In a guest post, Russell Sandberg and Kathy Griffiths look at the recent announcement from the Ministry of Justice.

The Ministry of Justice has announced that the COVID-prompted temporary allowance of outdoor weddings and civil partnerships is now to be made permanent following a public consultation. While Justice Minister Tom Pursglove claimed that ‘these reforms will allow couples to hold more personalised ceremonies’, our research suggests that this reform is, at best, a first step towards wider reform.

The Marriage Act 1949 distinguishes between marriages according to the rites of the Church of England / Church in Wales and marriages otherwise solemnised. Marriages can be otherwise solemnised in two main ways. They can either be civil marriages solemnised either in a register office or approved premises or religious marriages conducted in one of three ways: according to the usages of the Society of Friends; according to the usages of the Jews; or in any place of religious worship registered as such.

The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2022 will now amend the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 to allow outdoor civil weddings and civil partnership registrations to take place within the grounds of approved premises. It will have effect from 6th April 2022. A Legislative Review Order will be made in due course to allow for outdoor religious weddings since that will require changes to primary legislation.

In the press release announcing the change, Justice Minister Tom Pursglove claimed this would allow couples to hold ‘more personalised ceremonies’, but this oversells the effect of these changes. While the reform is a welcome change, it is only a modest one. The reform simply allows couples to have ceremonies in the grounds of buildings where ceremonies are currently permitted to take place. This is a good first step towards much needed wider reform on the law of adult intimate relationships, but it is only a first step, and there is a risk that this one modest change will be wrongly seen as “the fix”.

The effect this change will have on couples who want ‘personalised ceremonies’ is not as great as it first seems. Many people already have ‘personalised ceremonies’, but these are often not legally recognised, and this announcement does nothing to change this. It simply means that marriages in approved premises will be permitted to take place outdoors if the approved premises have an appropriate outdoor space that is, according to the press release, ‘assessed to be seemly and dignified’. In other words, if you have already booked a registrar to conduct your wedding at a hotel that is recognised as an approved premises then now the ceremony could be in the hotel gardens rather than indoors. You cannot simply decide to move your ceremony to any outdoor space beyond the approved premises and have your ceremony legally recognised. This reform does not allow people to be married legally married in outdoor spaces that are of particular importance to them. It does not affect the rules as to the content of ceremonies or who they are conducted by.

The changes in respect of religious weddings actually underline the ongoing problem: the law continues to be based around registered places of religious worship. The law’s focus on buildings will barely be mitigated by allowing weddings in the grounds of such buildings. The focus on registered places or religious worship approach is problematic because of its discriminatory effect. It is indirectly discriminatory towards religions that have a tradition of marriages taking place elsewhere such as in the home or community centre and those who have no local place of worship capable of being registered. While religious weddings that could have taken place in a registered place of worship will now be able to take place in the churchyard, this is of little benefit to those whose religions do not have a registered place of worship or have a tradition of marriages taking place elsewhere such as in the home.

Additionally, there is direct discrimination towards belief organisations that are excluded under the current law. Wedding ceremonies by independent celebrants and belief organisations – many of which take place outdoors– are still not legally recognised, meaning that such couples still have to book a register office ceremony, an indoor ceremony, which will add further to the backlog caused by COVID-19. These couples will still need to have two ceremonies – and who says that their wedding is the happiest day of their life?

The risk of introducing this change is that reform stops here. While the press release notes that the ‘ongoing Law Commission report into marriage laws is due to be published in July and the government will carefully consider the recommendations once received’, there is a real risk that this change could be seen as satisfying the need for wider reform especially given how the initial Government announcement of the Law Commission review was framed in terms of giving people the choice to marry outdoors. This modest change does not achieve that – you can still not get married in any outdoor location of your choosing – and it does not address other more wide-ranging concerns about marriage law which are leading to discrimination and confusion.

Seeing this welcome but modest change as the solution to marriage law reform would not only be problematic for some religious traditions but would also continue to exclude independent celebrants and belief organisations and does nothing to resolve the other long-standing issues with the law. As argued in Russell Sandberg, Religion and Marriage Law: The Need for Reform (Bristol UP, 2021), the time is long overdue for comprehensive reform of marriage law to bring it into the twenty-first century. There is a need to move from a buildings-focused approach to an officiant model that includes all religions, belief organisations and independent celebrants.

However, even the kind of change as contemplated in the ongoing work of the Law Commission is not sufficient. There is a pressing need for wider reform of the law on adult intimate relationships. Greater legal recognition of and rights for those in cohabiting relationships, particularly on the breakdown of those relationships, is desperately needed. Allowing some but rather limited options as to the location of wedding and civil partnership ceremonies does nothing to change the position of those in cohabiting relationships.

As argued in Kathy Griffiths, ‘From ‘form’ to function and back again: a new conceptual basis for developing frameworks for the legal recognition of adult relationships’ (2019) 31(3) Child and Family Law Quarterly 227, laws on formalised relationships (that is, marriage and civil partnership) should not be considered in isolation from laws regulating cohabiting relationships through a function-based framework of legal recognition. Function-based frameworks offer a way to legally recognise relationships that have not been formalised, by looking at the functions the relationship performs, such as whether there are children of the relationship or whether there is financial interdependency. Both formalised relationships and function-based recognition offer their own distinct benefits, and both systems should be developed and utilised alongside each other to ensure that the law on adult intimate relationships recognises family diversity and responds to the needs of families.

Making permanent the temporary allowing of outdoor weddings at approved places of worship is a welcome change. The same is true of extending this to religious weddings recognised under the Marriage Act. But the Minister is incorrect to state that this will ‘allow couples to hold more personalised ceremonies’. This reform only underscores how limited choices are in terms of getting married or entering into a civil partnership, which points to the need for wider reform of marriage law as being explored by the Law Commission as well as to wider cohabitation law reform. The risk is that focusing only on modest changes such as that offered in the announcement will distract from the general need for reform.

This modest reform is a welcome change for now, but it must not be seen as the final step.

Russell Sandberg & Kathy Griffiths