How we marry is changing, and the law needs to keep up

In a guest post, Rajnaara C Akhtar, Rebecca Probert and Sharon Blake look at the reform of weddings law in England and Wales.

It has long been recognized that the law governing the process of getting married needs reform. Following on from Getting married: a scoping paper, published in December 2015, in September 2020 the Law Commission published Getting Married: A Consultation Paper on Weddings Law, setting out a series of provisional reform proposals for weddings law. An empirical study conducted by us[1] titled When is a wedding not a marriage? Exploring non-legally binding ceremonies investigated wedding ceremonies taking place outside of the legal framework which reflected a variety of faiths, beliefs and non-beliefs. Drawing on the extensive data we gathered from September 2020 to May 2021, a Briefing Paper for the Law Commission has been published this week analysing the potential impact of the Commission’s proposals for reform. We present an overview of our findings here.

In the study, we interviewed 88 participants who had had a non-legally binding ceremony. Only 16 of them were in a religious-only marriage at the time of the interview. We also gathered data from 82 participants who conducted non-legally binding ceremonies.

Participants who had dual ceremonies of marriage commented on how they had navigated the requirements for a legal wedding. Some found the legal process clunky and challenging, complex and uncertain, with unexpected barriers.

More generally, the law was considered to be outdated and not responsive to the plural nature of modern England and Wales. While Christians saw the option of getting married in a registered place of worship as a recognition of their marriage ceremonies, this was not the case for Muslim or Hindu participants. The lack of any option for non-religious belief organisations to conduct weddings generated a strong sense of unfairness, and participants whose ceremony had been conducted by an independent celebrant also wanted the option of legal recognition.  In addition, participants whose partners had a different faith reported feeling as if the current system created a hierarchy where it was easier for a wedding conducted according to one set of beliefs to be legally recognised than the other.

These findings reinforce the Law Commission’s assessment that both religious and cultural diversity and the increasing number who do not identify with any religion at all are key aspects of modern society, to which the law has been slow to respond.

Preliminaries   

The majority of our individual participants had experience of navigating either civil or Anglican preliminaries. While most recognised the importance of preliminaries in ensuring that proper checks were carried out, there was a view that these should be as simple as possible to make it easier for couples to comply.

With civil preliminaries, the notice period was seen as potentially creating difficulties due to the speed with which some religious weddings occur, particularly within Muslim communities. However, others in the same communities viewed the notice period as essential to ensure marriages were not rushed into and thought that the practice of organising weddings at short notice could change.

The residence requirements posed difficulties for some, with those living outside the UK having to find time to travel here just to give notice. The proposal that initial notice could be given online found favour across the board among participants. This was seen as a more modern approach, more convenient, efficient, less stressful and simpler overall. Participants agreed that an in-person meeting would still be required prior to the wedding as a safeguard to verify identity and to counter forced or sham marriages.

The Anglican preliminaries were also seen as complex, particularly where banns needed to be called in different places.

Officiant

The idea of regulating the person officiating at the wedding rather than the place in which it occurred was one that found widespread support among our individual participants. It was seen as making it easier for couples to be able to marry in the location – and have the ceremony – of their choosing. It was also seen as important in terms of recognition for a wider range of religious groups. At the same time, it was acknowledged that the change would not be simply a matter of removing restrictions but of changing what was regulated.

Some of those conducting ceremonies also welcomed the proposals. Independent celebrants were keen to do both the  ‘celebrant’ and ‘officiant’ roles, while some of those conducting religious weddings welcomed the proposal to continue to allow the administrative and spiritual aspects to be performed by different people. Others were unlikely to become officiants as they feared that they would be compelled to conduct same-sex weddings, that the role would be administratively burdensome, and because of a sense that their religious role should be separate and distinct from a legal role.

The wedding ceremony

A wedding is not merely a mechanism by which a couple become legally married. For some, it will also be an act of worship or have profound cultural significance for themselves and their families. Other couples may wish to have a ceremony that is more bespoke and reflects them as a couple. Moreover, what is said at the ceremony has implications beyond the wedding day itself: it reflects their commitment to their relationship.

Many of our participants felt that the law was too prescriptive and did not allow them to choose to be married in a form that was meaningful to them, whether religious or non-religious. Our research findings here show that the removal of the need to include prescribed words in the wedding ceremony is crucial to ensuring that the law is perceived as fair as well as ensuring engagement with the law by both couples and those involved in conducting ceremonies.

Location

The non-legally binding ceremonies in our study had taken place in a wide range of locations. This was the case whether they were led by a friend or family member, conducted by an independent celebrant or by a Humanist celebrant, minister, priest, imam, or vicar. For many couples, the location had determined their choice of ceremony, with several describing how they had wanted to get married in a particular place and, upon learning that it was not possible to do so legally, had decided to have an additional non-legally binding ceremony. However, many non-legally binding ceremonies had actually taken place on approved premises, suggesting that it is unlikely that particularly outlandish places would be used for weddings if the location requirement is relaxed.

The current rules on location were regarded as unfair, given the different rules for Jewish (and Quaker) weddings that could take place anywhere. Groups without registered places of worship do not have the option of conducting legal weddings. Those who belong to groups with just a few registered places of worship may have to travel across the country in order to have a legal wedding. Many of our participants could not understand why the law restricts weddings to particular buildings.

There was widespread support for the Commission’s proposal that there would cease to be any specific rules as to where weddings could take place. The strongest support came, as one might expect, from those who had been unable to marry where they wanted and those celebrants who could not currently conduct legally recognised weddings. 

