registers, just not send them off to the Registrar-General. Clergy and other religious officiants would no doubt continue in just the same way as before. There would probably be an expansion of secular celebrants to fill the gap currently occupied by registrars, though I expect that many registrars would also want to become celebrants for this reason. Also, no doubt desert-island weddings like that of TV comedian Paul Merton would become more popular.
Laws respecting the existence of marriage
It should be pointed out in the first place that the law in England and Wales already does extend recognition in some areas to people not legally married but living with someone as though married. For example, the claim form for income support uses the word “partner” to mean “either a person you live with who is your husband, wife or civil partner, or a person you live with as if you are a married couple”. Here there is no discrimination in favour of those married at law. The Housing Act 1985 adopts the same approach. This could be more widely adopted in other areas of life.
Another approach is that adopted by the Immigration Rules. These treat in the same way someone that is married at law to someone “present and settled in the United Kingdom” and someone that is the partner, but not legal spouse, of someone present and settled in the United Kingdom, if they “have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more”. This approach could also be adopted more widely, to allow for anyone, married or not, to have their relationship recognized after a certain qualifying period of time.
Perhaps the best examples, though, are the de facto relationships provided for by the laws of Australia and of New Zealand. These laws set forth a number of circumstances that a court may take into account when deciding whether or not to find the existence of a de facto relationship; these circumstances include whether the parties live together, whether they have a sexual relationship, whether they have any children, and whether they share property. The Australian law provides that “no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship” and that “[a] court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case”. In particular, there is no minimum duration necessary for a court to find a de facto relationship, though New Zealand has a sub-category for “relationships of short duration”—but this sub-category goes for marriages and civil partnerships as well as for de facto relationships. It would be possible under my proposal for the law to recognize de facto relationships but, as is currently the case in Australia, to insist that they would have to endure for a certain length of time for certain legal consequences to follow: different lengths for different purposes.
The importance of the phrase “de facto” here should be emphasized. These are not de jure relationships; being in a de facto relationship is not an official registered legal status in the way in which being married is under our current legal schemes. Rather, the law here attempts to take into account an already existing social phenomenon. The law in no way creates the relationship, and in no way is a party to it. This contrasts with how some courts currently see marriage.
Since both Australia and New Zealand already recognize marriage, both jurisdictions preclude the finding of a de facto relationship between parties already married to each other. Under my proposal marriage would no longer be a legal status, but the courts could certainly take into account whether or not the parties in a de facto relationship were privately married to each other, e.g. in a religious ceremony. So there would be no need for newlyweds to worry that they would need to jump through hoops to get the recognition offered to others.
In Australia people are in fact allowed in some states to register their de facto relationships; it is also possible in these states for this registration to be revoked. I am not in favour of the state’s keeping records of our intimate relationships so, under my proposal, rather than having to lodge papers with the state, the parties in question could make a statutory declaration to the existence of the de facto relationship. This approach has the advantage that the state can take cognizance of the declaration if need be, but it is not itself a state document in the way a marriage certificate is.
A different issue is whether people should be allowed to opt out of having their de facto relationship recognized at law: it might be that some people would want to have such a relationship without its having the attendant legal consequences. In England, the Law Commission recommended such a scheme in its report Cohabitation: The Financial Consequences of Relationship Breakdown, but said that there would be no need for a document to be deposited with the state. Under my proposal there would also be no need for this; again, a statutory declaration would be enough.
There will undoubtedly be many hard cases in which it is unclear for some legal purpose how a de facto relationship should be treated, whether the court should accept the simple testimony of the individuals that they are in a de facto relationship, or whether the court should require the relationship to exhibit certain features, such as to have lasted for a certain period. Abuse of the system is possible under either approach, but we already have the phenomenon of sham marriage anyway.
I certainly do not have all the answers, but I think it would be overly pessimistic, given the flexible history of English law, to assume it to be beyond the wit of our finest legal minds to work out non-discriminatory schemes for the various aspects of human life and affairs.
In conclusion, let me draw attention to some areas in which there would be no change.
There would be no change, on my proposal, to the law on any sexual offences, such as rape or sexual activity with a child. Incest would remain a crime since that is also a sexual offence defined without any reference to marriage.
The law concerning bigamy would cease to apply, but then it is already perfectly legal to engage in two sexual relationships simultaneously. It is even legal to call them both “marriages”. All that is illegal is to try to get the state to register both of them as marriages at law. The offence of forced marriage would remain: since the law defines “marriage” in this context as “any religious or civil ceremony of marriage (whether or not legally binding)” this would continue to apply under my proposal. In particular, child marriage would remain illegal.
Family law at the moment takes the welfare of children to be the paramount consideration irrespective of whether the parents are married, so there would be no change here under my proposal. It is true that at the moment a married person can register a birth on behalf of his or her spouse, whereas an unmarried person legally needs to have a completed statutory declaration of parentage from the other parent if he or she is absent. This discriminatory regime could be replaced by simply requiring a statutory declaration from all parents not present at the registration.
At the moment it is illegal in the UK to discriminate in an employment context against someone because he or she is married or a civil partner. The Equality Act 2010 also forbids someone from discriminating against someone because he or she is thought to be married or in a civil partnership, even if the victim is not in fact married or in a civil partnership. So, under my proposal, it would remain illegal to discriminate against someone because he or she was married, even though being married would not be a legal status.
My proposal might seem to lead to a mass of complications, and perhaps it does, but our legal system has shown itself over the years to be immensely adaptable to new challenges, and I am confident that it could navigate this one too. In my next blog post, I hope to answer some objections to my proposal.
Thanks to Frank Cranmer and Julian Rivers for detailed comments on earlier drafts of this blog post. They should definitely not be thought to agree with its contents.
Cite this article as: Daniel J Hill, “The State and Marriage II: How would things look after the Cutting of the Connection?” in Law & Religion UK, 5 July 2018.