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Getting Married: The Origins of the Current Law and Its Problems

Published online by Cambridge University Press:  23 August 2021

Rebecca Probert
Rebecca Probert*
Affiliation:
Professor of Law, University of Exeter
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Abstract

The laws regulating how and where couples can get married – as opposed to who they can marry – are widely recognised as being in need of reform. The basic structure of the current law dates back to the Marriage Act 1836, and many elements – the requirements for Anglican weddings and differential treatment of Jewish and Quaker weddings – have a still longer history. Despite the law's longevity, many of the current requirements have their origins in past panics, tactical compromises or quick fixes. While the laws enacted in 1836 were shaped by their historical context, even then the legal framework did not fit how couples wanted to marry. This paper traces the history of marriage law reform to explain how we ended up with a set of laws that are highly restrictive, inconsistent and complex, and why reform is needed.

Keywords

marriageweddingsreform
Type
Articles
Information
Ecclesiastical Law Journal , Volume 23 , Issue 3 , September 2021 , pp. 255 - 266
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press on behalf of Ecclesiastical Law Society

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Footnotes

1

This article originated in a presentation to the Ecclesiastical Law Society's conference on ‘The solemnization of matrimony: past, present and future’. The arguments presented here are developed further in R Probert, Tying the Knot: the formation of marriage, 1836–2020 (Cambridge, 2021).

References

2 See, eg, Law Commission, Getting Married: a scoping paper (2015); Law Commission, Getting Married: a consultation paper on weddings law, Consultation Paper 247 (2020); Akhtar, R, Nash, P and Probert, R (eds), Cohabitation and Religious Marriage: status, similarities and solutions (Bristol, 2020)Google Scholar; Sandberg, R, Religion and Marriage Law: the need for reform (Bristol, 2021)CrossRefGoogle Scholar.

3 See Probert, R, Marriage Law and Practice in the Long Eighteenth Century: a reassessment (Cambridge, 2009)CrossRefGoogle Scholar.

4 O Anderson, ‘The incidence of civil marriage in Victorian England and Wales’, (1975) 69 Past & Present 50–87; S Parker, Informal Marriage, Cohabitation and the Law, 1750–1989 (Basingstoke, 1990); S Cretney, Family Law in the Twentieth Century: a history (Oxford, 2003).

5 Probert, Marriage Law and Practice, ch 6.

6 Marriage Act 1823, s 22.

7 A Bill to relieve certain Persons dissenting from the Church of England, from some parts of the Ceremony required by Law in the celebration of Marriages, 1819; A Bill to alter and amend certain Parts of … The Marriage Act, affecting certain Dissenters, 1822.

8 Clandestine Marriages Act 1753, s 18; Marriage Act 1823, s 31.

9 Lindo v Belisario (1796) 1 Hag Con (App) 7; 161 ER 636. The issue of Quaker marriages was considered in a case of criminal conversation in Deane v Thomas (1829) M & M 361; 173 ER 1189. It was decided that, for this purpose, it would be sufficient to prove a marriage according to the forms of the Society of Friends, but this fell short of a decision on how validity would be tested.

10 A Bill … for granting Relief to His Majesty's Subjects, not being members of the Church of England, in relation to the solemnization of matrimony, 1823.

11 W Kennett, ‘The place of worship in solemnization of a marriage’, (2015) 30:2 Journal of Law and Religion 260–294.

12 HL Deb 12 June 1823, vol 9, col 970.

13 As demonstrated by the fate of the 1824 and 1825 Bills ‘for granting relief to certain Persons dissenting from the Church of England, in relation to the Solemnization of Marriages’.

14 A Bill… for granting Relief to certain Persons dissenting from the Church of England, in respect of the Mode of celebrating Marriages, 1827.

15 M Cullen, ‘The making of the Civil Registration Act of 1836’, (1974) 25 Journal of Ecclesiastical History 39–59.

16 The Poor Law Amendment Act 1834 had made provision for parishes to be united into larger districts known as unions for the purposes of the administration of relief, with each union having its own workhouse, board of guardians and a number of officers.

17 Marriage Act 1836, s 4.

18 Ibid, s 20.

19 Ibid, s 21.

20 See, eg, Parker, Informal Marriage, p 58.

21 Probert, Tying the Knot, ch 2.

22 Births and Deaths Registration Act 1836, s 7.

23 M Rose, ‘The Anti-Poor Law movement in the north of England’, (1966) 1:1 Northern History 70–91; A Brundage, The Making of the New Poor Law, 1832–1839: the politics of inquiry, enactment and implementation, 1832–39 (London, 1978), ch 3.

24 Marriage Act 1836, ss 20 and 21.

25 Petitions presented by 129 Independents from Derby (Second Report of the Select Committee, 18 February 1836, appendix, p 16), 324 Baptists from Nottingham and 4,793 Dissenters from Essex (Fourth Report, 8 March 1836, appendix, p 40).

26 Marriage Act 1836, s 6.

27 Births and Deaths Registration Act 1837, s 24.

28 Marriage Act 1836, s 4; Births and Deaths Registration Act 1836, s 31.

29 Marriage Act 1836, s 2; Births and Deaths Registration Act 1836, s 30.

30 Probert, Tying the Knot, ch 3.

31 Marriage and Registration Act 1856, s 22.

32 Marriage and Registration Act 1856, s 4.

33 The second clergyman was acquitted on the basis that, since the couple were already married, he committed no offence in conducting a ceremony for them without banns or licence.

34 Marriage and Registration Act 1856, s 12.

35 General Register Office, Content of Civil Marriage Ceremonies: a consultation document on proposed changes to regulation and guidance to registration officers (June 2005), para 4.

36 Marriage Act 1898, s 12.

37 Church of England Assembly (Powers) Act 1919. See, eg, Marriage Measure 1930; Banns of Marriage Measure 1934; Marriage (Licensing of Chapels) Measure 1938; Diocesan Reorganisation Committees Measure 1941.

38 T Glyn Watkin, ‘Vestiges of establishment: the ecclesiastical and canon law of the Church in Wales’, (1990) 2 Ecc LJ 110–115; N Roberts, ‘The historical background to the Marriage (Wales) Act 2010’, (2011) 13 Ecc LJ 39–56.

39 Marriages Validity (Provisional Orders) Act 1924.

40 St John, Shotley Order: Provisional Orders (Marriages) Confirmation Act 1937.

41 Marriage Act 1949, s 67.

42 Marriage (Secretaries of Synagogues) Act 1959.

43 Marriage Acts Amendment Act 1958; Marriage (Registration of Buildings) Act 1990.

44 Sharing of Church Buildings Act 1969.

45 Marriage (Registrar General's Licence) Act 1970.

46 Haskey, J, ‘Marriages in “approved premises” in England and Wales: the impact of the 1994 Marriage Act’, (1998) 93 Population Trends 38–52Google Scholar; Wilson, B and Smallwood, S, ‘Understanding recent trends in marriage’, (2007) 128 Population Trends 24–32Google Scholar.

47 Sandberg, R, ‘Marital problems: the Law Commission's “Getting married” Consultation Paper and non-qualifying wedding ceremonies’, (2021) 23 Ecc LJ 140–159Google Scholar; Hopkins, N, Welch, E and Hussaini, S, ‘The Law Commission's project on weddings law reform’, (2021) 23 Ecc LJ 267–279Google Scholar.