4 General Changes To Marriage Law
4.1 The draft Marriage and Civil Partnership (Scotland) Bill includes a number of proposed changes to marriage law over and above the introduction of same sex marriage and the religious registration of civil partnerships. Part 2 of the consultation document set out these changes and sought respondents' views on five specific areas. This section of the report presents the range of views expressed on these issues.
Permitted locations for opposite sex and same sex civil marriages
4.2 Under the current legislation:
- Civil marriage ceremonies can take place at a registrar's office or at premises approved by the local authority.
- Civil partnership ceremonies can take place at a registrar's office or at any place agreed by the registrar and the couple, so long as not on religious premises.
4.3 The draft Bill removes references to approved places from the legislation and would make it possible in Scotland to have a civil marriage ceremony at any place agreed by the registrar and the couple. It would still not be possible to have a civil marriage ceremony in religious premises.
Question 2: Do you have any comments on allowing opposite sex and same sex civil marriage ceremonies to take place anywhere agreed between the registrar and the couple, other than religious premises?
4.4 Around 1,200 respondents made a comment at this question. Many respondents simply expressed their broad support or disagreement with the proposals as set out in the consultation document. There were also some comments which: related to religious rather than civil marriage ceremonies; commented on holding civil or religious same sex marriage ceremonies on religious premises; or suggested that the current arrangements already reflected those proposed.
4.5 Respondents who agreed with the proposals tended to make only brief further comments, which focused on the changes seeming sensible and reasonable, creating equivalent arrangements for opposite and same sex ceremonies and broadening out the choices available to couples. Some respondents also stated their support for civil ceremonies not being held on religious premises.
4.6 Other general points made about any future arrangements included that:
- The tradition has long been that marriages should be conducted in public and be easily accessible to witnesses. By weakening the link between marriage ceremonies and designated places there may be a risk that these precautions - which were in place for a good reason, namely to prevent secret marriages - would be less effective. There were associated concerns that this could undermine the Scottish Government's objective of preventing forced or sham marriages.
- The dignity and solemnity of marriage ceremonies must be maintained and the current requirements contained in the Marriage (Approval of Places) (Scotland) Regulations stating the place will not compromise the solemnity and dignity of civil marriage, should be retained for all marriages.
- Couples could be saved time and cost by the removal of the 'approved places' regulations.
4.7 Other respondents suggested a range of changes or clarifications they would wish to see included in any final Bill. These included:
- Clarifying (or, if required, extending) the exclusions relating to religious premises to include all premises owned or occupied principally by any religious or belief body that does not wish to solemnise same sex marriages. Examples given included any premises that a religious body rents as its place of worship, church halls, and halls or spaces that are available for rent within mosques or Islamic centres.
- No-one should be required to allow premises (religious or otherwise) which they own to be used for civil marriage ceremonies. Some, but not all, respondents making this comment connected this 'right to refuse' specifically with same sex marriage ceremonies.
4.8 Some respondents, including a number of groups that either employ or represent registrars, raised specific and practical issues that would need to be considered in taking these proposals forward. Comments made included that, under current arrangements, health and safety issues are reviewed in consultation with services, such as the Police, Fire and Rescue Services and local authority planning, building control and environmental health services. Some form of risk assessment would still be required before a ceremony could be carried out in premises not covered by a licence under other legislation, such as the Licensing (Scotland) Act 2005. To do otherwise would place the registrar and those attending the ceremony at possible risk or could result in a ceremony to being cancelled or abandoned - for example if a health and safety risk became evident just prior to, or during, a ceremony.
4.9 Other issues raised included that: guidance may be required for situations where a couple and the registrar do not agree about the appropriateness of a location for a marriage ceremony; and if an outdoor venue is chosen, there should be a requirement for an alternative indoor venue to be available in the event of inclement weather.
4.10 At present there are two types of marriage ceremony in Scotland, religious and civil. Since 2005, Humanist Society Scotland celebrants have been authorised, on a temporary basis, to solemnise marriage. Although such marriages have been classed as religious under marriage law, the beliefs of organisations such as the Humanists are non-religious.
4.11 The draft Bill proposes the establishment of a third category of marriage ceremony in Scotland, which would be known as a belief ceremony. The arrangements for authorising belief celebrants would be along the same lines as those for authorising religious celebrants.
Question 3: Do you have any comments on establishing belief ceremonies as a third type of ceremony, alongside religious and civil, for getting married in Scotland?
4.12 Around 1,200 respondents made a comment at this question.
4.13 Those that agreed with the introduction of a third type of ceremony gave a range of reasons for doing so. These included that the proposal simply seemed sensible, would reflect the reality of the range of ceremonies already available and would remove the anomaly of belief ceremonies being mis-labelled as religious in nature. Some respondents also noted that the change would allow for an appropriate and fair level of recognition to be given to belief bodies that undertake marriage ceremonies.
