Victorian marriage: stability or radical change?
From the perspective of the twenty-first century, the Victorian era is often seen as a period of stability for marriage and the family home—if not quite the ‘place of Peace; the shelter not only from all injury, but from terror, doubt and division … a vestal temple, a temple of the hearth watched over by Household Gods’ described by John Ruskin1 in the rather high-flown language of the time. But in fact Queen Victoria’s reign was to see the creation of the divorce court and the passing of legislation giving magistrates the power to grant separation orders to the working classes. It also saw married women’s property legislation, which not only ended the legal fiction that marriage made a man and a woman one flesh, but also gave the married woman the same remedies’ against all persons whomsoever, including her husband’ in respect of her property as if she had never been married.2 The legal system was increasingly expected to provide some protection to the victims of family life, and much of this book is concerned with such developments. However, one aspect of the Victorian era is often overlooked. Eleven days after the young Queen came to the throne,3 legislation ended the long-standing monopoly of the Church over marriage, and paved the way for the secularisation of the marriage rite. At the same time the State, by creating a system for the compulsory registration of marriages (as well as births and deaths) and scrutinising the qualifications of those who wanted to marry, assumed an important role in seeking to control marriage and indeed family life.
(p.4) The background
(1) 1753: Lord Hardwickes’ Act creates an Anglican monopoly
The law had traditionally left the regulation of marriage to the Church. It was the Church which—save for a brief period in the mid-seventeenth century interregnum4—decided who could marry whom; it was the Church which laid down the rules about how marriages could be solemnised and which kept Registers of the marriages which took place in Church;5 it was the ecclesiastical courts which dealt with disputes about such matters.6 The Church (which after the Reformation for these purposes means the Church of England)7 tolerated8 an extreme degree of informality: a valid marriage could be contracted simply by the mutual consent of the parties—the sponsalia per verba de praesenti. Provided a couple agreed to take one another as husband and wife, using words in the present tense,9 then husband and wife they became,10 wherever the words (p.5) were exchanged and irrespective of the presence or absence of witnesses. This allowed a large business in ‘informal’ marriages and there was no shortage of suppliers to meet the demand: it has been suggested that ‘Fleet’ marriages—celebrated by clergy imprisoned for debt and other disreputable characters in or near the Fleet Prison—constituted three-quarters of all the marriages in London by 1740.11
Informal marriages were evidently popular with those who wanted a quick and easy marriage ceremony. But it was not only the tidy-minded who thought the approach to clandestine and other informal marriages taken by English law was excessively lax. In particular, there was always the risk12 that a formal and publicly recognised ‘marriage’ would be attacked, perhaps many years later, by someone who stood to gain by having it set aside as bigamous. A man’s indiscreet words breathed under the influence of passion and quickly forgotten by him might destroy the legal rights of the person whom he had later married—as in Cochrane v. Campbell,13 where a woman was left penniless and her children bastardised after the death of the man she believed she had married in church 30 years previously. Unfortunately for her, another woman was able to convince the courts that she had previously contracted a secret marriage with the deceased, that she was thus his lawful spouse, and that accordingly the marriage to the ‘widow’ was bigamous and void.
The case for reform may seem obvious;14 but in fact Lord Chancellor Hardwicke had to deploy all his skills15 to get the legislation onto the statute book.16 In 1753, after a long struggle, he succeeded.
(p.6) The Clandestine Marriages Act 1753 gave the Church of England a virtual monopoly over marriages.17Banns18 had to be called in the Parish Church on three successive Sundays; and the marriage had to be solemnised in the presence of two or more credible witnesses19 in the church where the banns had been called.20 Details of the calling of banns and of weddings were to be recorded in a proper Register, ‘to be carefully kept and preserved for public use’.21 The Act imposed draconian penalties for breach: a provision,22 avowedly directed at Fleet and other similar marriages made anyone solemnising a marriage without banns or a proper licence or in a place other than the church in which banns had been called guilty of felony and liable to be transported for 14 years. And anyone falsifying a licence or an entry in the Register was to be executed as a felon.23 (p.7) Breach of the Act’s provisions could also be disastrous for the parties: even an innocent24mistake in the banns (for example, about the parties’ names)25 invalidated the marriage.
