Minimum age: marriage and civil partnerships (England and Wales)

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;

Forced marriage

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).

Other marriages

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.

Cite this article as: David Pocklington, "Minimum age: marriage and civil partnerships (England and Wales)" in Law & Religion UK, 24 February 2023, https://lawandreligionuk.com/2023/02/24/minimum-age-marriage-and-civil-partnerships-england-and-wales/

8 thoughts on “Minimum age: marriage and civil partnerships (England and Wales)

  1. I have not seen in any comments on the 2022 Act any reference to its effect on marriages in territories outside England and Wales where the minimum age is still 16, eg. Scotland, N Ireland and the Isle of Man. According to Pugh v Pugh [1951] P 482 it appears that, if a person domiciled in E&W marries in such a territory, and either party is under 18, the marriage is void in E&W – and possibly in that territory as well.

  2. The provost of St Mary’s Cathedral, Glasgow, has expressed his fears that under the statute anyone assisting a 16- or 17-year old in travelling to Scotland to marry (as to a same-gender spouse) could be liable to prosecution. Is that indeed a possibility?

    • I haven’t seen Kelvin’s comments, but he is probably referring to the new subsection 3A in section 121 of the Anti-social Behaviour, Crime and Policing Act 2014 which states:

      “(3A) 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).”

      However, the Commons Library analysis of Marriage and Civil Partnership (Minimum Age) Bill 2021-22 explains:

      “Subsection (7) [of the Bill] would provide that no offence is committed where the person’s conduct is for the purpose of causing a child aged 16 or 17 to enter into a marriage in Northern Ireland or Scotland”. This now forms Section 121(7) of the Anti-social Behaviour, Crime and Policing Act 2014.

    • so beware picking up hitch-hikers on their way to Gretna Green as you could be breaking the law and subject to prosecution!

  3. Does the following extract from the Explanatory Notes to the Act help?

    Section 2 – Offence of conduct relating to marriage of persons under 18

    22. This section amends section 121 of the Anti-social Behaviour, Crime and Policing Act 2014.

    23. Subsection (2) inserts new subsection (3A) into section 121. This provides that 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). Following existing subsection (4) of section 121, a marriage is defined as any religious or civil ceremony of marriage, whether or not it is legally binding.

    24. Subsection (3) specifies that, for the purpose of the new offence inserted by subsection (2), a child is a person who is aged under 18 years.

    25. Subsection (4) amends subsection (6) of section 121. Subsection (6) of section 121 provides that if someone uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, as is required for a person to be convicted of the offence in subsection (1) of section 121, the violence, threats or other form of coercion need not have been directed at the person whom it was intended to cause to enter the marriage, but could instead have been directed at another person. Subsection (4) would make similar provision for the new offence inserted by subsection (2), meaning that, if a person carries out conduct for the purpose of causing a child to enter into a marriage before the child’s eighteenth birthday, that conduct need not have been directed at that child, but could have been directed at another person.

    26. Subsection (5) inserts new subsection (7A) into section 121. Subsection (7A) would provide that an offence under new subsection (3A) (whose content is described in paragraph 23) is committed only if the conduct carried out for the purpose of causing a child to enter into a marriage before their eighteenth birthday is for the purpose of causing the child to enter into a marriage in England or Wales; or at the time of the conduct, at least one of the person carrying out the conduct or the victim is habitually resident in England and Wales; or at the time of the conduct the child is a United Kingdom national who has at some point been habitually resident in England and Wales and who is not habitually resident or domiciled in Scotland or Northern Ireland.

    [My italics.]

  4. The dwindling numbers of “official” marriages of u-18s quoted in the Explanatory Notes is something of a red herring. The real effect is on non-statutory religious marriages, and I understand Orthodox Jewish marriages were particularly a concern (because of intense community pressure in those communities, it is said). The same probably applies to some sections of some Muslim communities. There’s no knowing how many such marriages there are, but many, many more than three figures, I would think.

    We’ve noted here before the weirdness of a marriage ceremony which has no legal results whatsoever, but is recognised by the criminal law nonetheless.

    My bigger bother is that the children themselves are swept up by the offence (even if coerced). By whatever words or actions are thought to be effective in the particular form of marriage in question, there’s no doubt that the children themselves do “conduct for the purpose of causing a child to enter into a marriage” – albeit the child is themselves and the other party.

    In the case of uncoerced Muslim weddings, any presiding adult may shimmy over the wall anyway, because (unlike in Christian weddings), an overseeing religious official isn’t a factor in the formation of the contract. Or he can argue his conduct was to bring the children into a position where they could cause themselves to enter into a marriage if they wished. Then only the children are offenders.

    Leaving all adults out of it, presumably a pair of Muslim teenagers who contract their nikah at the bus stop, then post it on TikTok for the required publicity, can expect a knock on the door.

    • Seems like sloppy legal thinking to me. Have the courts come up with a definition yet of “a religious or civil ceremony of marriage (whether or not legally binding)”? It will be interesting, in this context, to see whether the House of Bishops of the CofE allow the Prayers of Love and Faith to be used for couples under the age of 18. If they do, this will beg the question of whether such a ceremony is “a [non-legally binding] religious .. ceremony of marriage”. And while the CofE legal office seems to think “there is a good case for saying that the institution of Holy Matrimony and the institution of civil marriage are now distinct”, this will be a matter for the civil and not the ecclesiastical courts in the context of this legislation. Conversely, if the prayers are eventually authorised only for use for couples over the age of 18 then this will be a tacit admission that the prayers are intended to solemnise adult relationships analogous to marriage (and which would be seen as a form of non-legally binding marriage by the civil courts) as opposed to friendships, in general.

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