In a guest post, Professor Russell Sandberg looks at the issues surrounding the new consultation paper on marriage law reform in Northern Ireland.
Reform of the law on getting married continues to be very topical. A private Member’s bill in the Commons this Friday (the Marriage and Civil Partnership (Minimum Age) Bill) seeks to increase the minimum age at which you can enter into a marriage or civil partnership to 18 and amend the criminal offence of forced marriage to cover child marriage, including religious or other unregistered marriages. Meanwhile, a consultation on whether to make permanent the post-COVID recognition of outdoor marriages in approved places is awaited as is the final report of the Law Commission’s final report on wedding law, which if it follows their previous consultation paper is likely to propose comprehensive reform shifting from regulating buildings to recognising officiants. In Scotland, the Law Commission is re-evaluating their law on cohabitation rights on separation and, not to be left out, the Department of Finance in Northern Ireland has just published a consultation paper on limited marriage law reform.
The consultation paper explores two possible piecemeal reforms: the first concerns the recognition of ‘belief marriage’, an issue also being explored by the Law Commission in England and Wales; the second concerns raising the minimum age to enter marriages or civil partnerships, which is the subject of the Marriage and Civil Partnership (Minimum Age) Bill in England and Wales.
The issue of whether it is discriminatory and non-human rights compliant to recognise religious forms of marriage (provided certain legal requirements are met) but not to recognise forms of belief marriage is longstanding. The category of ‘belief marriage’ is often interpreted as referring to belief organisations such as Humanists UK.
Belief marriage in this sense is legally recognised in Scotland. In contrast, in England and Wales, such ceremonies are outside the scope of the Marriage Act 1949 and couples who have such ceremonies are not legally married unless or until they also undergo a civil ceremony. The Harrison case has established that this is discriminatory on grounds of Article 9 in relation to humanism but this was justified because the Law Commission was and is currently reviewing this area of law.
The situation in Northern Ireland is rather more complex. Under the Marriage (Northern Ireland) Order 2003, religious marriages can be solemnised only by an officiant while civil marriages are those solemnised by a person appointed under Article 31. That Article provides that “additional persons” may also be appointed. Following the litigation in Smyth, in which it was held that that being married by a humanist celebrant was a manifestation of the applicant’s religion or belief under Article 9, it was held that the law was human rights complaint since humanist ministers could be appointed as ‘additional persons’.
As the Consultation Paper makes clear, this was very much a temporary fix. Humanist marriages are still not being treated like religious marriages in that humanist celebrants are becoming temporary registrars (part 1, para 30). They are bound by the restrictions placed on civil marriage and are required to apply for temporary officiant status each time they wish to perform a marriage ceremony (para 32).
The Consultation Paper recognises that there are ‘concerns’ about belief marriage on a more permanent basis (para 17). Two such concerns are raised. First, there ‘is not always a close connection between a belief organisation and its individual members in the way that there can be with a religious group’ and this ‘close connection provides some guarantee against sham marriage and that belief marriage offer less guarantee in this respect’. Second, ‘enabling belief marriages creates an opportunity for eccentric or frivolous marriage ceremonies to take place or for there to be forms of ceremony are at odds with the solemnity of the institution of marriage’ (para 18).
The Consultation Paper nevertheless notes that ‘neither of these concerns in any way negates the strong case, on equality grounds, for people who have a sincerely held but non-religious belief to have a marriage ceremony reflective of those beliefs’ (para 19). This is undoubtedly true: the judgments in Smyth and Harrison underscore that reasoning. However, it should be noted that these concerns are themselves deeply suspect. Relying upon them would likely breach human rights and discrimination laws. There is no evidence that ‘close connections’ are more likely to exist in religious marriages than other forms of marriage. The reference to ‘eccentric or frivolous marriage ceremonies’ is both ludicrous and insulting. It is inappropriate to seek to exclude wedding ceremonies on this ground. What to one person looks eccentric or frivolous might well be a manifestation of a genuinely held belief by the other. And where would we be if we started ranking religions according to how eccentric or frivolous their ceremonies are? Applying this to belief marriages is equally ludicrous and insulting as it would be to apply this to religions.
