Family law: consultation

Part 2: The minimum age of marriage and civil partnership

Introduction and background

2.01 You can marry or register a civil partnership in Scotland once you are 16 or over. The minimum age of marriage has been 16 since 1929.

2.02 This chapter of the consultation seeks your views on whether the Scottish Government should bring forward legislation in the Scottish Parliament to raise the age at which a person becomes eligible to enter into a marriage or civil partnership to 18 from 16, and also on related matters.

2.03 Section 1 of the Marriage (Scotland) Act 1977 (“the 1977 Act”) provides that:

(1) No person domiciled in Scotland may marry before he attains the age of 16.

(2) A marriage solemnised in Scotland between persons either of whom is under the age of 16 shall be void.

2.04 Section 86(1)(c) of the Civil Partnership Act 2004 (“the 2004 Act”) provides that two people are not eligible to register in Scotland as civil partners of each other if either has not attained the age of 16.

2.05 In Scotland, while the age of majority is 18, children and young people can exercise some rights before then. Once you are 16, for example:

• as a general rule, you acquire the legal capacity to enter into any transaction, although under 16s are permitted to act on their own behalf in certain circumstances
• you can leave home without parental consent as parental responsibilities and rights largely fall away
• you can also leave education
• you can take up full-time employment.

2.06 Generally, the purpose of setting minimum ages in law is to protect children and young people from the potential harms of a decision when they may not be mature enough to understand the nature of the decision or its potential consequences. An individual who lacks maturity and understanding may also be more likely to be exploited or taken advantage of.

2.07 Sometimes, where a child or young person is exercising a right, there are also specific protections from the potential harms that could arise for them. For example, before you reach 21, you can ask a court to set aside a prejudicial transaction into which you entered when you were 16 or 17.

2.08 This is not the case for marriage or civil partnership. All parties aged 16 or 17 proposing to marry or enter a civil partnership follow the same procedure as those of 18 or over.

2.09 There are some protections for people who do not in fact have the capacity to consent to a marriage or civil partnership or who are forced to marry or enter a civil partnership.

2.10 It is a legal impediment to a marriage that a party proposing to marry is not in fact capable of understanding the nature of the marriage ceremony or of consenting to marriage under section 5 of the 1977 Act. If satisfied that there is such an impediment, the Registrar General for Scotland can direct a local authority registrar to take steps to ensure the marriage does not proceed, such as by not completing or issuing the necessary marriage schedule to a couple. There is equivalent provision for civil partnership.

2.11 Under sections 20A(2) and (3) of the 1977 Act, a marriage solemnised in Scotland will be void (of no effect) if:

• at the time of the marriage ceremony a party to the marriage who was capable of consenting to the marriage, purported to give consent but did so by reason only of duress or error;
• one or both of the parties to a marriage is, at the time of the ceremony, incapable of understanding the nature of a marriage ceremony and consenting to the marriage.

2.12 There is equivalent provision made for civil partnership.

2.13 Forcing someone into a marriage or civil partnership is a criminal offence in Scotland (“the forced marriage offence”). Under section 122(1) of the Anti-social Behaviour, Crime and Policing Act 2014 (“the Anti-Social Behaviour etc Act”), a person commits an offence under the law of Scotland if he or she—

(a) uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage or civil partnership, and

(b) believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without free and full consent.

2.14 “Marriage” for these purposes is defined as any religious or civil ceremony of marriage, whether or not legally binding and “civil partnership” includes both a civil partnership under the 2004 Act and a purported civil partnership.

2.15 The forced marriage offence can also be committed, in relation to a victim who is incapable of consenting by reason of mental disorder as defined in the Mental Health (Care and Treatment) (Scotland) Act 2003, whether or not there has been any violence, threats or any other form of coercion. This is in terms of section 122(2) of the 2014 Act.

2.16 The forced marriage offence cannot apply to non-coercive conduct which has the purpose of causing a person under 16 to marry unless that child is incapable of consenting by reason of mental disorder. It is not relevant that they are not eligible to enter into a legally recognised marriage by reason of their age.

