In a guest post, Russell Sandberg looks at the dichotomy under the latest COVID-19 Regulations between what is permitted at a (legally-binding) wedding ceremony in England and (separately) in Wales, and what is permitted at other celebrations of marriage.
Non-Qualifying Marriages and the COVID Regulation
The last couple of weeks have seen controversy and confusion as to whether the COVID rules on the maximum number who can attend weddings apply to non-qualifying marriage ceremonies (that is, marriage ceremonies outside the Marriage Act 1949, such as those conducted by humanists and independent celebrants).
This issue has highlighted once again how problematic the conflation of law and guidance has been during the pandemic, both constitutionally and practically. Moreover, it has also underscored the dire need for reform of the law on marriage
The controversy and confusion spread in recent weeks are attributable to the number of weddings that take place which do not comply with the requirements of the Marriage Act 1949 and so are not legally binding. This underscores the fact that English law is no longer in sync with social practice in terms of marriage and the need for reform, as recently articulated by the Law Commission.
Previously, the rule that allowed up to 30 people ‘for the purposes of a solemnisation of a marriage’ or formation/conversion of a civil partnership also included ‘significant event gatherings’ with the following definition:
‘“significant event gathering” means a gathering for the purposes of a ceremony, rite or ritual … to mark or celebrate a significant milestone in a person’s life, according to their religion or belief, such as events to celebrate a rite of passage or entry into a particular faith (other than a birthday) or coming of age. …
This covered religious and belief rites which would include religious weddings and humanist wedding ceremonies (both of which would not fall under the marriage exception).
On 24 September, the Regulations for England were amended to reduce the number of people that can attend marriages and civil partnerships to 15 but stated that this applied to marriage under the Marriage Act 1949 and civil partnerships under the Civil Partnership Act 2004. No provision was made in the latest Regulations for ‘significant event gatherings’. For a comparison, see this by Humanists UK.
This meant that the new 15 people rule did not apply to marriages outside the Marriage Act 1949 and so it was thought that the normal ‘rule of six’ would apply to humanist ceremonies and those by independent celebrants.
The same was true of unregistered religious marriages – but they might have been able to rely on the guidance on worship which allows places of worship to decide their own limits based on their capacity provided that this constitutes ‘communal worship, including prayers, devotions or meditations led by a Minister of Religion or lay person’ and that people do not mingle in a group of more than six. According to the Guidance: ‘A place of worship refers to a building used for regular religious ceremonies, communal worship or similar gatherings by religious organisations’. So this would not include belief organisations.
A New Interpretation
However, after raising the issue, Humanists UK revealed that the Government had now changed its mind It has now quoted the Government as saying its interpretation of the law is that couples are ‘entitled lawfully to have a humanist wedding ceremony (and reception) with up to 15 people present’ and that it ‘intends to revise its guidance accordingly.’
The i website further quotes the Government as having ‘clarified with the organisation that a belief ceremony could take place as long as it is in “close proximity to the legal solemnisation of marriage”’. It adds: ‘campaigners say [this] leaves humanists in limbo as some couples will have already legally got married, being doing a legal exchange separately or not want a civil marriage ceremony.’ The more important outstanding matter, however, was how far this interpretation will apply. In particular, will it also extend to independent celebrants?
A number of pieces of guidance were updated on the 7 October. Under this guidance, it appeared that the 15 people rule applied to Humanist wedding ceremonies but only because they fell under the exception for marriage receptions rather than the exception for marriages themselves.
There are two different pieces of guidance: the ‘small marriages’ guidance and the ‘receptions and celebrations’ guidance. These apply to the two separate exceptions in the Regulations: for solemnising marriages and holding receptions respectively. Both of these exceptions allow 15 people to attend rather than the usual ‘rule of six’ which applies to gatherings. Both of the guidance documents were updated on 7 October.
The small marriages and civil partnerships guidance, crucially, stated that
‘This guidance applies only to weddings and civil partnership ceremonies and formations taking place in England under the law of England and Wales. Weddings and civil partnership ceremonies (or formations that do not take place in accordance with such law, whether religious, belief based, blessings, or other forms of non-statutory ceremony, are not covered by this guidance. Those wishing to conduct them should refer to other guidance on gatherings (see links below). In particular, for religious ceremonies you should refer to the places of worship guidance.’
This made it plain that this set of guidance and the associate exception for weddings do not apply to non-qualifying marriage ceremonies such as those conducted by humanists and independent celebrants
On the face of it, as the quote said, such non-qualifying marriage ceremonies would fall under ‘gatherings’ and so – outside religious ceremonies – the rule of six would apply. However, a different conclusion could be formed by looking at the Guidance for wedding and civil partnership receptions and celebrations.