While the Consultation Paper leans towards the recognition of marriages conducted by celebrants representing belief systems such as humanism, it seems less keen on independent celebrants. It states that these celebrants are ‘distinct and separate to humanist and other belief celebrants’ and provide ceremonies ‘on a commercial basis’ (para 38). This is rather misleading: surely all wedding providers charge to provide their ceremonies.
Indeed, independent celebrants conduct a number of interfaith ceremonies – where the fact that the couple is of mixed faiths or beliefs means that they cannot get married according to one religious or belief tradition. They therefore provide a means by which couples can have a ceremony that reflects their own preferences, values and beliefs. It can be argued that preventing this freedom to choose would itself breach Article 9. This is not only the case in relation to interfaith ceremonies. It could be argued that there is an Article 9 argument in relation to any independent celebrant conducted wedding that allows the couple to manifest their beliefs. And excluding independent celebrants is simply to replace one form of discrimination with another.
Limiting protection to belief organisations only also assumes that the term is capable of definition. This has proved problematic in Scotland where the right to marry is afforded on grounds of religion or belief and where, as a result, the definition of belief has been stretched. It has also, as readers of this blog will be only too aware, been deeply controversial in relation to employment law where employment tribunals have adopted contradictory understandings of what a belief is.
The Consultation Paper seems to mischaracterise the role of independent celebrants. It states that:
“Some independent wedding celebrants have proposed legislative change to enable them to offer legally binding wedding ceremonies. They claim that, previously, humanist celebrants offered a similar service to independent wedding celebrants—marriages that were not legally binding and were offered in an addition to a civil ceremony. They allege that the enabling of humanists to provide legally binding marriages will put independent celebrants at a commercial disadvantage” (para 39).
The statement that independent celebrants provide a similar service to humanists is sound and underscores that to recognise one without the other would be discriminatory. However, it is not just about a ‘commercial disadvantage’. It is primarily an equality issue. If the decision to recognise humanist marriage is made ‘on equality grounds’ then it is questionable to limit protection at that point. The reference to ‘commercial disadvantage’ here also underlines that it is not only independent celebrants who make money out of conducting wedding ceremonies.
The Consultation Paper then gives three further reasons why independent celebrants should not be recognised. The first is that:
“if government were to permit independent wedding celebrants who currently provide, on a business basis, non-binding wedding ceremonies—literally a ceremony and nothing else—to provide legally binding marriages, it would be obliged in the interest of equality to extend the same commercial opportunity to religious and belief groups” (para 40).
This is a curious objection, given that the option of conducting legally binding marriage is already afforded to religious and, pending this consultation, belief organisations. It is unclear what it is meant by ‘literally a ceremony and nothing else’. Surely, this is what civil and religious officiants already provide. It is only ‘nothing else’ in the sense that it is not legally binding and that is because independent celebrant weddings cannot currently be legally binding not because they choose not to be. If the concern is about excluding those who are simply seeking profit then this could be achieved by making it clear that nominating organisations cannot have the principal or sole purpose of the solemnisation of marriage.
The second reason is that ‘there might also be a considerable impact on civil marriages. If independent celebrants could offer a secular marriage ceremony that was legally binding, the current registration service might see a decrease in the numbers of couples wanting a conventional civil ceremony’. Yet, this would happen as a result of recognising humanist marriages. The large numbers of such marriages in Scotland highlight this. It is unclear why drawing the line at belief organisations would make a significant difference and why that would justify such discrimination.