International developments

2.17 The “UNCRC requirements” set out in the schedule to the United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Act 2024 (“the 2024 Act”) are rights and obligations from the United Nations Convention on the Rights of the Child (“UNCRC”) that have been incorporated into Scots law to the maximum effective extent of the devolved competence of the Scottish Parliament. Article 1 of the UNCRC requirements provides that, for the purposes of the Convention, a child means every human being below the age of eighteen years.

2.18 The UNCRC requirements in the 2024 Act and the UNCRC itself do not include a provision which imposes a minimum age of 18 to marry or register a civil partnership, nor a provision which has the effect of requiring a modification of the forced marriage offence.

2.19 The United Nations (the UN) describes “child marriage” as any marriage where at least one of the parties is under 18 years of age. In 2015, the UN agreed the Sustainable Development Goals (the SDGs) to be achieved by 2030, which apply to all UN member states, including the UK. The Scottish Government committed to the SDGs in 2015.

2.20 Goal 5 (Achieve gender equality and empower all women and girls) of the SDGs includes the target to eliminate what it defines as harmful practices, including child, early and forced marriages.

2.21 Paragraph 20 of Joint general recommendation No. 31 of the UN Committee^[2] on the Elimination of Discrimination against Women/General Comment No. 18 of the UN Committee on the Rights of the Child (2019) advises that they consider child marriage to be a form of forced marriage and that the overwhelming majority of child marriages involve girls under 18. The Committees note their view that harmful practices such as child marriage are:

“practices and forms of behaviour that are grounded in discrimination on the basis of, among other things, sex, gender and age, in addition to multiple and/or intersecting forms of discrimination that often involve violence and cause physical and/or psychological harm or suffering.” (paragraph 15)

2.22 Paragraph 55(f) of this joint General Recommendation/Comment recommends that:

“States parties to the Conventions adopt or amend legislation with a view to effectively addressing and eliminating harmful practices. In doing so, they should ensure: …

That a minimum legal age of marriage for girls and boys, with or without parental consent, is established at 18 years.”

2.23 Section 14 of the 2024 Act places a duty on Ministers to make a Children’s Rights Scheme setting out the arrangements that are in place or are to be put in place by the Scottish Ministers to (a) ensure that they comply with the compatibility duty under section 6(1) of that Act and (b) secure better or further effect of the rights of children. Section 15(2) of the 2024 Act requires that in making, amending and remaking the Scheme, Scottish Ministers must have regard to any reports, suggestions, general recommendations or other documents issued by the UN Committee on the Rights of the Child relating to the implementation of the Convention.

2.24 In 2023, the UN Committee on the Rights of the Child’s Concluding observations on the combined 6th and 7th periodic reports of the United Kingdom of Great Britain and Northern Ireland recommended that the UK:

“Prohibit all marriages of children under 18 years of age, without exception, in Scotland, Northern Ireland and all overseas territories and the Crown dependencies of Guernsey and the Isle of Man.”

Comparisons

2.25 A number of countries and jurisdictions have recently reformed their marriage legislation so that their minimum age for marriage is now 18 with no exceptions. These include Denmark, Finland, Germany, Ireland, Jersey, Norway and Sweden.

2.26 In England and Wales, the Marriage and Civil Partnership (Minimum Age) Act 2022 (“the 2022 Act”) raised the minimum age of marriage and civil partnership to 18. The 2022 Act took effect from 27 February 2023. There had been an exception in England and Wales permitting the marriage of 16 and 17-year-olds to take place where there was parental or judicial consent.

2.27 The 2022 Act also extended the criminal offence of forced marriage in England and Wales so that a person commits an offence under the law if they carry out conduct for the purpose of causing a child to enter into a marriage before the child’s eighteenth birthday. This is so whether or not the conduct amounts to violence, threats, any other form of coercion or deception. The conduct need not have been carried out in England and Wales.

2.28 The origin of the 2022 Act was in a Private Member’s Bill (“the Private Member’s Bill”) in the Westminster Parliament, promoted by Pauline Latham, then the MP for Mid Derbyshire. Ms Latham said in Committee debate during the Private Member’s Bill’s progress in the House of Commons that:

“Research has shown that child marriage is often associated with leaving education early, limited career and vocational opportunities, serious physical and mental health problems, developmental difficulties for the children born to young mothers and an increased risk of domestic abuse”.

