Current project status
The current status of this project is: Complete.
List of project stages:
- Analysis of responses
- Initiation: Could include discussing scope and terms of reference with lead Government Department
- Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
- Consultation: Likely to include consultation events and paper, making provisional proposals for comment
- Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
- Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations
The scoping phase of our review of the law of marriage concluded with the publication of Getting Married: A Scoping Paper, on 17 December 2015. In response to our Scoping Paper, the Government has said that it does not support a full review of this area of the law at this time.
The scoping phase
In December 2014 the Government asked the Law Commission to conduct a review of the law governing how and where people can marry in England and Wales. The question underlying the review was whether the current law, which has evolved over a long period of time, provides a fair and coherent legal framework for enabling people to marry. Does the law allow people to marry in a way which meets their needs and wishes while recognising the interests of society and the state in protecting the status of marriage? The Law Commission agreed to carry out an initial piece of work to prepare the way for the potential future reform of this important area of law. We conducted a preliminary study involving research of domestic and comparative law, and engagement with key stakeholders. The aim was to identify and provide an initial analysis of the issues that needed to be addressed in order to develop proposals for the reform of marriage law. We completed the initial phase of this work at the end of 2015, following which we published our scoping paper setting out our findings.
The scope of the review
The scoping paper does not set out specific proposals for reform. The paper sets out a complete list of the questions, covering each of the stages of getting married, which would need to be considered in any review. In summary, these questions include the following.
What does the state need to know before people can legally marry? Who should receive that information and how and where should it be provided?
If the ability to solemnize marriages is extended beyond religious groups and the state, how could this be done? Can the rules be made more coherent? Is there scope to expand the range of locations in which a marriage ceremony can take place? For example, should marriages be able to take place outdoors?
What should be the process of registration? Who should be responsible for ensuring that a marriage is registered?
What should be the minimum requirements for a valid marriage? What offences or sanctions are needed to uphold a reformed law of marriage? Should aspects of the law governing the formation of civil partnerships be aligned with the law governing the solemnization of marriages? There are certain areas that would lie outside the scope of any review.
- Who can be married; so there would be no consideration of changing the age of consent or the restrictions on marrying within prohibited degrees of kinship.
- The question of whether or not religious groups should be obliged to solemnize marriages of same sex couples. This matter was recently decided by Parliament following wide public debate.
- The question of whether or not non-religious belief groups should be obliged to solemnize marriages of same-sex couples (should such groups be able to solemnize marriages following any reform).
- The rights or responsibilities which marriage imparts, such as the financial entitlements of surviving spouses or the consequences of divorce.
- The duty of the Church of England and the Church in Wales to marry their parishioners.
- How the law of England and Wales deals with marriages that have taken place overseas.
We have also identified two key policy areas which would feature in the reform of marriage law but which are questions for the Government rather than the Law Commission.
- The question of whether or not the current categories of those able to solemnize marriages should be expanded, and, if so, to which other groups or individuals. The Law Commission could consider how any expansion of the current categories the Government decided to make could be incorporated in a new system.
- How far any changes made to the law governing the solemnization of marriage should be reflected in changes to the law governing the formation of civil partnerships. We could consider how certain reforms could operate for both marriage and civil partnership, but whether any such alignment should be undertaken is a decision for the Government.
The Law Commission’s protocol with Government stipulates that we can only take forward a reform project where a Government department supports that work and indicates a serious intention to take forward law reform.
The Minister of State for Justice, Dominic Raab MP, wrote to us on 11 September 2017 to inform us that the Ministry of Justice – which asked us to undertake our scoping work – does not currently support a full review.
The Minister indicated that priority was being given to reforms to address the increase in public and private family law cases currently putting pressure on the justice system.
We believe that reform has the potential to provide greater flexibility, allow all couples to marry in a way that is meaningful for them, avoid inefficiencies and bring the law up to date.
We do not believe that the need for reform will go away, and we welcome the Minister’s assurance that he will keep the possibility of further Law Commission work under review.
Area of law
Property, family and trust law
Professor Nicholas Hopkins