Marriage reform or marriage risk?

Last month, the Ministry of Justice announced that it would be looking to significantly reform the laws specifying where and how people can get married for it to be a valid legally binding marriage. The government says it will be a “boost to the economy” and means “marriage law reflects modern Britain”.

The proposed changes will allow weddings to take place in a wider variety of locations, including outdoor venues and more non-traditional settings, by shifting the regulation from the wedding buildings onto the officiants holding them and providing couples with greater flexibility and choice over their wedding venue. Importantly, the proposed changes would mean that the law would allow Sikh, Muslim, Buddhist and Hindu weddings to be legally binding ceremonies, as well as allowing non-religious ceremonies, such as Humanist weddings (that are already recognised in Wales and Scotland), to be legally binding.

While the changes do reflect a multi-cultural Britain, a much welcome change to a current system that only recognises Christian, Jewish and Quaker religious ceremonies (although other religious buildings could be used if registered) as legally binding marriages, the expansion of the locations of legally enforceable weddings raises a number of concerns and queries, that will need to be considered if these proposals are to become law.

Risks

The regulation over what constitutes a valid marriage, particularly over the location, is there in part to protect individuals from sham weddings, forced marriage, or other forms of exploitation. By relaxing these rules, will there be a corresponding increase in the instances of exploitation through marriage? Whilst the proposed reform has been sold as a boost to growth, the Government’s first obligation is to the people it governs, which they may be placing at further risk by relaxing these rules. 

Not only does it leave the door open for further exploitation of individuals, but with serious tax shake ups from the current Government, with more to come on the not-so-distant horizon, many people are already considering using the tax breaks afforded by marriage to their financial advantage. The key tax break for married couples is, undoubtedly, the exemption to inheritance tax for transfers between spouses. Therefore, it may be that the reforms have the unintended outcome of encouraging “marriages of convenience”, so that friends, colleagues or even distant cousins consider “tying the knot” to avoid a massive inheritance tax bill. If you are relaxing the rules for a legally binding marriage, are you incentivising people to explore this as an option? So, whilst the reforms are not only opening the door to exploiting individuals, but are you also exploiting the concept of a marriage altogether? The same argument applies for weddings undertaken for immigration purposes.  

As with any legislative overhaul, there will inevitably be a period of miscomprehension or misapplication of the new law. If the reforms were implemented, the already stretched family courts (that the President of the Family Division recently announced are subject to further cuts to their funding) could see the courts filling up with litigation about whether the marriage the parties have entered into is even valid in the first place. While you might agree that basing our modern marriage law on a piece of legislation from 1949 is not fit for purpose in the modern age, is now the right time to be changing it? Reforming Legal Aid or matrimonial finance, have both been on the political menu for areas to change in family law that could both be aimed at bringing down the number of cases that reach court. Once the strain on the system has been addressed, perhaps then would be a more opportune time to make fundamental changes to the definition of what constitutes a marriage. 

Furthermore, could a relaxation in these rules, and the 3% increase in weddings that the Ministry of Justice are anticipating, mean more people are entering into marriage without knowledge of its financial consequences? Whilst not a romantic analysis, marriage is one of the most financially burdensome contracts anyone could ever sign. Under current matrimonial finance law, when entering a marriage, you could be signing over 50% of your current and likely any future assets (unless you have a nuptial agreement in place). If there is a more relaxed approach to how and when you get married, are you opening the door to more people marrying who would not have otherwise, leading to a 3% increase in divorce rates? Cynically, are the Ministry of Justice factoring that in, because whilst more weddings would boost the economy, so would more divorce?

Finally, the reforms assume that the reason the additional 3% of couples would tie the knot is because they could do it in their own backyards. But if you asked most couples about the reason they are deciding not to wed are much more nuanced and complex. Societal attitudes, access to the housing market, the rising cost of living, and the rejection of antiquated traditions (that some would argue are entrenched in patriarchal norms) are much larger considerations for couples in modern Britain, rather than the location of the wedding itself. Even the tax breaks afforded for married couples would not incentivise most people. Taking inheritance tax as an example, a vast majority of estates would fall beneath the £325,000 nil rate band, even without the spousal exemption. You do not just have to take our word for it, according to HMRC, in 2022 to 2023 the spousal exemption was only used on 5,070 estates that fell over the nil rate band (bearing in mind there were 581,363 deaths in England and Wales in 2023). To make a marked difference on marriage rates, the Government would instead need to look at serious economic and societal change.

Next steps

In their press release, the Ministry of Justice promises to undertake a consultation on this area next year, so now is time to be considering these risks, and how they can be addressed in any proposed legislation. However, even the fact that the Marriage Act is from 1949 tells the story of how often family law is prioritised in the political agenda in any meaningful way, so even after the consultation, the likelihood of the reforms being implemented is slim.

We will, however, continue to watch this space with interest.