2.29 She said that the extension of the criminal offence of forced marriage was:

“targeted at unofficial, non-binding marriages that are beyond the reach of the change to the legal age of marriage….enacted in traditional and some religious settings that are not recognised by the law of England and Wales but are regarded just as much as a marriage by the parties, their families and their communities.”

2.30 Following a public consultation in Northern Ireland, the then Minister for Finance Conor Murphy MLA, announced that his Department would begin work to allow for preparation of legislation to raise the minimum age for marriage to 18. We understand legislation may be introduced to the Northern Ireland Assembly during 2025.^[3]

2.31 Some other countries permit under 18s (and sometimes under 16s) to marry on condition there is parental consent, or judicial consent or administrative consent, or a combination of some of these requirements.

2.32 Developments internationally suggest that Scotland is now unusual in permitting marriage at 16, without additional provision for parental or other consent. However, it is arguable that, rather than constituting a protection, parental consent could operate as a potential vehicle for pressure or coercion. Parental consent has not been a feature of Scots law. The Scottish Government does not consider that the introduction of parental or other consent as a necessary pre-condition of the marriage or civil partnership of a 16 or 17-year-old is a suitable option for reform. We would welcome respondents’ views on this.

Position in Scotland

2.33 National Records of Scotland (NRS) publishes statistics about registered marriages and civil partnerships.

2.34 The published information does not include the numbers of registered marriages and civil partnerships where one or both parties is 16 or 17. We have sourced additional data from NRS.

2.35 In 2023, very few marriages in Scotland- around 0.07% (21 out of 26,753) - involved a party or parties under 18. The numbers of such marriages appear to be reducing over time: in 2013, there were 50 such marriages and in 2017, there were 24. There were 4 civil partnerships between 2005 and 2023 involving a party or parties under 18.

2.36 It is clear that it is much more common for girls aged 16 or 17 to marry in Scotland than boys: between 2013 and 2023, there were 276 marriages involving a party under 18, 247 involving a girl aged 16 or 17, and 59 involving a boy of either of those ages. Girls aged 16 or 17 are typically marrying older men.

2.37 Most of the marriages in the period 2013-2023 which involved a 16 or 17-year-old party (73%) were solemnised by a local authority registrar.

2.38 Given that underage marriages are not registered, we lack reliable data in this area. We are aware of concerns that children can be taken abroad with the purpose of their marrying when they cannot marry here.

2.39 The evidence is clear that children can be at risk of forced marriage at an age when they are not eligible to enter a legal relationship. The UK Government’s Forced Marriage Unit has published statistics. In 2024, there were 229 cases of forced marriage where they provided advice and support, and 572 forced marriage enquiries. 280 of which related to forced marriage. 35% (83) of cases where they provided advice or support involved a victim aged 17 and under. Less than 5 of the total cases involved a victim in Scotland.

2.40 However, we know that this data will not accurately reflect the number of instances of forced marriage in Scotland or the numbers of children and young people affected; Scottish victims often seek advice and support from organisations closer to home and the issue is generally under-reported. Information about contacts between victims and Scottish specialist support organisations is available in our updated Forced Marriage Statutory Guidance (paragraph 21 in chapter 2).

2.41 Karma Nirvana is a charity registered in England and Wales for victims and survivors of so-called honour-based abuse. Their report “One Year On: Assessing the impact of legislation to end child marriage in England and Wales” indicates that they have recorded 173 reported cases to their helpline since the legislation on ending child marriage in England and Wales came into effect up to January 2024 (11 month-period), a 15% increase.

2.42 In line with international concerns, some Scottish stakeholders have previously called for reform of the minimum age of marriage and civil partnership, including Together (Scottish Alliance for Children’s Rights) and the Children and Young People’s Commissioner for Scotland.

Views

2.43 Stakeholders supportive of raising the minimum age to 18 see such a change as enhancing protections for children, reducing their exposure to harms.

