Few legal questions have generated more heat in recent years than marriage law reform – whether in relation to same-sex marriage, the regulation of (non-Christian) religious marriage, legal recognition of marriages solemnised by non-religious belief organisations, such as humanists, or the availability of civil partnerships as an alternative to marriage for opposite-sex couples. Responding to the complexities of the current law, and situated amid a plethora of reports, including the Law Commission's 2020 report on the law regulating weddings, Russell Sandberg's slim volume aims to provide an accessible overview of the current law, to lay out the current state of the debate about marriage and weddings law, to make the case for reform and to make concrete reform recommendations, drawing on the work of the Law Commission. In doing these things it addresses itself chiefly to policy-makers, with the avowed aim to ‘galvanise the need for reform’ (p 4).
In pursuit of this aim, the book is broken down into three sections. The first considers the current legal framework, exploring in turn the law relating to religion and opposite-sex marriage and that relating to religion and same-sex marriage. In the second section Sandberg's focus shifts to the case for reform, examining the problem of unregistered religious marriages and the exclusion of non-religious belief marriages from the current legal regime, and reviewing the Law Commission's 2020 proposals. In the final section Sandberg advances his own reform proposals, which extend beyond weddings or marriage law to encompass a law of adult intimate relationships.
In setting out the current law Sandberg's (entirely justified) starting point is that the ‘law regulating marriage is a historical relic which reflects a bygone age of a Judaeo-Christian society’ (p 2), on to which has been bolted a series of ad hoc reforms. The result is a law of marriage which is ‘controversial, complex and often misunderstood’ (p 2), and which is not fit for purpose – being, in essence, ‘inconsistent, unprincipled and discriminatory’ (p 2). Looking at the current law on opposite-sex marriage as set out in the Marriage Act 1949, he notes that the distinctions drawn between different types of marriage are the result of ‘historical quirks’ (p 11) rather than principle. Yet, the different rules applicable to the different categories of marriage significantly complicate the law, while also acting as a considerable hinderance to the ability of some couples to access a legally registered marriage.
Sandberg's examination of the current law relating to same-sex marriage reveals a similarly unsatisfactory picture of ad hoc reform. He traces the trajectory of change from the Civil Partnerships Act 2004, with its adoption of the model of civil marriage and exclusion of religion, to the advent of religious civil partnerships and ultimately the legalisation of same-sex marriage and the treatment of faith bodies under the Marriage (Same Sex Couples) Act 2013. Echoing the prior discussion of opposite-sex marriage, he notes that the 2013 legislation, rather than taking the opportunity to codify, rationalise and simplify marriage law, appended the reform relating to same-sex marriage to the existing legal framework. This, together with the ‘Quadruple Lock’ safeguarding the position of religious bodies, serves further to complicate and mystify the legal picture.
In the second section of his book, making the case for reform, Sandberg focuses on the difficulties caused by the prevalence of unregistered religious marriages, the lack of legal protections and redress for couples when such marriages break down, and the discriminatory exclusion of non-religious belief marriages from the Marriage Act 1949. In each case he introduces the issue, explores the debates around it and how they have arisen and been treated, and critiques the main applicable reform proposals.
Looking first at unregistered religious marriages, Sandberg's starting point is that unregistered religious marriages are not, in and of themselves, the problem. It should be open to couples who make a genuinely free and informed decision to opt for an unregistered religious marriage. The problem is that many couples enter into such marriages without the ability to make a genuinely free and informed choice. The focus of the existing law on registered places of worship places a stumbling block in the path of those seeking religious marriage in faiths where such buildings and practices are not part of their practices and traditions. It leads to a significant number of non-registered religious marriages, the parties to which lack legal protection and redress. Further, in many instances entry into an unregistered religious marriage may be the consequence of external pressure, or of ignorance of the law and the legal status of the religious wedding ceremony. Finally, when such relationships break down the lack of legal protection and redress means that the couple have no choice but to seek alternative dispute resolution through religious bodies (for example, sharia councils). Again, the problem here is not the role of the religious body per se but rather the lack of free choice.
