Getting Married - A Consultation Paper On Wedding Law

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Getting Married:A Consultation Paper on Weddings LawConsultation Paper 247

Law CommissionConsultation Paper No 247Getting Married:A Consultation Paper onWeddings Law03 September 2020

Crown copyright 2020This publication is licensed under the terms of the Open Government Licence v3.0except where otherwise stated. To view this licence, overnment-licence/version/3/.Where we have identified any third party copyright information you will need to obtainpermission from the copyright holders concerned.This publication is available at https://www.lawcom.gov.uk/project/weddings/.

THE LAW COMMISSION – HOW WE CONSULTAbout the Law Commission: The Law Commission was set up by section 1 of the LawCommissions Act 1965 for the purpose of promoting the reform of the law. The LawCommissioners are: The Rt Hon Lord Justice Green, Chair, Professor Sarah Green,Professor Nicholas Hopkins, Professor Penney Lewis, and Nicholas Paines QC. The ChiefExecutive is Phillip Golding.Topic of this consultation: We are consulting on weddings law – the rules governing whichformalities a couple needs to comply with in order to be legally married, from giving noticethrough to registration of the marriage.Geographical scope: This consultation applies to the law of England and Wales.Duration of the consultation: We invite responses from 3 September 2020 to 3December 2020.Responses to the consultation may be submitted using an online form eddings. Where possible, it would be helpfulif this form was used.Alternatively, comments may be sent:By email toweddings@lawcommission.gov.ukORBy post toWeddings Team, Law Commission, 1st Floor, Tower, 52 Queen Anne’sGate, London, SW1H 9AG.If you send your comments by post, it would be helpful if, whenever possible, you couldalso send them by email.Availability of materials: The consultation paper is available on our website athttps://www.lawcom.gov.uk/project/weddings/.We are committed to providing accessible publications. If you require this consultation paperto be made available in a different format please email weddings@lawcommission.gov.uk orcall 020 3334 0200.After the consultation: We will analyse the responses to the consultation, which will informour final recommendations for reform to Government, which we will publish in a report.Consultation Principles: The Law Commission follows the Consultation Principles set outby the Cabinet Office, which provide guidance on type and scale of consultation, duration,timing, accessibility and transparency. The Principles are available on the Cabinet Officewebsite at: ation-principles-guidance.Information provided to the Law Commission: We aim to be transparent in our decisionmaking, and to explain the basis on which we have reached conclusions. We may publish ori

disclose information you provide in response to Law Commission papers, including personalinformation. For example, we may publish an extract of your response in Law Commissionpublications, or publish the response itself. We may also share responses with Government.Additionally, we may be required to disclose the information, such as in accordance with theFreedom of Information Act 2000. We will process your personal data in accordance with theGeneral Data Protection Regulation.Consultation responses are most effective where we are able to report which consulteesresponded to us, and what they said. If you consider that it is necessary for all or some ofthe information that you provide to be treated as confidential and so neither published nordisclosed, please contact us before sending it. Please limit the confidential material to theminimum, clearly identify it and explain why you want it to be confidential. We cannotguarantee that confidentiality can be maintained in all circumstances and an automaticdisclaimer generated by your IT system will not be regarded as binding on the LawCommission.Alternatively, you may want your response to be anonymous. That means that we may referto what you say in your response, but will not reveal that the information came from you. Youmight want your response to be anonymous because it contains sensitive information aboutyou or your family, or because you are worried about other people knowing what you havesaid to us.We list who responded to our consultations in our reports. If you provide a confidentialresponse your name will appear in that list. If your response is anonymous we will notinclude your name in the list unless you have given us permission to do so.Any queries about the contents of this Privacy Notice can be directed to:enquiries@lawcommission.gov.uk.ii