2.44 Such reform would also be in line with the SDG aim to end child marriage globally, and other international recommendations. Pauline Latham noted, during the Committee debate on the Private Member’s Bill, that:

“having laws that enable child marriage weakens our voice in discussions with other countries and damages efforts to end child marriage globally”.

2.45 Raising the minimum age of marriage and civil partnership to 18 would be consistent with the position in England and Wales and potentially, if proposed legislation proceeds, in Northern Ireland.

2.46 Some have argued that it is not clear how harmful permitting marriage and civil partnership of 16- and 17-year-olds in Scotland is to the parties involved or others, and that more research is needed.

2.47 Others suggest that reform of the minimum age of marriage and civil partnership would result in inconsistency with other rights exercisable by those aged 16 and over. One example raised is that if the minimum age became 18 this would diverge from the legal age of consent to sexual activity, which is 16.

2.48 If we raised the minimum age of marriage and civil partnership to 18, parents or expectant parents either of whom is aged 16 or 17 would not be eligible to marry or enter a civil partnership with each other. Marrying or entering a civil partnership with the mother of a child is one of the ways in which a father can obtain parental responsibilities and rights for their child. In addition, a man is presumed to be the father of a child if he was married to or in a civil partnership with the mother.

2.49 Those who were no longer eligible to marry or enter a civil partnership because of their age and decided to cohabit would not have the same rights as those who marry or enter a civil partnership. For example, they would need to apply to a court for occupancy rights in a matrimonial or family home if they were not otherwise entitled to occupy the property. As cohabitants, they would have rights to apply to the court to seek financial provision on separation, but the arrangements are not the same as for those who divorce or dissolve their civil partnerships.

2.50 Raising the minimum age of marriage and civil partnership would potentially not address concerns that those below the minimum age in Scotland might still take part in non-legal marriage ceremonies, including outwith Scotland, but in the absence of evidence of coercion the forced marriage offence would not apply.

2.51 One option in addition to raising the minimum age of marriage and civil partnership would be to extend the forced marriage offence in Scotland in a similar way to the reform in the 2022 Act for England and Wales.

2.52 The intention would be to criminalise behaviour not captured by the existing provision at section 122 of the Anti-Social Behaviour etc Act, such as initiating the arrangements for a person under the minimum age of marriage to marry or inducing or persuading them to take part in a marriage ceremony. At present, unless the conduct against the victim involves any threat, violence or other form of coercion, the forced marriage offence could not apply unless the victim could not consent by reason of mental disorder, irrespective of their legal ineligibility to marry because of their age.

2.53 Extending the forced marriage offence in this way might have a deterrent effect and may have a positive impact for a child victim in that evidence would not need to be given to demonstrate coercion was involved.

2.54 One point made by Pauline Latham during the progress of the legislation in England and Wales is that in relation to a child victim, in some cases there may be a false distinction between cases where there is coercion and those where there is not:

“Children may not realise that they have a choice as to their marriage partner. They may not realise that they can resist, or they may be too afraid to do so… Ultimately, children can be put in the impossible position of either “consenting” to a child marriage, or testifying against their parents.”

2.55 One concern we have heard about the potential impact of extending the forced marriage offence is that children might be less likely to seek support. They may be deterred because this could lead to a parent or other family member being prosecuted where they are not using threatening or abusive behaviour. This potentially reflects similar concerns raised at the time of the Anti-Social Behaviour etc Act about whether introducing a criminal offence of forced marriage in Scotland might drive forced marriages further underground. We know that the reporting rates of forced marriage in Scotland have been lower than might be anticipated: see for example this research "Understanding Forced Marriage in Scotland".

Question 7: Should the Scottish Government legislate to raise the minimum age of marriage and civil partnership to 18?

