In a guest post, Russell Sandberg looks at the forthcoming litigation over the non-recognition of “belief” wedding ceremonies.
It has been announced that on 6 -7 July the High Court will hear a challenge by six couples – supported by Humanists UK – against the current prohibition on humanist weddings: see the BBC and Guardian reports.
Under the current law in England and Wales (but not in Scotland and Northern Ireland), couples can have a humanist wedding but it is not legally binding – meaning that they also need to undergo civil registration under the Marriage Act 1949. This places humanists in a different position from members of the Church of England and other religious groups who have places of worship registered for the solemnisation of marriage – and so can conduct lawful marriages there – and from Quakers and Jews.
It seems to be readily accepted that giving legal effect to humanist ceremonies is needed. At House of Lords questions on 30 June, the point of contention was when not whether such reform should take place. And section 14 of the Marriage (Same Sex Couples) Act 2013 already enables such a change to be made by secondary legislation.
There are two ways in which the change could be made: by a specific amendment or by a general reform of the law. The specific amendment route would provide for belief organisations a similar legal position as for Jews and Quakers. This is what is envisaged in the private Member’s bill currently before Parliament.
The general reform route would enable humanist marriages as part of a wider modernisation of marriage laws. In the House of Lords on 30 June, the Government suggested that this was the plan. When asked what the legal obstacles were to reform, given that humanist weddings were already recognised in Scotland, Lord Keen of Elie replied:
“The major obstacle is the fundamental difference between the law of marriage in Scotland and that in England. The law of marriage in England and Wales, as determined since Lord Hardwicke’s Act, depends upon the place of celebration as well as the celebrant. That is not the position in Scotland, where it is not necessary to identify the location for the marriage ceremony”.
Lord Keen was adamant that there was a need to wait for the Law Commission to carry out its work on Wedding Law and that the consultation paper would be due in September. Indeed, the Law Commission’s Terms of Reference include looking at:
“How the law should be reformed in relation to who can solemnize a marriage and how it could be reformed to enable a wider range of persons to solemnize a marriage. This will include how marriage by humanist and other non-religious belief organisations could be incorporated into a revised or new scheme, and how provision could be made for the use of independent celebrants, but the Law Commission will not make recommendations as to whether the groups who can solemnize marriages should be expanded”.
The reference to “persons” here suggests that a move towards the Scottish model of registering persons rather than buildings may be something that is at least being contemplated by the Law Commission.
However, the announced litigation suggests that Humanists UK are not content with waiting for the Law Commission. This is understandable: not only will the Law Commission’s work take time, but it is uncertain what the Commission will recommend and even more uncertain whether it will be implemented. Indeed, the more radical the recommendation (such as moving to the Scottish model), the less likely that such recommendations will be implemented. In their Briefing to MPs, Humanists UK say this about the Law Commission review:
“The Government has included humanist marriages in the Law Commission’s wholescale review of marriage. However, while it will make recommendations on how humanist marriages could be recognised, it can’t recommend to the Government if they should be. This is a matter for the Government to decide. The Commission also can’t consider human rights”.
It is true, of course, that the Law Commission cannot mandate reform but it is surely the case that it can recommend it. The Law Commission can come up with a “should” rather than just a “could”. As the Briefing correctly notes, whether such recommendations are adopted “is a matter for the Government to decide”,
It is correct that the Law Commission’s terms of reference for wedding law reform state that they cannot “make recommendations as to whether the groups who can solemnize marriages should be expanded”. But this presumably means that their role is to design a model or revise the current law to allow for religious and belief weddings – without then specifying which religions and beliefs can be included. It is surely expected that the Law Commission will at least consider the inclusion of belief weddings – its terms of reference include looking at “how marriage by humanist and other non-religious belief organisations could be incorporated into a revised or new scheme”.
Going down the specific amendment route rather than waiting for the Law Commission brings with it some drawbacks. The specific amendment route will facilitate yet another ad hoc change which will mean that marriage law will continue to be overly complex and non-accessible. Moreover, dealing with the humanist issue separately is likely to reduce the impetus for the fuller reform which is badly needed, not least to deal with the problem of unregistered religious marriages.
The announced legal challenge, however, seems designed to bring about a specific amendment now rather than general reform later on. In their Briefing to MPs, Humanists UK argue that reform is needed now to deal with the backlog of weddings as a result of COVID-19 and they call for the Government to make an order enabling humanist marriage as soon as possible.
It is questionable, however, whether the legal challenge will achieve this. It is unlikely to lead to reform before the Law Commission reports. The information in the public domain does not indicate the legal grounds upon which the challenge is being made and the remedy that is being sought. However, if the argument is being made on human rights grounds and a declaration of incompatibility is being sought, then even if the case is successful, surely the automatic response of the Government will be to simply point to the Law Commission’s ongoing work as the vehicle to resolve this.
On the surface, therefore, the legal challenge might be seen as being unlikely to make any difference. However, should the claim be successful, it would certainly buttress existing arguments for reform – and this might prove useful if the Law Commission does not propose the necessary reform or, more likely, if its proposals are not implemented by Government. The High Court challenge thus makes the review of marriage law more pressing.
Moreover, and regardless of the outcome in the case, the announced litigation may well prove to be very important in that it would do for humanist marriage what Owens v Owens  UKSC 41 did for no-fault divorce, serving as a symbol – a readily understood and emotive example of injustice – which provide further impetus for reform, if not directly leading to it.
This is a revised version of a post originally published on the author’s own blog: https://sandbergrlaw.wordpress.com.
Cite this article as: Russell Sandberg, “Humanist marriages go to court” in Law & Religion UK, 2 July 2020, https://www.lawandreligionuk.com/2020/07/02/humanist-marriages-go-to-court/