Getting Married: A Consultation Paper on Weddings Law – Resolution’s response to the Law Commission

Consultation Question 4.

We provisionally propose that the requirement that couples are resident in an English or Welsh registration district for seven days prior to giving notice of their intention to marry to the superintendent registrar should be abolished.

Do consultees agree? Yes

Consultation Question 5.

We provisionally propose that it should be possible to start the notice period by giving notice online, by post or in person at any registration district, and that any person giving notice online or by post would be required to attend a separate in-person interview at a later date.

Do consultees agree? Yes

Consultation Question 6.

We invite consultees’ views as to whether the minimum period between the in-person interviews and the date from which the couple can get married should be:

(1) three days;
(2) seven days; or
(3) another period of time. Three days

Consultation Question 7.

We invite consultees’ views as to whether it should be possible for interviews to take place remotely, in the future, with the possibility of an in-person interview being required where concerns arise about sham or forced marriages or the capacity of either party to consent.

Whilst remote interviews may be convenient, we think it could be extremely hard for registrars to make sound assessment of parties wanting to marry, especially if they are overseas, and to make judgements (as the judiciary are currently finding in some family court cases), including about the need for an in-person interview.

Future technology would have to be secure and enable the interviewer to tell if anyone else is in the room.

Consultation Question 8.

We invite consultees’ views as to whether it should continue to be possible for notice to be given outside England and Wales where one of the couple who is resident in Scotland, or in a specified Commonwealth country or territory, or on a naval ship at sea, and both are relevant nationals or exempt from immigration control.

Yes

Consultation Question 9.

We provisionally propose that notices of marriage should be publicly displayed online, save where this would expose either of the couple to a risk of harm.

Do consultees agree? Yes

Consultation Question 10.

We provisionally propose that the schedule should be valid for 12 months from the date of issue.

Do consultees agree? Yes

Consultation Question 11.

We provisionally propose that:

(1) the schedule should identify the officiant who will officiate at the wedding; and

(2) at the parties’ request, the registration service should issue an amended schedule with a substitute officiant.

Do consultees agree? Yes – the officiant is central to ensuring the validity of the marriage and therefore needs to be identified clearly.

Consultation Question 12.

We provisionally propose that a substitute officiant should be able to officiate at the wedding if the officiant named in the schedule is unexpectedly unable to act because of death, sudden illness or unavoidable delay.

Do consultees agree? Yes

We invite consultees’ views as to whether a substitute officiant should be able to act in other circumstances. Yes, but this should take account of the couple’s wishes and be recorded as confirmed agreed with the couple on the registration documents.

Consultation Question 19.

We provisionally propose that all weddings should be attended by an officiant who should have a legal duty to:

(1) ensure that the parties freely express consent to marry each other;

(2) ensure that the other requirements of the ceremony are met; and

(3) ensure that the schedule or (if Anglican preliminaries are retained) marriage document is signed.

Do consultees agree? Yes

Consultation Question 20.

We provisionally propose that registration officers should only be able to officiate at civil weddings.

Do consultees agree? Yes

Consultation Question 21.

We provisionally propose that only one registration officer should need to officiate at a civil wedding.

Do consultees agree? Yes

Consultation Question 22.

We provisionally propose that clerks in Holy Orders within the Church of England and the Church in Wales should be recognised as officiants by virtue of their office.

Do consultees agree? Yes Consultation Question 23. We provisionally propose that:

(1) for religious organisations other than the Church of England or the Church in Wales, the relevant governing authority of the organisation should be responsible for nominating officiants to officiate at weddings; and

(2) (if Government enables non-religious belief organisations to officiate at weddings) the relevant governing authority of the non-religious belief organisation should be responsible for nominating officiants to officiate at weddings.

Do consultees agree? Yes albeit this may need careful management. Clearly defining the officiant who will be conducting the ceremony is very important to avoid unintended non-marriages and the past confusion around authorised persons.

It may assist to have a description of those nominated to conduct weddings currently from all mainstream religions and list those within the new law, for example, a Catholic priest, a Rabbi, an Iman, a Puja although this list need not be exclusive. So an office holder of a religion would automatically fall within the description of officiant. It could be assumed that an “official” willautomatically (by their job description) have the authority to marry couples unless the relevant governing organisation takes that away from the individual. This would also cover religious “officials” coming from overseas to marry people in England and Wales so they would automatically be obliged to follow the rules.

