In the House of Lords on Thursday 28 February, the Advocate-General for Scotland, Lord Keen of Elie, answered the following question from Baroness Cox:
“To ask Her Majesty’s Government, following Resolution 2253 (2019) passed on 22 January by the Parliamentary Assembly of the Council of Europe [and on which Russell Sandberg has previously commented adversely on this blog], what plans they have to review the Marriage Act 1949 to make it a legal requirement for Muslim couples to civilly register their marriage before, or at the same time as, their Islamic ceremony.”
He replied that the Government remains
“committed to exploring the legal and practical challenges of limited reform relating to the law on marriage and religious weddings, as outlined in the Government’s recently-published Integrated Communities Action Plan.”
While sharing Baroness Cox’s concern
“that some may feel compelled to accept decisions made informally, such as those made by religious councils … marriage is a complex area of law and the issues will require careful consideration. We intend to explore those, as I indicated. Where sharia councils exist, for example, they must abide by the law. Where there is a conflict with national law and the court is asked to adjudicate, national law will always prevail.”
In answer to Lord Anderson of Swansea, he said that the Government was concerned that Muslim women in unregistered religious married should be protected:
“The decision to go through with what is sometimes termed a nikah ceremony is widespread and unfortunately it does not give rise to a lawful marriage in England and Wales. But, as from April, we are taking forward detailed work to determine the best course of action to address such issues.”
“The general proposition that we should recognise all forms of marriage raises issues in itself. Our marriage law actually goes back to Lord Hardwicke’s Act of 1753 rather than just to 1949. It is a complex area that we will consider from the spring onwards and in which we will have to move with care. But we cannot simply recognise all informal types of marriage. We have a basic marriage law in this country based on the place in which it is celebrated and the fact that that place is open to the public and that it should be witnessed. We cannot move away from that. Indeed, to do so would create other issues and problems for ourselves” [emphasis added].
He reiterated that, following its Integrated Communities Action Plan, the Government was going to take forward an analysis of policy objectives in this area and undertake detailed work.
We do indeed “have a basic marriage law in this country [ie, in England and Wales] based on the place in which it is celebrated and the fact that that place is open to the public and that it should be witnessed.” But is that sacrosanct? Northern Ireland had a similar system to ours until it moved to a Scottish-based one. The Marriage (Northern Ireland) Order 2003 introduced marriage schedules and the registration of celebrants to replace the rather chaotic system previously in place. If Northern Ireland could do it, so, presumably, could England and Wales.
If there were the political will for thoroughgoing reform – which evidently there is not.