This began as a handout for the Cardiff LLM in Canon Law: it’s about the law on the formation of marriage – “weddings law” – rather than matrimonial law more generally. My grateful thanks to Russell Sandberg for reading it in draft.
1. Weddings law in the UK: how we got here
In 1563, the Council of Trent, concerned about “irregular” marriages, issued its decree Tametsi, declaring that marriage had to be contracted before a duly-authorised priest and two or three witnesses. But that was after the Scottish Reformation of 1560. Religious marriage was very common in Scotland and was regulated by the Church, but there was no statutory provision for non-religious civil marriage: one either got married in a church or, instead, contracted one of the various forms of irregular marriage under the common law. In short, post-Reformation Scotland held to the pre-Tridentine canonical view of marriage – that it was essentially created by the consent of the parties.
In England and Wales until the middle of the 18th century, marriages could take place anywhere provided they were conducted before a cleric of the Church of England; however, growing concern about “clandestine marriages” led to the passing of the Marriage Act 1753 – “An Act for the Better Preventing of Clandestine Marriage”, aka Lord Hardwicke’s Act. It required that all marriage ceremonies must be conducted by a minister in a parish church or chapel of the Church of England – with exceptions for Jewish and Quaker marriages.
In short, English law and Scots law have proceeded from very different assumptions.
2. England & Wales: Marriage Act 1949
The Marriage Act 1949 was basically a consolidation of existing law, some of it dating back to the Marriage Act 1823. Under it:
- Couples must choose between a civil or a religious ceremony.
- There are four categories of religious ceremonies:
- Church of England and the Church in Wales weddings;
- Jewish weddings;
- Quaker weddings; and
- “Everyone else” weddings, from Ahmadi Muslims to Zoroastrians.
- Couples having an Anglican wedding can get authority to marry from the church via the “Anglican preliminaries”: either–
- after banns called in church at the principal service on three Sundays, or
- by Common Licence if there is insufficient time to call the banns, or
- by the Archbishop of Canterbury’s Special Licence issued by the Faculty Office (which can also be issued for a wedding in the Church in Wales).
- All other couples must give notice at the register office.
- With a few exceptions, a wedding must take place in approved premises: couples must have their wedding either in a place of worship or in a licensed secular venue and cannot marry outdoors, even in the garden of a licensed venue. Jewish and Quaker weddings, and to a degree also Anglican weddings, are excepted from the strict rules about place.
- Currently, there is no provision for “belief” weddings (eg for humanists).
(Under the terms of the Marriage Act 1949, weddings conducted in the Church of England and the Church in Wales create valid marriages in secular law ipso facto, without any additional formalities.)
3. Scotland: Marriage (Scotland) Act 1977, as amended
Traditionally, Scots law simply followed Roman law: girls could marry at 12 and boys at 14. This was raised to 16 by the Age of Marriage Act 1929 – but in Scotland, parental consent is still not required. In addition to marriage on a decree of declarator “of any competent Court”, Scotland also retained three forms of “irregular marriage”:
- marriage constituted per verba de praesenti, which required “some present interchange of consent to be thenceforth man and wife, privately or informally given”;
- marriage per verba de futuro subsequente copula which was constituted “by a promise of future marriage without any present interchange of consent to be husband and wife, followed at a subsequent time by carnal intercourse”; and
- marriage “by cohabitation with habit and repute”.
The first two were abolished in 1939, but marriage by cohabitation with habit and repute persisted as a valid legal form until its abolition by s.3 Family Law (Scotland) Act 2006 – and even then, the abolition did not affect the validity of subsisting irregular marriages.
- For religion or belief marriages, Scotland registers celebrants rather than buildings.
- The couple must obtain and complete a Marriage Notice form and return it to the registrar at least 29 days before the wedding.
- In the case of a religious or belief ceremony, one or other of the couple must also collect the Marriage Schedule in person from seven days before their wedding.
- The couple, the celebrant and the witnesses sign the marriage schedule during the wedding ceremony.
- The marriage schedule must be returned to the local registrar within three days of the ceremony taking place.
See also Eleanor Gordon, ‘Irregular Marriage: Myth and Reality’, (2013) Jl of Social History 47: 2, 507–525. Incidentally, s.27 Marriage (Scotland) Act 1977 abolished the previous practice of calling the banns and the Church of Scotland abolished any internal canonical requirement for banns by passing a reciprocal Act of Assembly: Act III 1978 Anent Proclamation of Banns.