The hardship caused by the provisions avoiding marriages because of formal defect in the preliminaries was one of the factors prompting the next round of legislation: the outcome, in general terms,26 was that after 1 November 1823 a marriage would only be automatically void if the parties had ‘knowingly and wilfully’ contravened the statutory provisions.27 No longer would it be possible for a couple tired of one another to escape from the marriage by finding some technical defect;28 whilst the provisions about issuing marriage licences were tightened up.
(p.8) (2) Nonconformists and demographers
The 1823 legislation dealt with technicalities; but it did not attempt to deal with the increasingly vocal complaints29 of Nonconformists and Roman Catholics who could only marry in this country in an Anglican church by an Anglican rite.30 Nor did tinkering with the rules about licences and church registers do anything to improve the machinery of fact collection that informed opinion was coming to see as essential to the rational development of an advanced society.31 In 1836, however, Lord Melbourne’s Administration succeeded in getting onto the statute book32 the legislation which established the system for solemnising marriage still, in essence, in force at the end of the twentieth century. The Births Deaths and Marriages Registration Act established the office of Registrar-General,33 and set up an ambitious scheme for state registration under the Registrar-General’s direction. The Births Deaths and Marriages Registration Act did away with the need to rely on parochial and other local Registers. At the same time (and in parallel to the Registration Act) Parliament passed the Marriage Act 1836 which laid down the formalities for creating a marriage.
(p.9) (3) Defining the State’s interest
The 1836 Act was based on a very clear analysis of the respective interests of Church and State in marriage. The State had a proper interest in preventing clandestine marriages and in being able to determine whether or not a person was married, with all the legal consequences which followed from that status;34 and the State was therefore entitled to insist on a universal and efficient system for the registration of marriages.35 But so far as the actual celebration of the marriage, the State’s concern was limited to ensuring that the ceremony be recognised by both parties as binding.36
For the purpose of this analysis there were three elements in the marriage process. First, there were the preliminaries intended to publicise the parties’ intentions and thus ‘excite the vigilance’ of parents and others—perhaps a person claiming to be already married to one of those concerned—and thereby ‘afford them fit opportunities of protecting’ their legal rights.37 Secondly, there was the wedding itself. Finally, there were the administrative procedures for registering and giving notice of the married couple’s new status.
Lord John Russell’s original intention38 had been that whilst the first and third stages should be the preserve of the State the second should in principle be a matter of choice for the parties—whether a religious service in the Church of England or in a Roman Catholic church or Nonconformist chapel or even a simple civil ceremony before an official of the State. But the Church of England successfully opposed39 losing its exclusive right to administer its own preliminaries to marriage; and a Church of England wedding could (and still, at the beginning(p.10) of the twenty-first century can) take place40 after the calling of banns, or on the authority of a so-called common licence granted by the Church or on the authority of the Archbishop of Canterbury’s Special Licence.41
In all other cases, notice of an intended marriage in the prescribed form had to be given to the Superintendent Registrar for the district where the parties lived.42 The notice was to be entered in the Registrar’s Notice book (open to public inspection) for the stipulated period of 21 days (or seven if a higher fee were paid for the Registrar to issue a licence).43 Once these formalities had been completed the wedding could then take place in a registered44 place of religious worship45 with ‘open doors’ and in the presence of two witnesses according to ‘such Form and Ceremony’ as the parties saw fit to adopt,46 provided that each of the parties at some stage made a declaration in prescribed form that there was no impediment to the marriage and uttered prescribed words whereby the one took the other ‘to be my lawful wedded wife [or husband]’.47 The marriage had then to be registered, and a copy of the registration documents sent to the General Register Office.
(p.11) (4) Marriage Act 1836 still leaves Nonconformists and Roman Catholics separate and unequal
This registration requirement accounts for the fact that Nonconformist and Roman Catholic weddings were in one very important respect treated unfavourably compared with weddings in the Established Church. The Government assumed (incorrectly, as experience was to prove) that the Clergy of the Established Church would be able to carry out the registration functions correctly and accurately. At least (as Lord John Russell told the House of Commons)48 the Anglican priest was ‘well known, and … his designation and habitation were fixed’ and there was accordingly ‘great security as to proper care being used in performing the marriage ceremony’. But Nonconformists were different: Nonconformist ministers and Roman Catholic priests did not have the legal status attaching to incumbents of the Established Church, and it was said that there were a great many ministers, and men who frequently ‘for a time became the minister of a Dissenting congregation, and afterwards laid down his charge’. The 1836 Act therefore provided that a Registrar had to be present at weddings in registered places of religious worship and a fee paid to the Registrar for his services.49 It was thought that in the absence of a special provision of this kind for the registration of non-Anglican marriages ‘there would be great uncertainty and vagueness’.
