Reforming the law of marriage should be the opportunity to remove the anomalies and complexities caused by making marriage available in both religious and civil ceremonies

As the 20 March deadline for responding to the Scottish Government’s consultation on marriage and civil partnership approaches, much attention remains focused on the proposal to introduce same-sex marriage. That is hardly surprising, since the reform will signal to the world that dignity, diversity and freedom of choice are truly respected in Scotland.

There has been a dearth of media discussion of the fact that the proposals will continue to make marriage available by means of both civil and religious ceremonies. At present, civil marriages are performed by registrars and, since 2002, may take place in registry offices or other approved places. Religious weddings may be performed by certain religious celebrants, and how they are authorised depends on the religion in question. All Church of Scotland ministers have automatic authorisation, and certain other religious groups have been allowed into this privileged club. However, some religious groups are treated differently and they can only register named individuals, as can the Humanist Society of Scotland.

This already complicated picture will become very much more complex under the Scottish Government’s proposals. The good news for other belief groups is that they may be allowed into the club, but will have the second class membership reserved for certain religious groups. The Church of Scotland may be the only first class club member, although it is possible that certain other religious groups will be permitted equivalent status – that is unclear from the proposals.

An additional layer of complexity will be added because some religious groups will perform marriages for all couples, irrespective of sexual orientation, while others will be allowed to opt out of same sex-marriage. It does not look like it will be possible to opt out of performing different sex marriages. Religious groups and celebrants will also be able to perform civil partnership ceremonies, but probably only for same-sex couples.

The point is that the law does not have to be so complicated. Instead of having this bewildering array of religious and belief celebrants, it could simply provide for all marriages and civil partnerships to be solemnised in a civil ceremony performed by a registrar. In terms of the legal requirements, that would be it. Couples would be free, of course, to go on to have a further celebration – religious, secular, pagan or whatever mattered to them – but it would be of no legal significance.

Final step

This approach would mark the final – and long overdue – step in the separation of church and state in Scots family law. At various times in our history, particular religions have had jurisdiction over marriage, annulment, legitimacy, inheritance and so forth, with the Roman Catholic Church being displaced by Protestant influences after the Reformation. Since 1830, however, all of these matters except marriage have been dealt with in the civil courts. Thus, religious marriage is a legal anachronism.

There is much to be gained by separating the legal solemnisation of marriage from associated religious rites. At present, the state makes invidious choices between religious groups in terms of which of their celebrants may perform marriages. That process will only increase under the Government’s reform proposals. Were all marriages to be the province of civil registrars, Government would be freed from this unseemly task – and the prospect of facing an embarrassing challenge before the European Court of Human Rights.

The Scottish Government plans to allow religious groups to opt out of performing same-sex marriages and to offer their services to different-sex couples only. If a group does this, however, it leaves itself open to challenge under the Equality Act 2010. The Government has anticipated this problem and will seek to have the Act amended at Westminster, but the opt-out might still face a challenge before the European Court of Human Rights with more potential embarrassment for the Government.

If marriage were to be a wholly civil affair, state agencies would also be in a better position to do the things they should be doing. Under the current law, the state plays some role in overseeing the formation of all marriages and civil partnerships, but it acts at one step removed from much of what is happening where marriages are performed by religious groups. As a result, its ability to identify cases of forced marriage and offer the victims protection is compromised. If registrars solemnised every marriage and civil partnership, coercion might be spotted more easily.

Religious angle

Civil marriage has much to recommend it to religious groups. A number of these groups have lobbied hard against the introduction of same-sex marriage, leading to accusation of homophobia and bigotry and divisions within the groups themselves. They are seen as trying to impose their beliefs on those who do not share them. By separating the civil formation of marriage and civil partnership from religious rites, religious groups would be freed from the need to lobby. The role of religion would not be diminished for adherents, since religious groups could still fulfil their proper function by providing ceremonies giving their seal of approval to the unions of their members. All of this was recognised long ago in many other countries, including some that have strong religious traditions. In France, for example, civil marriage is the only option and one hardly sees religious observance crumbling.

Separating the religious from the secular is the norm in modern Scotland. So it is that baptism is important for many religious groups, but it has no legal significance. Similarly, some religious groups do not regard a divorce as freeing the parties to remarry, but accept their members using the legal mechanism of divorce to organise the future care of children and the division of their property. Religious marriage is the oddity and the Scottish Government should rethink its position and confine the solemnisation of marriage and civil partnership to a civil ceremony.

The Author
Elaine E Sutherland is Professor of Child and Family Law at the University of Stirling, and a professor at Lewis and Clark Law School, Portland, Oregon.  
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