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We thought we’d shift the emphasis this week from family breakdown to family formation by taking a look at marriage. The Law Commission – the civil service body that researches, considers and recommends changes to statute law in this country – has just released a scoping paper “Getting Married”, on the formalities required to contract a valid marriage in England and Wales. It makes interesting reading, so we thought we’d share the highlights with you.

The aim of the review was to consider whether the current law provides a fair and coherent legal framework for enabling people to marry, and to identify areas of the law that might benefit from reform.

Marriage law is a particularly interesting creature because one of its functions is to protect state interests, for example by preventing forced marriages and sham marriages. The institution gives access to privileges and benefits, including (of course) enhanced legal protection on family breakdown, so its authenticity and legitimacy needs to be policed. The state needs to regulate marriage to ensure that it is accessed only by those free and eligible, and to keep a proper record of all marriages that take place. Also however, marriage needs to reflect social mores and conventions in order to be a relevant social construct and attractive to the general population – something that, arguably, it currently fails to do.

The Law Commission’s preliminary review has concluded that the existing law on marriage fails to serve today’s diverse society. They recommend a full-scale reform of the law, which was after all designed to meet the needs of the early 19th century at that time. With that background, it naturally does not cater adequately for the many faiths and non-religious beliefs that make up 21st century British society, not to mention the way we live now day-to-day.

The law of marriage is currently rather restrictive, with where and how marriages can take place being tightly regulated. Now, as churches are less central to the lives of most of the population and not everyone fancies having their special day at either a registry office or an impersonal hotel, many people would like the opportunity to marry somewhere more meaningful to them. This is one of the questions that the Commission will need to tackle if it is to do further work on the matter. What would the drawbacks be if marriages were permitted in areas not currently allowed, for example, outdoors? Should there be any constraints at all?

For legal purposes there is also a lack of clarity, which can in some circumstances make it difficult to know whether a valid marriage has taken place or not. This can make for some interesting legal cases, but can mean that people facing traumatic circumstances – for example, a bereavement or a separation – can find out, sometimes, that what they thought was a long-lasting marriage was in fact nothing of the sort. The repercussions can be significant. In order to update the law comprehensively, the Commission feels that it will need to consider in detail what the minimum requirements should be for a valid marriage, what sanctions the state needs to impose to uphold the law of marriage, and whether there should be alignment of civil partnerships with marriage law.

The Commission considers that the law can be reformed to make it more reflective of society whilst also retaining the necessary legal control. Its scoping paper asks questions about how this might be done, in order to give the government an idea of what further work is necessary to achieve coherent recommendations that could eventually be carried forward into law by the government. After this, the government will decide whether it wishes to invest the time, or whether other projects should take priority.

Generally, the Law Commission’s projects are rather strict in scope, and stay away from anything too politically sensitive on the basis that its role is to ensure the legal framework applied to citizens is fit for purpose, rather than to decide on the policy underlying the framework. The whole area of family law is highly political, unfortunately, which is one of the reasons why the Law Commission gets involved in it so rarely. Inevitably, therefore, there are certain areas that would lie outside the scope of any review. This includes considering who can be married, including matters pertaining to the age of consent or prohibited degrees of kinship. The issue of same-sex marriage is also off the table, having been considered pretty recently by Parliament.

There will be no consideration of the rights or responsibilities which marriage imparts, such as the financial entitlements of surviving spouses or the consequences of divorce. The Commission has already considered some elements of this in its project on Matrimonial Property, Needs and Agreements, and has made recommendations to clarify the law of “financial needs” on divorce or dissolution of a civil partnership and to introduce qualifying nuptial agreements in England and Wales. It awaits the full response of the government to its recommendations, which were published in February 2014.

We are all in favour of updating the law of marriage: it is anachronistic, and the constraints disappoint people by not allowing them to marry in the way they want. If the government wishes to promote marriage as the family form of preference in this country, it makes sense to make the constraints fewer and clearer. For us, though, there are more pressing matters to address in family law, not least no-fault divorce, rights after cohabitation, and the lack of access to legal representation in a labyrinthine court system. In the meantime, we look forward to being invited to our first hot-air-balloon weddings in about 2024…

If there is anything we can do to assist you, please do give Sue, Simon, Adam, Tricia or Gail a call on 01223 443333. Our office is open until 5pm on Wednesday 23 December, and will reopen after the Christmas break at 9am on Monday 4 January.

We wish you all a happy Christmas and a peaceful new year.