Under the 1949 Act a marriage can be solemnised in an Anglican church by a clergyman; in a registered building (being a certified place of worship) in the presence of an authorised person or registrar; in approved premises in the presence of a registrar. The essential elements are the place of the ceremony and the presence of one of the designated officials.
—MA v JAFootnote 1In introducing a facility to enter into a civil marriage on approved premises, hedged around by Regulations governing approval and by a requirement … for the presence at the wedding of both the superintendent registrar and the local registrar … Parliament in 1994 clearly proceeded on the basis that a building would secure registration for the solemnisation of marriages under section 41 only if it truly was a place of public religious worship.
—Regina (Hodkin and another) v. Registrar General of Births, Deaths and MarriagesFootnote 2In two recent English cases, the significance of “place” in the valid solemnization of a marriage has been highlighted. In the first case, MA v JA (2012), a question arose as to the validity of a marriage celebrated in Muslim form in a mosque. There was no doubt as to the parties' intention to get married, but they were uninformed as to the law of marriage and failed to obtain a license. Furthermore, the imam officiating at the wedding did not realize that the parties wanted the marriage to be a legally binding one, rather than merely a religious celebration following a civil wedding. In line with previous cases where an irregular marriage has taken place and the court has to decide whether it is valid or nonexistent,Footnote 3 Justice Moylan had to consider whether the steps undertaken included sufficient “hallmarks of marriage” to be a marriage for the purposes of the Marriage Act 1949. In that context, he deemed neither the exchange of vows nor the obtaining of a license to be decisive. Indeed in an earlier case a license was described as merely “part of the preliminary paperwork provided by the state to the parties and the officiating minister to indicate a fulfilment of, or compliance with the requirements of capacity to marry and the like. … [I]t is no more than that.”Footnote 4 On the other hand, Justice Moylan considered it essential that the marriage should take place in a registered place of worship.
In the second case, R (Hodkin and another) v. Registrar General of Births, Deaths and Marriages (2013), the United Kingdom Supreme Court addressed difficult questions concerning the nature of religion and of religious worship for the purpose of deciding whether a church of Scientology could be registered as a place of worship for the purpose of solemnization of a marriage. It is logical to assume that a decision on such weighty matters by the highest court in the land was elicited for grave reasons.
These cases, whether through their wording or the significance of the issues decided merely as a preliminary to registering premises for a marriage, indicate that the place of solemnization of marriage is central to the validity of the marriage itself, a conclusion that may seem surprising. This article contributes to an understanding of “place” in the law regulating the formalities of marriage, and current challenges to its central role.
The discussion is organized into five sections and a conclusion. The first section explains how place, and more specifically “place of worship,” emerged as a constituent element in the celebration of a valid marriage. It traces how the Catholic Church, competing with family and kinship groups, gradually exerted control over the substance and formalities of marriage, so that eventually most marriages were celebrated in a church. Just at the point in time when this control had become virtually complete, however, the rise of the nation state, combined with changes in the sources and allocation of wealth and with Reformation ideas and conflicts, led to the emergence of new interests to be satisfied. The different trajectories of the struggles between rival political and religious factions have had a lasting influence on the law concerning the formalities of marriage.
The second section then highlights some of the problems of complexity in the modern English law governing marriage at a registered place of worship, and the particular impact of the Marriage (Same Sex Couples) Act 2013. The choice to use place of worship as a significant element in the formalities of marriage has led to an accumulation of technical amendments to the law. In the third section, a comparative survey of laws on the solemnization of marriage demonstrates the exceptional character of the approach adopted by English law. But, it also highlights some of the problems arising out of alternative solutions. A particular issue being confronted in a number of jurisdictions is a rising demand for marriages that are secular but nevertheless personally meaningful to the parties involved—a demand that is not adequately met by marriages at vital statistics offices or in other bureaucratic environments.
The following section examines the attempts that have been made in recent decades to reform English law in respect of the formalities of marriage and the factors that have prevented such reform, while the final section surveys the recent drivers for change that seem destined to dethrone “place” as an essential element in a valid marriage and the interests that any reform of the law should strive to satisfy.
THE SIGNIFICANCE OF PLACE OF WORSHIP IN THE SOLEMNIZATION OF MARRIAGES: A BRIEF HISTORY
Marriage in facie ecclesiae: Place Introduced
In the pre-Christian era in Europe, marriage was a private affair. Roman and Germanic marriages were negotiated between families. A marriage was a contract, and parental control was of the essence.Footnote 5 In this context the place of the marriage was irrelevant (except in so far as it reflected the power relationship between the families concerned).
The early church, reflecting the culture within which it was embedded, was content to work within this framework of marriage laws.Footnote 6 It was not until after the fall of the Roman Empire that the church began to impose its own view of marriage, not until the eleventh century that the canon law of Rome began to develop, and only in the twelfth century that marriage was first recognized as a sacrament.Footnote 7 Over the centuries, a tradition of celebrating a marriage at the church door developed.Footnote 8 The formal celebration of the marriage was according to custom, but was followed by a bride-mass. Then from the thirteenth century onwards, priestly involvement in the solemnization of the marriage itself became more common, and the ceremony gradually moved to the interior of the church.Footnote 9
This was by no means a smooth process. During the twelfth century it became established as a principle of canon law that “consent in the present tense” without consummation was sufficient to create a valid marriage.Footnote 10 However theologically sound that proposition might be, it weakened parental control over marriages,Footnote 11 and at the same time undermined the efforts of the church to assert control. Lay marriage was declared by the church to be illegal, but it was nevertheless valid. Ecclesiastical sanctions, which were the only penalty for breach of canon law rules concerning the involvement of the church in marriages, including an obligation to publicize the ceremony through the calling of banns, had insufficient dissuasive effect. It was possible for couples to marry
in a house, in the street, in the fields, or at a tavern … It was possible for a young man balancing on a ladder to slip a ring onto the finger of a thirteen-year-old girl through the grating of her window, or for two lovers to exchange consent while touching hands through a hole in the wall.Footnote 12
In England,Footnote 13 litigation concerning the validity of marriages was a prominent feature of court business during the thirteenth and fourteenth centuries. Helmholz notes,
We must see the process by which the church vindicated its control over marriage as a longer and more gradual process than has hitherto been thought. It did not come with the definitive formulation of the classical canon law in the twelfth century. Rather it was the product of slow growth and acceptance.Footnote 14
It was not until the sixteenth century, at the Council of Trent, that the step was taken to make validity of marriages dependent on certain requirements of form. The Tametsi decree of 1563 finally required the presence of the parish priest for a valid marriage. But even then, the place of marriage was not determinative. The marriage did not have to take place in the church itself.Footnote 15
Laying the Groundwork: A Rejected Experiment and a Monitoring System
At about the time that the Tametsi decree was reflecting the control the Catholic Church had obtained over marriage, wholly new challenges were being faced as a result of economic, political, and religious upheavals in Europe. The decline of the feudal system and the rise of new centers of wealth and education, the rise of the nation state, religious pluralism as a result of the Reformation—all these undermined the claims of the Catholic Church to universal authority, and in the process the impact of the Tametsi decree.
New ideas about the nature of marriage emerged. Reformation theologians denied that marriage was a sacrament or that it fell within ecclesiastical competence. The various Protestant traditions each “provided a different theological formula for integrating the inherited contractual, natural, and spiritual perspectives on marriage,”Footnote 16 but, initially at least, they drew on existing canon law as to the actual formalities for marriage.Footnote 17 Nevertheless, in some states, the conception of marriage as a civil rather than an ecclesiastical matter led to more radical innovations. In parts of the Netherlands a civil alternative to religious marriages was introduced in the late sixteenth century as a result of the Reformation. From the 1570s the cities of Amsterdam, Rotterdam, and Gouda allowed marriage before a civil authority,Footnote 18 and in 1580 the province of Holland introduced a uniform marriage law that provided the option of marrying before a minister of the Dutch Reformed Church or a magistrate.Footnote 19
Civil marriage was also introduced in England. In the period between the break from Rome and the Civil War, despite much dissatisfaction and calls for changes in the law, new measures relating to the regulation of marriage were few and limited.Footnote 20 But one of the legislative measures enacted during the Commonwealth period was the 1653 Act touching Marriages and the Registering thereof; and also touching Births and Burials. The Act was extraordinarily radical, in that it prohibited marriages performed by the clergyFootnote 21 and introduced civil marriage, performed by the justice of the peace, as the only valid form. Dorothy McLaren comments on the good order and reliability of the registers of marriage during the Commonwealth period.Footnote 22 Nevertheless, along with other interregnum measures, the 1653 Act was immediately repealed in 1660 with the restoration of the monarchy. The “Act for Confirmation of Marriages” confirmed that marriages made under Cromwell's legislation were to be regarded as if they had been solemnized according to the rites and ceremonies of the Church of England.Footnote 23 The Puritan experiment was over, and a reversion to tradition was celebrated.