Validity

The Commission’s proposed scheme does not envisage recognising all religious ceremonies of marriage as valid in themselves, but rather providing a framework within which the religious ceremony could be recognised. It retains the concept of a non-qualifying ceremony, but only in those cases where there was no expression of consent or where the parties had not given notice and either no officiant was present, or both knew that the person officiating was not authorised to do so.

In the light of our findings, the Commission’s proposals as to when a marriage should be classified as void – as opposed to non-qualifying – assume particular significance. If a marriage is void, there is obviously no need to obtain a divorce. There is not even a need to obtain a decree of nullity. The main advantage of obtaining such a decree is that the courts have the power to make the same orders as upon divorce.

The most obvious impact of the Commission’s proposals for reform would be on those non-legally binding ceremonies that take place on the same day as the legal wedding, or within a short period of it. The need for such dual ceremonies would disappear save in the case of interfaith ceremonies where the parties wished to have two separate ones. The evidence from our participants suggested that the Commission’s proposals would also help a number of those who had had their legal wedding some time after their religious ceremony. Crucially, however, simplifying the process will not make any difference if one of the parties does not wish to be legally married.

Offences

The Commission proposed that it should be an offence for an officiant ‘deliberately and recklessly’ to mislead either of the couple as to the effect of the ceremony or for a person to purport to be an officiant and ‘deliberately and recklessly’ mislead either of the couple about their status or to the effect of the ceremony. The majority of our participants who are involved in conducting ceremonies confirmed that they already made it clear to the couple in advance that the ceremony would not be a legal wedding. This was the case across the range of different types of non-legally binding ceremonies in our study. Some noted that they formalised their advice by giving it in writing and requiring the parties to sign to say that they understood. A few went further and explained the financial implications to the parties. Only a small number did not consider it their responsibility to advise couples on the legalities of the ceremony.

While hardly any participants made explicit reference to the Commission’s proposed offence, many made comments suggesting that they thought such an offence already existed and this misunderstanding was already shaping their engagement with couples.

Costs and Impact

Our project was focused on the process of getting married, rather than the costs of doing so. Nonetheless, a number of participants did comment on the cost, or explained how their choices about the form of the ceremony had been driven by the relative costs of different options.

The cost of having a wedding on approved premises was a major factor in the decision of a number of couples to have a non-legally binding ceremony before or after their (generally smaller) legal wedding. Couples saved costs by not paying the additional fee for registration officers to come out to approved premises, opting for venues that were not approved, or holding the ceremony at home. For some, the cost of paying for a registration officer to attend resulted in a gap between the non-legally binding ceremony and the legally binding one, as it was cheaper to separate the two ceremonies. This sometimes gave rise to tensions in families where not all loved ones were invited to both.

Whether the proposed reforms, especially concerning venues, may reduce the cost of weddings remains to be seen. Some participants were of the view that having more choice would increase the cost of getting married, however, the majority felt that a wider choice would in fact reduce the cost of getting married by enabling couples to choose different – and cheaper – options. For example, holding a wedding at home or outdoors was seen as potentially helping those who didn’t want to have to spend thousands of pounds just on the venue.

Other participants identified different aspects of the Commission’s proposals as having the potential to reduce the costs of getting married. Some thought that the direct legal costs of getting married might be reduced, their assumption being that giving notice online would be cheaper.

Conclusion

The Commission’s proposed scheme was seen by many as simplifying the law governing weddings. This had a number of different dimensions including being seen as making the law easier to understand. Greater simplicity and a reduction in the bureaucracy of the process was seen as making it easier to get married and removing the need for a second ceremony. Having one ceremony would also create greater certainty for couples.

If implemented, the Law Commission’s scheme would mean that, in many cases, the need for having separate ceremonies will disappear. However, there are some reasons why a couple might still want to have a religious ceremony before or after the legal wedding, for example where the ceremony is a pre-requisite for them spending time together, where the couple hail from different faith or belief backgrounds, or where they simply like the idea of having two separate ceremonies, as was the case with a number of our participants.

Overall, while some participants were ambivalent about the idea of reform or had other ideas as to how the law should develop, there was a high level of support for the Law Commission’s proposed scheme among the majority of our participants, both those who were involved in conducting non-legally binding ceremonies and those who had had such a ceremony.

The Briefing Paper to the Law Commission is available here.

Rajnaara C Akhtar, Rebecca Probert, Sharon Blake

[1] The research team included Tania Barton and Vishal Vora for shorter periods of time.

Cite this article as: Rajnaara C Akhtar, Rebecca Probert and Sharon Blake, “How we marry is changing, and the law needs to keep up” in Law & Religion UK, 4 December 2021, https://lawandreligionuk.com/2021/12/04/how-we-marry-is-changing-and-the-law-needs-to-keep-up/#more-68438.

17 thoughts on “How we marry is changing, and the law needs to keep up

  1. Before reforming how marriages are conducted, I would suggest it is necessary to clarify what getting married means.

    Now that both heterosexual and same sex couples can either be married or enter into a Civil Partnership, what is the difference? So far as I understand it, the rights and duties of married and civil partners are the same, and both are intended to be life-long commitments but can be ended by the courts.

    The only difference seems to be one of terminology, so why, apart from convention, should a couple marry, whatever the nature of the ceremony? I suggest that an answer to that question is needed before reforming how a couple marry, and that at the same time there may need to be reform of how a Civil Partnership is formed!

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