ContentsPAGEGlossaryCHAPTER 1: INTRODUCTIONThe COVID-19 pandemicThe law of weddingsWhat we mean by “weddings law”The current law and its historyix12445The Law Commission’s Scoping Paper and the case for reformPrevious calls for reformThe Scoping PaperThe case for reformDevelopments since the Scoping PaperRecent reforms elsewherePersonal experience of the current lawPersonal experiences with weddings during the COVID-19 pandemic779913151717The current projectThe scope of our projectStructure of the project181922Format of this Consultation Paper24Acknowledgements and thanks27The team working on the project28CHAPTER 2: THE CURRENT LAW29Overview of the legal framework29Civil weddingsRegister officeApproved premises313138Religious weddingsAnglicanJewishQuakerOther religious groups4243545860Legal framework for special circumstancesThose who are terminally illMarriages of the housebound or detainedMarriages in naval, military and air force chapels65656769CHAPTER 3: OVERVIEW OF OUR PROPOSED SCHEME73iii

Introduction73PreliminariesCivil preliminariesAnglican preliminaries757678OfficiantsThe requirement for an authorised officiantThe role and responsibilities of an officiantThe categories of officiantWithdrawal of ation87CHAPTER 4: PRELIMINARIESIntroduction89Civil preliminariesIssuesOptions for reformConsultation questions919295108Anglican preliminariesIssues with the current lawOptions for reformConsultation questionsThe difficulty of rationalising the requirements110112117120121Universal civil preliminaries123CHAPTER 5: OFFICIANTS127Introduction127The current law129IssuesInequality of treatmentLack of respect for the wishes and beliefs of individualsComplexity and lack of clarityUnnecessary regulations131131133134135Options for reformIdentifying a common concept of an “officiant”Identifying a common set of duties for all officiantsIdentifying a clear process for authorising officiantsIdentifying the criteria that officiants should have to fulfilIdentifying a common set of responsibilities for all officiantsClarifying how officiants should be monitored and de-authorised136136137140159167169CHAPTER 6: THE WEDDING CEREMONYiv89173

Introduction173The form of ceremonyIssuesOptions for ous content in civil weddingsIssuesOptions for reformConsultation191193195198A religious ceremony after a register office wedding199Two witnesses200Open doorsCriticism of the lawOptions for reformConsultation201202203204CHAPTER 7: LOCATION205Introduction205Criticisms of the current lawCivil wedding venuesReligious wedding venuesNon-religious belief wedding venuesIndependent celebrant wedding venues206208219225226Options for reformRetention of the current system, but with a wider range of locationspermittedPre-approval of place by local authorities, with no substantiverestrictions on the types of locations permittedNo limits on the types of locations permitted, with approval by theofficiant226ConsultationWhere should weddings be legally permitted to take place?What process of pre-approval, if any, is necessary?232232238CHAPTER 8: REGISTRATION226228230245Introduction245Current law246Issues246Options for reformSchedule systemInformation to be recordedReturning the scheduleLanguage247247247248249v

Electronic registrationCorrection of errorsConsultationCHAPTER 9: EQUALITY LAW AND RELIGIOUS WEDDINGS251253Introduction253The policy background and our Terms of ReferenceReligious organisationsNon-religious belief organisations and independent officiantsRegistration officers254254254255Special provisions under the current lawSame-sex weddingsWeddings involving transgender people255255258Special provisions under our proposed schemeSame-sex weddingsWeddings involving transgender people259259261Secular venues and other services261CHAPTER 10: VALIDITY AND OFFENCES263Introduction263ValidityIssuesOptions for reformConsultation264268275290The time-limit for petitioning for nullityIssuesOptions for reform294295296OffencesIssuesOptions for reformConsultation297298300302Religious-only weddingsWhy do religious-only weddings arise?The effect of our provisional proposals on religious-only weddingsThe limits of our proposed reforms303303305306CHAPTER 11: SPECIAL TYPES OF WEDDINGvi249251313Introduction313Weddings involving people who are terminally ill, detained, or houseboundCurrent lawIssuesOptions for reform – people who have a terminal illnessOptions for reform – people who are detained or housebound314314317317321