A feature of the law of 1653 was the fact that members of all religious groups were treated equally. A civil marriage was essential in each case. Reversion to the ecclesiastical regulation of marriages reintroduced religious discrimination. When Anglicanism was revived as the state religion, only an Anglican marriage was recognized as valid. This was consistent with other restrictions on non-Anglicans imposed by a state fearful of renewed religious hostilities and endorsed by a people who had chafed under enforced Puritanism. Under the Test and Corporation Acts, introduced as from 1661, the taking of communion in an Anglican Church was a precondition for any civil or military office, and for access to university. The Act of Uniformity of 1662 prescribed the acceptable form of prayers, administration of sacraments, and other rites for the established church. It led to the ejection from Anglican churches of all “non-conformists,” who fractured into smaller dissenting groups.Footnote 24 Within a few years the violent reaction against Puritanism had subsided and a greater degree of toleration was advocated. New ideas of political philosophy and economy promoted toleration as conducive to commercial growth: acceptance of differences in the spiritual realm allowed collaboration in temporal matters such as trade and industry. Among other things, the Act of Toleration 1689 allowed dissenters to establish their own places of worship. But controls were still in place: no assembly for religious worship was allowed until the place of meeting had been certified,Footnote 25 nor was preaching permitted except with open doors. It is this legislation on registration of places of worship that established the foundation on which later regulation of non-Anglican marriages has been built.
Lawless Churches: Place Subverted
An expectation that marriage should normally take place in a church does seem to have become established by the eighteenth century,Footnote 26 but the fees charged for marriage licenses—which granted permission to marry despite the existence of some substantive impediment or to dispense with a procedural requirement (such as the publishing of banns in a particular location)—became a lucrative source of income for the clergy,Footnote 27 many of whom became increasingly cavalier about compliance with the canon law rules they were supposed to enforce. So called “lawless churches” sprang up, offering their services to those who sought a quick or private wedding.Footnote 28
Most notable in the early eighteenth century was the growth of Fleet marriages. Since the Fleet was a debtors' prison, clergymen offering their services from the Fleet essentially had nothing to lose from the imposition of further fines. Penalties on the Warden of the Fleet eventually stopped weddings taking place in the prison chapel itself, but business spilled out into the surrounding streets: to the taverns and ale houses. A Fleet wedding offered convenience, reduced expense, and entertainment laid on.Footnote 29 It might be irregular, but it was legally valid. It has been estimated that by the 1740s as many as 70 percent of marriages in London may have taken place in the Fleet.Footnote 30 Few questions were asked about the identity and age of the parties, and there was a willingness to falsify the records for financial inducement. These were “religious” marriages in name only.
Parliamentary efforts to bring order to the law on solemnization of marriage were for a long time frustrated by the strongly conflicting interests of Lords and Commons. Property owners sought parental control over marriage—or at least adequate notice of a proposed marriage—so that they could ensure any alliance entered into was advantageous. There was always the risk of a fortune hunter whisking away an heir or heiress. On the other hand, the less wealthy were inclined to see marriage as an opportunity for advancement and resisted such restrictions. Moreover, the legislative proposals brought before the Commons tended to impose harsher penalties for infringement on the serving classes than on their masters and so proved objectionable on several grounds.Footnote 31
The Marriage Acts 1753 to 1949: Place Enthroned
Legislation regulating marriage was finally passed in 1753 under the close supervision of the Chancellor, Lord Hardwicke (the 1753 Act, or Lord Hardwicke's Act). Lord Hardwicke had presided in several cases involving clandestine marriages and so had a particular interest in the subject. Stone suggests that the success of the 1753 Act, after decades of failed initiatives, sprang from, inter alia, Lord Hardwicke's close attention to drafting and finding common ground between factions, as well as “the use of rhetoric, logic, cajolery, and behind-the-scenes threats, deals and lobbying.”Footnote 32
While Lord Hardwicke's Act contained a number of radical features, its most striking innovation was the fact that it rendered invalid marriages not conducted in accordance with the prescribed formalities—thus employing the approach that had been adopted by the Catholic Church in the Tametsi decree two hundred years previously.Footnote 33 The prescribed formalities under Lord Hardwicke's Act were nevertheless more stringent. A marriage, in order to be valid, had to take place in a parish church or public chapel, be preceded by banns or a license, and be conducted by a minister of the Church of England.Footnote 34 The rules on banns and licenses meant, in effect, that the marriage had to take place in the church of the parish where one of the parties had been living for the previous four weeks. For the first time, location mattered—not just as a matter of convenience for administrative purposes, or a rule of ecclesiastical law often honored in the breach, but as a binding legislative requirement for a valid marriage. Moreover, the rules relating to location encompassed both place of residence and place of worship. These provisions were designed to eliminate clandestine marriages and, more particularly, to limit marriages without parental consent.Footnote 35 Penalties for members of the clergy who infringed the law were strengthened. Rather than a fine or suspension, they risked transportation for fourteen years.
Any continuing confusion over the status of a mere exchange of promises was thereby at an end,Footnote 36 and for the “poorer sort” protection against seduction and bigamy was secured by the rules on location and publicity. The penalties on clergymen produced their effect, and the marriage trade in the centers for clandestine marriages quickly collapsed.Footnote 37
Although there was a variety of calls for the reform or repeal of the 1753 Act, it remained in force for the next seventy years. Amendment, followed by repeal and replacement, occurred in 1823, and further reforms followed in 1836.Footnote 38 One concern was the fact that the strictness of the criteria for validity in the 1753 Act could operate harshly in some circumstances, and it could be open to abuse.Footnote 39 But a further cause of dissatisfaction was the position of Nonconformists and Roman Catholics under the Act. At the time it was adopted, both were in a weak position. Quakers and Jews lobbied for exceptional treatment, which they could justify on the basis of the fact that they had a long tradition of marriage according to their own rites and that they kept diligent records of those marriages. The Act specifically stated that “nothing in this Act contained shall extend to” marriages between Jews and between Quakers, but Nonconformists and Roman Catholics were obliged to marry in an Anglican church unless they could afford a special license from the archbishop of Canterbury. By the early nineteenth century, however, the Evangelical Revival had produced more confident and assertive Protestant denominations, and it had become widely accepted that expecting Nonconformists to participate in an Anglican marriage ceremony contrary to their beliefs was both disrespectful to them and demeaning to the church. Initial Dissenters' Marriages Bills passed in the House of Commons foundered in the House of Lords, but in the 1830s the project for “dissenting marriages” became linked to the establishment of a central population register, and this provided the way to an acceptable solution for both non-conformists and Catholics.Footnote 40 The General Register Office and the office of Superintendent Registrar were created in 1836 by the Act for registering Births, Deaths, and Marriages in England. Marriage under a registrar's certificate—providing the publicity and verification functions provided by banns in the case of Anglican marriages—was also introduced by the Act for Marriages in England, which was adopted on the same date as the 1836 Act. Under the latter Act, a place certified as a place of worship could be registered for the celebration of marriages therein. The form and ceremony of the marriage were a matter for the church concerned, provided that a specified form of words was used to express consent to marriage and the marriage was solemnized in the presence of a registrar and two witnesses.Footnote 41
Since the preceding legislationFootnote 42 used the place of marriage as an important factor in its regulatory framework, it was perhaps logical to conceive of the regulation of the marriages of other religious denominations in a similar way and to focus on the (registered) place of worship. The option of marriage in a register office was included in the 1836 Act for “persons who shall object to marry under the Provision of this Act in any such registered building.” It was clearly the expectation that religious marriages would be the norm, and the register office option was for people with strong conscientious objections.Footnote 43 In recent years, however, the proportion of marriages taking place in a register office has reached 70 percent.Footnote 44
Place and Validity: A Review
There is a long history of conflicting interests as to the rules on the formalities of marriage. The church sought slowly to instill its vision of marriage into the peoples it served, and once it had recognized marriage as a sacrament, it had an incentive to exert control over the conduct of marriages. It could also offer the advantages of infrastructure and an educated priesthood—promoting certainty and allowing record keeping. But the rule of canon law that “consent in the present tense” was sufficient for the formation of a valid marriage prevented the church from capitalizing on these advantages. In particular, it placed the church in conflict with the landowning classes, who wanted marriage to be subject to greater formalities so that they were better able to control the marriages of their offspring. And that desire increased as a result of the incentives provided by the laws of property and inheritance. At the same time, there seem always to have been those entering into marriage who, for good reasons or bad, have desired to preserve the privacy and individuality of their actions.
