Is the coronavirus ban on weddings lawful?

In a guest post, Neil Addison questions the legality of the current ban on weddings.

The coronavirus pandemic has bought most aspects of normal life to an end in the UK. Most of the restrictions have been brought in through Statutory Instruments under the Public Health (Control of Disease) Act 1984, the most far-reaching of which is The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 which came into force at 1 pm on 26 March 2020 (equivalent Regulations for Wales, Scotland and Northern Ireland were made by the relevant devolved administrations).

One of the effects of the Regulations has been to prevent any marriages taking place and considering the amount of publicity there has been about police enforcement and legal overreach with these Regulations, there has been surprisingly little comment on whether the blanket restriction on marriage is either necessary or lawful.

Like all UK legislation, the 1984 Act and the 2020 regulations are subject to the Human Rights Act 1998 (HRA), which incorporates the European Convention on Human Rights into UK law. Section 3(1) of the 1998 Act states that “So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights”. Since 26 March 26, no marriages have been allowed to take place in the UK despite Article 12 of the Convention which says in unequivocal terms:

“Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.”

Of course, the right to marry is not the only Convention right which has been affected by the Regulations, by limiting travel even for the purpose of visiting family, by closing churches and by preventing people meeting in groups of more than two, the regulations have infringed the following rights: Article 8 – Right to respect for private and family life, Article 9 – Freedom of thought, conscience and religion, Article 11 – Freedom of assembly and association. However, these rights are all “qualified rights” and can be restricted “in the interests of public safety … for the protection of health or morals … for the protection of the rights and freedoms of others.”

There is no doubt that the Regulations can be legally defended as being ”for the protection of health” and “for public safety”; and even if it were argued in court that the restrictions go too far, it is unlikely that any court would want to interfere in what is ultimately a value judgment based, as we are repetitively told, on scientific advice.

However, unlike the rights under Articles 8, 9 and 11, Article 12 is an absolute right which is not subject to any restrictions. Under Article 12, “Men and women of marriageable age have the right to marry’’: no ifs, no buts and no provision permitting restrictions “in the interests of public safety etc etc”. Therefore, by preventing any marriages taking place, the Government is in breach of Article 12 and it cannot justify that breach by reference to the dangers and disruption caused by the coronavirus epidemic.

It is also important to remember that that the Regulations are just that: Regulations, made under the provisions of a statute. As s.3 of the HRA makes it clear, Regulations have to be read in a manner which is compatible with the Convention unless the primary legislation (in this case the 1984 Act) requires them to be incompatible with the Convention. However, in the case of the Coronavirus Regulations, the 1984 Act merely permits regulations to be made: it does not require them to be in any particular form.

Under s.6 of the HRA, it is unlawful for a public authority to act in a way that is incompatible with a Convention right; and since the Regulations are unlawful in preventing marriages being solemnised and registered, all that is necessary is for a couple who want to get married to demand that their local registration office organise a wedding. If the Registration Office refuses, he or she could then be sued under the HRA and ordered to register the marriage. For religious couples for whom a purely civil marriage would not be a “real” marriage, the same principle would apply: they have a right to have a religious marriage that is compatible with the national legislation on marriage. That does not mean that any church, mosque, meeting house etc would be obliged to perform a religious marriage, but it does mean that the Government would have to allow the wedding to take place even if that involved more than two people being together in the same premises or required that a church was opened for the purpose of solemnising the marriage.

It is important to note, however, that Article 12 only grants a right to a “marriage”; it does not grant the right to a wedding with bridesmaids, best man and tearful parents and it certainly doesn’t grant any right to have a wedding reception with cake, speeches and rude jokes from Uncle Frank. If a couple wants that sort of wedding, then they will have to wait until the lockdown is lifted; however, if the couple simply wants to be married, then the Government is obliged to permit the marriage to take place. In many respects, there may be no harm in people being reminded that it is the marriage that is important, not the wedding ceremony.

Obviously, the Government could still regulate how many people are in the same room when the marriage takes place. Five is the minimum number required by law: namely, the happy couple, the celebrant and the two witnesses. However, there is no reason why the two witnesses cannot watch the ceremony via video link rather than being in the same room and there can hardly be any objection to the happy couple being together since, presumably, they will not intend to be social distancing on their wedding night.

In Love in a Covid-19 Climate Professor Rebecca Probert has carefully examined ways in which marriage could be made easier in order to comply with the problems caused by the coronavirus. The Government needs to take some of those recommendations on board soon. The continued ban on marriage is not simply bad politics – it is also unlawful and the Government needs to deal with that fact ASAP rather than waiting to be dragged unnecessarily through the courts.

