Love in a COVID-19 climate

In a guest post, Professor Rebecca Probert looks at some of the complexities around weddings and wedding law in England & Wales during the COVID-19 lockdown.

On 23 March 2020, the Prime Minister announced a raft of measures aimed at stopping the spread of COVID-19, declaring that the Government would ‘stop all social events, including weddings, baptisms and other ceremonies.’ While the new regulations did not specifically ban weddings from taking place, the restrictions that they imposed meant that in practice it was not possible for a wedding to take place. Places of worship were required to close except when conducting funerals or broadcasting an act of worship. The vast majority of approved premises were also required to close as a result of the pandemic. Most fundamentally of all, the restrictions on movement and on gatherings of more than two people posed an obvious obstacle to a wedding taking place, even if the number attending had been reduced to the legal minimum.

It is unsurprising that making provision for people to formalise their relationships was not a priority at this time of crisis. At the time the measures were introduced it was unclear how long the restrictions would need to be in place. For most couples, it may have been expected that the postponement of the wedding would not have had any effect on their personal relationship or day-to-day life.

However, it soon became clear that some couples did not have the luxury of time. On 21 April the BBC reported the case of a chaplain who had conducted a service for a patient with suspected COVID-19 in his last hours of life. The couple had been together for many years but had never had either the time or the money to marry.[1] The chaplain was unable to conduct a legally binding wedding in the circumstances, but the ceremony enabled the couple to exchange words of commitment before it was too late.

It is therefore necessary to consider what provision the law currently makes for couples to do so where one of them is critically ill, and whether that remains a possibility under the current restrictions.

The issues with weddings under the existing law

While the law does already make provision for weddings to take place speedily and in a range of locations if one of the couple is terminally ill, the existing provisions, unsurprisingly, do not address the current situation.

A wedding according to Anglican rites may be authorised by a special licence granted by the Faculty Office. A special licence permits a marriage to go ahead without any waiting period, at any time, and in any location, although in practice the grant of such licences is subject to fairly exacting criteria established by the Archbishop of Canterbury.[2]

Civil weddings and weddings according to other religious rites can be authorised by a Registrar General’s licence in certain narrowly defined circumstances. Like a special licence, a Registrar General’s licence permits a marriage to go ahead without any waiting period, and in any location. The criteria for granting a Registrar General’s licence are set out in statute: the Registrar General must be satisfied that one of the intended spouses ‘is seriously ill and not expected to recover’; that this person cannot be moved to a place where the marriage could be solemnised under the provisions of the Marriage Act 1949; and that they understand the nature and purport of the ceremony (Marriage (Registrar General’s Licence) Act 1970 (hereafter M(RGL)A), s 1(2) and 3(d)). A certificate from a registered medical practitioner will generally be necessary to establish that these conditions are satisfied (M(RGL)A, s 3(d)). In addition, where the couple are of the same sex and wish to be married according to religious rites, the ‘relevant governing authority’ of the denomination in question must have ‘given written consent to marriages of same sex couples according to those religious rites or usages.’ (M(RGL)A, s 1(3)).

In practice, however, it seems that only Anglican weddings were a realistic proposition during the initial phase of the COVID-19 lockdown. The Faculty Office was swift to act in response to the pandemic, facilitating the issue of special licences by creating a new online application form, allowing copies of documents to be submitted electronically, and providing advice on the conditions under which weddings would be able to proceed.

By contrast, those wishing to marry by Registrar General’s licence would have had more difficulty in tracking down the necessary information. Despite the name, application for a Registrar General’s licence is not made directly to the Registrar General but rather to the superintendent registrar for the district in which the person seeking the licence is resident. A survey of 169 websites conducted on 2 April found that the vast majority of local authorities were simply stating that they were not conducting wedding ceremonies because of COVID-19. A few made reference to the existence of special provisions for those who were ill, but only as part of their general advice rather than as a specific response to the crisis. Some local authorities explicitly stated that they would not be issuing Registrar General’s licences, while others explained that requests would need to be risk-assessed and would be considered on a case-by-case basis.[3]

Temporary modifications elsewhere

Across the globe, a number of jurisdictions have modified the requirements for a legally binding marriage to enable weddings to go ahead despite the lockdown. For those jurisdictions that already required relatively few formalities, this was a relatively simple matter. The US State of Colorado seems to have been the first, issuing an Executive Order on 26 March to enable marriage licenses to be issued despite the closure of the offices from which they would normally be issued.[4] This suspended the requirement for at least one party to the prospective marriage to appear in person before a county clerk and recorder and for in-person submission of proof of age and eligibility to marry, and encouraged officials ‘to adopt guidance and publicly display such guidance online’ as to what was required by way of application and evidence. It also suspended the usual restrictions that licenses could only be issued during office hours as prescribed by law and that, once issued, they would only be valid for 35 days. The absence of any mention of how the wedding could be solemnised reflected the fact that Colorado recognises weddings that are self-solemnised, as well as allowing a wide range of officiants to conduct the ceremony. [5] Couples are simply required to return the license and accompanying certificate within 63 days of the wedding.