4. Northern Ireland: Marriage (Northern Ireland) Order 2003
Briefly, at the time of Partition, there were four classes of ceremonies: Church of Ireland weddings, Roman Catholic weddings, Presbyterian weddings and weddings under a registrar’s certiﬁcate or licence. In 1998, the then Secretary of State for Northern Ireland, Mo Mowlam, referred the law on marriage preliminaries to the Law Reform Advisory Committee for Northern Ireland because she considered that the existing law was “outdated, … possibly discriminatory” and needed to be simplified
The Committee’s report formed the basis of what became the Marriage (Northern Ireland) Order 2003. Basically, Northern Ireland adopted the Scottish model but went further: for example, instead of following Scotland and differentiating between larger and smaller faith-groups, it was decided to treat all of them the same, irrespective of size.
5. Same-sex marriage and opposite-sex civil partnerships
In England & Wales:
- Same-sex civil partnership was brought into effect by the Civil Partnership Act 2004.
- Same-sex marriage was brought into effect by the Marriage (Same Sex Couples) Act 2013.
- Opposite-sex civil partnership was brought into effect by the Civil Partnership (Opposite-sex Couples) Regulations 2019 – in effect, as a result of the Supreme Court’s judgment in R (Steinfeld and Keidan) v Secretary of State for International Development  UKSC 32, in which the Court held that the margin of appreciation had no application in domestic law, that in removing one form of discrimination the Marriage (Same Sex Couples) Act 2013 had introduced a new one and that there was no reason to conclude that that discrimination “was ever justified”  – and allowed the appeal and made a declaration of incompatibility
- Same-sex civil partnership was brought into effect by the Civil Partnership Act 2004.
- Same-sex marriage was brought into effect by the Marriage and Civil Partnership (Scotland) Act 2014.
- Opposite-sex civil partnerships will be brought into effect by the Civil Partnership (Scotland) Act 2020 – but (so far as I’m aware) the Act is not yet in force.
In Northern Ireland:
- Same-sex civil partnership was brought into effect by the Civil Partnership Act 2004.
- Same-sex marriage and opposite-sex civil partnership were brought into effect by the Westminster Parliament rather than the Northern Ireland Assembly via the Marriage (Same-sex Couples) and Civil Partnership (Opposite-sex Couples) (Northern Ireland) Regulations 2019, which came into force on 13 January 2020.
The “quadruple lock” in England & Wales:
When the Westminster Government introduced what became the Marriage (Same Sex Couples) Act 2013, it announced that there would be a “quadruple lock” for religious weddings:
- No religious organisation, or individual minister, could be compelled to marry same-sex couples (or to permit this to happen on their premises);
- It would be unlawful for religious organisations, or their ministers, to marry same-sex couples unless the organisation’s governing body had expressly opted in to do so (and that would mean the religious organisation itself opting in, the presiding minister having consented and the premises in which the marriage was to be conducted having been registered);
- The Equality Act 2010 would be amended to ensure that no discrimination claim could be brought against religious organisations or individual ministers for refusing to marry a same-sex couple (or allowing their premises to be used for this purpose); and
- the Bill would state explicitly that it would be illegal for the Church of England and the Church in Wales to marry same-sex couples or to opt in to doing so. Canon law – which bans the marriage of same-sex couples – would continue to apply and it would require a change in both primary legislation and canon law before the Church of England or the Church in Wales would be able to opt in to conduct same-sex weddings.
The result was that the Church of England and Church in Wales cannot merely opt in to conducting same-sex marriages. (Unfortunately, it appeared subsequently that the Westminster Government had failed to consult the Church in Wales in advance of its statement).
6. Some current problems with weddings law in England & Wales
Void, voidable or non-qualifying?
In HM Attorney General v Akhter & Anor  EWCA Civ 122, the issue was whether a religious nikah ceremony – after which the husband refused to undertake the necessary civil ceremony – created a void marriage or a “non-marriage” totally without legal effect: the difference being that in the case of a void marriage, the parties can seek financial orders. It raised two issues
“(i) Whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of s. 11 of the Matrimonial Causes Act 1973; and
(ii) If there are, whether the parties’ December 1998 ceremony was such a ceremony, currently described as a non-marriage, or whether it created a void marriage” .
In relation to (i), the Court concluded that “there can be ceremonies which do not create a marriage, or even a void marriage, within the scope of the 1949 and the 1973 Acts and which do not, therefore, entitle the parties to a decree of nullity” . With reference to (ii) the Court “reached the clear conclusion that the December 1998 ceremony did not create a void marriage because it was a non-qualifying ceremony” . Russell Sandberg subjects the case to a long analysis here.
Confusion rather than conspiracy?