Weddings in national emergenciesCurrent lawIssuesOptions for reformConsultation322324324328333Weddings on military sitesCurrent lawIssuesDiscussion333334334336Weddings at seaCurrent lawIssuesOptions for reformConsultation337338338339345CHAPTER 12: FEES349Introduction349Overview of the fees under the Marriage Act 1949351PreliminariesCivil preliminariesAnglican preliminaries352352354Ceremony and location“Statutory” weddings in the register officeCivil weddings in locations other than the register officeWeddings of people who are housebound, detained or terminally illReligious (and non-religious belief) weddingsCivil weddings by independent officiants355355356360362363Registration364CHAPTER 13: THE POTENTIAL IMPACT OF OUR PROPOSALS367Introduction367Benefits of reform that cannot easily be monetisedModernising the legal systemRespecting choiceReducing the likelihood of a non-qualifying ceremony to protectcouplesEncouraging couples to marry368368368Benefits to couples: facilitating lower cost weddingsRegister office weddingsWeddings on approved premisesWeddings at home or in community venuesConsultation371372374375378Benefits to businesses378369369vii

Reducing costs for businesses and increasing opportunities for smallbusinessesIncreasing competition by removing unnecessary regulationIncreasing the business opportunities from increased numbers ofweddings in England and WalesConsultation379380382383Benefits to local authorities383Benefits to the economy as a wholeIncreasing the number of couples holding their wedding in Englandand WalesAllowing weddings to take place at sea on cruise ships384385388CostsCosts to Government and local authoritiesCosts to businessesCosts to religious (and non-religious belief) groupsCosts to independent officiantsCosts to couplesConsultation390391391392392392393CHAPTER 14: CONSULTATION QUESTIONS395APPENDIX 1: TERMS OF REFERENCE429APPENDIX 2: ROUTES TO MARRIAGE (THE CURRENT LAW)432APPENDIX 3: LEGAL AUTHORITY (THE CURRENT LAW)433APPENDIX 4: TYPES OF WEDDING (OUR PROPOSALS)434APPENDIX 5: PATH TO MARRIAGE (OUR PROPOSALS)435APPENDIX 6: VALIDITY (OUR PROPOSALS)436APPENDIX 7: FEES TABLE437viii

GLOSSARYIn this Glossary, references to other words and terms contained in the Glossary are in bold.“Anglican”: the Church of England and the Church in Wales. These organisations are treateddifferently from other religious organisations under weddings law.“Anglican clergy”, “clergy” or “Clerk in Holy Orders”: a bishop, priest or deacon of the Churchof England or the Church in Wales. Only Anglican clergy can solemnize Anglicanmarriages.“Anglican preliminaries”: the preliminaries conducted by the Church of England and theChurch in Wales, to authorise Anglican weddings. They are the publication of banns andthe issuing of common licences and special licences.“Annulment” or “decree of nullity”: a court declaration that a marriage was never legally validor has, following the declaration, become legally invalid.“Appropriate immigration status”: a person has the appropriate immigration status undersection 49(2) of the Immigration Act 2014 if they have a right of permanent residence underEuropean Union law, are exempt from immigration control, or are settled in the UnitedKingdom.“Approved premises”: premises at which civil weddings can take place, following approval bya local authority (for example, a hotel) under the Marriages and Civil Partnerships (ApprovedPremises) Regulations 2005. 1“Authorised person”: a person appointed by the trustees or governing body of a registeredbuilding to be present at and register the marriages that take place at that registeredbuilding, meaning that a registrar does not need to be present.“Banns” or “banns of matrimony”: a form of Anglican preliminaries for weddings inAnglican churches or chapels, involving an announcement in church of an intendedmarriage.“Certified place of worship”: a place of worship certified under the Places of WorshipRegistration Act 1855. Once certified as a place of worship, a building can also be registeredto solemnize marriages (see “registered building”).“Civil partnership”: a legal status acquired by couples who register as civil partners whichprovides substantially the same legal rights and responsibilities as marriage.“Civil preliminaries”: preliminaries conducted by the registration service, in distinction toAnglican preliminaries.1SI 2005 No 3168.ix