4.14 However, a number of other respondents disagreed, with some suggesting that this proposal is indicative of a wider secularist agenda and a determination to undermine the role of religion and religious groups in Scottish society. Other reasons given for disagreeing with the introduction of a third type of marriage ceremony included:
- The proposals, and the arrangements that would result, seem unduly complicated and are likely to be confusing for the general public.
- The proposals create a false dichotomy between religion and belief, not least because there is no clear-cut difference between the two concepts. If this third category were created, it would be necessary to define the difference between 'religion' and 'belief', and also to distinguish between 'belief', 'ideology' and 'world view'.
- The need for those who do not hold religious beliefs to have a particular and distinct type of ceremony is not clear. A civil ceremony seems to be both appropriate and sufficient.
- The very wide potential definition of 'belief' could lead to a considerable range of less-than-serious organisations being authorised as belief bodies, with the ceremonies that could result undermining the sanctity of marriage.
4.15 Other points raised by those agreeing or disagreeing with the proposals, included:
- A double designation of 'civil' and 'religious or belief' might in principle be better than having three categories. It could also be argued that non-religious belief ceremonies are effectively civil ones.
- The third type of ceremonies might be better described as something other than 'belief' ceremonies.
- Will it be necessary to ensure that belief ceremonies are 'religion free'?
- A fourth category of 'distinctly different' ceremonies should be considered.
- Is there sufficient demand for belief ceremonies to warrant these apparently quite complicated changes?
- The same standards should be applied to belief ceremonies as to civil and religious ceremonies. For example, celebrants or bodies authorised to solemnise belief marriages should be subject to regulatory standards issued and managed by National Records of Scotland.
4.16 Finally, a number of respondents raised what was to become a recurrent theme throughout this consultation - namely that marriage should be a civil function, undertaken through a civil ceremony, with any subsequent ceremonies between the couple and the religious or belief body and of no interest to the state. In this case, it was suggested that it would be preferable to have civil marriage authorised by the public authorities, and to leave religious or belief ceremonies as non-legal matters for religious or belief groups to perform according to their own commitments, institutions and practices.
Church of Scotland deacons
4.17 The Marriage (Scotland) Act 1977 provides that opposite sex marriages may be solemnised by ministers of the Church of Scotland. Church of Scotland deacons have been given temporary authorisation to solemnise marriage since March 2006. The draft Bill would amend the 1977 Act, so that Church of Scotland deacons, like ministers, would be authorised automatically to solemnise opposite sex marriage.
Question 4: Do you have any comments on amending section 8 of the Marriage (Scotland) Act 1977 so that Church of Scotland deacons are authorised automatically to solemnise opposite sex marriage?
4.18 Fewer respondents (around 1,050) commented at this question than at many others within the consultation. Even amongst those who did comment, many simply stated that this is a decision either for the Church of Scotland alone, or for the Church of Scotland and the Scottish Government and otherwise declined to comment further. The Church of Scotland welcomed the provision in its response to this consultation.
4.19 Amongst those others who did comment, a common view was that Church of Scotland ministers and other officials should simply be governed by the same rules as any other religious body. This was sometimes coupled with a comment about the particular role and status afforded to the Church of Scotland within Scottish society and occasionally with a statement of opposition to the concept of an established church.
4.20 Other comments made included that:
- Within the Christian faith, marriages should only be solemnised by ministers and hence Church of Scotland deacons should not be authorised to solemnise marriage.
- The proposals demonstrate the Scottish Government's lack of understanding of the roles and responsibilities of office holders within the Church of Scotland. If any other group were to be automatically authorised to undertake opposite sex marriages, Church elders would be the more appropriate.
- The proposal seems reasonable as long as deacons receive the appropriate training to carry out the function.
- Only those deacons also willing to solemnise same sex marriage should be automatically authorised to solemnise opposite sex marriage.
4.21 To ensure the continued reputation of Scottish marriage ceremonies, the draft Bill proposes the introduction of tests which a religious or belief body would have to meet before the body's celebrants could be authorised to solemnise a marriage or register a civil partnership. The tests would apply to all religious and belief bodies: prescribed by regulations to solemnise marriage or register a civil partnership; which put forward celebrants to the Registrar General to be authorised; or which put forward celebrants to be authorised on a temporary basis. They would not apply to the Church of Scotland since their ministers are automatically authorised to solemnise opposite sex marriage under the Marriage (Scotland) Act 1977.