These conflicts remained unresolved until the particular constellation of events that permitted the adoption of Lord Hardwicke's Act—including a tradition of church marriage that had by the eighteenth century become settled, concern over several high-profile clandestine marriages, disapprobation of Fleet marriages, and the brokering skills of Lord Hardwicke himself. It is only through the 1753 Act that the place of marriage became an element essential to validity. Since 1753, in England and Wales, regulation of the places in which a marriage may validly be solemnized has become an integral element of the legislation governing marriage. As a consequence, the legislation requiring nonconformist places of worship to be registered has continued in being almost solely for the purpose regulating marriages.Footnote 45 The next section explores the current complex rules on place of marriage.
REGISTERED PLACE OF WORSHIP WITHIN THE FRAMEWORK OF THE 1949 MARRIAGE ACT
General Principles
The Marriage Act 1949 (the 1949 Act),Footnote 46 represents a consolidation of the previous legislation, including various “minor amendments.”Footnote 47 In view of the controversy that has habitually attached to legislation on marriage, it is noteworthy that the 1949 Act was passed by Parliament under the Consolidation of Enactments (Procedure) Act 1949, allowing it to be adopted without full debate by both Houses.
The focus on “place” remains evident in the 1949 Act. The Act is divided into six parts, of which Parts II and III are the principal ones relevant to this topic.Footnote 48
Part II of the Act deals with the current rules on marriage according to the rites of the Church of England. Marriage following the publication of banns continues to be available. It is possible to dispense with banns under a (common or special) license or superintendent registrar's certificate.Footnote 49 The fundamental objective of these rules is to ensure that adequate publicity is given to the marriage in the parish or parishes where the parties live, so that objections to the marriage can be raised if appropriate, and that additional checks on compliance with the criteria for capacity to marriage are made before the issue of a license or certificate which grants dispensation from the requirement to call banns.Footnote 50 The locations in which banns may be published is therefore regulated in the Act. Under section 12 a marriage may only be solemnized in a church or chapel where the banns have been published, and under section 6 the banns must be published in the parish where at least one of the persons to be married is resident, or in the parish which is the “usual place of worship of the persons to be married or of one of them.”Footnote 51 The ceremony itself is not regulated by the statute, being left to Anglican canon law.
Alternative ways of getting married must be authorized by superintendent registrar's certificates and are regulated by Part III of the Act, which has undergone several amendments since 1949. The variety of marriages that may now be authorized under a certificate, some of which are defined by location and some by the rites or usages employed, are now set out in section 26(1)(a)–(e) of the 1949 Act:
(a) a marriage in a registered building according to such form and ceremony as the persons to be married see fit to adopt;
(b) a marriage in the office of a superintendent registrar;
(bb) a marriage on approved premises;
(c) a marriage according to the usages of the Society of Friends (commonly called Quakers);Footnote [52]
(d) a marriage between two persons professing the Jewish religion according to the usages of the Jews;
(dd) the marriage (other than a marriage in pursuance of paragraph (c) or (d) above) of a person who is house-bound or is a detained person at the place where he or she usually resides;
(e) a marriage according to the rites of the Church of England in any church or chapel in which banns of matrimony may be published.
The exceptional position of Jews and Quakers, first introduced in Lord Hardwicke's Act, has been retained in the 1949 Act. Although the original legislation did not confer validity on Jewish and Quaker marriagesFootnote 53—it merely stated that “nothing in this Act contained shall extend to” marriages among these groups—the 1836 Act “confirmed” that the marriages of Jews and Quakers according to their “usages” were good in law, and legislation since that date has maintained their separate status, and has used wording that clarifies the point that such marriages are valid. The place of solemnization is not, therefore, legally relevant to the validity of such marriages.
The 1949 Act also retains the approach introduced by the 1836 Marriage Act in relation to solemnization of marriages by other religious bodies. Marriage in a registered building is permitted “according to such form and ceremony as the persons to be married see fit to adopt.”Footnote 54 A registered building for this purpose must be a registered place of worship under the Places of Worship Registration Act 1855 and also be registered for the solemnization of marriages under section 41 of the 1949 Act. The requirement in section 41 of the 1949 Act, as originally drafted, that a “separate” building certified as a place of worship may be registered for the solemnization of marriages proved to be an obstacle to the registration of mosques in the 1980s, since mosques unite various functions and no separate place of worship can be identified. Amending legislation was therefore introduced in 1990 to remove the requirement of separateness.Footnote 55
Liberalization Measures
The emphasis on a designated place for marriages has proved to be something of a straitjacket. Not every church or registry office is an attractive location for a wedding. Towards the end of the twentieth century, as cohabitation became less stigmatized and average incomes rose, couples saved for a glamorous event to celebrate their relationship. In response to demand, the Marriage Act 1994 amended the 1949 Act, adding section 26(1)(bb), which allows civil marriages to take place at “approved premises,”Footnote 56 as authorized by local authorities. Such premises must be a “seemly and dignified venue for the proceedings.”Footnote 57 Hotels and stately homes feature in lists of approved premises, along with museums and even underground caverns, but ceremonies in the open air or in a marquee are not permitted.
The pressure to extend the locations available for marriage ceremonies has also been felt by the Church of England, particularly as a result of the availability of new and attractive “approved premises.” The Church of England Marriage Measure 2008 has relaxed the rules on the places in which a marriage can be solemnized.Footnote 58 In substance, the Measure allows a person to marry in a given parish if he or she can establish one of five “qualifying connections” with that parish. These include, by way of example, baptism or confirmation in the parish, regular public worship there for a period of six months at any time, and the marriage of a parent or grandparent there.
No mixing of civil and religious ceremonies is permitted.Footnote 59 Thus a civil ceremony should not include any religious elements. The 1949 Act specifically provides in section 46 for the option of having a religious ceremony after the civil one, making it clear that it is the civil ceremony that creates the valid marriage.
Part III of the 1949 Act further specifies that the marriage should take place in the presence of a registrar (or, in the case of marriage solemnized in a registered building, an authorized person)Footnote 60 and with two additional witnesses. The premises should, so far as possible, be open to the public—in continued recognition of the role of publicity in regulating marriage.Footnote 61
The Marriage (Same Sex Couples) Act 2013
The law relating to marriage, including the law relating to the registration of places of worship for the solemnization of marriage, has now been given a new layer of complexity by the Marriage (Same Sex Couples) Act 2013. This legislation, while in principle about the meaning of marriage and equal access to that institution, includes a further series of amendments to the 1949 Act in order, in particular, to deal with issues of conscience and the position of faith groups in relation to the solemnization of marriage.Footnote 62 A marriage of a same-sex couple may not be performed under Part II of the 1949 Act according to the rites of the Church of England without new legislation being brought forward.Footnote 63 Other religious organizations will not automatically be able to conduct same-sex marriages under the Act but will have to “opt in.”Footnote 64
In order to accommodate this change, section 26 of the Act has been amended to list the marriages that may be solemnized on the authority of superintendent registrar's certificates without any opt-in, and new sections 26A and 26B have been inserted to regulate the procedures for opting in.
For a religious organization to opt in, written consent to the marriage of same-sex couples must be given by the “relevant governing authority.”Footnote 65 Religious organizations other than Quakers and Jews are once again dealt with by reference to a place of worship.Footnote 66 A new section 43A requires separate registration of a building for the solemnization of marriages of same-sex couples, in addition to the registration under section 41, but the opt-in must be exercised in writing before such registration takes place.Footnote 67 Once the opt-in has been exercised, an application for registration can then be made by the proprietor or trustees of the building under section 43A.Footnote 68 So a building will have to be registered three times if it is to be used for the solemnization of same sex marriages: once as a place of worship, once under section 41 and finally under section 43A.
There is further special provision in section 44A of the 1949 Act for the position where religious organizations are sharing a building under the Sharing of Church Buildings Act 1969. Consent of just one of those organizations to the solemnization of marriages of same-sex couples is enough for the purposes of registration under section 43A, but all the sharing organizations must consent to “use” of the building for that purpose.Footnote 69
The principles of the 2013 Act, excluding solemnization of same-sex marriages in accordance with the rites of the Church of England and requiring the consent of the relevant governing authority in the case of other religious organizations, are also applied to civil marriage followed by religious celebration under amendments to section 46 of the 1949 Act.
The 2013 Act contains a so called quadruple lockFootnote 70 to protect the position of individuals who have objections to same-sex marriage. Section 2(1) provides, in so far as is relevant to the present article, that a person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement) to (a) undertake an opt-in activity, or (b) refrain from undertaking an opt-out activity.Footnote 71 Thus, for example, a person may neither be compelled to give his or her consent to registration of a place of worship for the solemnization of same-sex marriages nor be prevented from cancelling a consent that has been given.
If the “lock” works, then the structure of the law for solemnization of marriages following the 2013 Act can be retained in all its complexity. If not, then the willingness of many religious organizations to offer marriage services will be curtailed and a rethinking of the current structure will be inevitable.