Other jurisdictions that do require a third person to conduct the ceremony made adaptations to how this could be done. On 12 April the United Arab Emirates—which had suspended marriages and imposed restrictions on movement—announced a new procedure for getting married that allowed all stages to be completed online. Couples would be able to log on to the website of the Ministry of Justice to submit the required evidence. Once their application to marry had been approved, they would be able to book an appointment with the Ministry of Justice, who would appoint an imam to conduct the ceremony. The ceremony—attended by witnesses—would be conducted by video link. An electronic marriage certificate would then be submitted to the Sharia Court, which would ‘verify all the information, ratify the marriage contract, and send it to the couple directly to their mobile phones.’[6]

Just under a week later the Governor of New York, Andrew Cuomo, signed an order similarly authorising ‘any issuance of a marriage license application, marriage license, or witnessing or solemnizing of the marriage ceremony, that is required under New York State law […] to be performed utilizing audio-video technology’, subject to a number of conditions.[7] These conditions limited such online weddings to couples who were physically present in the State of New York, required such couples to provide valid photo ID, and stipulated that ‘the video conference must allow for direct interaction between the couple and the town or city clerk, the witness or the person to solemnize the marriage.’ The couple were also required to ensure that the documentation was signed—by electronic means if necessary—by themselves, the person solemnizing the wedding, and the witness.

Possible temporary modifications to enable deathbed weddings in England and Wales 

There are a number of possible modifications that could be made to the law in England and Wales to facilitate deathbed weddings going ahead.

Preliminaries

Given that the Registrar General’s licence was intended to be the equivalent of a special licence, the obvious solution would be to create an application procedure modelled much more closely on that for special licences. If an application for a licence could be sent directly—and electronically—to the Registrar General via the General Register Office, this would remove the need for face-to-face contact and the involvement of a local superintendent registrar. It would be important to enable the usual checks to be carried out before the licence is granted, but the measures adopted by other jurisdictions suggest that copies of documents can be submitted electronically and interviews carried out by video link.

The Faculty Office might also wish to review its practice of requiring an affidavit to be sworn by one of the parties declaring that there is no impediment to the wedding going ahead, and enable this part of the process to be carried out remotely rather than in person or, where the urgency of the case requires, dispense with this altogether.

Location(s)

While both a special licence and a Registrar General’s licence allow a wedding to take place in any location, they understandably do not contemplate the possibility of a wedding being conducted in multiple locations. Marriages by telephone and Skype have, however, been conducted in other jurisdictions and recognised as legally binding.[8]

While marriages by telephone have under normal circumstances generated some concern, there is a significant difference between a ceremony that is conducted by a person who is authorised to register the marriage after the appropriate preliminaries have been observed and a ceremony that is conducted in order to circumvent the usual formalities. In any case, conducting a wedding by videoconferencing does not pose quite the same problems as doing so by telephone. The fact that the parties are able to see each other avoids any risk of one person being substituted for another on the other end of the telephone line. The ability of the person conducting the ceremony to see both of the parties enables him or her to gauge their demeanour and whether or not they are willing to proceed with the wedding.

It would therefore make sense to allow a deathbed wedding to go ahead with the couple and any other persons whose presence is legally required communicating by video link.

Who needs to be present?

Even if individuals are allowed to be present by virtual means, limiting who has to be present would facilitate the wedding taking place speedily.

Witnesses

While Anglican weddings conducted on the basis of a special licence are not governed by statute, they are still subject to the Church of England’s own canons, which require the wedding to take place in the presence of two witnesses in addition to the member of the clergy responsible for solemnising the marriage (Canon B35(4)). For weddings conducted on the basis of a Registrar General’s licence, all weddings (save those conducted according to Quaker or Jewish usages) expressly require two witnesses to be present at the ceremony (M(RGL)A, s 10(3)), and Jewish usages require a wedding to be conducted in the presence of two Jewish witnesses in any case. In addition, two witnesses are required to sign the register for any wedding (M(RGL)A, s 15). However, there is nothing in the legislation invalidating a marriage on account of the absence of witnesses. If absolutely necessary, then, a wedding can and could be conducted without witnesses and still be valid.

