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Mishcon responds to the Law Commission's Consultation on Marriage

Posted on 18 March 2021

The Law Commission has released a consultation paper aimed at addressing some of the issues that couples face in getting legally married. The paper launched a four-month consultation process to gather information about experiences of getting married in England and Wales and any issues that people have encountered, as well as inviting responses to the proposals made in the paper.

The scope is to examine options for reform, underpinned by principles such as simplicity, equality and respecting the wishes of individuals. It is thought that this will encourage thinking on whether various types of weddings (such as outdoor weddings and interfaith ceremonies) should be legally recognised and the extent to which there should be both civil and religious routes to marriage. Fundamentally, it is hoped that the proposals will provide clarity and certainty about whether a marriage is legally recognised, provide greater protection against forced and sham marriages and at the same time, remove unnecessary regulations to give couples more freedom and choice.

The response was based on the Family department's extensive experience acting in matrimonial disputes, and in particular, those in which the validity of a marriage is challenged. As such, the Firm has focussed its response on the issues surrounding the validity of marriage and the consequential results of failing to comply with the legal requirements for a valid marriage upon separation. The Law Commission has stated that one of its primary aims is to make it clearer to determine whether a marriage is valid, void or non-compliant. This Firm agrees with this, but has commented on a number of the proposals that obscure a clear determination. The significance of this is that non-compliant marriages have no legal effect under English law and therefore neither member of the couple can make a claim for financial relief upon separation.

The key points made by the Firm in response to the Consultation questions were:

  • At the centre of the proposed reforms to marriage law is the switch from the wedding premises being regulated to the officiant conducting the ceremony being regulated. We agree with this change and consider that the presence of an authorised officiant should be strictly upheld to ensure that weddings are legitimate and sufficiently regulated.
  • The Law Commission has suggested that a marriage should be valid if at least one of the couple believes the person officiating the wedding is an authorised officiant. We consider that this introduces a subjective element as to whether the marriage is valid or not, meaning the matter could not be determined without it being addressed through legal proceedings. Instead, we suggest that the parties' knowledge of the authorisation of the officiant is dealt with objectively at the preliminaries stage so that there can be certainty as to how this impacts validity.  
  • All weddings should be preceded by civil preliminaries which apply to all couples. Having both civil and religious preliminaries, along with the various routes to marriage thereafter, can create significant confusion over which requirements need to be met. It also perpetuates the belief that all religious groups can determine their own routes to a legally valid wedding. We find this belief to be at the core of the majority of cases concerning the legal validity of marriage, where one party has been misled into believing their 'religious only' marriage was legal, often leaving them without any financial support on separation.
  • An authorised officiant should attended all weddings and be responsible for ensuring that the legal requirements of the wedding are met. The role of the officiant is of central importance as an independent third party ensuring each member of the couple is making free and informed decisions about their wedding. We also suggest that an officiant also be under a legal duty to ensure that the couple understand the legal rights and obligations they will acquire on marriage and the implications of separation and divorce upon the same.
  • We disagree with the Law Commission's proposal that a failure to sign the marriage schedule should not render a marriage void. The signed schedule is the only documentary evidence of the parties' consent to the marriage and if it is not signed, we suggest that the marriage is void.
  • However, we support the Law Commission's aims to protect against deliberate omissions to return the schedule in order to invalidate the wedding (thereby avoiding the acquisition of financial obligations upon separation). The Government has indicated that it will be legislating to introduce a legal responsibility for the parties to return the schedule to the registration service, and if introduced, we suggest that failure to return the schedule should render the marriage void, on the grounds that they have failed to comply with a step that has been required of them.
  • We agree that the presumption that a couple is married if they have cohabited for a long period of time and are believed to be married by friends and family should be abolished. This will assist in negating the widely-held belief that a common-law marriage is legally recognised and that long-term cohabitation leads to legal rights.

Please click here to read the full response.

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