4.22 The test would be laid down by regulations, with the draft Bill giving the powers for the regulations to be made. Although further consultation would be undertaken in developing the tests, the type of tests which might be laid down are:
- The religious or belief body and their celebrants would not be allowed to solemnise marriages or register civil partnerships for profit or gain.
- The religious or belief body would have to show that their celebrants were trained in areas such as tackling forced marriage and sham marriage.
- The religious or belief body would have to show that their celebrants discuss the forthcoming marriage or civil partnership with the couple.
- The religious or belief body would have to show that their celebrants have a track record in carrying out relevant ceremonies, such as marriages recognised by the state, marriages or blessings not recognised by the state, funerals and baptisms.
Question 5: Do you have any comments on establishing tests that a religious or belief body must meet before its celebrants can be authorised to solemnise marriage or religious civil partnership?
4.23 Around 1,200 respondents commented at this question, including those respondents who submitted a standard response or who drew on the suggested text provided by one of the campaigns. Some respondents noted that they look forward to receiving more detail about the proposed tests or felt unable to make substantive comment until they had seen more detail.
4.24 Respondents who broadly agreed with the proposals tended to make only limited comments, which focused on the introduction of tests seeming to be reasonable and sensible. Those who made more substantive comments often gave their particular support for any contributions that could be made to tackling forced or sham marriages. Other areas in which respondents suggested tests could make a positive contribution included ensuring that all celebrants:
- Carry out marriage preparation with couples.
- Have undergone and, if appropriate, continue to undergo, the training that allows them to carry out their role to a high standard. Again, some respondents made specific reference to training around forced and sham marriages.
4.25 Although a number of respondents welcomed the emphasis being placed on celebrants receiving awareness training around sham and forced marriages, there were also some concerns that this should not impose overly onerous training obligations on bodies, some of which already have the relevant guidance in place, or for which forced or sham marriage may be less of an issue. One suggestion was that religious or belief bodies could be given access to the same materials that are already used for training registrars, and that registrars could actually carry out such training and examination as the Registrar General requires.
4.26 Another concern was the suggested requirement for a track record in carrying out ceremonies. Respondents suggested that a range of bodies could be unreasonably excluded by such a provision. Examples given included bodies that have not until now, but would now wish, to solemnise marriage or undertake civil partnership ceremonies. The impact on smaller religious or belief bodies, including those that may currently operate in other parts of the UK but are hoping to increase their presence in Scotland, was also raised. The particular issue here was whether a track record of carrying out ceremonies in other jurisdictions would be recognised in Scotland. Other points or queries raised about the track record test included the kind of evidence which would be required to demonstrate a track record in carrying out ceremonies.
4.27 Further views expressed by those with concerns about the proposals included the following:
- The tests should not impose requirements beyond the current position or be too restrictive or onerous.
- The tests should be left to each religious or belief body to decide.
- The Church of Scotland should not be exempted from the tests.
- Bodies which are currently prescribed under regulations should not have to reapply and meet the new tests.
- The tests should only apply to new religions or groups and not to any of the established world religions.
- It will be important that the tests are not in any way framed to discriminate against bodies that do not wish to solemnise same sex marriages.
- It is not the business of the state to dictate the type and level of pastoral care religious or belief bodies should provide to couples.
- It is unreasonable to exclude the possibility of celebrants or their bodies being paid in order to conduct ceremonies.
4.28 On this latter point, some respondents sought further clarification from the Scottish Government as to what is meant by celebrants not being able to solemnise marriages or register civil partnerships for 'profit or gain'. Further points raised included the following:
- It is standard practice for a celebrant to charge a professional fee for officiating at a marriage ceremony and also for charges to be made for using the premises in which the ceremony is held. To forbid such fees would be unreasonable. An alternative might be that the celebrant must publicise their charges for wedding ceremonies, with the taking of additional financial or other incentives being subject to legal penalties.
- The religious, professional or belief body to which a celebrant belongs should be a not-for-profit group, although charitable status should not be a requirement.
- Celebrants should not be a direct employee of a commercial organisation or third party. Ensuring that third party commercial interests are removed would reduce the risk of marriages being promoted or undertaken solely "for profit or gain". This rule would ensure that the professional, belief or religious bodies would be in a position to monitor directly the quality and standards of its celebrants' work without any influence from third parties.
- Conducting marriage or civil partnership ceremonies could be a vital source of income for some celebrants. If they were unable to receive some remuneration they might be unable to carry on in that role. A small number of those raising this issue identified themselves as being celebrants.
- Celebrants may spend significant time, over and above conducting the ceremony itself, in carrying out work associated with the ceremony. An example might be writing the ceremony for bodies with no set liturgy. It would not be unreasonable for them to be able to make some charge for their time.