Consultation Question 24.

We provisionally propose that, if Government enables non-religious belief organisations to officiate at weddings, such organisations should be defined (to mirror the description of religion in R (Hodkin) v Registrar General of Births, Deaths and Marriages) as “An organisation that professes a secular belief system that claims to explain humanity’s nature and relationship to the universe, and to teach its adherents how they are to live their lives in conformity with the understanding associated with the belief system”.

Do consultees agree? Yes

We invite consultees’ views as to whether there should be a list of types of organisations that should not amount to a non-religious belief organisation for the purpose of officiating at weddings, and if so, what types of organisations should be listed.

No – apart from the generic point that that any organisation which promotes unlawful behaviour, or is against public policy, would not be permitted.

Consultation Question 25.

We provisionally propose that religious organisations and (if enabled by Government to officiate at weddings) non-religious belief organisations should be able to nominate officiants if the body has:

(1) at least 20 members who meet regularly for worship or in furtherance of their beliefs, and (2) a wedding service or a sincerely held belief about marriage.

Do consultees agree? Yes, subject to consideration of whether there is a need to distinguish between a small sect (off shoot) from a religion (which has many more than 20 members) and that latter religion.

Consultation Question 26.

We invite consultees’ views as to whether the law should expressly exclude religious organisations and (if enabled by Government to officiate at weddings) non-religious belief organisations from nominating officiants if the organisation promotes purposes that are unlawful or contrary to public policy or morality.

Yes (in line with our response to Question 24).

Consultation Question 27.

We invite consultees’ views as to whether religious organisations and (if enabled by Government to officiate at weddings) non-religious belief organisations should be able to nominate officiants by office, in addition to nominating named individuals.

Yes, see our response to Question 23. This may be particularly important where officiants might come from overseas to conduct a wedding and may not follow preliminaries (pre marriage notice procedure).

Consultation Question 28.

We provisionally propose that nominations of officiants by religious and (if enabled by Government to officiate at weddings) non-religious belief organisations should be made to the General Register Office, which should be responsible for keeping a public list of all nominated officiants.

Do consultees agree? Yes, if this includes officiant by office as described above.

Consultation Question 29.

We provisionally propose that (if enabled by Government to officiate at weddings) independent officiants should be able to apply to the General Register Office to be authorised and included on the public list of officiants.

Do consultees agree? Yes

Consultation Question 30.

We provisionally propose that religious organisations and (if enabled by Government to officiate at weddings) non-religious belief organisations should be responsible for ensuring that the persons they nominate as officiants are “fit and proper” persons.

Do consultees agree? Yes

Consultation Question 31.

We provisionally propose that (if enabled by Government to officiate at weddings) independent officiants applying to be authorised should be required to demonstrate that they are “fit and proper” persons by proving that they:

(1) are aged at least 18;
(2) understand the legal requirements for being an officiant and performing the role; and

(3) have undergone mandatory training and continuing professional development in the legal aspects of being an officiant, with the content to be determined by the Registrar General.

Do consultees agree? Broadly yes. Please note that we wonder how much take up of mandatory training and CPD requirements there would be, especially among independent officiants from overseas and visiting to conduct a wedding if that is to be permitted. Proving that they understand the legal requirements for being an officiant and so on, on application and then every so many years, may be sufficient.

Consultation Question 32.

We provisionally propose that officiants nominated by religious and (if enabled by Government to officiate at weddings) non-religious belief organisations should be prohibited from making a business of officiating at weddings, by elevating the making of profits above the expression of their beliefs.

Do consultees agree? Yes

Consultation Question 33.

We provisionally propose that (if enabled by Government to officiate at weddings) independent officiants should be prohibited from acting with a conflict of interest but that there should not otherwise be limits on the fees that they can charge for officiating at a wedding.

Do consultees agree? Yes

Consultation Question 34.

We provisionally propose that, if Government enables independent celebrants and/or non-religious belief organisations to officiate at weddings, it should not be possible for the same person to be:

(1) authorised as an independent officiant and nominated by either a religious or a non-religious belief organisation; or

(2) nominated by both a religious and a non-religious belief organisation.

Do consultees agree? Yes

Consultation Question 35.

We provisionally propose that officiants should have a responsibility to uphold the dignity and solemnity of marriage.

Do consultees agree? Yes Consultation Question 36.

We provisionally propose that the General Register Office should issue guidance to all officiants on how weddings should be conducted.