A COMPARATIVE SURVEY
Given the level of complexity that rules on place of marriage have created in English law, it is worth considering how far alternative approaches to regulation exist elsewhere, and whether they operate satisfactorily, with a view to considering whether any lessons can be learned for English law. This survey is limited to the formalities of solemnization of a marriage, while recognizing that in some jurisdictions a marriage may come into existence without any particular formalities, so that the distinction between marriage and other forms of intimate relationship is not easily drawn.
It is striking that few states have, in fact, adopted or maintained an approach that regulates religious marriages by reference to a registered place of worship—although it exists in some former British colonies.Footnote 72 On the other hand, French law, with its compulsory requirement of a civil ceremony, has had a strong influence on many legal systems. The development of French law was animated by the same themes that are evident with respect to English law: the dynamics of the relationship between crown, church, and state; an emerging recognition of rights of equal treatment of different religious groups; the concern of the propertied classes to control the marriages of their offspring; and a desire to ensure the accurate recording of information relating to status. While the concern for parental control is evident in the surprising proportion of articles of the French Civil Code 1804 devoted to this and related issues,Footnote 73 it was the desire to resolve problems concerning the validity of Protestant and Jewish marriages after two centuries of religious conflict that led to discussion of civil marriage as an option, and it was the chaos in the system of civil status recording by the Catholic Church during the Revolutionary struggles that provided the immediate catalyst for reform. In the heady days of the Revolution civil marriage was endowed with quasi-religious elements, celebrating the Republic. Although many of the radical ideas of the revolutionaries in the area of family law, based on equality, were replaced by traditional, patriarchal notions in the Napoleonic Code, civil marriage remained as a workable solution to a long-standing problem.Footnote 74
According to article 75 of the current Civil Code, a marriage takes place at the mairie Footnote 75 in front of a civil status officer. The emphasis is on ensuring that the parties understand the legal obligations into which they are entering, followed by formal declarations of consent to the marriage in front of witnesses, and the drawing up of a certificate of marriage. In general, it is well established that any religious or other personalised ceremony must be postponed until after the civil marriage.Footnote 76
Many other countries adopt the same approach as France, typically either as a result of French colonization or because of the intellectual impact of the French Civil Code, but also for ideological reasons in Communist or former Communist states. These include, for example, Belgium, the Netherlands, Switzerland, Germany, Turkey, Japan, various Latin American and West African states, Russia, and China.Footnote 77
At the other extreme, there are states in which the only valid form of marriage is in accordance with the parties' personal law, that being the law of their religion. This is true in some Islamic states and also notably in IsraelFootnote 78 and Lebanon, states in which several religious laws coexist but there is no provision for interfaith marriages. In Israel there is also no provision for non-faith marriages. In Lebanon, a civil marriage between two people who had officially deleted any faith reference from their state records was given recognition in 2013, but the legal consequences of this remain unclear because of the absence of legislation.Footnote 79
Elsewhere jurisdictions may offer both civil marriage and marriage conducted in religious or other customary form.Footnote 80 The choice between a civil or a religious or customary marriage is permitted, at least in theory, in many former British colonies.Footnote 81 Some jurisdictions strongly influenced in other respects by French or German law have retained the option between civil marriage at the relevant civil status office and religious marriage. Originally this occurred if the Catholic Church or another national church held a position of strength there.Footnote 82 More recently, a wider range of marriages in religious form have been granted recognition in some states. This can by illustrated by examining the position in Spain,Footnote 83 SwedenFootnote 84 and Scotland—jurisdictions which adopt distinctly different approaches.
The most restrictive approach is found in Spain.Footnote 85 Article 81 of the Spanish Constitution makes provision for the implementation of fundamental rights and freedoms through Organic Acts. Organic Act 7/1980 of 5 July of Religious Freedom was passed to implement the fundamental right of religious freedom. Under it, religious confessions that have “well recognized roots” in Spain can enter into an agreement with the state, modeled on the comparable agreements that have long regulated the relationship of the Spanish state with the Catholic Church. In addition to the Catholic Church, the recognized confessions are Protestants, Jews, and Muslims (each of which has had to form an umbrella organization for its various constituent groups in order to enter into the agreement). Their agreements were signed on November 10, 1992, and as a consequence the civil validity of marriage ceremonies performed by each confession is recognized in Spain.Footnote 86 By way of example, the agreement with the Protestant confession provides that a marriage will be recognized if it is performed “before the minister of religion officiating at the ceremony.”Footnote 87
The Swedish Constitution allows a greater degree of flexibility. The free exercise of religion is made possible via the “Ordinance of Government” (Regeringsformen). The Ordinance includes the possibility for the state to delegate to religious communities certain state functions and, notably, the solemnization of marriage.Footnote 88 Since January 1, 2000, the law has provided a new procedure for the legal recognition of registered denominations. The state agency that processes applications for recognition (the Kammarkollegiet) also deals with the state's delegations to denominations regarding the right to officiate at marriages. In each case the denomination must have at least 3,000 members and its activities must be organized such that it can be expected to pay regard to the rules of the Swedish Marriage Code. According to Jänterä-Jareborg, in 2008 approximately forty registered religious communities in Sweden had authorization to officiate at marriage ceremonies in Sweden.Footnote 89
Scotland takes a more liberal approach again. Although civil marriages are regulated in a similar way to those in England, the position in relation to religious marriages is quite different. Under the Marriage (Scotland) Act 1977 marriages can be solemnized by representatives of recognized religious bodies. These include a minister of the Church of Scotland; a minister, clergyman, pastor, or priest of a religious body; or a person recognized by a religious body as entitled to solemnize marriages on its behalf.Footnote 90 Temporary registration of a celebrant is also possible under section 12 of the 1977 Act. It is the person, and their status as part of a recognized organization, that is relevant—not the place of solemnization.
These provisions have been used to approve marriage celebrants from a wide range of religious bodies.Footnote 91 Prior to recent amendments, they were also relied on to permit the authorization of humanist celebrants.Footnote 92 In 2005, Scotland's registrar general concluded that he was required to interpret the legislation in a way that was consistent with the European Convention on Human Rights, and that giving binding force to religious weddings but not to humanist ones might contravene the right to freedom of thought, conscience, and religion under article 9 of that Convention,Footnote 93 which includes nonreligious belief.Footnote 94 The Marriage and Civil Partnership (Scotland) Act 2014 (the 2014 Act), has now amended the 1977 Act to refer to a “religious or belief body” rather than a religious body.Footnote 95
The possibility of registration of a temporary celebrant has somewhat blurred the lines between recognition of a religious or belief body and recognition of individual applicants,Footnote 96 but section 14 of the 2014 Act clarifies the fact that such a celebrant must be a member of a religious or belief body.
Furthermore, the Scottish legislature has also taken the opportunity in the 2014 Act to respond to public concerns about the need for celebrants to come from responsible organizations by including a requirement that recognized religious or belief bodies should meet certain “qualifying requirements.”Footnote 97 Consultation on such qualifying requirements is due to take place in 2015, but an initial discussion paper (hereafter, the Discussion Paper) was issued in July 2014.Footnote 98 According to that paper there are four main reasons behind the proposed introduction of qualifying requirements: (1) “to ensure the continued reputation, dignity and solemnity of marriage and civil partnership ceremonies in Scotland”; (2) “to combat sham marriages and civil partnerships, which are designed to avoid UK immigration controls”; (3) “to combat forced marriages”; and (4) “to ensure that marriage and civil partnership ceremonies are not carried out for profit or gain.” These concerns are considered further in the last two sections of the article.Footnote 99
In contrast to English law, Scots law is very liberal as to the location of weddings. A religious or belief wedding may take place anywhere that the celebrant will agree to. A civil wedding can be held in a registration office or in any of a list of approved places—but it is also possible to apply for “temporary approval” of a desired location.
In each of the above examples—Spain, Sweden, and Scotland—it is the religious organization that is recognized. The status of the celebrant as part of that organization ensures the validity of the marriage. An alternative approach is to authorize individual celebrants to solemnize marriages. This approach is adopted, to a greater or lesser extent, in, for example, the United States, Canada, Australia, and New Zealand.Footnote 100 In each case a mixture of approaches applies, with authorization of individual celebrants being one just one of the available methods of regulation.
In the United States marriage regulation is a matter for state, rather than federal, laws. The authority to solemnize marriages is typically conferred on judges or retired judges,Footnote 101 ministers of religion, and often also a variety of civic authorities. Some states also provide for the authorization of a marriage celebrant for one day so that a member of the family or a friend of one of the intending spouses can officiate,Footnote 102 or even allow “self-marriage.”Footnote 103 The concept of “minister of religion” has provoked considerable difficulties. The definition of religion is a constitutional issue in the United States, since the First Amendment mandates the separation of church and state and the free exercise of religion. From at least the 1960s the concept has been given a broad, non-theistic definition. A footnote to the Supreme Court judgment in Torcaso v. Watkins Footnote 104 states, “Among religions in this country which do not teach what would generally be considered a belief in the existence of God are Buddhism, Taoism, Ethical Culture, Secular Humanism and others.”