- It is common practice in some religious cultures for couples to make a donation to the funds of the church or other religious group of the celebrant who is solemnising their marriage. Any tests should not prohibit this practice.
- In any case, monitoring compliance with a test such as this is likely to be difficult, if not impossible.
4.29 Finally, respondents suggested other areas that might be covered by tests or other activities that would be required to support any tests that are introduced. Suggestions included:
- National guidance may be required to ensure consistency in the application of the tests across Scotland.
- The tests could include requirements for a body to reinvest a portion of any revenues earned from carrying out ceremonies in the development of professional training and standards, have a proper programme of celebrant recruitment, training and registration, and have complaints procedures in place.
- Tests for Islamic ceremonies, which have their own unique terms and conditions, should be developed in consultation with well established, recognised and reputable mosques and imams.
Marriage by cohabitation with habit and repute
4.30 As the consultation document notes, Scotland has a long tradition of 'irregular' marriages - irregular marriages being those not formally solemnised by a registrar or a celebrant but which could still be registered following a court order. The only type of irregular marriage that remains in Scotland is that of marriage by cohabitation with habit and repute. The only remaining marriages by cohabitation with habit and repute are those that started before May 2006 or those where a couple believe themselves to have been married overseas but it transpires, after one of them dies, that the marriage was not valid.
4.31 There are no plans to make any changes to the arrangements applying to pre-2006 marriages. However, the draft Bill would repeal those sections of the Family Law (Scotland) Act 2006 which allowed for marriage by cohabitation with habit and repute when a couple erroneously believed themselves to be married overseas. Section 29 of the Act allows applications for financial provision to be made to the courts by the survivor of a cohabiting relationship where one of the cohabitants dies without leaving a will.
Question 6: Do you have any comments on abolishing the concept of marriage by cohabitation with habit and repute where a couple erroneously believed themselves to be married overseas but it transpired after one of them died that the marriage was not valid?
4.32 Only around 750 respondents commented at this question, with some of these respondents having no particular view other than that any changes that are made should apply equally to opposite and same sex marriages. Other general comments made included support for the principle of 'tidying up' out of date legislation and making the arrangements going forward as clear and straightforward as possible.
4.33 Those who disagreed with the proposals sometimes gave no further explanation of their position. Those who did provide further detail often saw the proposals as harsh and as having the potential to cause considerable upset. In particular, some respondents felt that 're-writing' someone's history and telling them that they had not been married after all just as they had lost the partner they thought to be their spouse would be unnecessary and inhumane.
4.34 In addition, some respondents felt that putting a bereaved spouse in a situation where they had to apply to the courts in order to receive payment from their partner's estate would introduce further stress and anxiety at what is likely to be one of the most distressing periods of anyone's life. It was also noted that rights under section 29 are not automatic, so whether an award is made, and the amount of that award, is at the discretion of the court - in other words it lacks the certainty of the surviving spouse's rights in intestacy.
4.35 Other concerns about relying on the section 29 provisions included:
- As any award is discretionary, it can make it harder for a surviving cohabitant to make a claim when that claim is in competition with the rights of children. Based on current legislation, a claim under section 29 where the marriage is invalid would not have any priority over legal rights of surviving children.
- The provisions are particularly ill-suited to addressing difficulties in cases with an overseas aspect as section 29 has just been held to be inapplicable to heritable property held outside Scotland.
- A claim under section 29 must be brought within 6 months of a death and there is no possibility of extending that period. By the time a person realises that their marriage is not valid, the 6 months may well have expired. This already presents difficulties in cases when confirmation of an executor has been delayed, or when there has been a late challenge to a will, potentially defeating a valid right to claim.
4.36 Whilst some respondents who supported the change saw it as a probably overdue rationalisation of Scotland's marriage legislation, others suggested that, far from being an anachronism, this legislation could be increasingly important given the numbers of couples who currently go abroad to get married. This led to concerns that more couples than anticipated could be affected by these changes.
4.37 An alternative point of view was that, should the Scottish Government introduce same sex marriage, many Christians may refuse to be registered and have any part in marriage as re-defined by the state. Rather, they would enter into a biblical marriage as solemnised, recognised and registered by the Church, with Church courts providing certificates of marriage. Given this scenario, the concept of marriage by cohabitation with habit and repute would be the best way for the state to recognise the validity of such biblical marriages, and hence its retention would seem sensible.
4.38 Finally, a number of respondents suggested that this issue highlights the need to educate the wider public about marriage and civil partnership law more generally, and the relationship between law and practice in other countries and that of Scotland in particular. Specific suggestions made included providing information to migrants about which marriages are, and are not, recognised in Scots Law and countering the popular misconception that common law marriage is a legally accepted arrangement in Scotland.
Email: Alison Stout
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