MARRIAGE law is on the move. This accessible and affordable volume is, therefore, timely. Professor Russell Sandberg, an accomplished scholar and astute commentator on the interface between law and religion, adroitly surfs the wave created by the Law Commission’s current programme of reform.
The Marriage Act 1949 is freighted with the culture and assumptions of a former era, and its shortcomings have become increasingly obvious. While the focus of this book is the future direction of travel, its utility lies in its demystification of the existing law and in its nuanced analysis of the debate so far.
Much of the current law is anomalous and anachronistic. The Church of England, as a state Church, carries the burdensome obligation to solemnise the matrimony of those of all faiths and none in its parish churches, according to its liturgical texts. A similar obligation exists in Wales as a vestige of the yoke of establishment that it shook off a century ago.
But many other religious nuptials, particularly in the Islamic tradition, are purely ceremonial and have no effect as a matter of English law, leaving the couple without the rights that they would otherwise enjoy in the family courts. Though they believe themselves to be married in the eyes of their families and their faith, they are mere cohabitants. Provisions such as these, which are discriminatory on the grounds of religion, are increasingly insupportable in a pluralist society that promotes equality.
Then there are non-religious non-marriages, confected by belief organisations such as Humanists UK or by independent celebrants. These ceremonies currently have no status under the law of England and Wales, and an additional wedding, either at a register office or in a qualifying place of worship, is required in order to give legal effect to the relationship.
the country churchmanMid-20th-century establishment personified, as a young couple arrive at their Anglican parish priest’s door to ask for the reading of banns.
Finally, the “common law marriage” myth is addressed. Eschewing the suggestion that education is the answer, Sandberg cites the alarming statistic that 46% of the population agreed with the proposition that couples who live together acquire the same rights as married couples. On the breakdown of an unmarried relationship, the family court has no jurisdiction to apportion assets in a fair and equitable manner. Instead, legal ownership is determined on longstanding principles of the law of property and trusts. While a change in the law would be bold, a similar enactment in Scotland a few years ago has proved both workable and effective.
There is also the issue of civil partnerships and same sex-marriages hurriedly developed in recent years and creating, as the author describes it, “a welcome but bewilderingly complex legal framework”, compromised by the long shadow of a system still tethered to its religious origins.
The recent decision of the Church in Wales to bless gay relationships adds impetus to the need for reform. It is questionable for how long the Church of England can persist with its privileged status in the marriage market, while its policy of discrimination on the grounds of sexual orientation remains.
Wholesale revision is undoubtedly needed, as the piecemeal and incremental developments of the past seventy years have left a complex and confusing muddle. Sandberg’s proposal for an Intimate Adult Relationships Bill may not be the solution that finds favour with the Law Commission, but his case for reform is powerful and compelling. Doing nothing is not an option.
The Worshipful Mark Hill QC is Honorary Professor at the Centre for Law and Religion, Cardiff University, and is Chancellor of the dioceses of Chichester, Leeds, and Europe.
Religion and Marriage Law: The need for reform
Bristol University Press £40