Against that background, the Humanist Society and other atheist and humanist organizations offer ordination for non-theist ministers, and such ministers are accepted as marriage celebrants in some states but not in others.Footnote 105 Some states even accept as celebrants ministers from the Universal Life Church, which offers ordination online with no fee and no criteria to be satisfied.Footnote 106 In discussing whether such “ministers” should be authorized, several US courts have focused not on the scope of the right to exercise a religious belief but rather on the state's control over the regulation of marriage. Being a minister of religion can thus be considered as a threshold test. This can be illustrated by the assertion of the Virginia Supreme Court in Cranmer v. Commonwealth that the state has the “necessity that the marriage contract itself be memorialized in writing … by a person of responsibility and integrity and by one possessed of some educational qualifications.”Footnote 107
A recent New York decision adopts a different focus, commenting on “the inexorable trend toward marriages conducted by friends or relatives of a couple who have been ordained as ministers by internet churches.” The court goes on to add that getting married is a serious decision with wide ranging consequences and emphasizes the importance of obtaining a wedding license:
It is easy to understand why couples might choose a friend or relative, rather than a judge or religious figure whom they have only just met, to play an important part in a hugely personal and momentous occasion. But to be able to dispense altogether with the legal requirements imposed by the State of New York makes the process too easy and robs it of the seriousness that is warranted in view of the responsibilities and obligations that marriage entails. With fewer and fewer marriages being performed with the attendant ritual and weight of a traditional religious practice, the reason for requiring a marriage license is that much more compelling.Footnote 108
The concept of “minister of religion” is also contested in some provinces in Canada. The Humanist Association of Canada is a recognized religious denomination in Ontario, and its appointed officiants may be licensed by the province, but an application by the British Columbia Humanist Association to register religious representatives was recently rejected.Footnote 109 A similar range of approaches, from conservative to more liberal, can be found in respect of the persons licensed to solemnize civil marriages. In British Columbia, for example, the post of marriage commissioner is from time to time advertised by the government and appointments are made from respected members of the community, who must also be retired from their previous employment. In Quebec, the range of possible officiants is found in article 366 of the Civil Code. Marriages may be solemnized by clerks and deputy clerks of the Superior Court who have been designated for that purpose, notaries, mayors, members of municipal or borough councils, and municipal officers designated by the minister of justice. A marriage may also be solemnized by a person who is temporarily designated as an officiant—so that the parties can select someone who is special to them.Footnote 110
A more general process of liberalization can be found in New Zealand and Australia. In New Zealand, the Marriage Act 1955,Footnote 111 sections 7–14A, permits ministers of specified religions;Footnote 112 nominees of approved organizations, where the principal object or one of the principal objects of the organization is to uphold or promote religious beliefs or philosophical or humanitarian convictions; and other “persons of good character” in particular justices of the peace, to be registered as marriage celebrants. Further conditions for registration of individual applicants are that the applicant will conscientiously perform the duties of a marriage celebrant under this Act and under the Births, Deaths, Marriages, and Relationships Registration Act 1995; and that it is in the interests of the public generally, or of a particular community (whether defined by geography, interest, belief, or some other factor) that the person in question be a marriage celebrant.
In AustraliaFootnote 113 there are three categories of persons who can solemnize marriages: ministers of a recognized religion, civil status officers for each state or territory, and “marriage celebrants”—who may, in effect, be any fit and proper person with the necessary skills who seeks registration as a celebrant.Footnote 114 Some concerns have been expressed about supply to the market for celebrants and lack of proper training.Footnote 115 The Attorney-General's Department, which is responsible for regulation of marriage celebrants, is therefore implementing various reforms to enhance training, regulation, and ongoing professional development.Footnote 116 A significantly enhanced training requirement was introduced from 2010.Footnote 117 In addition, a policy of cost recovery in relation to the services provided to marriage celebrantsFootnote 118 has meant the introduction of an initial registration application fee and an annual registration charge.Footnote 119 There are thus disincentives to becoming a celebrant for anyone who does not intend to take it seriously and to conduct a significant number of ceremonies.
Comparison with other jurisdictions suggests that the approach to regulation of marriage under English law is unusual, and unusually complex. Many jurisdictions have a far more inflexible approach, recognizing only civil marriage. This takes place in the civil status or vital statistics offices for the residence of one of the parties, although some variation exists, and there seems to be a move towards privatization of civil status functions, with the result that notaries (in particular) are acquiring new marriage celebrating and divorce granting competences in some civil law jurisdictions. Where marriage in religious form is also recognized as having civil effects, it is typically the religious body that is authorized to solemnize marriages in accordance with its rites: the place of solemnization is a matter for ritual laws. Alternatively nonreligious organizations or individual celebrants may be authorized. This approach has been adopted in several common law jurisdictions—with varying degrees of regulation of celebrants, including the authorization as celebrant of a friend of the couple getting married, or an “Internet minister.”
RECENT ATTEMPTS AT LAW REFORM
The above historical and comparative tours demonstrate how the English law focus on place of worship is a product of its history of church-state relations coupled with registration requirements arising out of past religious discrimination,Footnote 120 and that the trend in countries that do not have a compulsory civil ceremony before a civil status official is towards allowing couples greater freedom of choice as to the celebrant—who may be required to meet certain performance standards. But the regulation of marriage is a subject that excites passions, and where there are strong conflicts of view any change to the law is difficult.Footnote 121
Compulsory solemnization by civil status officials and a system of licensed celebrants or officiants have both been considered for adoption in England. Indeed uniform civil preliminaries, rather than Church of England banns and licenses, have been proposed ever since the reforms of 1836.Footnote 122 There is, nevertheless, little indication of enthusiasm for mandatory civil marriage, following the French model. A Law Commission Working Party noted in 1973 that
[t]he introduction of such a system would have the advantages that flow from uniformity in arrangements for the solemnisation of marriage; nevertheless, it was our impression, when we issued the Working Paper, that it would not be generally acceptable unless, at any rate, no other satisfactory method of improving the present arrangements was possible. Consultation has not altered this impression.Footnote 123
Views were expressed both for and against this position when the issue arose tangentially during the debates on the Marriage (Same Sex Couples) Bill 2013.Footnote 124
A celebrant model was also identified as a possibility in the 1973 Law Commission Report.Footnote 125 But in the end, the Law Commission was simply unable to reach agreement on the central issue of the conduct of the marriage ceremony:
Some of us take the view that if the preliminaries laid down by the law are complied with, and if there is present at the wedding at least one person qualified to supervise the solemnisation of the marriage and see that it is duly registered then the law need require no more and that the actual place where or time when the marriage is solemnised is unimportant. Others share the view of the Working Party that all marriages should be celebrated at a place prescribed by law within permitted hours, subject to the discretionary powers of the Archbishop of Canterbury and the Registrar General to deal with exceptional cases. We are … content to express the different views in the hope that others may continue the discussion and arrive at an agreed basis for legislation.Footnote 126
This celebrant model was actively pursued during the period 1999–2004, starting with the publication by the registrar general for England and Wales of a consultation paper on modernizing the registration service.Footnote 127 As a result of the consultation, a white paper, Civil Registration: Vital Change, was published in 2002;Footnote 128 among other things it proposed a move to a celebrant system, influenced by the laws discussed above and, in particular, those of Scotland, Australia, and New Zealand. Some flesh was given to the proposals,Footnote 129 and the intention was to implement them in stages via Regulatory Reform Orders under the Regulatory Reform Act 2001. But when the first draft Order, concerning the registration of births and deaths, was laid before Parliament in 2004, the House of Commons Regulatory Reform Select Committee and the House of Lords Delegated Powers and Regulatory Reform Committee recommended that the order-making power under the Regulatory Reform Act 2001 should not be used, notably because the proposed measures could not be described as uncontroversial.Footnote 130 No steps were taken to bring forward the primary legislation that would otherwise be required.Footnote 131
A more limited proposal extending the range of options for the celebration of marriage was raised in a Private Member's Bill in 2012Footnote 132 and then during the passage of the Marriage (Same Sex Couples) Act 2013. Amendments were formulated by the British Humanist Society.Footnote 133 At first a proposal was made to create a category of “approved organizations”Footnote 134 that would be subject to the same regulation as Jews and Quakers. This proposal was not accepted in the Public Bill Committee, following the view expressed by the parliamentary under secretary of state for women and equalities that the government could not support the amendment because it involved structural change to the rules governing the solemnities of marriage which went well beyond the limited purposes of the bill, placed a difficult burden on the registrar general in deciding which organizations should be approved, and risked undermining the quadruple lock. After various consultations, a new amendment specifically identifying humanists was proposed at the Report Stage in the House of Commons, but was withdrawn again on the basis of an assessment by the attorney general that it was not compatible with the Human Rights Act 1998 as prioritizing one nonreligious belief organization over another.Footnote 135 As a compromise, the 2013 Act provides, in section 14(4) that “the Secretary of State may by order make provision for and in connection with permitting marriages according to the usages of belief organizations to be solemnized on the authority of certificates of a superintendent registrar.” Section 14(1) requires the secretary of state to arrange for a review as to whether such an order should be made, and if so the form it should take. Consultation was undertaken in July to September 2014 and the results were published, along with the government's response (hereafter, the 2014 Consultation Response), on December 18, 2014.Footnote 136
The aim of the consultation was “to seek views on whether there is a substantial case for permitting legally valid marriage ceremonies for those of humanist belief and potentially other non-religious belief, or whether the current approach should remain.” There were also further questions as to the organizations that might fall within the section 14 definition of a belief organization as “an organisation whose principal or sole purpose is the advancement of a system of non-religious beliefs which relate to morality or ethics”; the locations in which valid belief marriage ceremonies should be allowed to take place; and any safeguards that should be put in place.Footnote 137
It was clear that the majority of those responding to the consultation were connected to the British Humanists Association, and had made use of a standard form response to the consultation. They were in favor of the law being changed to allow valid belief marriage ceremonies, arguing that the current law is discriminatory since it does not allow them to marry in a legal ceremony rooted in their beliefs conducted by a person who shares those beliefs or in a place that is personally meaningful to them. They took the view that there should be no restriction on available locations for the ceremony, including outdoors, since the important criterion was the meaning attached to the place by the parties. Respondents who opposed a change in the law were particularly concerned about the risk of relaxed regulation leading to more forced and sham marriages and inappropriate ceremonies. In addition, local registration services offered the opinion that the demand from couples was for outdoor marriages rather than belief ceremonies.