“Common licence”: a document issued by the Church of England or Church in Wales, as partof one of the three types of Anglican preliminaries. A common licence authorises awedding in an Anglican church or chapel with no waiting period.“Diocese”: an administrative district of the Church of England and Church in Wales which isunder the supervision of a bishop. Dioceses are divided into parishes.“Dissolution”: the legal termination of a valid civil partnership.“Divorce”: the legal termination of a valid marriage.“Ecclesiastical preliminaries”: see “Anglican preliminaries”.“Established church”: the church recognised by the law as the official church of a state. TheChurch of England is the established church of England; the Church in Wales is not anestablished church but retains vestiges of being an established church within Wales, withimplications for weddings law.“European Economic Area”: comprises the European Union member states (Austria,Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland,France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta,Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, and Sweden) andIceland, Liechtenstein, and Norway.“Exempt from immigration control”: a person is exempt from immigration control if they are aCommonwealth citizen who had a right of abode by virtue of the Immigration Act 1971; amember of a diplomatic mission, or a family member of such a person; a member of a classof visiting service persons; a consular employee or officer, or a family member of such aperson; a visiting member of a foreign government, or a family member of such a person; aspecified representative or member of certain international organisations, or a familymember of such a person; a specified dependant of a visiting member of the United StatesArmed Forces; or a head of state, or a family member of a head of state. See regulation 3 ofthe Proposed Marriages and Civil Partnerships (Meaning of Exempt Persons and Notice)Regulations 2015. 2“Exempt person”: a relevant national, or someone who has the appropriate immigrationstatus or holds a relevant visa in respect of the proposed marriage or civil partnership. Seesection 49(1) of the Immigration Act 2014.“Faculty Office”: the Faculty Office of the Archbishop of Canterbury, which administers theissuing of special licences.“Forced marriage”: a marriage which one or both of the parties entered into without free andfull consent due to violence, threats or any other form of coercion.“General Register Office”: the offices and staff of the Registrar General which oversees thecivil registration in England and Wales of births, deaths and marriages.2xSI 2015 No 122.

“Handbook”: the Handbook issued to registration officers by the Registrar General,containing guidance in relation to weddings.“Humanism”: Humanists UK’s website says that there are many definitions of Humanism. Itsays that a Humanist is someone who:trusts to the scientific method when it comes to understanding how the universe works andrejects the idea of the supernatural (and is therefore an atheist or agnostic)makes their ethical decisions based on reason, empathy, and a concern for human beingsand other sentient animalsbelieves that, in the absence of an afterlife and any discernible purpose to the universe,human beings can act to give their own lives meaning by seeking happiness in this life andhelping others to do the same. 3“Impediment to marriage”: a reason why two people are not legally able to marry each other.Impediments include being too closely related, being under 16 years old, and lacking mentalcapacity.“Independent celebrant”: a person who leads wedding ceremonies, but is not a registrationofficer and does not belong to a religious or non-religious belief organisation. The currentlaw does not allow independent celebrants to conduct legally binding weddings. Under ourTerms of Reference, we will consider how provision could be made for independentcelebrants if Government chooses to enable them to do so.“Independent officiant”: an independent celebrant who, under our provisionally proposedscheme, has been authorised to officiate at legally binding weddings.“Interfaith”: an interfaith wedding is one that combines elements from different religious (andsometimes non-religious) traditions. An interfaith wedding could be a wedding that isconducted by an interfaith minister as a part of their interfaith ministry, or a weddingconducted by multiple officials from different faiths. By “interfaith couple” we mean a couplewhere the parties are of different faiths or hold different beliefs.“Marriage certificate”: a certified copy of the details of a marriage contained in the marriageregister.“Marriage document”: a document that would be used to register weddings conducted afterAnglican preliminaries, if a schedule system is introduced under the Civil Partnership,Marriages and Deaths (Registration etc) Act 2019.“Marriage register”: an official record of marriages legally recognised by the state.“Non-conformist”: historically, a Protestant who did not conform to the usages andgovernance of the established church.3Humanists UK, Humanism, https://humanism.org.uk/humanism/ (last visited 1 May 2020).xi