(5) The secular marriage
The Marriage Act 1836 also provided for a purely civil wedding for those—it was thought the class would be ‘certainly not very numerous’50—who believed that marriage was a purely civil matter: anyone who objected51to the religious form of marriage could give the necessary notice and then marry in the Office of the Superintendent Registrar by making the prescribed declaration.52 There could in that case at least be no doubt that the Registration requirements would be properly observed.
(p.12) The Marriage Act 1836—BRILLIANT COMPROMISE—at a price?
The fact that the main structure of the marriage law established by the 1836 Act remains intact after more than one and a half centuries of great social change is in itself a tribute to the skill with which it struck an acceptable balance between various competing interests. Russell bought off the Anglican Church53 by allowing the Church to continue to solemnise legally valid marriages without the intervention of any State official. He conceded54that the Church could continue to operate the system of banns and ecclesiastical Licences as legally effective preliminaries to marriage and Anglicans were exempted from the requirements of prior notification to and certification by a State-appointed Registrar. Russell also managed to get the support of Nonconformists who were to be allowed to hold their own services, albeit in the presence of the Registrar. For much the same reason the Bill had the support of Roman Catholics;55 whilst Jews and Quakers were allowed to retain their traditional privileges. Although there were a few56 who feared that the provisions for purely civil marriage would give ‘false pretenders to religious scruples’ the means of evading the law, the Bill was generally warmly welcomed. Certainly English marriage law allowed for a considerable diversity of forms; but although the procedure by which marriage can be created may vary widely, the result is in all cases the same. To the law, there is only one contract of marriage.57
(p.13) The grievance: ‘Workhouse marriages’ for all except Anglicans
It was not long before it became apparent that the Russell Act had concealed, rather than solved, a number of problems. The Act was supposed to minimise discrimination against Nonconformists and others unwilling to be married by the Anglican rite; and this involved providing for a State-administered registration service. But who was to provide this service?58 True, the Registrar-General would exercise overall control over the system from the General Register Office, but who would actually carry out the registrars’ functions59 locally?
The answer was found in the radical reforms of the administration of the Poor Law effected two years earlier.60By the time the new marriage and registration laws were to come into force, the Boards of Guardians responsible for local administration of the Poor Law would also be in place and able to take responsibility for local management of the registration legislation,61 dividing the Union which they controlled into Districts. Register Offices were to be provided;62 and (although the Registrar-General would make rules63 for the conduct of officers and had the ultimate sanction of dismissing Registrars) it would be the Poor Law Guardians who would appoint64 the Superintendent Registrar (in practice, normally their Clerk)65 for each district.66
This no doubt seemed attractive as the basis for an efficiently managed public service;67 but in fact a provision inserted into the legislation made the role of (p.14) the Guardians equivocal, and tainted marriages outside the Church of England with the machinery of the Poor Law and the Workhouse. This was because it was appreciated that simply having notices of intended marriage open to public inspection in a Marriage Notice Book68 was not likely to achieve much effective publicity; and a provision69 was therefore inserted requiring not only that the notices be given to the Poor Law Guardians but also (on the analogy of banns) that the notice should be read out to them at three successive weekly meetings. Only then could the Registrar issue the necessary70 certificate for marriage.
It seems improbable that this was an effective way of publicising the intended marriage, but that of itself might not cause much discontent. What did become a real grievance was that whereas Anglicans could arrange their own preliminaries with banns or licence, Nonconformists (and indeed Roman Catholics) had to make do with the ‘workhouse marriage’ notified to the Poor Law Guardians. And things were not improved by the fact that in practice it would be a Poor Law official who would attend the marriage to ensure that all was done according to the rules. As The Times commented71 highly respectable Nonconformists might well prefer not to have a daughter’s ‘marriage party or procession proceed to chapel under the escort of the [Poor Law] overseer or relieving officer … after the fashion of the old pauper wedding …’.
