When the Marriage and Civil Partnership (Minimum Age) Act 2022 (‘2022 Act’) comes into effect on Monday 27 February 2023, no 16- or 17-year-old will be able to marry or enter a civil partnership in England and Wales under any circumstances, including with parental or judicial consent. The 2022 Act was granted Royal Assent on 28 April 2022, and this post reviews the potential impact of the new provisions.
The Explanatory Notes to the Bill, as brought from the Commons on 28 February 2022, included ONS Statistics showing that the numbers of people marrying in England and Wales at 16 or 17 are small and continue to decline; of nearly 235,000 marriages in 2018; only 134 involved one or both persons who were aged 16 or 17. However, the purpose of the Act is to address the practice of child marriage in England and Wales, through raising the minimum age of marriage and civil partnership to 18.
These changes bring to an end those provisions allowing for 16-17-year olds to marry or enter a civil partnership with parental or judicial consent. The anticipated effect of this change on the common law also means that any marriages which take place overseas, or in Scotland or Northern Ireland, involving under 18s where one of the parties is domiciled in England and Wales, will not be legally recognised in England and Wales.
This change in recognition also applies to civil partnerships. However, it does not affect the validity of any marriages or civil partnerships entered before the Bill comes into force. In addition, it will be illegal for a person to arrange the marriage of a person under the age of 18 in England and Wales in those circumstances where that is not already illegal.
The changes apply to two tranches of legislation:
- The Anti-social Behaviour, Crime and Policing Act 2014 (“ASBCPA 2014”) is the principal statute on forced marriage in England and Wales (and Scotland); and
- The Marriage Act 1949 (“MA 1949”), Marriage (Registrar General’s Licence) Act 1970 and the Matrimonial Causes Act 1973 are the principal statutes on marriage in England and Wales. The Civil Partnership Act 2004 (“CPA 2004”) relates to the law on civil partnerships;
Prior to the 2022 Act, it was not an offence for a person to arrange the marriage of a person under the age of 18, who had capacity to consent under the Mental Capacity Act 2005, where there had been no use of violence, threats or any other form of coercion.
Both the legal marriage of people aged 16 or 17, and the “marriage” in a ceremony which is not legally binding of a person under the age of 18, fall within the scope of the new provisions; S121(4) ASBCPA 2014 defines “marriage” as meaning “any religious or civil ceremony of marriage (whether or not legally binding)”. It specifies that an offence is committed if at the time of the conduct: at least one of the victim and the defendant is in England or Wales; if neither of them is in England or Wales at the time of the conduct but one of them is habitually resident in England or Wales; or if neither of them is in the UK at the time of the conduct but at least one of them is a UK national.
S121 of the ASBCPA 2014 renders it an offence for a person to use violence, threats or another form of coercion for the purpose of causing another person to enter into a marriage, so long as they believe, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent. It is also an offence to undertake any conduct for the purpose of causing someone who lacks the capacity to consent to marriage (within the meaning of the Mental Capacity Act 2005) to enter into a marriage (whether or not the conduct amounts to violence, threats or any other form of coercion).
Some dioceses such as Oxford have issued a reminder to clergy and church wardens to check the ages of those who have booked to be married in their church after 27 February 2023 to ensure both parties are or will be over 18 at the time of their marriage. It will no longer be legal for a clergyperson to conduct the marriage of any person under the age of 18 from 27 February 2023, even if preliminaries for that marriage (such as the calling of banns) have been started or completed before the Act comes into force.
See also the Explanatory Notes to the Act.