“Non-qualifying ceremony”: a ceremony that results in a marriage that it is neither a valid nora void marriage because the wedding ceremony did not comply with the required formalitiesunder the law.“Non-religious belief organisation”: an organisation that professes a secular belief systemthat claims to explain humanity’s nature and relationship to the universe, and to teach itsadherents how they are to live their lives in conformity with the understanding associatedwith the belief system.“Notice”: the process by which the parties give notice of their intention to marry each other tothe registration service or, in the case of Anglican preliminaries, to the Anglicanauthorities. The parties may be required to provide certain information, for example, name,date of birth, and nationality.“Officiant”: under our provisionally proposed scheme, all weddings would be attended by anofficiant, who would have certain legal responsibilities. The officiant could, but would not berequired to, lead the ceremony. Officiants would include registration officers, Anglicanclergy, officiants nominated by religious organisations, and maritime officiants. IfGovernment decided to enable them to conduct weddings, there could also be officiantsnominated by non-religious belief organisations, and independent officiants.“Open doors”: a statutory requirement applicable to weddings in registered buildings orregister offices, generally interpreted to mean that the public must have unfettered accessto witness the wedding and to make objections prior to or during the ceremony. A similarrequirement applies to weddings on approved premises, which must be accessible to thepublic without charge.“Parish”: within the Church of England and Church in Wales, an area overseen by a parishpriest or cleric and which will have one or more parish churches. A number of parishes makeup a diocese, which is overseen by a bishop.“Preliminaries”: the steps that must be taken before a couple is authorised to have a legallybinding wedding. Preliminaries ensure that there are no impediments to a couple marryingeach other, and help to detect sham marriage and guard against forced marriage. Civilpreliminaries are conducted by superintendent registrars and the Registrar General;Anglican preliminaries are conducted by the Church of England and Church in Wales.“Prescribed words”: declarations and words of contract that must be said by the partiesduring the wedding ceremony, except Anglican, Jewish and Quaker weddings. Since 1996there has been a choice between three alternative authorised versions of the prescribedwords.“Register office”: the office of a superintendent registrar, being one of the two categories oflocations at which a couple may have a civil marriage (the other being on approvedpremises). There must be a register office in each registration district.“Registered building”: a certified place of worship which is also registered for weddings totake place there. Under the current law, weddings conducted by religious organisations otherthan those of the Anglican, Jewish and Quaker faiths must take place in registeredbuildings.xii

“Registering officer”: a person appointed by the Society of Friends responsible forregistering marriages solemnized according to its usages.“Registrar” or “registrar of marriages”: an officer appointed by a local authority, who registerscivil weddings and religious weddings in registered buildings (except where an authorisedperson is present).“Registrar General”: the head of the General Register Office.“Registrar General’s licence”: a document issued as civil preliminaries, used to authorise awedding involving a person with a terminal illness, with no waiting period.“Registration district”: each superintendent registrar has authority over a registrationdistrict. The registration district might cover a county or a smaller area such as a Londonborough or a metropolitan district. Registration districts are divided into sub-districts.“Registration officer”: either a registrar of marriages or a superintendent registrar.Although the current roles of registrar and superintendent registrar are distinct under theMarriage Act 1949, in practice many local authorities appoint the same individuals to bothroles. Under our provisionally proposed scheme, there will be no distinction between the tworoles.“Registration service”: collectively, the civil authorities responsible for the process of gettingmarried: the Registrar General, the General Register Office, local authorities andregistration officers. Some local authorities refer to their own departments responsible forthe registration of births, deaths and marriages as “registration services”, but in thisConsultation Paper we do not adopt that usage.“Relevant national”: a British citizen, European Economic Area national or Swiss national.See section 62(1) of the Immigration Act 2014.“Relevant visa”: entry clearance or leave to enter as a visitor for the purpose of marriage orcivil partnership, or entry clearance, leave to enter or leave to remain as a fiancé(e) orproposed civil partner, in respect of the proposed marriage or civil partnership. Seeregulation 4 of The Proposed Marriages and Civil Partnerships (Meaning of Exempt Personsand Notice) Regulations 2015. 4“Religious leader”: a member of the clergy, granthi, imam, minister, priest, rabbi or otherperson who takes a leading role in conducting religious wedding ceremonies.“Religious-only marriage”: a marriage that is recognised by a religious community ororganisation but not by the state, because the wedding did not follow the legal requirements.From the perspective of the state, a religious-only marriage is a form of non-qualifyingceremony.“Rites”: in this context, the ceremonies, practices or customs associated with a particularwedding ceremony. We use the word “usages”, which appears in the marriage legislationwith reference to Jewish and Quaker weddings, to mean the same thing.4SI 2015 No 122.xiii

“Schedule”: a document issued by the registration service as part of civil preliminaries,which authorises the couple’s wedding, and is used to register their marriage. A schedulesystem is used in Scotland and Northern Ireland, and is anticipated to be introduced inEngland and Wales by regulations to be made under the Civil Partnerships, Marriages andDeaths (Registration etc) Act 2019. Schedules would replace superintendent registrar’scertificates. Also called a “marriage licence” in other jurisdictions.“Sham marriage”: a marriage between parties of whom at least one is not a relevantnational, and where there is no genuine relationship between them and either one or bothentered into the marriage for the purpose of gaining an immigration advantage.“Society of Friends” or “Religious Society of Friends”: Quakers.“Solemnize”: the term used to refer to performing a legally binding wedding ceremony underthe current legal framework.“Special licence”: a document issued by the Archbishop of Canterbury under theEcclesiastical Licences Act 1533, as part of one of the three types of Anglicanpreliminaries. A special licence can authorise an Anglican wedding to take place at anylocation named in the licence, with no waiting period.“Superintendent registrar”: an officer appointed by a local authority, who conducts civilpreliminaries and attends civil weddings.“Superintendent registrar’s certificates”: a document issued as part of civil preliminaries,which authorises the couple’s wedding after the parties have given notice and a waitingperiod has elapsed. This is the only type of document (apart from the Registrar General’slicence) that provides legal authority for civil weddings, Jewish and Quaker weddings, andother religious weddings in registered buildings. It can also be used instead of Anglicanpreliminaries to authorise an Anglican wedding in a church or chapel.“Terminally ill”: a person who is seriously ill and not expected to recover, and to whomspecial preliminaries apply. In other areas of law, “terminally ill” has a different, specificmeaning.“Universal civil preliminaries”: a system in which all couples would be required to undergocivil preliminaries before getting married.“Usages”: see “rites”.“Void marriage”, “invalid marriage” and “avoid a marriage”: a void marriage or a marriagewhich has been avoided, is invalid or a nullity, meaning the marriage is treated as neverhaving come into existence. The parties to a void marriage are entitled to apply for financialrelief, as if they were divorcing; this is not the case for parties to a non-qualifyingceremony.“Voidable”: a marriage is voidable if certain criteria, for example, non-consummation of themarriage, can be established. Unlike a void marriage, a voidable marriage is a validmarriage until it has been annulled by a decree of nullity.xiv

“Waiting period”: a minimum length of time between when the parties give notice of theirintention to marry and when they can get married. For weddings authorised bysuperintendent registrar’s certificates under the current law, the standard waiting periodis 28 days.xv

xvi

Chapter 1: Introduction1.1Weddings are generally celebrated with pomp, ceremony, tradition, and, frequently,considerable expense. And why not? A wedding day is an important day. Important forthe couple getting married, for their families and friends, and for the communityhelping them celebrate. A wedding also has critical legal importance, marking the daythe couple takes on new and significant legal obligations to each other.1.2Many people do not consider weddings from a legal point of view. But this transition tolegal marriage is strictly regulated by the law. In this project, we are considering howweddings are regulated, from the perspective of what the law is now, and what the lawought to be.1

The COVID-19 pandemicThe COVID-19 pandemic has affected everyone. In addition to the tragic loss of life,daily life has been put on hold in England and Wales and across the world. As aresult of emergency measures introduced on 23 March 2020 to prevent the spreadof COVID-19, weddings were unable to go ahead, with many couples having toreschedule or cancel their weddings.Because of the pandemic, we delayed publication of our Consultation Paper.Consultation is central to all of our projects, and pivotal to our ability to makerecommendations for reform to Government. We did not think that the recentcircumstances would have allowed us to consult meaningfully. Moreover, we wereacutely aware of the sensitivity of consulting on weddings law during a time whenweddings were not able to go ahead. However, we had drafted the majority of theConsultation Paper prior to the public health emergency. Therefore, the pandemic,and its impact on weddings, does not feature in our discussions about the currentlaw and our proposals for general reform within the paper.But it is important that this consultation provides an opportunity to consider theimpact of the COVID

Civil wedding venues 208 Religious wedding venues 219 Non-religious belief wedding venues 225 Independent celebrant wedding venues 226 Options for reform 226 Retention of the current system, but with a wider range of locations permitted 226 Pre-approval of place by local authorities, with no substantive

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