Do consultees agree? Yes, for the procedural aspects.

Consultation Question 37.

We provisionally propose that the primary responsibility for monitoring officiants and requesting withdrawal of authorisation if they fail to comply with the fit and proper person standard or their duties or responsibilities should lie with the organisation that nominated them.

Do consultees agree? Yes

Consultation Question 38.

We provisionally propose that the General Register Office should have the power to de-authorise nominated officiants if they fail to comply with the fit and proper person standard or their duties or responsibilities, and if the body who nominated them fails to act.

Do consultees agree? Yes

Consultation Question 39.

We provisionally propose that the General Register Office should be responsible for monitoring independent officiants and de-authorising those who fail to comply with the fit and proper person standard or their duties and responsibilities, including conducting investigations necessary to exercise its powers.

Do consultees agree? Yes

Consultation Question 40.

We provisionally propose that there should be no time limit on the authorisation of officiants.

Do consultees agree? Yes

Consultation Question 41.

We provisionally propose that an independent officiant’s authorisation would lapse if they failed to comply with the obligation to engage in continuing professional development.

Do consultees agree? As mentioned above, we have some doubts about what the rate of compliance would be.

Consultation Question 42.

We provisionally propose that:
(1) during every wedding ceremony, the parties:

(a) should be required to express their consent to be married to each other, whether orally or otherwise, but

(b) should not be required to express that there is no impediment to their marrying each other (with the issue of impediments being addressed during the preliminaries);

(2) religious organisations and (if enabled by Government to officiate at weddings) non-religious belief organisations should be able to submit details of their wedding ceremonies to the General Register Office, to identify the way(s) each party expresses consent in accordance with their beliefs;

(3) the schedule (or marriage document) should contain a declaration to be signed by each party that they had during the ceremony expressed consent to be married to the other, or they were now consenting to be legally married to the other, the signing of which would itself be an expression of consent if the ceremony did not contain an expression of consent; and

(4) the marriage should be formed at the point when both parties have expressed consent to be married to each other, whether during the ceremony or when signing the declaration in the schedule (or marriage document).

Do consultees agree? Yes

Consultation Question 43.

We provisionally propose that all weddings should take place according to the form and ceremony chosen by the parties and agreed to by the officiant.

Do consultees agree? Yes

Consultation Question 44.

We provisionally propose that there should be no special rules about the form of Anglican, Jewish or Quaker weddings, and that there should be no legal limitations on who can have those types of wedding (but like all religious groups, Anglican Jewish and Quaker groups will continue to be able to impose their own requirements as a matter of their own practice).

Do consultees agree? Yes

Consultation Question 45.

We provisionally propose that religious content should be permitted in civil wedding ceremonies, provided that the ceremony remains identifiable as a civil ceremony rather than a religious service.

Do consultees agree? Yes

Consultation Question 46.

We provisionally propose that the provision to permit a religious service to be conducted after a civil wedding ceremony (section 46 of the Marriage Act 1949) should be repealed.

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Do consultees agree? Yes

Consultation Question 47.

We provisionally propose that the existing requirements for a wedding to take place with open doors, or otherwise for public access to be allowed, should be repealed.

Do consultees agree? Yes

Consultation Question 48.

We provisionally propose that all weddings should be legally permitted to take place anywhere.

Do consultees agree? Yes, within reason i.e., subject to safety and dignity.

We invite consultees’ views as to whether the law should limit weddings in any particular venues, including:

(1) outdoors Yes

(2) on inland waters such as lakes or rivers Yes, if safe

(3) in the air, and/or Yes, if flying over the UK and safe

(4) in private homes Yes

Consultation Question 49.

We provisionally propose that civil wedding locations should not have to be publicly accessible or regularly available to the public for the solemnization of civil marriages.

Do consultees agree? Yes

Consultation Question 50.

We invite consultees’ views as to whether the law should prohibit:

(1) civil weddings from taking place in religious venues and (if non-religious belief organisations are enabled by Government to officiate at weddings) non-religious belief venues? No

(2) (if non-religious belief organisations are enabled by Government to officiate at weddings) religious weddings from taking place in non-religious belief venues? No

(3) (if non-religious belief organisations are enabled by Government to officiate at weddings) non- religious belief weddings from taking place in religious venues? No

Consultation Question 51.

We provisionally propose that it should be the responsibility of the officiant to decide whether the location for the wedding should be approved.

