In a guest post, Russell Sandberg and Kathy Griffiths look at the implications of raising the minimum age of marriage in England & Wales to eighteen.
The Marriage and Civil Partnership (Minimum Age) Act 2022 (‘2022 Act’), originally a private Member’s bill introduced by Sajid Javid and Pauline Latham, has now become law. The Act will be brought into effect by Regulations, which are pending. The headline is that the Act will amend the Marriage Act 1949 and the Civil Partnership Act 2004 to raise the minimum age at which people can enter into a marriage or civil partnership in England and Wales from sixteen to eighteen. This brief post will focus, however, on exploring the new criminal offence the statute creates and the three implications of the legislation that remain unresolved.
The new law
While the current law states that the age at which people can marry or enter into a civil partnership is sixteen, those aged sixteen or seventeen need to have parental or judicial consent before they can marry or enter a civil partnership. Sections 1, 3 and 4 of the 2022 Act amend the law on marriage and civil partnership to substitute ‘eighteen’ for ‘sixteen’ and to remove the provisions governing sixteen- and seventeen-year-olds. Once those sections are brought into force, a marriage or civil partnership entered into by anyone under the age of eighteen will be void.
Section 2 adds a new offence to the existing offence of forced marriage found in section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 (2014 Act). Section 3A will read:
‘A person commits an offence under the law of England and Wales if he or she carries out any conduct for the purpose of causing a child to enter into a marriage before the child’s eighteenth birthday (whether or not the conduct amounts to violence, threats, any other form of coercion or deception, and whether or not it is carried out in England and Wales).’
The Explanatory Notes to the Bill in the House of Lords suggest that the existing offence already covers marriages where the person does not have the capacity to consent under the Mental Capacity Act 2005 or where there has been violence, threats or any other form of coercion. The new offence, therefore, specifically covers the arrangement of the marriage of a person under eighteen where there is the capacity to consent and no use of coercion.
A new section 7A in the 2014 Act will state that an offence is committed under section 3A only if ‘the conduct is for the purpose of causing the child to enter into a marriage in England or Wales’ and that at the time of the conduct, the person or child is habitually resident in England and Wales or is a United Kingdom national who been habitually resident in England and Wales and not habitually resident or domiciled in Scotland or Northern Ireland.
‘Child’ will be defined under section 5A of the 2014 Act as a person under the age of eighteen years. Section 121(6) will be amended so that, like the offence of forced marriage, the conduct does not need to be directed at the child. Section 121(9) provides that the maximum sentence is 12 months imprisonment.
Other provisions in section 121 will also apply to the new offence under 121(3A). Importantly, section 121(4) will also apply to this new offence. This states that ‘“marriage” means any religious or civil ceremony of marriage (whether or not legally binding)’. This means that causing an unregistered religious marriage of a child will be an offence.
Three implications of the new Act
There are three implications of the 2022 Act that remain to be resolved, and some of these are more pertinent for marriage than for civil partnership.
First, as was discussed in the Parliamentary debates, the Act means that the age of consent will now differ from the age at which people can marry or enter into a civil partnership. This is significant because historically there has always been a strong connection between sex and marriage, and arguably the same is true but to a lesser extent with civil partnership given that consummation and adultery have not been relevant there. The new Act provides a further decoupling of sex and marriage and provides clear recognition of sex outside marriage. This may prove problematic for some cultures, religions and communities who teach against pre-marital sex.
Given that many of the objections to child marriage would apply also to child sexual relations, perhaps to the extent that there is an issue here, it could be solved by increasing the age of consent too. However, this would raise the question of enforcement and appropriate criminal sanction for underage sex. One possible solution is that any such sanctions could be more lenient in the case of sixteen- and seventeen-year-olds. Such an approach would not be novel. The Sexual Offences Act 2003 already distinguishes between offences concerning those under thirteen and those under sixteen.
Second, although it is welcome that the Act includes marriage ceremonies that are not legally binding, this does raise further issues in respect of what have been called unregistered religious marriages or religious-only marriages. Although such marriage ceremonies are by their nature outside the law, there is now a developing law on such unregistered marriages. Section 121 of the 2014 Act provided the first specific legal limit on such marriages stating that they could not be forced under the definition found in the 2014 Act. Now, in addition to this, such marriages also cannot be arranged for those under the age of eighteen.
The new Act does not alter the status of unregistered religious marriage – they remain not legally binding regardless of the age of the parties. The change the new Act makes is that there will now be a specific offence that can be used in respect of any such marriage ceremonies for those under the age of eighteen. Previously, there was no age limit and to the extent that the matter was dealt with, it was dealt with by general laws protecting children. The new criminal offence would cover any conduct for the purpose of causing a religious marriage and this would presumably cover any religious leader involved in such a ceremony.
Ensuring that the new law applied to religious marriages has been vital given that many child marriages are likely to be unregistered marriages and also because any attempt to ban child marriage that only covered marriages legally recognised under the Marriage Act would simply have the effect of increasing the number of unregistered child marriages. However, the new law may prove problematic in some communities where religious marriage is used as a means to date without a chaperone. This underscores the need to pay further attention to the issue of unregistered religious marriage. The forthcoming final report of the Law Commission on the law on getting married will hopefully provide an opportunity for this.
Third, and more pragmatically, there is a question of timing. In Parliamentary debates, those supporting the Act advocated for it to quickly come into effect ideally before the summer months when the number of marriages increases. This, however, fails to appreciate how long-planned many marriage and civil partnership ceremonies are. Such ceremonies may be booked and planned a year or more in advance of them taking place. This raises the question of what would happen to such ceremonies which were lawful when they were booked but are not lawful by the time the ceremony is conducted. This is likely to have ramifications in terms of all those involved in organising and officiating at such ceremonies, and insurance.
The Marriage and Civil Partnership (Minimum Age) Act 2022 is a welcome if overdue reform but one that has a number of unresolved implications. It is a further demonstration of the possibility of piecemeal reform of the law on adult intimate relationships but one that also underscores the need for comprehensive reform going forward, especially in light of the forthcoming report by the Law Commission. The time is long overdue for comprehensive reform of marriage law to bring it into the twenty-first century, as argued in Russell Sandberg, Religion and Marriage Law: The Need for Reform (Bristol University Press, 2021). Moreover, 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 (see, further, 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). More comprehensive reform of the way in which the law regulates and recognises different adult relationships remains necessary.
Russell Sandberg and Kathy Griffiths
Cite this article as: Russell Sandberg and Kathy Griffiths, “The Marriage and Civil Partnership (Minimum Age) Act 2022” in Law & Religion UK, 10 May 2022, https://lawandreligionuk.com/2022/05/10/the-marriage-and-civil-partnership-minimum-age-act-2022/#more-70934.