Neil Addison

Cite this article as: Neil Addison, “Is the coronavirus ban on weddings lawful?” in Law & Religion UK, 11 May 2020, https://www.lawandreligionuk.com/2020/05/11/is-the-coronavirus-ban-on-weddings-lawful/#more-57809.

21 thoughts on “Is the coronavirus ban on weddings lawful?

  1. I’m not so sure as Neil is. Article 12 ECHR states that ‘Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right’.

    So it confers an absolute right to marry (and to found a family) – but, surely, what it does not do is to confer an absolute right to marry on a particular day in a particular place. I should have thought that there was at least a tenable argument that the words ‘according to the national laws governing the exercise of this right’ give at least a limited margin of appreciation to states parties and that, should the matter ever get as far as Strasbourg, measures to combat the current COVID-19 pandemic might be held to provide sufficient justification for the current restriction (though, unhelpfully, there is no ECtHR case-law guide to Article 12).

  2. I take the point Frank but at the moment the National Laws of the UK do not permit a marriage in any form. The phrase ‘National Laws’ deal with the mechanics of how a Marriage happens, in France there must be a Civil Marriage before there can be a Religious Marriage whilst in the UK the Civil and Religious ceremonies can take place together, in Scotland, a qualified person can perform a marriage anywhere whilst in England, a marriage must take place in approved premises, these are all examples of ‘National Laws’ however in all cases these ‘National Laws’ do not prevent a marriage taking place. Under the Regulations, however, no marriage can take place at all – which is a breach of Article 12.

  3. I must respectfully disagree on the basis of Strasbourg case law on Art 12 ECHR. In KM v UK (Application № 30309/96) [1], the ECmHR ruled as inadmissible the applicant’s complaint that the lengthy delay in processing his divorce had unreasonably deprived him of his Art 12 ECHR rights, because the temporary prohibition on marrying (lasting years) did not impair the essence of the right and, furthermore, ‘did not lack an objective and reasonable justification.’ Similarly, in De Luca v Italy (App № 33354/96, only available in French) [2], the ECmHR ruled that a complaint that a lengthy delay preventing the applicant from remarrying was manifestly ill-founded, as the essence of the right was not deprived, and that Art 12 mandated that marriage take place according to relevant national laws.

    At present, there are merely rules under national law providing for delays to marriage (until after lockdown), which are plainly not arbitrary or unreasonable (as public health is an objective concern with legitimate foundations). I highly doubt that there is a violation here.

    [1] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-3635%22]}
    [2] https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%2213823/88%22],%22documentcollectionid2%22:[%22JUDGMENTS%22,%22DECGRANDCHAMBER%22,%22ADMISSIBILITY%22,%22ADMISSIBILITYCOM%22,%22DECCOMMISSION%22],%22itemid%22:[%22001-24335%22]}

    • Hello Elijah and thanks for contributing. Maybe its just me but the links you provide don’t seem to work however I’ve found the Luca case you mention which is at
      http://hudoc.echr.coe.int/eng?i=001-59222
      and it deals with the right to a fair trial under Article 6 nothing about Marriage or Article 12.

      Re the KM case I found the case of TP & KM v the UK at
      http://hudoc.echr.coe.int/eng?i=001-59456
      which deals with a child being taken into care and once again nothing about Marriage or Article 12

      If I’ve got these wrong can you provide links, please?

      • Yes, both of those are different cases! (common names I suppose) I am afraid that because of my technical incompetence you have to highlight the whole link (ie everything after the [1] ) and then copy and paste it into the browser. You can also search the application numbers in HUDOC (make sure to select ‘Commission decisions’).

    • I think these two cases can be distinguished. The first concerned the erroneous grant of a Decree Absolute on an application made before the period set down in statute had expired. Following the DA, the applicant remarried. The later rescission by the Court of Appeal of the decree absolute meant that that applicant’s marriage in the meantime was unlawful. But this was a case of a finite delay, or at least a delay that it was open to the Court to regulate, for example to allow the financial settlement to be agreed prior to making the DA. (The DA was eventually granted in August 1996 before the financial settlement was agreed in December 1996.)

      The second case was brought under Article 6 (fair determination of rights within a reasonable time) as well as Article 12. The case failed under Art 6, the commission holding that a five-year process was not so long as to be unreasonable, but also noting that the applicant had not complained of delay for over five years. The case concerned an objection to the applicant’s marriage on the ground of the husband’s lack of mental capacity. In relation to Art 12, the Commission appears to have held that the legal process was a process under national law designed to ensure that the marriage laws were followed. It also rejected a delay argument under Art 12 for the same reason it rejected that argument under Art 6.