The guidance defines ‘receptions and celebration’ as: ‘A gathering of people to mark the occasion of the marriage or civil partnership of a couple, usually involving a sit-down meal’. And, crucially, that guidance reads that:
‘Where faith and belief marriage rituals or ceremonies are being undertaken under the legal provisions for a wedding reception, these ceremonies must not exceed 15 people, and should adhere to all social distancing and other safety measures provided in this guidance. Those taking part in the ritual or ceremony do not need to remain seated at tables for this, but should be seated for any other aspects of a reception. If a faith or belief marriage ritual or ceremony is taking place as a wedding reception, it should take place within a reasonable timeframe alongside the legal solemnisation of the marriage.’
This shows that the Government sees ‘faith and belief marriage rituals or ceremonies’ as falling under the exception for receptions. Humanists UK told me that they understand that this is the basis upon which 15 people limit applies to humanist marriages because they are considered to be under the ‘receptions and celebrations’ guidance. They also told me that the Government has advised them that regarding the final sentence quoted above: ‘For the sake of clarity, it is not the Government’s position that it is a legal requirement for such a ceremony to take place in close temporal proximity to the legal solemnisation of the marriage (if any)’.
It would seem that this conclusion would also apply to wedding ceremonies conducted by independent celebrants. They would fall under the guidance definition of a ‘reception and celebration’. And this is supported by the fact that the guidance accepts that rituals and ceremonies can take place at a reception and celebration.
The alternative interpretation would be that the reference to ‘faith and belief marriage rituals or ceremonies’ means that only religion or belief ceremonies are covered. However, even if the paragraph quoted above applies only to religion or belief ceremonies, then that does not mean that the rest of the guidance does. The weddings guidance refers to marriages ‘whether religious, belief based, blessings, or other forms of non-statutory ceremony’ but these do not appear to be separate categories: a blessing is likely to be religious, for instance. The mention of ‘other guidance on gatherings’ does not suggest that the ‘rule of six’ applies to some of these marriages because the reception exception is still a form of gathering.
It is worth noting, however, that there remained a discrepancy between the Regulations and the guidance. The term ‘celebration’ does not appear in the actual regulations which only refer to receptions. Humanist marriages are now protected under the fiction that they are marriage receptions and it remained unclear whether (but highly likely that) independent celebrants could also argue that what the ceremonies they do fall under the reception exception.
On 12 October, new Regulations were made that expressly deal with this issue and do so under the marriage exception rather than the reception exception.
Different Regulations have been made for the three different tiers that now exist in England but the ‘medium’ tier Regulations (which applies to the majority of England) can be used as an exemplar.
The marriage exception is now found under paragraph 3 of schedule 1 to the Health Protection (Coronavirus, Local COVID-19 Alert Level) (Medium) (England) Regulations 2020. This provides for ‘exception 8’:
“(9) Exception 8 is that the gathering consists of no more than 15 persons and—
(a) it is for the purposes of—
(i) the solemnisation of a marriage, formation of a civil partnership or conversion of a civil partnership into a marriage, in accordance with the Marriage Act 1949, the Marriage (Registrar General’s Licence) Act 1970 or the Civil Partnership Act 2004, or
(ii) an alternative wedding ceremony (see paragraph 7(5)), and
(b) the gathering organiser or manager takes the required precautions in relation to the gathering (see paragraph 6).”
Exception 9 then applies to a gathering “for the purposes of a wedding reception, a reception following the formation of a civil partnership or a reception following the conversion of a civil partnership into a marriage” provided that this “takes place in premises other than a private dwelling”.
The reference to an ‘alternative wedding ceremony’ is defined in paragraph 7(5) as applying if a gathering:
“(a) it is for the purposes of a ceremony, including a ceremony based on a person’s faith or belief or lack of belief, to mark the union of two people, other than a ceremony conducted for a purpose mentioned in paragraph 3(9)(a)(i), and
(b) it takes place—
(i) at premises, other than a private dwelling, which are operated by a business, a charitable, benevolent or philanthropic institution or a public body,
(ii) at premises, other than a private dwelling, which are part of premises used for the operation of a business, a charitable, benevolent or philanthropic institution or a public body, or
(iii) in a public outdoor place not falling within sub-paragraph (i) or (ii).
Note that restrictions as to place apply to alternative wedding ceremonies but not to gatherings for the solemnisation of marriage.