The third reason is that ‘it also likely that extending the right to solemnise marriages to independent celebrants would create a need for additional regulation. Just as the legitimacy of religious officiants and belief celebrants need to be established, so too would that of independent celebrants’. It is true that if recognised independent celebrants were recognised then they would need to be regulated. However, there is, to my knowledge, no objection to this by independent celebrants. Indeed, many are already members of umbrella organisations and undergo significant training. Moreover, there is no evidence to suggest that these celebrants are less amenable to regulation than those representing belief organisations especially those other than the well established Humanists UK. It would also be possible to draft legislation so to set standards and to exclude rogue celebrants. In Religion and Marriage Law: The Need for Reform, I show how this can be done by drawing on existing legislation, particularly from Ireland. The difficult if not impossible word to define is “belief”: by contrast defining “organisation” is straightforward. This is the provision I proposed:
(1) For the purposes of this Act, a body shall be an organisation if it is an organised group of people and –
(a) it has no fewer than 50 members;
(b) its principal or sole purpose is not the solemnisation of marriage;
(c) members of the body meet regularly in furtherance of the objects;
(d) it does not have rules regarding marriage or the solemnisation of marriage that contravenes the requirements of this Act or any other enactment or rule of law;
(e) it is a body which, on the date of making its application, has been in existence for a continuous period of no less than five years;
(f) it has appropriate procedures in writing for selecting, training and accrediting members as fit and proper persons to solemnise marriages; and
(g) it maintains a register of its members.
(2) None of the following is an organisation for the purposes of this Act:
(a) a political party, or a body that promotes a political party or candidate;
(b) a body that exists mainly to promote a political cause;
(c) a trade union or representative body of employers;
(d) a chamber of commerce; and
(e) a body that promotes purposes that are –
(ii) contrary to public morality;
(iii) in support terrorism or terrorist activities; or
(v) for the benefit of an organisation membership of which is unlawful.
The Consultation Paper notes that, whereas ‘the Department is of the view that it is obliged, in the interests of equality of treatment, to legislate on belief marriage’, there is no such obligation with regard to the minimum age at which people can marry or enter into a civil partnership’ (part 2, para 1). However, concerns about children’s rights and forced marriages mean that the Minister is convinced of the need to give the matter ‘further consideration that may or may not result in legislative change’.
The law in Northern Ireland is materially the same as in England and Wales: ‘people aged 16 and 17 can marry in this jurisdiction provided they have parental consent while people aged 18 and above are free to marry without consent’ (para 5).
Noting the concern expressed about this by UN institutions, the Consultation Paper raises some points against reforming the law in this area. It notes that the Forced Marriage (Civil Protection) Act 2007 already applies to deal with that issue (para 17) and that critics have claimed that ‘the problems that increasing the age are intended to address—forced marriage, lack of life chances for girls especially— are not conspicuous or evident in this jurisdiction’. (para 18).
The Consultation Paper considers the private Member’s bill being discussed for England and Wales and asks questions on a number of options: increasing the minimum age, introducing additional forms of consent for marriages and civil partnerships involving 16- and 17-year-olds and criminalising child marriage.
It also notes that since the Irish Government has already increased the minimum age and if England and Wales and Scotland follow suit, there is a risk that the number of under 18-year-olds coming to Northern Ireland to marry or enter into a civil partnership would increase. Indeed, ‘a majority of under-18 marriages here are marriages where one or both parties are from outside the jurisdiction’.
This, together with the concerns as expressed by the UN, makes a persuasive argument for increasing the minimum age. However, doing this alone is unlikely to be sufficient since it would likely increase the number of unregistered child marriages. This is why there is also a need to criminalise child marriage and to make it clear that this applies to marriages that do not conform to the legal requirements. The Marriage and Civil Partnership (Minimum Age) Bill provides a template of how that can be achieved.
Wedding law in Northern Ireland is in a less problematic state than it is in England and Wales. However, this Consultation Paper highlights two areas that are in clear need of reform. The two proposals are to be welcomed but there is a need to go further still in relation to both issues.
Belief marriages should be recognised but this recognition should also be afforded to ceremonies conducted by independent celebrants. This can be achieved by recognising the right of organisations to nominate, employing a rigorous definition of organisation for this purpose, and then applying the same regulatory framework and standards upon all recognised officiants.
Child marriage should be made unlawful but it is important that this also includes unregistered child weddings. This can be achieved by raising the minimum age to enter into marriage or civil partnership and making it a criminal offence to cause a child marriage, defining marriage for these purposes as including religious, customary and other weddings that are not legally recognised.
These issues are also pressing in England and Wales. It is to be hoped that the Government will welcome and act upon the Law Commission’s report on wedding law once it is published and will support the Marriage and Civil Partnership (Minimum Age) Bill.