Yes / No

Don’t Know

If you wish, you can choose a reason (or reasons) for your answer from the list below and/or add your own reasons:

• raising the minimum age would protect some children and young people from harm they would not otherwise suffer
• other measures can be taken to protect children from harmful conduct, without increasing the minimum age for marriage or civil partnership(please provide information about these other measures below)
• in general, people aged 16 or 17 do not have the capacity to understand what it means to marry or enter a civil partnership
• raising the minimum age in Scotland would meet our international obligations
• we should keep the minimum age at 16 as it’s consistent with some other rights that 16-year-olds can also exercise like leaving home
• there’s not enough evidence to justify reform
• other (please add your reasons below):

Question 8: Do you agree or disagree that the Scottish Government should legislate to extend the forced marriage offence?

This would be so that any conduct with the intention of 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.

Agree / Disagree

Don’t Know

If you wish, you can give reasons for your answer:

Recognition of relationships registered outwith Scotland

2.56 If we decided to propose legislation to raise the minimum age of marriage and civil partnership to 18 for future marriages and civil partnerships, a question arises as to whether amended provision is needed on the treatment of equivalent relationships made outwith Scotland,^[4] where one or both parties was not 18 at the time they married or registered a civil partnership.

2.57 Section 38 of the Family Law (Scotland) Act 2006 (the 2006 Act) contains rules in Scots law on how a marriage is determined to be formally valid, and whether a party to the marriage had capacity or consented to enter it. Section 38(1) provides that, in general, the question whether a marriage is formally valid is determined by the law of the place where the marriage was celebrated. “Formal validity” covers for example the required form of the ceremony and who must be present.

2.58 Under section 38(2), the question of whether a person had capacity to marry, including whether they were of age to do so, or validly consented to enter the marriage is, in general, to be determined by applying the law of that person’s domicile immediately before the marriage. In general, this means that if a party to a marriage made outwith Scotland was below the minimum age of marriage in their country of domicile at the time of the ceremony, a court in Scotland would not treat that marriage as valid.

2.59 Section 1(1) of the 1977 Act provides that no person domiciled in Scotland may marry before they reach 16. Consequently, the marriage abroad of a 15-year-old who was domiciled in Scotland at the time, is not valid here. It is irrelevant that the marriage was lawful in the place where the marriage was celebrated.

2.60 Under section 38(4) of the 2006 Act, which applies in Scots law as mentioned above, a court may disapply the law of a party’s domicile in deciding whether they had capacity to marry if this would be contrary to public policy in Scotland. So a court handling a dispute about the validity of a marriage where one or both of the parties is domiciled outside of Scotland can decide, depending on the circumstances of the particular case, to treat the marriage as invalid on public policy grounds. This might include, as to the validity of a marriage in Scots law which has been solemnised outside of Scotland, where a party is below the minimum age of marriage in Scotland but not under the law of their domicile. Also, section 38(3) of the 2006 Act has the effect that where a marriage takes place in Scotland, notwithstanding any rule of law of either party’s domicile, Scots internal law in relation to void marriages prevails. Accordingly, the rule in section 1(2) of the 1977 Act that a marriage solemnised in Scotland between persons, either of whom is under the minimum age of 16, is void is not affected by the law of the parties’ domicile if that is not Scots law.

2.61 The position for overseas relationships which are treated as civil partnerships is set out in the 2004 Act.

2.62 Where a person domiciled in Scotland has entered into an overseas relationship, this cannot be treated as a civil partnership unless the couple would have been eligible to register as civil partners of each other in Scotland: section 217(4) of the 2004 Act. Consequently, if either party was under 16, the overseas relationship will not be treated as a civil partnership. Similarly, since the change in the law in England and Wales, under section 217(2) of the 2004 Act as amended, we would not treat an overseas relationship as a civil partnership if one of the parties was domiciled in England and Wales and either party was under 18 at the time of the overseas relationship.

2.63 Additionally, two people in an overseas relationship cannot be treated as having formed a civil partnership if it would be manifestly contrary to public policy to recognise the capacity of either or both of them to enter into the relationship under the law in place where it was entered into: section 218 of the 2004 Act.

2.64 If the minimum age of marriage and civil partnership was raised to 18, one option would be to make amended provision so that all future overseas marriages or civil partnership equivalents involving a person aged below 18 would not be considered valid here, although they may be valid in the other jurisdiction. This would be regardless of the parties’ lack of connection with Scotland.