Do consultees agree? Yes

Consultation Question 52.

We provisionally propose that, as a part of their responsibilities, officiants should ensure that the wedding location is:

(1) safe, and

(2) dignified.

Do consultees agree? Yes

We provisionally propose that guidance should be produced by the General Register Office to provide advice to officiants on how to assess whether a location is safe and dignified for a wedding.

Do consultees agree? Yes

Consultation Question 54.

We provisionally propose that after a wedding ceremony, the schedule or (if Anglican preliminaries are retained) marriage document should be able to have added to it:

(1) the date of the wedding;
(2) the location of the wedding; and

(3) the names and occupations of the parties’ parents, each of whom the parties should be able to identify as “mother”, “father”, or “parent”.

Do consultees agree? Yes

Consultation Question 55.

We provisionally propose that couples should have the choice of registering their marriage in English only, in Welsh only, or in both English and Welsh.

Do consultees agree? Yes

Consultation Question 56.

We provisionally propose that an option for electronic registration should be introduced at a later date when infrastructure is in place to provide a high level of security.

Do consultees agree? Yes

Consultation Question 57.

We provisionally propose that any one of the following factors on its own should render a marriage void:

(1) the failure of both or either party to give notice of the intended marriage to the registration service, or (if Anglican preliminaries are retained) the relevant Church authority;

(2) the wedding taking place after authority to marry had lapsed;
(3) the knowledge of both parties that the ceremony was not officiated by an authorised officiant; or

(4) the knowledge of both parties that the necessary opt into same-sex marriage had not been given by the relevant religious governing authority, in the case of same-sex marriages.

Do consultees agree? Yes
We provisionally propose that the following factors should not render a marriage void:

(1) mistakes in the issuance of the schedule or (if Anglican preliminaries are retained) marriage document;

(2) the absence of witnesses; and

(3) a failure to sign the schedule or (if Anglican preliminaries are retained) marriage document, or to register the marriage.

Do consultees agree? Yes

Consultation Question 58.

We provisionally propose that the following factors should result in a non-qualifying ceremony:

(1) both:

(a) failure of one or both parties to the marriage to give notice of the intended marriage, and

(b) either:

(i) the knowledge of both parties that the ceremony was not officiated by an authorised officiant, or

(ii) in the case of same-sex marriages the knowledge of both parties that the necessary opt into same-sex marriage had not been given by the relevant religious governing authority; or

(2) failure of one or both parties to express consent to the marriage.

Do consultees agree? Yes

Consultation Question 59.

We provisionally propose that a presumption in favour of the validity of a marriage should arise where:

(1) the couple have signed the schedule or (if Anglican preliminaries are retained) marriage document, or

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(2) the couple have given notice and gone through a ceremony with a person acting as officiant,

but should not require the couple to have cohabited for any period after its celebration.

Do consultees agree? Yes

We provisionally propose that the presumption that a couple is married if they have cohabited for a long period of time and are believed to be married by friends and family should be abolished.

Do consultees agree? With particular reference to paragraphs 10.22 and 10.126, we agree with the Law Commission that the law should be modernised and relevant. This little known presumption doesn’t provide a legal solution for the now much increased and growing population of cohabitants in England and Wales, and was never intended to do so. It is not seen as relevant and we do not think that it’s abolition would pose any difficulty for the general cohabiting population.

Reform of the law relating to cohabitation needs to happen alongside weddings law. This would also ensure protection of those whose religious ceremonies have no legal consequences and cannot subsequently rely on civil divorce law. There are inherent legal risks in cohabiting, including where a religious marriage is consciously chosen as a form of trial marriage.

Some of our members have raised though whether abolition of the presumption might prejudice those who have already been living together for a long period time and holding themselves out as married. The presumption might therefore only be abolished for those “marriages” that occur after any change in the law, and remain valid case law to be considered by the court in cases where the cohabitation pre dates the abolition of the presumption. We believe that very few cases would fall into this category.

Consultation Question 60.

We provisionally propose that the three-year time limit on petitioning for nullity on the basis of lack of consent should be abolished.

Do consultees agree? Yes

Consultation Question 61.

We provisionally propose that it should be an offence:

(1) for any person to purport to be an officiant and deliberately or recklessly mislead either of the couple about their status or the effect of the ceremony; or

(2) for an officiant deliberately or recklessly to mislead either of the couple about the effect of the ceremony.

Do consultees agree? Yes

Consultation Question 64.

We provisionally propose that the Registrar General’s licence should be abolished, and that there should be a single form of civil authority to marry – a schedule – issued by registration officers.

Do consultees agree? Yes

Consultation Question 68.

We provisionally propose that weddings should be able to take place in the territorial sea, and in bays and other coastal waters, adjacent to England and Wales.

Do consultees agree? Yes

Consultation Question 69.

We provisionally propose that weddings should be able to take place in international waters under the law of England and Wales, on board cruise ships registered in the United Kingdom with a port of choice in England or Wales.

Do consultees agree? Yes

Consultation Question 70.

We invite consultees’ views as to whether weddings should be able to take place in international waters under the law of England and Wales, on board vessels other than cruise ships, and if so, which types of vessel.

Yes, on naval ships

Consultation Question 71.

We provisionally propose that couples should be required to give the name and registration number of the ship on which they intend to marry in international waters, when giving notice of their intention to marry, but should not be required to give the name of the officiant.

Do consultees agree? Yes

Consultation Question 74.

We provisionally propose that any fixed time limit for couples to return the schedule after their wedding should not apply to weddings in international waters, but instead couples should be required to return the schedule as soon as is reasonably possible.

Do consultees agree? YesConsultation Question 85.
We invite consultees’ views on:
(1) whether the current law discourages or prevents couples from getting married; and

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(2) whether our provisional proposals would facilitate couples getting married leading to an increase in the number of couples who are legally married.

We are not entirely convinced that current weddings law does influence people’s decision to marry or prevent couples from getting married. That seems to us to be more about social trends than the law itself. People choose or want to marry, or not, for so many different emotional and/or financial reasons which can differ across stage of life. Not everyone sees the need for a wedding to publicly declare their love and commitment.

The provisional proposals may increase the number of couples who are legally married, we are not opposed to them. Those who choose to marry make varying choices about the type, size and cost of wedding that they want, and we have no objection to people having as much choice about how and where to get married as possible.

More importantly, reform in this area will not tackle what we consider to be the more pressing issue of the need for reform of the law relating to cohabitation on both separation and death. The law should reflect how people choose to live their lives and provide for all types of families, including unmarried families; less people are getting married and there is no evidence that the trend towards couples living together will decrease – it remains the fastest growing family type. Whatever the law around celebrating and legally recognising marriage, the law should also provide fairness for those couples who are not married, and protect individuals from financial hardship.

We welcome the Law Commission saying that reform of cohabitation law would also help to address the uncertainty, unfairness and hardship that can arise on the termination of a relationship where the couple had a non-qualifying ceremony, or when one of the parties to a non-qualifying ceremony dies intestate.

The current law does fail to recognise many religious weddings outside the Church of England, the Quaker, Catholic and Jewish religions. The first option for couples falling outside this (if they want to get married in England and Wales) is to have a civil ceremony at a register office for recognition purposes, and either before or after that event, to have a separate wedding which reflects their beliefs i.e., two events which can be expensive, time consuming and creates practical difficulties. The alternative is to have one religious/non-religious wedding ceremony which is likely not to be recognised and not treated as a marriage. There is a widespread lack of understanding of the law, and people can make uninformed decisions with many choosing this latter option to their detriment.

The only other route is for a couple to go overseas to get married creating a perverse situation where an overseas marriage is more likely to be recognised than one conducted in England and Wales.

We do think that the new law as provisionally proposed will go some way to changing that, and there will be greater consistency between marriages in England and Wales and overseas. The burden is on the officiant and a wide definition of this role is needed to ensure as many wedding ceremonies as possible have legal consequences.

Consultation Question 89.

We invite consultees’ views on the impact of the current law on:
(1) residents of England and Wales travelling to other jurisdictions to get married; and (2) residents of overseas jurisdictions travelling to England and Wales to get married. We invite consultees’ views on the potential benefits of our proposed scheme relating to: (1) residents of England and Wales travelling to other jurisdictions to get married; and (2) residents of overseas jurisdictions travelling to England and Wales to get married.

As set out in our response to Question 85, under the current law there is more scope for people to be exploited and unknowingly enter into non-marriages, especially if coming to this jurisdiction from overseas. We consider that the likelihood of this would be reduced if the law is changed as proposed.

For further information please contact:
Rachel Rogers, Head of Policy, rachel.rogers@resolution.org.uk

Resolution, December 2020