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Restrictive and outdated marriage law in need of reform

A modern law should allow for greater choice while also guard against sham marriages

17 December 2015

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The law governing how and where couples in England and Wales can marry is badly in need of reform, the Law Commission has found, stating that a modern law of marriage should allow couples to get married in the way they want and in a place meaningful to them.

The conclusions come following a request from government to consider whether the law provides a fair and coherent legal framework for enabling people to marry, and to identify areas that might benefit from reform.

In a scoping paper published today, the commission found the existing law is unnecessarily restrictive, outdated, and fails to serve a modern diverse society.

Professor Nicholas Hopkins, law commissioner for property, family, and trust law, commented: 'The law of marriage in England and Wales is now out of date, inconsistent, and overly restrictive. Our modern society deserves a clearer set of rules that gives all couples greater choice and certainty, while providing protection from the abuses involved in sham and forced marriage.'

The solution lies in full-scale reform of this area of law, explained the report. However, at this stage, the commission is not making specific proposals for how the law should be reformed. Instead, the paper outlines the questions that would need to be examined to achieve a modern law.

Current legislation has become confusing and inconsistent, having been designed to meet the needs of the early 19th century. It does not cater adequately for the many faiths and non-religious beliefs that make up 21st century society.

In addition, where and how marriages can take place is tightly regulated. With certain exceptions, religious ceremonies must take place within a registered place of religious worship. Many people would, however, like the opportunity to marry somewhere more personal or meaningful to them, including outdoors, according to the commission.

There is also a lack of clarity in the existing law, which can make it difficult to know whether a valid marriage has taken place. This uncertainty has led to some people finding their marriage is not legally recognised, often at a point of crisis, such as separation or bereavement.

The commission said it recognises that the law needs to protect the interests of the state and individuals in preventing sham and forced marriages. However, within that legal framework, the commission considered it important for people to be able to marry in accordance with their wishes and beliefs.

John van der Luit-Drummond is deputy editor for Solicitors Journal | @JvdLD

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Marriage & Civil partnership