      In neither case was there a blanket prohibition on marriage. The operation of the law focussed on the specific circumstances of each case, and the circumstances were justiciable. That is very different from the position under the Coronavirus, Restrictions Regulations. And although they are time-limited (expiring on 25th September) it would be a brave couple who re-arrange their wedding for a date after that. There is effectively a ban on weddings for an unknown lengthy period.

    • Hi Elijah

      I’ve now found the KM case, though it’s quite specific on its facts. The Applicant who was the defendant in a Divorce application had to wait 3 months after Decree Nisi before he was allowed to obtain a Decree Absolute. That was regarded by the Court as part of the ‘National Laws’ concerning marriage, it dealt with a finite period, namely 3 months, and arose solely because the applicant had to complete his divorce before he could marry. That is miles away from the present situation where everyone is prevented from getting married and that could last for an indefinite period

      Regarding the Luca case, I think you meant Luca v Italy No No 13823/88 not Luca v Italy No 33354/96

      • Yes, you’re entirely right about me misquoting the application number! It seems I am as liable as anyone to be confused by the numerous Luca v Italy ones!

        I agree that the cases are specific on the facts, but they are as close as facts seem to get (given how few parallels there are). In the interests of intellectual honesty, I should note that there is a precedent pointing in the opposite direction, F v Switzerland (App № 11329/85) [1], where the ECtHR held that a lengthy prohibition on remarriage after divorce ‘the disputed measure, which affected the very essence of the right to marry, was disproportionate to the legitimate aim pursued’. However, the helpful guide to the case law on art 12 [2] notes that this case is an exception to the more usual approach.

        [1] https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57490%22]}
        [2] https://www.ivir.nl/publicaties/download/1561.pdf

    • I’ve now read the Luca case (thank you Google Translate)

      The case involved delay caused by a legal procedure ‘opposition to Marriage’ which is a valid procedure under Italian Law The main complaint was in fact of delay contrary to article 6 (right to fair and speedy trial) however the Court noted (google translation)
      ” The delay that has thus elapsed is therefore largely due to the inactivity of the applicant and her fiancé. The applicant cannot therefore criticise the Italian authorities for the delays”.

      Regarding Article 12, the Court held that since the reason that the Applicant could not marry was because of the delay in the legal proceedings which was caused by the Applicant that meant her claim was ill-founded

      I don’t believe either of the cases you mention undermine the points I have made in my article but I do thank you for bringing them to my attention.

      • Dear Neil, on Art 12, in De Luca I think that the main reason the commission rejected the case was not the Art 6 reasoning (though that was a second reason) but that the judicial process of examining the husband’s mental capacity actually supported the law on marriage in Italy – see my comment above. They said: “La Commission relève en premier lieu que la requérante ne saurait se plaindre de l’existence d’une procédure d’opposition en tant que telle. En effet, l’article 12 (art. 12) de la Convention garantit le droit de se marier et de fonder une famille selon les “lois nationales régissant l’exercice de ce droit” et l’opposition au mariage constitue une action judiciaire instituée en vue d’en assurer le respect.”

        I confess I am not totally sure how this translates (and I don’t use Google translate) but I think that from “et l’opposition au mariage…” onwards it means “the objection to the marriage was conducted by a judicial process designed to ensure compliance with the national law on marriage” which presumably required the parties to have a certain mental capacity. Time for a proper legal translation before litigating this one.

  4. Thank you for writing this post and raising the issue. There is another important dimension for engaged couples who are not living together. Although that approach is culturally something of an exception, I am aware of at least one such young Christian couple who have had to postpone their wedding indefinitely. As it was to have taken place after an engagement of over a year this is no little hardship. Doubtless there are other examples in other faiths where the conventional teaching is against extra-marital sexual relations.

    The Government’s current approach appears to be that it does not matter whether you are married or not, it is fine to live together. Seen in the context where to get married is viewed more as a reason for a party than a covenant commitment of two people to each other, it is not surprising that there is a ban on weddings, with the elaborate celebrations they often entail. But as the article points out, that need not be the same as a ban on getting married. A new normal may be emerging where marriage is not really supported by governments.

    I am surprised that the churches are not raising this with the UK government now.

    Returning to the legal side, could you explain why you conclude that although “For religious couples for whom a purely civil marriage would not be a ‘real’ marriage, the same principle would apply: they have a right to have a religious marriage that is compatible with the national legislation on marriage. That does not mean that any church, mosque, meeting house etc would be obliged to perform a religious marriage …” I might add that for religious couples the point would surely be that a Church wedding is a lawful way (apart from the regulations) to get married so the minister, like the registrars, could be ordered by the Court to perform the wedding. (It sounds rather aggressive put that way, but in such a case the couple and the minister would probably all want the ability to carry out the wedding.)