Conducting and registering the ceremony

The requirements as to who needs to be present to conduct the ceremony, and who needs to be present in order to register it, differ depending on the type of wedding in issue.

An Anglican wedding is conducted by a member of the clergy. The person who conducts the wedding is also responsible for registering it in the register book of the parish church of the parish in which the wedding took place. In this context no further modifications would be needed.

Deathbed weddings conducted according to Quaker or Jewish usages are registered by the person who would usually be responsible for registering it—the registering officer in the case of Quaker marriages, or the secretary of the synagogue to which one of the parties belongs in the case of Jewish marriages ((M(RGL)A, s.15; Marriage Act 1949, s.53). Neither person is actually required to be present at the wedding, but simply to satisfy themselves that it was conducted according to Quaker or Jewish usages before registering it (Marriage Act 1949, s 55(1)(b)). Again, the flexibility inherent in this means that no further modifications would be needed.

By contrast, a civil wedding requires the presence of both a superintendent registrar and a registrar, whether it is conducted by Registrar General’s licence or not (M(RGL)A, s 10(2)). The reasons for requiring two registration officials to be present at every civil wedding are largely historical. Even at the best of times such duplication arguably imposes a burden on local authorities. The sensible course would be to allow a single registration officer—ideally one of the many who combine the roles of registrar and superintendent registrar—to attend the ceremony.

For weddings conducted according to all other religious rites, it is currently envisaged that at least two persons will be present at the wedding in addition to the parties and their witnesses. A registrar must be present to register the wedding (M(RGL)A, s 10(2)). In addition, the option for the wedding to take place ‘according to such form or ceremony, not being the rites or ceremonies of the Church of England or the Church in Wales, as the persons to be married shall see fit to adopt’ assumes the presence of a person qualified to conduct such a ceremony. One obvious way of minimising the number of persons who need to be involved in the ceremony would be to allow any person who is authorised to register a marriage in a registered place of worship in the relevant district to register a deathbed marriage in place of the registrar.

Registration

The discussion above has focused on who needs to be present at the wedding in order to register it. The question of how the marriage can be registered raises separate issues. While registration is not essential to the validity of the marriage, it is clearly an important part of the process of proof. Given the need for speed and the possibility of a wedding going ahead with the parties in separate locations, there should be the facility for an electronic document to be signed as evidence that the wedding has taken place.

Conclusion

In short, in order to facilitate deathbed weddings during this emergency period, it should be possible for weddings to be authorised speedily, by notice being given online, for the ceremony itself to take place with the couple and any other persons whose presence is required communicating by video link, for the number of persons whose presence is required to be limited as far as possible, and for a document to be signed electronically as evidence that the wedding has taken place.

The issue here is not whether English law should make permanent provision for weddings to be conducted by video link, but whether it should do so to deal with a specific, unprecedented, hopefully time-limited, but possibly recurring situation. The contingency envisaged is one in which the hopes and dreams that the couple will have had for their future have been shattered. In these circumstances, the state should use all of the tools at its disposal to grant what may be one of the couple’s dying wish.

Rebecca Probert

[1] BBC, ‘Coronavirus doctor’s diary: The patient who married hours before dying’, 21 April 2020, https://www.bbc.co.uk/news/health-52358078.

[2] http://www.facultyoffice.org.uk/special-licences/would-i-eligible-to-get-a-special-licence/.

[3] https://www.birmingham.gov.uk/news/article/570/update_to_registration_and_bereavement_services.

[4] Executive Order D 2020 014, Ordering the Temporary Suspension of Certain Requirements Preventing Issuance of Marriage Licenses due to the Presence of COVID-19, https://www.colorado.gov/governor/sites/default/files/inline-files/D%202020%20014%20Marriage%20Licenses_0.pdf..

[5]https://www.denvergov.org/content/dam/denvergov/Portals/777/documents/MarriageCivilUnions/MarriageLicenseByMailInstructions.pdf.

[6] https://gulfnews.com/uae/government/covid-19-uae-ministry-now-provides-online-services-to-hold-muslim-weddings-1.1586671705026.

[7] Executive Order 2020 No 202, Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency, https://www.governor.ny.gov/news/no-20220-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency.

[8] M Kuykendall and A Candeub, ‘Modernizing Marriage’ (2011) 44 Michigan State Law Review 735, 742.