2.65 This approach may be seen as supportive of the SDG aim to end child marriage globally, but it could have significant practical and legal disadvantages for individuals who come to live or work in Scotland. The protections afforded to married or civilly partnered couples which rely on the recognition of the relationship in Scotland, for example in relation to financial provision on divorce or dissolution, or rights in intestacy, would then not be available to those individuals.

2.66 Given the potential adverse impacts, our initial view is that we should not seek to make such a change in the arrangements for the recognition of overseas marriages and relationships treated as civil partnerships involving parties who had no connection to Scotland. This would mean that, subject to the existing public policy exception, we would continue to recognise overseas marriages and overseas relationships otherwise treated as a civil partnership here, involving a party who was under 18 at the time of celebration, provided this was in accordance with the parties’ domiciles. However, we would welcome views from respondents on this approach.

Impact Assessments

2.67 In accordance with usual practice, the Scottish Government has prepared a number of draft (or partial) impact assessments to accompany and help inform this consultation on the minimum age of marriage and civil partnership. These are published and are available at: http://www.gov.scot/ISBN/9781806433285.

2.68 The Scottish Government considers that the changes considered in this section of the consultation would have minimal impact on the environment. Accordingly, the Scottish Government has sent a pre-screening exemption from Strategic Environmental Assessment (SEA) to the usual SEA consultation authorities.

2.69 We have prepared an Island Communities Impact Assessment (ICIA) screen out. Our view is that the changes in contemplation in this part of the consultation are not likely to have an effect on an island community that is significantly different from that on other communities (including other island communities). This means that we do not consider that we will require to undertake a full ICIA if we take forward legislation.

2.70 We have published a partial Business and Regulatory Impact Assessment (BRIA). Our initial view is that a change to the minimum age of marriage would have some minimal costs for government, NRS, and for local authority registrars. For example, the Scottish Government would need, as part of implementation of any legislation, to raise awareness of the resulting changes in the law to those impacted, and NRS and local authorities would need to update public-facing guidance on eligibility to marry or register a civil partnership. Any loss of revenue for businesses in the wedding sector would be very limited given the very low numbers of marriages and civil partnerships involving a 16- or 17-year-old party. Some weddings might merely be delayed until the couple were both 18. If there was a change to the forced marriage offence there could be additional one-off costs for some justice agencies in terms of familiarisation or training. Recurring costs for justice agencies will be dependent on the numbers of cases reported. The numbers of cases under the existing forced marriage offence are low.

2.71 Whilst we have no proposals as yet to legislate, we have published a draft Child Rights and Wellbeing Impact Assessment (CRWIA). This considers which Articles of the UNCRC appear to be engaged by the potential changes and sets out the evidence identified to date. If legislation proceeds, we will publish an updated full CRWIA and a Statement of Compatibility.

2.72 We have noted the evidence that more girls marry at 16 or 17 than boys. Changing the minimum age of marriage is likely to have impacts for the protected characteristic of sex as well as for other equalities protected characteristics. We have published a draft Equality Impact Assessment (EQIA). We will publish an updated full EQIA if we take forward legislation.

2.73 We have published a draft Fairer Scotland Duty Assessment (FSDA). There is 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. The evidence in Scotland suggests that younger households and single mothers are more likely to experience poverty than other groups. However, in our view the very low number of registered marriages and civil partnerships involving people aged 16 or 17 means that there is little scope for effecting measurable socio-economic change for young people or women and girls through the reforms in contemplation. We will publish an FSDA summary taking account of the consultation outcomes and any additional evidence if we take forward legislation.

Question 9: Do you have any comments on our draft impact assessments about the minimum age of marriage and civil partnership?

We are particularly interested in any evidence about the experience of harm (or other impacts) for parties aged 16 or 17 who are permitted to marry or enter a civil partnership in Scotland, to their children or to others. You should not include personal data in your response.

Yes / No

If you answered Yes, please outline these comments and/or evidence:

Question 10: Do you have any other comments on the minimum age of marriage and civil partnership?

You can, for example, suggest alternative or additional actions that you consider we should take.

Yes / No

If you answered Yes, please outline these comments: