Guest post from Professor Rebecca Probert, intended as the first in a series of blogs explaining the Law Commission’s provisional proposals for reforming weddings law.

On 3 September 2020, we published our consultation paper Getting Married: A Consultation Paper on Weddings Law. The full paper together with a shorter summary and further details about the project are available on our webpage here. In the consultation paper, we propose an entirely new scheme of weddings law. Our provisionally proposed scheme could be described as an officiant scheme, which would replace the current buildings-based approach. It would govern all weddings, including religious and civil wedding ceremonies (and, if permitted, weddings conducted by non-religious belief organisations and/or independent celebrants).

In this series of blogs, we highlight a number of elements of our scheme that we think will be of particular interest to readers of Law & Religion UK, beginning with the provisional proposals relating to the Anglican Church.

Our provisional proposals assume that a schedule system will be introduced under the Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019, with schedules and, if Anglican preliminaries authorise the wedding, marriage documents issued to couples and completed for registration of the marriage.

We do, however, ask whether Anglican preliminaries should continue to be recognised as legal preliminaries to weddings conducted by the Anglican Churches, or whether all weddings should be preceded by civil preliminaries.

This is not a new suggestion. The original version of what became the Marriage Act 1836 would have introduced universal civil preliminaries, and many who spoke in the debates took the view that banns were ineffective in preventing clandestine or illegal marriages. Those who gave evidence to the Royal Commission in 1868 similarly identified a number of problems with both banns and licences. But when the Marriage Act 1949 was passed it simply codified the existing law – including the requirements for Anglican preliminaries dating back to legislation in 1823.

In our 2015 Scoping Paper, we highlighted what we saw as the potential advantages of moving to a system of universal civil preliminaries. In the Consultation Paper, we further explore the complexity and uncertainty of the current rules governing Anglican preliminaries, the administrative burden they place on clergy and those who support them, the inequality of treatment which results between the Anglican Churches and other religious groups, and the differences that can arise in the rules governing the publication of banns in the Church of England versus the Church in Wales.

Putting those issues aside, we think the biggest concern relates to the protection of the state’s interest. The state has an interest in marriage, and in particular, in preventing weddings from going ahead where an individual lacks capacity or is being forced into a marriage. We are not sure that the state’s interest can be as well protected by Anglican preliminaries as by civil preliminaries.

By a common licence or Archbishop’s special licence, an Anglican wedding can proceed with no notice period and no publicity. Although banns involve publicity, the audiences to the publication of banns are often very small. As compared to the current publicity given to marriages preceded by civil preliminaries – posting in the local register office – banns fare no worse. However, in the consultation paper, we propose that notices of marriage given to the civil authorities should be publicised online.

There is also the disparity in the checks that are conducted of each person’s identity and capacity to marry. Registration officers carry out rigorous checks of documentary evidence; other than seeing evidence of nationality, Anglican clergy have no power to call to see documentary evidence. With the increasing digitisation of Government records, this disparity between the rigour of civil preliminaries and Anglican preliminaries will only grow.

We also think there could be concerns about the ability of Anglican preliminaries to identify potential forced marriages, given that clergy are not legally obliged to see both of the couple before the publication of banns, and moreover a common licence can be granted on the application of just one of the couple.

If Anglican preliminaries are retained, there may be ways of clarifying and improving them, and we ask questions aimed at this in the consultation paper.

Under our provisional proposals, weddings would be able to take place in any location, and according to any form; the validity of the marriage would depend on there being an authorised officiant present.

Anglican clergy would be one category of officiant, authorised in relation to Anglican weddings. Clerks in Holy Orders of the Church of England and Church in Wales would be automatically authorised to officiate at Anglican weddings. Although they would be required to comply with the same duties and responsibilities that we envisage would apply to all who officiate at weddings, they would be regulated by their own Church, not the General Register Office. This unique treatment, as compared to those who could be authorised to officiate at the ceremonies of other religious organisations, would reflect the unique position of the Church of England and Church in Wales and their duties to conduct the weddings of their parishioners.

Under our provisional proposals, Anglican wedding ceremonies could continue to take place exactly as they do now. The Church of England and the Church in Wales could continue to specify where a wedding could take place, and the form it took. Rather than it being the civil law requiring that the ceremony take place according to one of the authorised forms of service, and in a church or chapel where the couple was entitled to marry by virtue of their parish of residence or a qualifying connection, it would be the Church’s own internal rules governing these matters.

Reform along the lines that we provisionally propose would allow the Churches to consider for themselves whether they wished to potentially allow weddings in a wider variety of places, such as in churchyards. This could offer flexibility that clergy or couples might welcome. It might also provide benefits during a future pandemic or other public emergency, making it easier to maintain social distancing during a ceremony. Should public health rules put greater restrictions on gatherings indoor than out, it could also allow weddings to take place in those circumstances.

If you would like to ask us about these provisional proposals, we will be holding our first virtual question and answer session – focusing on issues that will most affect the Church of England and Church in Wales – on Monday 12 October at 3 pm.

The event is open to all, and is aimed at members of the Churches, including those who currently have responsibilities in relation to publishing banns and/or solemnizing and registering marriages. More details about the event, including how people can sign up, can be found here.

If you know of anyone who might be interested in finding out more about our work, we would be grateful if you would pass on details of the event. We do, of course, also invite written consultation responses from anyone with views on our provisional proposals.

Rebecca Probert