Family law consultation: draft impact assessments

Potential reform of the minimum age of marriage and civil partnership - Fairer Scotland Duty Assessment

Title of policy/practice/ strategy/legislation etc.

Potential reform of the minimum age of marriage and civil partnership

Lead Minister

Minister for Victims and Community Safety

Directorate Division team

Directorate for Justice, Civil Law and Legal System Division, Family Law Policy Unit

Stage 1: Planning

Aim

The Scottish Government is consulting on whether we should bring forward legislation to:

• raise the minimum age of marriage and civil partnership in Scotland from 16 to 18; and
• extend the forced marriage and forced civil partnership criminal offence so that any conduct causing a person under 18 to marry or enter a civil partnership would be a criminal offence including where there is no evidence of coercion.

This is a draft Fairer Scotland Duty Assessment prepared to accompany and help inform the Scottish Government’s consultation. Implementing the recommended reforms would require a Bill in the Scottish Parliament. This would be a strategic decision.

The consultation will gather views and evidence before the Scottish Ministers reach a decision on their next steps.

Who would the potential reforms affect?

We think that the potential reforms being considered would affect:

• 16- and 17-year-olds who would no longer be able to marry or enter a civil partnership;
• local authority registrars who register marriages and civil partnerships and who can conduct civil marriage ceremonies and civil partnerships;
• religious or belief celebrants who solemnise marriages and register civil partnerships;
• National Records of Scotland who administer the system of civil registration
• if there is a change to the criminal law of forced marriage, this could impact on the parents of under 18s, their wider family and communities;
• if there is a change to the criminal law of forced marriage, Police Scotland, the Crown Office and Procurator Fiscal Service, the Scottish Courts and Tribunals Service and the judiciary.

What main outcomes would reform deliver?

The Scottish Government has not decided whether to legislate. Whilst very few 16- and 17-year-olds marry or register a civil partnership in Scotland each year (in 2022 out of over 30,000 marriages, 18 involved a party or parties aged 16 or 17), we are aware of the concluding observation of the United Nations Committee on the Rights of the Child in 2023 recommending that we should prohibit all marriages of under 18s.

Bodies in favour of the proposed reform have suggested that raising the minimum age of marriage and civil partnership to 18 would increase safeguards for 16- and 17-year-olds. A registered marriage or civil partnership is a potential life-long commitment from which legal and financial consequences arise.

Legislation in England and Wales to raise the minimum age of marriage and civil partnership there to 18 expanded the criminal law of forced marriage. This means that, under section 121 of the Anti-social Behaviour, Crime and Policing Act 2014, any conduct carried out for the purpose of causing a person under 18 who is habitually resident in England and Wales to marry is illegal whether or not the conduct amounts to violence, threats or any other form of coercion.

What is the timeframe for completing the Fairer Scotland Duty Assessment?

Once responses to the consultation are analysed and the Scottish Government has considered our response, we will update our draft impact assessments, including this draft FSDA.

Who else is involved in the assessment and what are their roles?

This draft FSDA has involved officials from other teams, including Children’s Rights Reporting team, Equality Unit Violence against Women and Girls team and Justice Analytical Services.

Stage 2: Evidence

What does the evidence suggest about existing inequalities of outcome, caused by socio-economic disadvantage in this policy area?

Groups supportive of reform of the minimum age of marriage and civil partnership note international evidence that the marriage of under 18s is often associated with leaving education early and limited career and vocational opportunities, among other potential impacts.

Our Poverty and Income Inequality in Scotland 2020-23 Official Statistics publication notes that:

• “In the last 15 years, the youngest households (where the household heads aged 16-24) have been consistently more likely to be in relative poverty compared to older households. … in 2020-23, 39% of people in households in this group were in relative poverty after housing costs.”

It also notes that relative poverty rates:

• “have been historically highest for single mothers but have gradually declined to be comparable with other single household types. In the most recent period, poverty rates were highest single childless men (33%, 90,000). The poverty rate for single childless women and single mothers was the same at (29%).”