In MA v JA  EWHC 2219 (Fam), a couple who had been married in an Islamic ceremony subsequently found subsequently that – unknown to them – the mosque had failed fully to comply with the registration requirements of the Marriage Act 1949: the imam who married them had not been an “authorised person”. They were therefore obliged to seek a declaration from the Court that they had, in fact, contracted a valid marriage under English law. Fortunately for them, the chairman of the mosque, who had been present at their ceremony, was an “authorised person”. Moylan J concluded that though the presumption of marriage did not apply because the requirements of the Marriage Act 1949 had not been fulfilled , the marriage ceremony was “of the kind” contemplated by the Act  – conducted in an authorised building in the presence of an authorised person . A marriage had therefore been created, and it was not void because the parties had not knowingly and willfully breached the requirements of the Act .
Which was undoubtedly the right and just conclusion – but no-one wants to have to apply to a court to validate his or her marriage, and my suspicion is that it was a mistake that would be less likely to happen in Scotland or Northern Ireland because of the prior need to obtain a marriage schedule.
The Law Commission points out that some religious groups do not see their place of worship as the best or most meaningful place to get married, citing some Muslims, Jains, Hindus, Buddhists and Pagans. (Some followers of Paganism, for example, marry by “handfasting”: the couple jumps over a broom in the open air.)
And what happens if a faith-community has very few “premises” to approve?
Muslims are in the same position as all other religious groups apart from the Church of England, the Church in Wales, Quaker and Jews: in essence, to contract a lawful marriage, the Marriage Act 1949 must be complied with. However, some couples in the Muslim community are simply not using the Act. This might be for a variety of reasons, but one of them is that observant Muslim couples are not permitted to be alone together unchaperoned – so they will sometimes have a nikah ceremony simply so that they can be together in private and get to know each other – as courting couples do. A nikah without civil registration is not a valid marriage under English law and there have been calls to make it illegal to conduct a purely-religious wedding without civil preliminaries.
It should be noted that the Government is clearly uneasy about the general issue of unregistered nikah weddings; its Integrated Communities Strategy Green Paper in 2018 said [at 58] that it would “explore the legal and practical challenges of limited reform relating to the law on marriage and religious weddings:. And see Russell Sandberg’s earlier post: The House of Lords on marriages and sharia law.
“Accidental” religious weddings in Judaism
Conversely, at a recent online consultation by the Law Commission which I attended, a representative of the Board of Deputies said that if the forms of a Jewish wedding were fulfilled at a civil ceremony – the exchange of consent and the groom placing a ring on the bride’s finger – that would ipso facto constitute a valid religious marriage in Jewish law even if the couple did not intend to enter into a religious marriage. Which might not matter at all – unless the parties were observant Jews and found in the future that in order to comply with halacha they needed to obtain a religious divorce as well as a civil one.
7. “Belief” weddings
In Scotland, the first humanist wedding took place in 2005, when celebrants belonging to the Humanist Society of Scotland were given temporary authorisation to solemnise marriages. They were classed as “religious” weddings under Scots marriage law, despite humanists being non-religious. Formal provision for “belief” weddings was made by s.12 Marriage and Civil Partnership (Scotland) Act 2014, by substituting references to “priest of a religious body” in the Marriage (Scotland) Act 1977 with references to “priest or other celebrant of a religious or belief body”.
In Northern Ireland, humanist weddings became legal as a result of persistent pursuit of the issue through the courts by Laura Smyth (alias Lacole) and her fiancé Eunan O’Kane. In Smyth, Re Judicial Review  NICA 25, the Court held that that Article 31 of the Marriage (Northern Ireland) Order 2003 already provided a basis for avoiding discrimination contrary to Articles 9 and 14 ECHR by enabling the appointment of a humanist celebrant without it having to be read down to make it compatible with Convention rights pursuant to s.3 Human Rights Act 1998 (but, evidently, no-one had realised that fact until Morgan LCJ pointed it out).
Currently, however, humanists in England & Wales cannot have a “belief” ceremony, so they have to marry in a civil ceremony – and even if there were already provision for “belief” ceremonies, humanists do not have buildings that they can register.
8. The Law Commission’s proposals
The Commission’s proposals are based on the premise that if there is a rigorous system of preliminaries (as in Scotland), there can be an unrestrictive law in relation to where and how people can get married. The Commission also insists that the officiant need not be the celebrant – but the officiant would be the person responsible for ensuring that the legal provisions were complied with (Russell Sandberg regards this as an important proposal and reckons that it gets lost in the detail of the consultation document).
The Commission’s provisional scheme
- Would provide for online publication of upcoming weddings that will be accessible to the wider community.
- Would allow individuals to give notice of their intended wedding remotely, and to choose the registration district where they have their in-person interview.