On consideration of the responses, the Government has concluded that it is not possible to implement changes in the law of marriage to accommodate belief organizations without further review. Equality issues predominate. Allowing belief marriages at unrestricted locations creates an inequality for the majority of religious groups and couples who are restricted to their church or registered place of worship; qualifying tests for organizations permitted to celebrate marriages are difficult to formulate in a way that is not discriminatory—both in terms of determining the definition of a “belief organization” and in terms of the parallel treatment of religious and belief organizations. The order-making power under section 14 of the 2013 Act, is insufficient to permit the wider changes in the law needed to deal with these issues:
[T]here is no option which we think can be implemented immediately which would provide for complete equality of treatment between those who have religious beliefs, those with humanist or other non-religious beliefs, and couples more generally.Footnote 138
The Law Commission is therefore being asked to review the law concerning marriage ceremonies with a view to more comprehensive reforms. Whether any Law Commission proposals will finally be adopted as legislation is, of course, a different matter—but given the issues raised by the Consultation Response and the emphasis on equality issues, it is difficult to see how rules structured around a registered place of worship could survive.
THE FUTURE OF MARRIAGE SOLEMNIZATION
At the time of Lord Hardwicke's Act, three interests significantly coincided: the interest of the state in providing some certainty as to who was married and avoiding clandestine marriages through the publicity of a church wedding; the interest of the Anglican Church in celebrating the sacrament of matrimony and reinforcing its position in society; and the interest of the couple in obtaining God's blessing on their new life together. But the picture has changed. New ways exist of obtaining a reliable record of civil status. Clandestine marriage is no longer a significant concern. Church congregations have dwindled and with them the Christian significance of marriage. What are the modern drivers shaping any reform of the law on solemnization of marriages?
The Interests of the Couple
Writing with specific reference to the United States, Andrew Cherlin has argued that although the practical importance of marriage has declined, its “symbolic” importance has increased.Footnote 139 “Whereas marriage used to be the foundation of adult family life, now it is often the capstone. … Being married is less of a social role and more of an individual achievement—a symbol of successful self-development.”Footnote 140 This may be particularly true of America, but it also reflects to some extent developments in Britain. Marriage may not, in general, be held in such high regard—but it is increasingly postponed until a couple have achieved personal and job security and can afford to celebrate their relationship in style. This symbolic value can also be seen in the campaign for same-sex marriage: it was not about obtaining rights, for they could already be acquired through civil partnership. Rather it was about celebrating a loving and committed relationship, and enjoying status and esteem equal to that of heterosexual married couples.
A wedding is a couple's “celebrity moment,” and this creates the incentive to plan an individualized event. The trend in this direction can be seen in celebrant advertising of services tailored to the requirements of the parties. It is seen in the rise of weddings abroad and television shows that celebrate the variety of weddings. It is reflected in the desire of a bride and groom to ask a family member or friend to officiate. And it is seen in the insistence by members of the British Humanist Association in the 2014 Consultation Response that it should be possible to get married at a place that has “personal meaning.” The 2014 Consultation Response notes that many people who are not religious have spiritual beliefs that they would like reflected in a wedding ceremony, and that some might want multi-faith elements. The law currently has no way of accommodating these desires. Moreover, media representations of marriages in a variety of forms and locations foster dissatisfaction with the more restrictive rules of English law.
From the couple's perspective, the logical way forward is the removal of obstacles to their free expression of their individualism.
The Interest of the State
Rains concludes, after his survey of US laws on the regulation of marriage celebrants, as follows:
Today, it is difficult to perceive of a valid and enforceable reason for the state to demand a particular marriage methodology for the couple who have obtained a license ensuring their eligibility and intent to marry, as long as the fact of their marriage is then duly registered with the state. The state may validly regulate who may enter into marriage … and enforce those rules by a licensure requirement. The state may validly require registration of the marriage for recordkeeping purposes.
But the day is simply over that the state can meaningfully regulate who may officiate when the couple signify their present-tense declaration of entry into marriage, or even require any officiant other than the couple themselves.Footnote 141
Nevertheless, in the United Kingdom, the state does claim some residual interest in the regulation of such formalities. Three reasons for this can be argued: (1) an officiant may be best placed to detect if there is some element of fraud or duress involved in the marriage and thus to assist the state in policing access to residence and nationality and preventing forced marriages; (2) there may be a desire to control quality;Footnote 142 and (3) different marriage models have different resource implications for the state.
Policing Marriage
Current levels of media hysteria and government concern about sham marriageFootnote 143 and forced marriages in the United Kingdom and other EU Member States, seem indicative of moral panic rather than a reasoned response to the data. Nevertheless, there is clear evidence that marriages of convenience are regularly arranged for immigration purposes and that this an area in which organized crime groups are active, and which may also involve human trafficking.Footnote 144 And whether the number of forced marriages is large or small, this is a phenomenon which needs to be taken seriously and handled sensitively.
In the United Kingdom, an increasing focus is being placed on the need for thorough preliminaries in order to detect sham marriages, but both civil and religious preliminaries have been found wanting in this regard.Footnote 145 The government had sought to control such marriages through the requirement of a Certificate of Approval, first introduced in 2005,Footnote 146 whereby a fee was payable, and the applicant had to have sufficient leave to remain in the United Kingdom before qualifying for the certificate.Footnote 147 The scheme was challenged under, inter alia, articles 12 and 14 of the European Convention on Human Rights. It was found to be in breach of those provisions in the national courtsFootnote 148 and before the European Court of Human RightsFootnote 149 and during the course of the proceedings was modified and eventually withdrawn.
Nevertheless, the European Court of Human Rights specifically noted that,
[I]n the context of immigration laws and for justified reasons, the States may be entitled to prevent marriages of convenience, entered into solely for the purpose of securing an immigration advantage. However, the relevant laws—which must also meet the standards of accessibility and clarity required by the Convention—may not otherwise deprive a person or a category of persons of full legal capacity of the right to marry with the partners of their choice.Footnote 150
The Immigration Act 2014 has now changed the procedure for civil preliminaries for marriage, while at the same time requiring civil preliminaries rather than Church of England preliminaries in all cases where one or both parties is not a “relevant national.”Footnote 151 The period between the parties giving notice of the marriage and the wedding ceremony has been extended to 28 days for all marriages, to allow longer for review of the evidence submitted in order to detect potential abuse. Where one or both of the parties is not a relevant national, and has limited or no immigration status in the United Kingdom, or fails to provide specified evidence of immigration status, the proposed marriage or civil partnership will be referred to the Home Office and the notice period may be extended to seventy days.Footnote 152 Expertise as to the indicia of sham marriages can thus be concentrated within the Home Office.
