Enforcing the registration of marriages – lessons from Scotland

Clarification awaited on implementation of the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019

An understandable degree of disquiet has been generated by the mistaken suggestion that couples who do not register their completed marriage document within seven days of the wedding will be subject to a significant fine. This has been widely reported and follows from the report of the meeting between the Church of England and Church in Wales, and the General Register Office (GRO). [This report was subsequently updated]. The information provided to this meeting appears to be based upon a misunderstanding or a misinterpretation of the intentions of the provisions within the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, (“the Act”).

Background

The Act enables the introduction of a “schedule system” for the registration of marriages in England and Wales, similar to that already in place for civil partnerships in England and Wales and for marriages and civil partnerships in Scotland and Northern Ireland. The Faculty Office has observed that the new measures are “adopting the system that’s been used in Scotland since marriage registration began in 1851”. In view of its trouble-free use in Scotland, some commentators have been bemused over the apparent concern at its application south of the border. However, a lack of information both at parish level and for some members of the episcopate gave rise to the “Unease at timetable for clergy to adapt to new marriage formalities” reported by the Church Times.

An important aspect to the functioning of the Act is to ensure that the completed marriage document is lodged at the Register Office; under section 1(2)(d) of the Act, the Secretary of State is therefore required to amend by Regulations the Marriage Act 1949 which include inter alia a requirement to “make provision in relation to the delivery of a signed marriage schedule or signed marriage document to a registrar”, and:

(3) Where provision made by virtue of subsection (2)(d) gives power to a registrar to require a person to attend personally at the office of a superintendent registrar for the purpose of delivering a signed marriage schedule or signed marriage document, the regulations may provide that a person who fails to comply with such a requirement—(a) commits an offence, and (b) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

These provisions which were introduced into the Bill at the first sitting of the Public Bill Committee (Col 7) on 18 July 2018. New Clause 2 was agreed to, read a Second time, and added to the Bill (Col 9). Its inclusion in the Act is described in paragraph 38 of the Explanatory Notes [1], which indicate that this offence is to be modelled on section 24(2)(e) of the Marriage (Scotland) Act 1977.

Marriage (Scotland) Act 1977

In Scotland, there is a requirement for the marriage schedule to be returned to the local registrar within 3 days of the ceremony; the provisions relating to penalties are included in the 1977 Act. The Guidance Notes to the Marriage Notice Form (M10) states [emboldening in original]:

“The Marriage Schedule must be produced before the marriage ceremony to the person solemnising the marriage.

Immediately after the ceremony, the Schedule must be signed by both spouses, by the person solemnising the marriage and by two witnesses. As the Schedule is a permanent record, an appropriate permanent black liquid ink should be used when signing it – a ball-point pen should not be used. Thereafter you must arrange for it to be returned to the registrar within three days so that the marriage can be registered.

If you are having a civil marriage, the registrar will not issue the Marriage Schedule to you in advance but will have it available at the marriage ceremony for signature and will subsequently register the marriage.

A fee for the marriage and. if applicable for the attendance of an authorised registrar if the location is somewhere other than the registration office, is payable to the registrar in advance”.

With regard to the associated penalties, however, the Marriage (Scotland) Act 1977 states [emphasis added]: 

[16]. Registrar’s power to require delivery of Marriage Schedule.

(1) Where after the expiration of 21 days from the date of marriage as entered in the Marriage Schedule that Schedule has not been delivered to the district registrar, he may serve a notice in the prescribed form on either of the parties to the marriage requiring that party within 8 days from the date of service of the notice to deliver the said Schedule, or send it by post, to the district registrar.

(2) If any party on whom a notice has been served in pursuance of subsection (1) above fails to comply with the notice, the district registrar may serve on that party a second notice in the prescribed form requiring that party to attend personally at the registration office of the district registrar, within 8 days from the date of service of the second notice, for the purpose of delivering the Marriage Schedule to the district registrar to enable him to register the marriage.

[24]. Offences

(2) Any person who—

(e) being a party to a marriage, fails to comply with a notice served under section 16(2) of this Act, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.

[The UK Government website http://www.legislation.gov.uk/ indicates that sections 16 and 24 are up to date with all changes known to be in force on or before 14 August 2019].

Regulations made under the Act

As we have noted earlier, the Act is comprised of enabling provisions, and additional secondary legislation is necessary before any of its provisions pass into law. The Explanatory Notes explain inter alia [emphasis added]:

  • “The Act will enable regulations, subject to the affirmative resolution procedure, to amend the Marriage Act 1949 and make consequential amendments to other enactments to provide for a new system for recording and storing marriage registration details” [20].
  • “Subsection (4) empowers the Secretary of State to sub-delegate certain administrative aspects of the registration provisions to regulations made by the Registrar General under section 74(1) of the 1949 Act with the approval of the Secretary of State” …  [39].
  • “Regulations made under section 2 and regulations under any other section of the Act that amend, repeal or revoke any provision in primary legislation are subject to the affirmative resolution procedure and require the approval of both Houses of Parliament” [62].

Comment

The current proposal appears to impose a far tighter timetable than that provided by s.1(6) of the 2019 Act, which states that “No regulations may be made by the Secretary of State under this section after a period of three years beginning with the day on which regulations are first so made”. Nevertheless, the Faculty Office indicates that the General Register Office (GRO) is under pressure from Ministers to bring the proposed changes into effect as soon as possible. However, in practice, secondary legislation will be required to introduce the relevant regulations, and this will be subject to the affirmative resolution procedure, requiring the approval of both Houses of Parliament.


Update: On 14 January 2020, the House of Commons Library published the research briefing on Mothers’ details on marriage certificates which concluded: “The detail of the new marriage registration scheme will be set out in regulations which have not yet been published. The timing of the regulations is not yet known. The regulations will be subject to the affirmative resolution procedure, meaning that they require the approval of both Houses of Parliament to become law.”


[1]. Explanatory Notes do not form part of the Act and “might best be read alongside the Act. They are not, and are not intended to be, a comprehensive description of the Act.”

Cite this article as: David Pocklington, "Enforcing the registration of marriages – lessons from Scotland" in Law & Religion UK, 14 August 2019, https://lawandreligionuk.com/2019/08/14/enforcing-the-registration-of-marriages-lessons-from-scotland/

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