Cite this article as: Rebecca Probert, “Love in a COViD-19 climate” in Law & Religion UK, 5 May 2020, https://www.lawandreligionuk.com/2020/05/05/love-in-a-covid-19-climate/.

12 thoughts on “Love in a COVID-19 climate

  1. Would liberalising the rules on weddings and approved premises in light of CoViD-19 also have the collateral effect of solving the problem with unrecognised nikah ceremonies? It would be interesting if this pandemic turns out to be the spur that fixes the lacuna regarding unregistered Islamic marriages in English law.

    • It might help alleviate it but I don’t think it could solve the underlying problem. My understanding (and I hope that if I’m wrong, an expert on Islamic family law will correct me) is that it’s forbidden – haram – for a devout unmarried Muslim couple to be alone together unchaperoned, so they enter an unregistered nikah in order to get to know each other without someone else constantly around – and if it doesn’t work out, they have a talaq divorce.

      I don’t see how one can get around that situation: it’s religion and culture that’s the key, not secular law.

      • I think the confusion here may be that there are two (or perhaps more) different nikah problems. There is first the circumvention of mahram rules that you mention—that, admittedly, may be irrelevant now that no one can see anyone unchaperoned (due to CoViD). I was instead referring to the issue where two parties marry, and one or both of them is unaware that the ceremony conducted by their imam does not confer any of the legal rights or protections of marriage, which leaves (often but not always) women only finding out when things have gone wrong that they, as a matter of law, lack the normal protections afforded to parties to a marriage (such as the facts of Akhter v Khan).

        • Indeed. A fairly recent example of the latter was MA v JA, in which a couple found that their marriage was invalid because the imam who’d married them wasn’t an ‘authorised person’: they had to go to the High Court to sort it out.

      • I think this oversimplifies things too much, and I agree with Elijah Grant that there are many nikah problems, not one. (By the by, it is permitted in two Sunni schools I’m familiar with to be alone unchaperoned, as long as third parties might at any moment enter on the couple.)

        The primary issue as I understand it is that a civil wedding is not generally recognised as making sexual contact licit, and that only a nikah will do that. This is true just as much in the loophole-finding sort of nikah that I read in Frank Cranmer’s comment, as in the full monty with days of community festivities.

        This means that in every case I’ve come across, the nikah precedes the civil ceremony, and it is the nikah that is mentally foremost in everyone’s minds as the moment of splicing the couple’s lives together. There may or may not be an intention to have a civil ceremony later, and if there is, it may wane as time goes on as Akhtar and Akhtar showed.

        More practising Muslim couples (and I agree, it is often women who are shortchanged currently) could take advantage of the voidable nature of an unconsummated civil ceremony: if the couples keep physically separate after the civil ceremony, they can set the marriage aside if their partner refuses in the end to go through with the nikah.

        Vice versa, that is very rarely the case, but it could be. More young Muslim women should know in the basic sharia rules of marriage, and that they can specify their own right of talaq (repudiation) in the marriage contract. In fully patriarchal societies, brothers, fathers, and an extended family can bring pressure on a wayward husband and secure a divorce. In the culture-straddling situation of most British Muslims, those protections don’t work so well, but neither has talaq become a matter of equality of arms.

  2. A related question on voidable marriages suggests itself to me: could a couple go through the form of a valid marriage even though socially distanced (perhaps even hiring a family solicitor to oversee the process), explicitly state their intention that it should have the standing of the impossible civil ceremony, and after lockdown apply to have the marriage recognised?

    • No, as far as I can see (and I claim no expertise in this), this would be clearly void ab initio under the Marriage Act 1949, s.49, by which any marriage not according to the form is void (*Not* voidable). I believe since the Marriage Act 1753 (although I really am out of my depth on the history of matrimonial law), only marriages solemnised according to the form authorised in statute in England & Wales. There is simply no room for a Re Rose style equitable marriage for people who do everything possible to marry without completing the legal form. However, as the UK is very deferential to the lex loci celebrationis, there are possibly jurisdictions where such a ceremony would be sufficient for legal recognition, with the result that it would be able to be recognised in the UK.

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  4. If ecclesiastical marriage legal requirements in England and Wales could be changed to mirror those in Scotland, registration could be radically simplified, enabling weddings routinely to take place in what are now considered to be extraordinary circumstances such as hospital wards. If it could be done electronically, then it almost ceases to be an issue in current (and future similar) circumstances. It works well in Scotland and it would work well elsewhere.
    If the law could be amended still further to become celebrant-based rather than building-based, that would also be a game-changer.

    • I agree: let’s see what the Law Commission recommends when it’s finished its project on wedding law.

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