The definition of ‘alternative wedding ceremony’ as ‘including a ceremony based on a person’s faith or belief or lack of belief, to mark the union of two people’ clearly includes humanist ceremonies, providing statutory recognition of such ceremonies for the first time (though they do not have legal effect). The fact that the Regulations recognise ‘alternative’ wedding ceremonies at all shows how the current law on solemnisation of marriage is outmoded.
It is also clear that unregistered religious marriages would benefit from this reception provided that they met the requirements as to place. A religious wedding at home would not meet these requirements, for instance.
It is still not clear, however, whether marriage ceremonies by independent celebrants are covered. The evidence against is the requirement that the ceremony must be ‘based on a person’s faith or belief or lack of belief’. Some ceremonies by independent celebrants would meet this requirement but a wide interpretation of this requirement might be needed to include others. Aside from this, however, the term ‘alternative wedding ceremony’ would seem to be an accurate summary of what independent celebrant ceremonies are and so it would be perverse if they were to be excluded.
The reference to faith and belief, however, does continue to show that the Government are thinking in these terms and this may be a bad omen in terms of marriage law reform since this focus might continue to exclude independent celebrants.
Exceptions 8 and 9, applying to marriages and receptions respectively, both require the gathering organiser or manager to take the required precautions under paragraph 6. These are twofold: they must carry out a risk assessment that would satisfy the requirements of regulation 3 of the Management of Health and Safety at Work Regulations 1999(a) (whether or not the organiser or manager is subject to those Regulations) and they must take ‘all reasonable measures to limit the risk of transmission of the coronavirus’, taking into account the risk assessment and ‘any guidance issued by the government which is relevant to the gathering’. This last point is of interest since it effectively makes the guidance legally binding
Overall, in relation to the issue of non-qualifying marriages, these Regulations are an improvement on what they replaced. There is now a legal basis upon which the rule of 15 applies to humanists and it is likely that this applies to independent celebrants: though given the Regulations’ unnecessary focus on ‘faith and belief’, the continued confusion in that respect is problematic. In drafting these provisions, the focus has not been on independent celebrants and that is concerning in terms of future law reform. The explicit reference to ‘alternative wedding ceremony’ is significant not only in providing protection but also in that it provides statutory recognition of such ceremonies for the first time and therefore could be said to represent a concession that the current law on marriage is no longer fit for purpose or at least does not reflect social practice.
The Situation in Wales
The situation is different again in Wales (despite marriage law being a non-devolved issue).
In Wales, the rules on marriage have not changed. The current Regulations states that attending a solemnisation of a marriage or formation of a civil partnership is a reasonable excuse to rules on indoor gatherings. There is no limit as to numbers. According to guidance: ‘The number who will be able to attend a ceremony indoors will be limited by the capacity of the venue where it is being held, once physical distancing measures have been taken into account’.
It is also a reasonable excuse to attend a place of religious worship or to participate in a gathering of no more than 30 people at open premises to celebrate a solemnisation or formation (Reg 14). This rule would seemingly apply to nonnon-qualifying marriage ceremonies such as those by humanists and independent celebrants.
However, Schedule 4A, which applies in the case of local lockdowns, does not include the reasonable excuses of attending a place of religious worship or celebrating solemnisation or formation. Only attending the solemnisation or formation is included as a reasonable excuse.
Guidance defines the term “place of worship” as ‘a confined or enclosed space, within buildings or outdoors, which is used for religious or belief ceremonies’. This reference to belief ceremonies occurring in places of worship is novel; it is different not only to the English COVID rules but to the established case law on the definition of place of religious worship.
The guidance also states:
‘ceremonies can be held as part of communal worship or as an event in their own right, such as a funeral or wedding, such ceremonies that do not form part of communal worship should continue to be by invitation only as described in the guidance.
Non-qualifying ceremonies in Wales could therefore fall under either the celebration excuse or the worship excuse because uniquely in Wales belief organisations are explicitly included as places of worship.
The constantly changing nature of the laws and guidance on the COVID restrictions has proved problematic both practically and constitutionally. However, it is important to note that the issue has arisen because the current law on marriage is out of sync with social practice. The eventual recognition of ‘alternative wedding ceremonies’ underscores this, recognising that the marriage law does not reflect social reality.
This point is made in the Law Commission’s Consultation Paper on Weddings Law in which they advocate a rigorous and universal approach to the preliminaries required for a marriage which would allow for the liberalisation of how and where marriages could take place – and this could eradicate existing inequalities and should also lessen the number of unregistered religious marriages.
The confusion and controversy seen during the last few weeks provide yet another reason why reform is long over-due. The argument for a fair, equal, coherent, straightforward and modern law of marriage is getting stronger by the day.
This post was first published as a series of blog posts on http://sandberglaw.wordpress.com