In relation to forced marriages, a range of prevention measures are used and expertise is concentrated in the Forced Marriage Unit, a joint Foreign and Commonwealth Office and Home Office unit established in January 2005. Often the victim is taken abroad to get married, so the involvement of registration services in the United Kingdom is limited—but it is claimed that many forced marriages also take place in the United Kingdom and a factsheet has been produced for registrars. Arguably more could be done at the point when a superintendent registrar's certificate is sought. Clark and Richards compare the approach adopted in England with that introduced in France.Footnote 153 In France, the age of marriage has been raised and civil status officers must interview the parties giving notice of their intention to marry unless such an interview is impossible or is “deemed unnecessary.”Footnote 154 This measure was originally introduced in 2003 as a measure to prevent sham marriages, and arguably experience in dealing with sham marriages in the United Kingdom could also be drawn on in the context of forced marriages.
Both marriages of convenience and forced marriage are relevant to EU policy making since rights to family reunification are an important aspect of the right of free movement of persons in Europe. In relation to the former, the European Commission has recently produced the Handbook on Addressing the Issue of Alleged Marriages of Convenience between EU Citizens and Non-EU Nationals in the Context of EU Law on Free Movement of EU Citizens (hereafter, the Handbook),Footnote 155 which aims to set out European principles, best practices, and avenues for coordination and support of individual Member State initiatives.
What might be the impact on celebrants? The Discussion Paper produced by the Scottish Government moots the possibility that the “qualifying requirements” should include a knowledge of the relevant legislation on sham and forced marriages, as well as some awareness training, so that celebrants are more likely to identify such marriages. And if the involvement of celebrants in preventing sham or forced marriages is seen as an important detective measure then there are good arguments for more stringent regulation of celebrants. But it must be doubted whether reliance on celebrants is likely to be effective: in the past there has been a history of complicity or complaisance on the part of clergymen and variable reporting of suspicious marriages by register offices; and individual celebrants are likely to have limited exposure to the problem. The Immigration Act 2014 channels investigation to the Home Office in order to concentrate expertise in one place, and this seems the most effective way forward.
The European Commission Handbook, drawing on expertise from across EU Member States, describes the detection of marriages of convenience as a “long haul process.”
Often, it will only be possible to successfully conclude an individual case of abuse after having observed the couple and their marital conduct for an adequate period of time and collecting required evidence.Footnote 156
The Commission identifies the main investigation techniques used by national authorities as: simultaneous interviews or questionnaires; document and background checks; and inspections by law enforcement, immigration or other competent authorities (in, for example, registered residences, places of employment, and schools) and community-based checks to verify whether the couple is living together and jointly administer their household. The Commission comments that, according to experts, interviews are “the most effective technique to verify whether the spouses give non-conflicting, consistent and correct information about the other spouse, their past relationship and future plans.”Footnote 157 Given this perspective, it seems unreasonable to place much weight on the role of celebrants—particularly if scruples about commercializationFootnote 158 mean that they are not being financially rewarded for their actions.
Quality Control
The 2003 consultation paper Civil Registration: Delivering Vital Change adverted to the need for a code of practice for registration authorities to ensure that an appropriate level of service was available to all, and that the importance and dignity of the ceremony was maintained.Footnote 159 The debates in Parliament concerning the proposed amendments to the Marriage (Same Sex Couples) Bill also gave voice to doubts about celebrant marriages and the potential for obscure or outrageous forms of ceremony—such as Jedi marriagesFootnote 160 (or indeed, although it escaped parliamentary notice, Pastafarian ministers who conduct marriages for the Church of the Flying Spaghetti MonsterFootnote 161). Similar concerns are expressed in the 2014 Consultation Response. The response states that the government wants to see “further consideration of managing risk through the use of qualifying criteria, particularly in relation to preventing sham and forced marriages, inappropriate ceremonies, and the commercialization of marriage solemnization.”Footnote 162 It is clear from the terminology of the response that it takes account of, and is influenced by, the same considerations as the Discussion Paper.Footnote 163 The Discussion Paper notes that two of the objectives behind the proposed introduction of the requirements are “[t]o ensure the continued reputation, dignity and solemnity of marriage and civil partnership ceremonies in Scotland” and “[t]o ensure that marriage and civil partnership ceremonies are not carried out for profit or gain.”Footnote 164 It notes that secondary commercial services—such as hotel, photography, and tourism services—inevitably attach to weddings, but expresses the view that the ceremony itself should not be commercialized. “Instead, the ceremony should focus on the couple and about them committing to each other in their faith or belief.”Footnote 165
In fact, one of the benefits of the requirement that religious organizations solemnize marriages at a registered place of worship is that indirectly this provides quality control: it manifests a certain level of administrative organization and reliability. This is a reason for the durability of the requirement despite its appearance as a relic of former religious discrimination. The application for registration as a place for solemnization of marriages must be made by the proprietor or trustee of a building certified as a place of religious worship, and the process of registration requires that the application form be signed by a minimum of twenty householders who regard the building as their usual place of worship and then countersigned by the proprietor or trustee. There is, thus, evidence of investment in and management of property, and of a number of adherents to the religion.Footnote 166
But it is not at all obvious that those contemplating marriage today desire enforced dignity and decorum over individual self-expression and the choice between gravitas and exuberance. The difficulty of defining a “belief organization” means that a system of regulation that prioritizes the parties “committing to each other in their faith or belief” is unlikely to be operable, and the Discussion Paper recognizes that identifying the elements of a celebrant service that are for profit or gain is not straightforward. Celebrants will incur legitimate expenses, as may others involved in the ceremony; there may also be training costs for celebrants, and building maintenance costs; it may be difficult to distinguish between a payment for a commercial service and a donation in gratitude for the service provided. Arguably, therefore, the maintenance of standards could simply be seen as a consumer protection measure in relation to a service provided commercially by celebrants. The important factor would then be whether the celebrant provided the type and level of service advertised. Moreover it is worth pointing out that marriage at a registered place of worship or approved premises does not escape the problem of financial incentives. Eekelaar refers to the need “to use ‘approved’ premises in an environment where local authorities encourage applications for such approval as a business opportunity, and the whole system seems designed to extract the expenditure of as much money as possible,”Footnote 167 while many churches also regard wedding fees and charges for additional services as important sources of revenue.Footnote 168 The 2014 Consultation Response notes that the opposition of the Church of England to outdoor weddings in circumstances where religious bodies could not offer the same service, and the absence of this element in the “wedding portfolio” of the church would undoubtedly place it at a competitive disadvantage.
Marriage Model Resource Implications
During the debates on the Marriage (Same Sex Couples) Bill, Baroness Berridge noted that some religious organizations were considering whether or not to continue to solemnize marriages in so far as in doing so they were performing a public registration function and might face litigation under equal treatment legislation if they refused to solemnize same sex marriages, which would have “resource implications for the government.”Footnote 169 If religious organizations cease to perform that role, and in the absence of any system of civil celebrants, there will be an additional need for registrars. On the other hand, if a celebrant system is introduced, the regulation of that system may itself impose certain costs. This consideration links both to the policing of marriages and questions of quality control. For example, privatization of the solemnization of marriages in the majority of cases might allow greater conservation of resources for investigation of potential cases of fraud and duress. And the cost of a celebrant system will depend on the level of regulation and the amount that may be recouped in license fees.Footnote 170
It is submitted that the arguments for state supervision of marriage solemnization are unconvincing. Celebrants would play a minor role in the policing of marriages, while quality control and resource management issues depend on a variety of decisions and mechanisms. Becoming a licensed celebrant could, for example, be an option for marketing purposes, rather than a legal obligation. Given the choice, a significant number of people might choose to have a trusted friend, family member, or representative of a religious or belief organization solemnize their marriage.
The Interests of Religious Organizations
The debate over same sex marriage has once again put issues of toleration and conscience at the heart of the regulation of marriage. Religious organizations are divided on the question of same-sex marriage. Some welcome it, seeing it as an opportunity to extend care to lesbian, gay, bisexual, and transgender members of their community, and to bring the gospel to a new audience. Others strongly oppose it, arguing that marriage is and should remain the union of a man and a woman. To meet this position, the Marriage (Same Sex Couples) Act 2013 contains the “quadruple lock” described aboveFootnote 171 to protect the position of those who do not want to solemnize such marriages. But doubts about the efficacy of the quadruple lock remain, and many of those who currently officiate at religious marriages would withdraw from that activity if they felt compelled to solemnize same-sex marriages.Footnote 172
Indeed, the issue of recognition of same-sex unions as marriage has provoked a much wider debate within church communities internationally as to whether “civil marriage” is now—looking at the accumulated changes to the institution—so distinct from “Christian marriage” that the churches should withdraw from their role in the ceremony. The founder of the Radical Orthodoxy movement, John Millbank, has suggested that,
Perhaps, in order to safeguard the churches from pressures to conform to the norm, we should now welcome a withdrawal from the churches of their rights as a civil marriage broker. This would leave the churches free, in their turn, to claim that only natural and sacramental marriage are genuinely “marriage,” while state marriage is mere civil union.Footnote 173
More concrete steps in this direction have been taken by those who have signed up to the “Marriage Pledge” promoted by Ephraim Radner and Christopher Seitz and set out in the publication First Things.Footnote 174 The signatories agree that
The new definition of marriage no longer coincides with the Christian understanding of marriage between a man and woman. … To continue with church practices that intertwine government marriage with Christian marriage will implicate the Church in a false definition of marriage.