What does the evidence suggest about any possible impacts of the policy/programme/decision on those inequalities of outcome?

The number of marriages involving a 16- or 17-year-old party has generally been reducing over time, and the number of marriages more generally has been reducing.

In 2022 there were 18 instances of marriages in Scotland where one or both parties were 16 or 17. That year there were over 30,000 marriages. This can be compared with 2012, when there were 56 recorded marriages where at least one party was under 18, out of over 30,000 marriages.

Between 2005 and 2022 there were 4 civil partnerships registered where one or both parties were 16 or 17. There was one civil partnership in 2022 where both parties were under 18.

The data on registered marriages indicates that girls are much more likely to marry at 16 or 17 than boys. Our draft EQIA notes that in the ten years between 2010 and 2020, 341 girls aged 16 or 17 entered a registered marriage, compared with 60 boys of the same ages.

In Scotland, young people may leave school at 16 and are not required to remain in education or training, although many do. Statistics for attainment of 2022-23 school leavers can be seen here.

Overall, it appears that to the extent there may be an association between marriage and socio-economic disadvantage, there may be a benefit for women and girls in reform of the minimum age of marriage. However, the low number of registered marriages now involving under 18s is unlikely to be contributing to any measurable degree to the current socio-economic situation of younger households in Scotland or to the numbers of those who leave school at 16 and the scope for affecting socio-economic change for young people or women and girls through the reform in contemplation is very limited.

Is there any evidence that suggests alternative approaches to the policy/programme/decision?

We do not consider there are alternative approaches to the minimum age of marriage and civil partnership which might better address poorer socio-economic outcomes for young people. The present experience of poverty among young women or younger households appears to be rooted in causes other than it being possible to marry or civilly partner when aged 16 or 17.

What key evidence gaps are there?

We do not have evidence regarding the causal relationship, if any in Scotland, between socio-economic outcomes for young people and registered marriages involving a 16- or 17-year-old. Given the scope of the potential reforms under consideration, we do not consider it would be proportionate to identify or gather evidence in this area.

How could you involve communities of interest (including those with lived experience of poverty and disadvantage) in this process?

In advance of the Scottish Ministers’ decision to publicly consult, we have spoken informally to around 30 organisations and individuals representing a number of interests including ending forced marriage and violence against women and girls.

We intend to gather more views and evidence through the formal consultation process from a wide range of potentially interested groups and individuals, including young people, and from those in communities where there may be a risk of forced marriage.

Stage 3: Assessment and improvement

What options could strengthen this programme/policy/decision in terms of its impacts on inequalities of outcome?

Stages 1 and 2 of this draft FSDA have not identified options for strengthening the potential reforms being considered in terms of their impact on inequalities of outcome.

We will analyse the responses to the consultation and any other evidence gathered before reaching a decision on our next steps and updating this draft FSDA.

What are the pros and cons of these options?

Not applicable at this stage.

How could the programme/policy/decision be adjusted to address inequalities associated with particular groups?

The evidence suggests that the potential reforms are limited in their nature and unlikely to contribute to any material degree to the alleviation of the socio-economic outcomes for young households and women.

Consequently, stages 1 and 2 of this draft FSDA have not identified options for strengthening the potential reforms being considered in terms of their impact on inequalities of outcome.

We will analyse the responses to the consultation and any other evidence gathered before reaching a decision on our next steps and updating this FSDA.

Stage 4: Decision

A decision on these potential reforms will be made once we have analysed the consultation outcomes, and this draft FSDA will be updated.

Sign off of the Fairer Scotland Assessment template

This will be completed after this consultation and views have been obtained from consultees.

Stage 5: Publication

The final stage is to complete the Fairer Scotland Duty summary template for publication on the Scottish Government website. This should be published on the Scottish Government's website.

Potential introduction of qualifying requirements for religious and belief bodies with celebrants who solemnise marriages and register civil partnerships - partial Business and Regulatory Impact Assessment