- Would allow couples to marry on UK-registered cruise ships with a home port in England or Wales.
- Would provide a framework that could allow non-religious belief organisations and/or independent celebrants to conduct legally binding weddings, should Government decide to enable either or both to do so.
- Would clarify the consequences where a couple has not complied with the required formalities and would ensure that fewer weddings conducted according to religious rites result in a marriage that the law does not recognise at all – the issue in MA v JA.
- Would allow all couples and religious groups (and, if enabled to conduct weddings, non-religious belief groups) to choose the form of their wedding ceremonies, enabling the law to recognise the variety of ceremonies that people use to mark their weddings, including religious ceremonies.
- Would allow couples and religious groups (and, if enabled to conduct weddings, non-religious belief groups) to choose where their weddings take place, without unnecessary restrictions and costs – for example, outdoors or in private homes
In brief, the Commission proposes something very like the current law in Scotland and Northern Ireland
- The process would be triggered by the issue of a schedule as provided for by s.1 Civil Partnerships, Marriages and Deaths (Registration etc) Act 2019 (which has not yet been brought into force): the couple would be legally responsible for returning the signed schedule to the registration service within one week of the ceremony.
- Weddings would be conducted by nominated officiants: religious organisations would be able to nominate officiants to conduct weddings in accordance with their rites, beliefs or rules (and Anglican clergy would be officiants by virtue of their ordination).
- In order to nominate officiants, a religious organisation would have to fall within Lord Toulson’s “description” of a religious body in R (Hodkin) v Registrar-General of Births, Deaths and Marriages  UKSC 77 at :
“a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind’s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system…”
- The requirements for all wedding ceremonies would be the same: there would no longer be special rules governing the form of Anglican, Jewish or Quaker wedding ceremonies.
- There would be no restrictions on the place in which a ceremony could be held.
- All ceremonies would be conducted according to the form chosen by the couple and agreed to by the officiant
- Religious content would be permitted during civil ceremonies, but the ceremony would be required to be identifiable as a civil ceremony rather than as a religious service.
- The main requirement would be that the parties consented to the marriage; without an expression of consent by each of the couple, no marriage would be formed at all.
- Each party would be required to express consent to be married to the other, whether orally or otherwise.
- The marriage would be formed when the parties had expressed their consent.
- The schedule would contain a declaration that the parties had consented or did consent to the marriage, so signing the schedule would constitute consent if the content of the ceremony did not contain an expression of consent.
- Every ceremony would have to be witnessed by two people
The consultation was originally due to close on 3 December – it has since been extended until 4 January.
9. Finally… three thoughts
How does the current law in England & Wales measure up to Article 9 ECHR? It provides special treatment for fewer than 25,000 Quakers and no particular recognition whatsoever for 2.7 million Muslims, 817,000 Hindus and 423,000 Sikhs – see Religion in England and Wales 2011 – which seems completely out of alignment with the demographics of what is now a very religiously-diverse society.
Why is marriage out of doors perceived to be a problem? In June 2014, the Coalition Government issued a consultation, Marriages by Non-Religious Belief Organisations, which was a fairly half-hearted attempt to grapple with an issue that David Cameron’s Conservatives were not at all keen to pursue. Whenever the issue was raised, the reply was almost invariably, “But humanists don’t have buildings to register”, coupled with “But what’s the difference between a humanist wedding and a civil wedding?” Further, one of the criticisms was the proposals might allow couples to get married out of doors instead of in an “approved building”. Fast-forward to 2020, and the Scottish Government’s current advice on weddings during the pandemic, dated 6 October, is that “Marriages and civil partnerships should only take place indoors at private dwellings where it is not possible for them to take place outdoors or in a public place”!
Why is the law so different as between England & Wales and Scotland? My guess – and it’s only a guess – is the influence of the Marriage Act 1753 (aka Lord Hardwicke’s Act), which, except for Jews and Quakers, made it obligatory to marry in the parish church and, as we have seen, was passed to tackle a perceived problem of clandestine marriages. Scotland, on the other hand, had never had an issue with “irregular marriage”. So the English (and Welsh) went down the route of licensing buildings, starting with parish churches and gradually extending to other venues, while the Scots never did so and Northern Ireland later opted for the Scottish model.
Lord Hardwicke’s Act may be long dead but, I reckon, it still casts a very deep shadow.
For a far more expert view, see also two guest posts from the Weddings Team at the Law Commission on the proposals for the reform of weddings law in England & Wales:
- Getting Married: A Consultation Paper on Weddings Law #1
- Getting Married: A Consultation Paper on Weddings Law #2