The State and Marriage II: How would things look after the Cutting of the Connection?

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.

Criminal law

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

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.

Discrimination law

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.

Daniel Hill

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.

7 thoughts on “The State and Marriage II: How would things look after the Cutting of the Connection?

  1. This idea may offer new pickings a for family lawyers but seems to me highly undesirable. Those who choose to be married have a mechanism to establish a clear status for themselves. Those who do not want it do not need to take it on but they pose difficult issues where their relationships break down. If no one had the benefit of a legally recognised marriage these difficulties would greatly multiply. Marriage law has been and is in the process of being updated to address contemporary social change. Doubtless further refinements will occur and simpler termination seems likely in the near future. However, the institution is still valued by those who choose to enter into it. Depriving them of that right would be deeply resented.

    There are significant reasons why it is beneficial to the individual for the state to formally recognise marriages. In particular Hill does not seem to address the rights of couples who want to marry where one of the two who does not have British citizenship is living abroad. It is difficult enough for such a couple to get married in a way which enables them to live together in the UK but Hill’s idea would make it more so. The tax advantages of marriage have been reduced and presumably Hill would either like to scrap them – which would damage families – or attach them to the non legal marriages he proposes but that would again multiply contested decisions.

  2. As often, the devil is in the detail.

    David Harte wrote, “Hill does not seem to address the rights of couples who want to marry where one of the two who does not have British citizenship is living abroad.” Having in mind the real life case of “Jack” and “Jill”, mentioned in my comment on the first article in this series, I concur with Harte.

    To the limited extent to which Hill does addess the immigration issue, he does so mainly by reminding the reader that, when abolishing legal marriage, the UK legislature can change the UK’s immigration rules, to enable Jill to come and live with Jack in the UK, married or not, providing the couple have already been living together somewhere long enough, which might not be the case. He overlooks completely the complication that, post-Brexit, Bulgaria might have to change its immigration rules too, to make a concession towards the UK’s new marriage-free jurisprudence, if Jack and Jill are to be equally free to live together there.

    The right to marry is a Convention right, potentially giving the citizen a vertical claim against any high contracting party where he has his domicile and which does not grant him access to marriage. If the UK withdraws legal marriage, it might find itself explaining to Strasbourg that of course the British state gives its citizens the right to “marry”, whatever that nonsensical word is supposed to mean, meaningless as it will by then have become in the mind and the parlance of the British state and all of its legislation. The human rights court may then rule that abolishing legal marriage in the UK, amounts to the withdrawal of the right to marry from all who live in the UK and wish to marry in the country where they live.

    A further irony is that even if the British state gets away with no longer recognising its own former legal marriages, nor creating new ones, it could almost certainly land in hot water if it also withdraws its recognition of overseas marriages.

    Disclaimer: I am not a lawyer.

    • As an aside, what happens to subsisting marriages?

      There’s possibly a parallel here with Scotland. The three classes of irregular marriage were gradually abolished: marriage “by cohabitation with habit and repute” was not abolished until the entry into force of s.3 Family Law (Scotland) Act 2006. However, the Act made it clear that the legal validity of existing irregular marriages was not affected by the legislation.

  3. I am in large agreement with this post and the previous post by this contributor. However, what is marriage for and why is it necessary? Is the institution of marriage a mere residue of earlier modes of thought in which women were treated as chattels, with their property being expropriated by the husband? Is it politically and economically necessary? Is it, effectively, as redundant as other species of socio-economic controls as the marriage portion, dower, primogeniture, ultimogeniture, gavelkind or partible inheritance, the strict settlement, etc., etc.?

    If there are so be various manifestations of marriage, with or without procreation, between people of various categories of gender, and there are tax advantages associated with marriage (in terms of exemptions from IHT), then why not have other categories of association between adults?

    It seems to me that the one thread common to the various categories of marriage or partnership that have been evolving in recent years is sex. In effect, the state is no longer granting tax preferences to those who are in marriage for the purpose of producing children for the purpose of supporting the national strategy and/or a ‘warfare state’. It is granting tax preferences to those who are in the various categories of marriage or civil association, who may or may not be able to have children, but who are entitled to have sex. That is, if you like, giving a preference to a form of physical entertainment.

    What about the people who, instead, are bound together by ties of affection (or, occasionally, disaffection) and/or necessity, and who will never have sex with each other, but who will be vulnerable to relatively higher levels of taxation than those who are in forms of association that permit, or facilitate, regular sex? What about the person who assumes the responsibility of caring for, and living alone with, a sick sibling (often at great economic cost and by no means uncommon); who will, of course, never have sex with that sibling, but who may predecease the sibling, and whose estate may be liable to IHT to the material detriment of the sick sibling? The carer is aiding the state by performing or procuring a care service, and yet is penalised for it. This, surely, is no less pernicious a form of discrimination than many of the other species of state-sanctified discrimination that are now – thankfully or regrettably – being consigned to the dustbin of history. Let us not beat about the bush: marriage (in its various forms) is as much about capital and property as it is about human emotions (as Lord Hardwicke – the greatest equity/property lawyer of his day – no doubt recognised.

    Moreover, since so many shibboleths are being discarded, why are there still bans on polygamy or polyandry, or upon forms of association with multiple partners? Why are they no less legitimate than associations between two consenting adults? Why the numerical discrimination? Indeed, there may be economic advantages in having larger family units as the welfare state becomes increasingly unaffordable in an era of low/no growth.

    Note that I am not necessarily advocating further changes in the law, but what sticks in the craw is the selective liberalisation imposed in accordance with increasingly slippery and perhaps opportunistic social norms, and which are no less contaminated with hypocrisy than the Victorian (or earlier) approach to manners and morals, the dying embers of which are now being stamped out with such glee and purpose by those currently in power.

    James Drever

  4. Pingback: The State and Marriage III: Objections to the Cutting of the Connection | Law & Religion UK

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