  5. Dear David.

    Thanks for getting involved: it’s always nice to know that an article has been read even if the readers disagree with it. I agree that for religious couples a marriage ceremony of some sort is a pre-requisite for cohabitation and the Government needs to allow this to happen. I agree also that the Churches should be raising this issue with Ministers

    My point about no Church or Mosque being obliged to perform a marriage is, of course, related to the fact that Churches Synagogues Mosques etc are not public authorities: they are independent organisations (Please, Please, don’t let us go down the rabbit hole of the exact status of the Church of England)

    The Human Rights Act applies to public authorities not to independent organisations: therefore, the Human Rights Act, in my view, obliges Government to provide for the registration of marriages despite the lockdown and obliges Government to permit religious marriages. But the Act cannot be used to oblige religions to perform marriages that is a matter for their own judgement.

    • Thank you. Most helpful explanation and I am very happy to stay above ground and out of the rabbit hole. As a comment, I’d say I hope that these matters can be sorted out without recourse to JR or other litigation. I think experience shows that the Courts are not often the best place to resolve issues of religious beliefs, observance and sensitivities in a human rights context. Which is not to say that the law and legal arguments should not be used.

  6. Presumably the absolute right under Article 12 also applies to same-sex couples in the UK and wherever national laws allow same-sex marriage.

    • Not in Strasbourg case-law it doesn’t: see Schalk and Kopf v Austria and Chapin and Charpentier v France. There’s a right to formal legal recognition of same-sex partnerships – eg Orlandi and Others v Italy – under Article 8, but that’s not quite the same thing as a right to marry.

      • I think what Ian was getting at was whether what I had said applied equally to same sex couples as to opposite sex couples to which my answer is yes. Strasbourg caselaw certainly doesn’t require same sex marriage but it does require equality once same sex marriage is legal. In any event, there is no doubt that if the current ban is lifted or relaxed in any way that would be applied to both forms of marriage and, I anticipate, to Civil Partnerships also. I can’t see any Government distinguishing between them.

  7. “One of the effects of the Regulations has been to prevent any marriages taking place”

    I have read the Regulations. They mention neither weddings nor marriages. I therefore dispute the initial premise that the prevention of CIVIL marriages from taking place is an effect of the Regulations. It seems, rather, to be the result of a public sector withdrawal of labour, incited during a television broadcast on the part of the Prime Minister on 23rd March 2020. This withdrawal of labour preceded the Regulations.

    See Regulations 6(2)(h) and 7(d)(iv), for the clear legal authority for registrars to continue to solemnise marriages, and for parties and their witnesses to attend offices in order to continue to receive this service.

    In the light of this, I would ask Neil Addison what persuaded him that “one of the effects of the Regulations has been to prevent any marriages taking place”? The omission to conduct any marriages has been due to the conduct of the public, not a requirement imposed by the legislature, as falsely implied.

    • I’m afraid I must disagree with Mr Allman. The fact that weddings are not specifically mentioned in the Regulations means that they are covered by the generality of the Regulations. People would not have a ‘reasonable excuse’ for travelling to a wedding and a wedding requires a ‘gathering in a public place’ of more than 2 people (reg 6).

      As for the Regulations he mentions, they cover ‘fulfilling a legal obligation’ or ‘participating in legal proceedings’ and a wedding is not a legal obligation nor is it legal proceedings. Those Regulations clearly cover people attending Court as defendant or witness or, for example, an offender reporting to probation or to Police as part of Sex Offender registration.

  8. One question within this is how does this relate to the use of a Special Marriage Licence? These are still being issued.

  9. The latest position, from an answer to a Written Question in the Commons on 12 May, is as follows:

    Dr Ben Spencer (Runnymede and Weybridge): To ask the Secretary of State for Justice, what progress the Government is making on bringing forward legislative proposals to ensure that local authorities can extend legal notices on marriages postponed as a result of the COVID-19 lockdown. [43181]

    Alex Chalk (Cheltenham): The Government acknowledges the significant upheaval that COVID-19 is causing for couples who were looking to marry at this time. The requirement to solemnize a marriage within twelve months of giving notice to marry is set out in primary legislation and would require primary legislation to amend.

    We are exploring what changes might be possible in relation to marriages at this time, and in line with Public Health England guidance on social distancing.

Leave a Reply

Your email address will not be published. Required fields are marked *