They commit themselves to “disengaging civil and Christian marriage in the performance of our pastoral duties,” refusing to “serve as agents of the state in marriage.” The Marriage Pledge has so far attracted a rather small number of signatories, although it has been discussed in both the United States and the United Kingdom. Unsurprisingly, the viewpoints expressed reflect both the particular theological stance of the writer on the nature of marriage and the legal context within which the writer is situated. Thus the reaction of a conservative Reformed Christian in the United States, supporting covenant marriage, embedded in a tradition of separation of church and state, and generally hostile to state encroachment on the private sphere will be radically different to that of a Church of England clergyman, a member of the established church, whose role goes beyond solemnization of the marriage and includes civil status registration functions.Footnote 175
The stance of the Church of England on this issue is apparent from its response to the consultation on marriage equality:
In law, there is one social institution called marriage, which can be entered into through either a religious or a civil ceremony. To suggest that this involves two kinds of marriage is to make the category error of mistaking the ceremony for the institution itself.Footnote 176
Furthermore, specifically in relation to the marriage pledge, it has been noted that Anglican clergy are unlikely to become signatories since
[a]n overarching requirement in England and Wales is the common law duty on the Church of England and the Church in Wales to perform marriages. … This arises from the Church of England's status as the established church in England, and the “vestiges of establishment” pertaining to the Church in Wales.Footnote 177
The duty to perform marriages is a duty owed to all parishioners, whether or not they are members of the church.Footnote 178 Any change in this duty would require a change in the law, and the refusal of a clergyman to solemnize marriages goes beyond an issue of individual conscience. Withdrawal from this function would therefore be a seismic change and not one likely to occur while the quadruple lock holds fast.
But the debate continues internationally and further internal and external challenges to the position of churches and other religious organizations who are unwilling to participate in the solemnization of same sex marriages can be expected. The issue is not just one of continued reference to “place of worship” in the requirements for a valid marriage, but also one of the place of religion in the public sphere. Opposing the call to disengage from the solemnization of marriages that produce civil effects are those who consider that by doing so the churches would fail in their “duty to proclaim the truth about marriage in the secular order and matrimony in the religious,”Footnote 179 and believe that the public platform provided by state recognition of religious marriage ceremonies should not willingly be abandoned.
There is a diversity of views as to the role that religious bodies should perform in marriages that produce civil effects, but a shared interest in ensuring continued freedom of religion and the opportunity to advocate on matters of conscience in the public sphere.
A Radical Solution?
If the state's interest in the solemnization of marriages is strictly limited, as suggested above, then perhaps a thorough reappraisal of the formal requirements for marriage is in order. Eekelaar has proposed a “radical solution” in which state interests are focused on the marriage preliminaries and the attestation of the consent of the parties to the marriage, leaving the ceremony itself unregulated:
Most people see marriage as a major event in their personal lives, which for many can only be adequately expressed if it has been brought about in a manner in accordance with a deeply held belief, or in a way that holds strong meaning for them. The logical (if radical) outcome of recognizing this is that it should not matter what type of ceremony accompanies the formation of the marriage if it fulfils those requirements for the parties. … [T]his strategy would make the secular law relating to the consequences of marriage available to all unions which the parties see as being a marriage, provided only that certain preliminary formalities are fulfilled. Nothing needs to be stipulated about the ceremony itself, where it is to be held, or even the form of words used. Agreement between the parties has always been the essence of marriage, and all that needs to be attested is that the parties have, at a certain time and place, agreed freely to enter into marriage with one another.Footnote 180
A major advantage of the mandatory civil ceremony required in France and many other civil law jurisdictions is legal certainty: the requirements for a valid marriage are clear and so it is easy to disseminate information about them. It is easier to insist on strict enforcement if the parties can be expected to know and understand the legal requirements. But the uninspiring character of a purely formal civil ceremony and the need for two ceremonies for those who want a religious or belief marriage mean that it has never acquired popularity as an option for England and Wales. On the other hand, if the formalities of the ceremony are effectively reduced to the witnessed exchange of consents, this in itself is an easy message to communicate—along with a strong emphasis on the necessity of first obtaining a license.Footnote 181 Any necessary investigation of the parties' capacity or desire to marry is then focused at the licensing stage—where relevant with appropriate Home Office assistance. Since this seems to be the direction that the law is already taking, the radical solution would not require a significant policy change. As is currently the case in Scotland, the license or schedule would be a form requiring details of the parties, the witnesses, and any celebrant, which would then be signed by the parties and witnesses at the time of the wedding and returned to the register office.Footnote 182
Such an approach would certainly accommodate the interests of the intending spouses. It would also accommodate the interests of nonreligious belief organization, and individual celebrants who currently offer a service which is not recognized as having any civil effects. As to whether it would accommodate the interests of religious organizations, there are positive and negative considerations. It would provide a more flexible framework within which to place religious marriage ceremonies, since the minister or other celebrant would not be performing a function essential to the “civil” marriage itself, and it might allow religious organizations to “compete” more effectively in the market for celebrancy services, since location would be less of an issue. This would provide the continued opportunity for such organizations to proclaim their views on marriage and to treat a marriage service as an act of worship. On the other hand, there is also the risk that religious ceremonies would instead lose some of their attractiveness if a wider range of alternatives became available. Furthermore, a more flexible framework would in all probability be detrimental to institutional discipline on issues such as same sex marriage. These considerations will be evaluated differently by different religious organizations.
A practical problem associated with the radical solution is the difficulty in ensuring that a marriage will be registered once it has been celebrated.Footnote 183 The objectives of the registration system are twofold: to create legal documents that are used to establish and protect the civil rights of individuals, and to establish a data source for the compilation of vital statistics. Many countries use the criminal law to enforce registration, but this is clearly less effective than control at the point of delivery. Nevertheless, a change in the system of registration was proposed in the context of the modernization program Civil Registration: Vital Change, adopting an approach similar to that employed in Scotland. Under that system a schedule is issued by the registration authority on completion of the preliminaries, and is returned after the ceremony with the signatures of the celebrant, the couple getting married and the witnesses.Footnote 184 Moreover, in an era when cohabitation rather than marriage is increasingly common, a significant proportion of marriages take place abroad,Footnote 185 and many marriages end in divorce, methods for capturing the demographic details of the nation other than the registration of marriages must of necessity be utilized.
Practical issues are not the predominant consideration in regulating marriage, and the law has proved resistant to change. Traditions are strong. Throughout the centuries, each amendment has proved controversial. Rather, the law has developed through a series of minor accretions. On the other hand, even a measure as controversial as the Marriage (Same Sex Couples) Act 2013 can be steered through Parliament if the government of the day is sufficiently determined. But it must be noted that the 2013 Act was limited in purpose, and that all efforts to extend the range of reforms to the law of marriage during its passage through Parliament were rebuffed.
CONCLUSIONS
If not in the short term, then at least in the medium term, significant change in the English law on the solemnization of marriages seems likely—driven by some combination of individualism, equal treatment concerns, and the repercussions of same sex marriage. It is implausible that marriage at a “registered place of worship” will survive this change, but this is a reform that is long overdue. The particular political and religious factors and social concerns that led to this form of regulation no longer exist and a comparative survey shows that English law is complex and anomalous.
While a system of licensed celebrants is one plausible way forward, the more radical solution described above deserves consideration. Indeed, perhaps it is not so radical. In a certain sense it even looks like a return full circle to the ecclesiastical law rule that a valid marriage required only an exchange of promises. A return to marriage “in a house, in the street, in the fields, or at a tavern.” But, in fact, much would have changed. Apart from a requirement of witnesses, the preliminaries to marriage and machinery for registration have become increasingly robust, with the potential to obtain any requisite evidence of status and capacity to marry,Footnote 186 obviating the publicity function of the ecclesiastical law rules and their statutory descendants.
As the rules on licensing become increasingly complex, perhaps it is time for radical simplification of the requirements for the marriage itself: a radical simplification which removes the need for the state to involve itself in the distinction between religious and nonreligious ceremonies, does away with the distinctions based on the discriminatory provisions of previous centuries, and provides a bright line rule establishing license and witnessed consent as the criteria for a valid marriage.
