In a third guest post, Daniel Hill, Senior Lecturer in the Department of Philosophy at the University of Liverpool, responds to comments on his two previous posts.
In what follows I have a go at listing and responding to the various objections that have been presented to my proposal. I deal here only with objections I have actually seen made in response to my first or my second blog post; I try to deal with some hypothetical objections in my longer article.
Are you abolishing marriage?
David Harte commented that ‘the institution [of marriage] is still valued by those who choose to enter into it. Depriving them of that right would be deeply resented’. I agree, and it is not proposed to deprive anyone of the right to enter marriage. All that is proposed is that the entrance to the institution would no longer be legally registered or regulated.
What about subsisting marriages?
Frank Cranmer asks ‘what happens to subsisting marriages?’. On my proposal, current marriages would continue, but continue without legal recognition. Similarly, future marriages would be contracted by vows or declarations, as at present, but without any state representative or registration.
What about immigration?
David Harte also comments that ‘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’. People will still have the same right to marry under my proposal as under the existing regime; the difference is just that their exercise of this right will no longer be legally registered or regulated, and this would apply whatever the nationality of the parties.
The Immigration Rules already deal with the important problem that David Harte raises: if you take someone that is married at law to someone ‘present and settled in the United Kingdom’ the Rules already treat this person in the same way as someone that is the partner, but not legal spouse, of someone present and settled in the United Kingdom, if the two of them ‘have been living together in a relationship akin to marriage or civil partnership which has subsisted for two years or more’. I do not propose to lessen this protection, though it could be extended, by taking into account other factors, including whether the person is (informally) married to someone present and settled in the UK.
What about emigration?
John Allman says that I ‘[overlook] 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’. For background: Directive 2004/58/EC mandates that host Member States of the EU have to ‘facilitate entry and residence’ for the unregistered partner from outside the EU of an EU citizen if they have together ‘a durable relationship, duly attested’. This means that if Jill is a Bulgarian citizen and her long-term unregistered partner Jack is British, post-Brexit Bulgaria will still have to facilitate Jack’s residence in Bulgaria if Jill moves back there. I do concede, though, that Bulgaria would not be obliged to accord Jill an absolute ‘right of entry and residence’; para 31 at Secretary of State for the Home Department v Banger  EUECJ C-89/17. My hope would be that the EU would ask Member States to extend equal rights to unregistered partners as to registered ones.
What about tax?
David Harte comments that ‘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’. First, the suggestion that I am ‘proposing’ non-legal marriages could be misunderstood. In my view, one can already get married outside the purview of the state: this emerges very nicely from JB Priestley’s play When We Are Married. So, my proposal is that this should continue; I don’t propose the introduction of something new. Secondly, I do think that the current system of offering tax breaks to the legally married is discriminatory: it discriminates against those not married at law, including families where the parents are not married at law. My view is that this discriminatory state of affairs should not continue. In fact, the discriminatory regime under the Inheritance Tax Act 1984 was challenged by the Burden sisters in the European Court of Human Rights, which ruled that their rights had not been violated in a discriminatory way in their being disadvantaged by being sisters rather than civil partners or spouses. It does, nevertheless, seem to me wrong that they are being discriminated against, as also James Drever states in his comment.
The tax regime exhibits great variety in how it treats those married at law: my guess is that very few people get married at law, or stay married at law, for the sake of the £238 a year that the government says can result from the transfer of one’s personal income-tax allowance. Some legally married people do not need this money; others need more. It would be better, I think, for this to be redistributed to those really in need.
What about relationship breakdown?
Philip Jones objects that under my proposal it would be likely that ‘absent state authority, marriage questions would be decided, not by the parties jointly, but by the stronger party’. I suggested in my second blog post that the state could follow the examples of Australia and New Zealand in determining the division of assets in the light of past de facto relationships. In fact, the courts in England and Wales are already able to regulate the division of assets in the event of the breakdown of a relationship of cohabitation, as they did in (for example) Jones v Kernott  UKSC 53. In these cases, the law is able to ensure that right, rather than might, prevails in cases of relationship breakdown. Change is also visible in the way the courts now deal with the breakdown of legal marriage: the UK Supreme Court determined in Radmacher (formerly Granatino) v Granatino  UKSC 42 that the courts should give effect in the case of married persons to nuptial agreements unless it would be unfair to do so. This shows that the trend is away from the traditional approach that saw the marital status of the parties as the single key factor in deciding these disputes. So, my proposal would constitute merely an acceleration of a current trend.
Will all this increase the burden on judges?
David Harte suggests that my proposal would in general ‘multiply contested decisions’, but, while it is true that in one respect there would be more work for judges, there would be less work elsewhere in the judicial system since there would be no need any more to deal with the labyrinthine questions of the validity of certain marriages or the legal processing of divorces.
What about the ECHR?
John Allman argues that ‘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 […]. 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.’
John is correct, of course, that Article 12 ECHR provides ‘the right to marry and to found a family, according to the national laws governing the exercise of this right’. He is also correct that I do not take my proposal to go against this: marriage would still be possible under my proposal, just not legally registered. The successful claims so far in Strasbourg under Article 12 have mostly been cases in which, while the state offered legal marriage to most individuals, it denied it completely to others, such as some divorced people or some prisoners, or in which, while the state offered legal marriages to most couples, it denied it to others, such as some couples of the same birth-sex or some couples related to one another by a past marriage. Under my proposal, however, everyone would be treated in the same way: everyone would be at liberty to get married privately, and nobody would be given a state certificate in recognition of this fact. The hope is that the European Court of Human Rights would also see this as in keeping both with the letter and with the spirit of Article 12.
Shouldn’t the state promote marriage?
I wholeheartedly agree that marriage is a good thing. I am not for one minute suggesting that the state should ban marriage. But I do not agree that the state has a responsibility to promote every good thing. For comparison: some people think that religious belief is a good thing, while other people think that it is delusory. In my view, it is not the role of the state to promote religious belief or to promote its absence, no matter which (if either) is better. Similarly, in my view, it is not the role of the state to promote marriage over other relationships. Some things should be left to individuals and their communities to manage as they see fit.
Is your proposal anti-religious?
It has been alleged that the proposal is anti-religious, since most religions take marriage very seriously, and regard it as something holy or sacred. Nothing in my proposal goes against this, however. On the contrary, my view is that the holy and the sacred lie outside the purview of the state, and that marriage will be able to flourish more when removed from the bureaucracy of the state and returned to the communities that constitute its natural home.
Is your proposal undemocratic?
Another misunderstanding is that the proposal is anti-democratic, since most people do not want the state to cease registering or regulating marriage. I am not, however, proposing that the reform of marriage law should be foisted on an unwilling nation in defiance of Parliament, or anything like that. Rather, these blog posts are intended to form the start of a conversation, a conversation that may result in the people’s having a change of mind.
My thanks to Frank and David for hosting these blog posts, and for all the comments that have been made. No doubt others will have other objections not dealt with here, and no doubt some will wish to press further some of the objections that I have tried to answer above. I do not doubt that there are many difficulties associated with my proposal, but I am grateful to all that have made the effort to take it seriously and hope that others will also give it a fair hearing in future.
Cite this article as: Daniel J Hill, “The State and Marriage III: Objections to the Cutting of the Connection” in Law & Religion UK, 17 July 2018.