Turning to the question of non-religious belief marriages, Sandberg notes that the failure of the law adequately to provide for such marriages to be legally effective is tangled up in the law's general struggle to adequately define faith and belief, and to deal appropriately with non-religious belief systems. As matters stand, the adherents of such belief systems are unable to get married in a ceremony which both reflects their beliefs and is legally recognised. As the Court of Appeal has recognised, this is inherently discriminatory and legislation is needed to secure legal change.
Having set out the case for reform, Sandberg concludes this section of the book with a critical examination of the reform proposals advanced by the Law Commission in September 2020. These reforms would shift the law from focusing on registered buildings to the recognition of registered officiants. All couples would be required to give 28 days’ notice of their wedding and the ceremony would have to be celebrated in the presence of an authorised officiant, whose role would be to ensure that the legal requirements for a valid marriage were fulfilled. Authorised officiants might be registration officers, Anglican clergy, officiants nominated by a belief body or independent officiants who apply directly to the General Register Office or Registrar General. A valid marriage would exist providing that notice was given, that there was a declaration of present consent to the marriage and that at least one partner believed that an authorised officiant was present – protecting the partner who was misled as to the nature and effect of the ceremony. Under the proposed reforms it would be a criminal offence deliberately or recklessly to mislead an individual as to the legal status and authority of the officiant or as to the status and effect of the ceremony.
The Law Commission's proposals, which include provision for a wedding to take any form agreed between the couple and the officiant, would make it significantly easier for couples to have a legally binding religious or non-religious belief marriage. Further, they would provide protection for a partner who is duped into believing that they are going through a legally binding marriage. And they are to be welcomed because they at long last shift the focus from piecemeal to principled reform. However, Sandberg is critical of the Law Commission's continued focus on organisations rather than individuals (which sees it treat independent officiants differently from those nominated by belief bodies), contends that the proposals are based on an unsatisfactory definition of belief and religion, and notes that they do not address the situation of the individual who is pressured into entering into a religious-only marriage or who does so upon the promise of a future legally registered marriage which never occurs. Above all, he expresses concern that the proposed reforms, rather than being implemented as a complete package, would instead be cherry-picked by government in an unprincipled and undermining manner.
Noting that the Law Commission was hampered by restrictive terms of reference, in the final section of the book Sandberg builds on its proposals to put forward his own suite of reforms. These focus upon reforms to weddings law, reforms to criminal offences and the law of validity in respect of marriage, and reforms to cohabitation rights. He contends that legal redress should be extended to those who enter into non-registered religious marriages unwittingly or not truly voluntarily. Unlike the Law Commission, he would stipulate that there is no valid marriage unless both parties believed that an authorised officiant was present. The duped spouse would be protected by improved legal protections for cohabitees, rather than by a finding of a valid marriage. Sandberg would provide for non-religious belief marriages to have legal effect and would extend offences relating to forced marriage, coercive control and fraud to deal with unregistered marriages, though he argues that such offences only really act to discourage and prohibit undesirable behaviour, and that the focus should be upon questions of validity. Finally, he proposes a statutory scheme to adjust property rights and make financial provision to take account of ‘relationship-generated disadvantage’ (p 131) upon the breakdown of cohabiting relationships. He would permit couples to opt out of this scheme where their agreement to do so was free and fair but notes that a default scheme would do much to protect those in unregistered religious marriages, or those who persist in believing in the idea of common-law marriage and who currently find themselves without legal protection or redress upon the breakdown of their relationship.
In conclusion, this volume succeeds in its objectives. It is likely to be of considerable use to policy-makers and of significant interest to those seeking to understand the debates, problems and complexities surrounding this area of law reform. It is clear and accessible and provides much food for thought.