Removing the taint of the Poor Law
In the 1850s Bills intended to end this discrimination foundered on opposition from the Church of England;72but eventually, there was a compromise. The Marriage and Registration Acts Amendment Act 1856 retained the requirement that marriage notices be displayed in the Register Office73 but abolished the need for them to be read out at meetings of the Poor Law Guardians.74 The Act turned to the criminal law to provide sanctions against marriage without parental consent and other improprieties: those giving notice of intended marriage had to make a solemn declaration of the truth of the contents of the notice and of the absence of legal impediment—such as the fact that the couple were within the prohibited degrees or that one of them was already married to someone else—to the marriage. Knowingly making a false declaration was to be a criminal offence akin to perjury.75
(p.15) The 1856 Act also drew a clearer distinction between the role of Church and State in the actual marriage ceremony. The law still insisted that there should be no religious service in any Register Office ceremony76 but henceforth it allowed a religious marriage service to be held (provided the priest or minister agreed) afterwards, in a church or chapel. In this way it was intended to allow Nonconformists and others to have the religious service they wanted without any ‘official’ presence.77 At the same time, the Church of England’s control over marriages in Anglican churches was reinforced:78 only Anglican clergy were to be allowed to officiate, and no rite other than that laid down in the Book of Common Prayer was to be used.79 In contrast, the Nonconformist and Roman Catholic churches retained the right to conduct marriages with such form of service as they wished.80
In this way the 1856 Act reduced if it did not altogether remove81 the Poor Law taint from Nonconformist weddings, but discrimination remained. The Anglican clergy were masters in their own churches, but the Nonconformist and Roman Catholic wedding ceremonies were only legally effective if a Registrar were present. This discrimination was not to be ended until 1898.82
The 1868 Chelmsford Royal Commission
Discrimination against Nonconformists caused resentment; but from a practical point of view it was the radical differences between the marriage laws applied in Scotland, Ireland, and in England and Wales which caused real problems—problems made all the greater by the increased mobility of the population made possible by the development of the railway system. In 1868 the government (p.16) responded to complaints by setting up a Royal Commission chaired by Lord Chelmsford.83 The Commission duly concluded that uniformity of the marriage law throughout the United Kingdom was ‘highly desirable’; and claimed that the difficulties in the way of achieving such uniformity were ‘not insuperable’.84 But carrying out the Commission’s brief to construct a uniform code of law for the whole of the United Kingdom necessarily involved going back to first principles and asking what purpose the marriage laws should serve and how those purposes could best be achieved.
Thus, the Commission accepted85 that calling banns was totally ineffective in preventing improvident clandestine and unlawful marriage. The affluent simply paid the fee for an ecclesiastical licence.86 But the poor also valued privacy: for example, a young workman might be embarrassed because he could not afford to ‘treat’ his mates in the customary style, and domestic servants and farm labourers often feared their employers would not approve of the marriage.87 Sometimes this distaste for publicity was strong enough to put a couple off the idea of marriage altogether.88 More commonly the couple, paying at best token regard to the requirement that the banns be called in their home parish, would arrange for the banns to be called in a large city. In the large ecclesiastical marriage factories of the industrial north, the great number of banns called (apparently ‘some hundreds’ every Sunday in Manchester Cathedral)89 of itself prevented any publicity being given to the intended marriage. The Chelmsford (p.17) Commission concluded that the requirement to have banns called ‘promoted rather than prevented’ clandestinity.90
The obvious solution to this problem would be to insist on the need for a uniform system of obligatory civil preliminaries, but the Church of England continued to stand firm against being deprived of its right to deal with the preliminaries to marriages in its own Churches.91 The Chelmsford Commission preferred a different solution, at the same time more radical and more subtle, to the problem. The Commission believed that the person who was to officiate at the wedding—whether religious or civil—would be the person best placed to detect irregularities and evasions, and that the community could safely rely on the sense of duty and responsibility of the clergy and Registrars92 to carry out the task of doing so carefully and conscientiously. Notice of intended marriage should therefore be given to the clergyman or to the Registrar of the district where the parties lived; and that person should have statutory power to make enquiry about such matters as the date of a former spouse’s death. Where one of the parties was under 21, the necessary parental consent should be given in writing. Although notices were to be filed and open to inspection there was to be no public display. Under this scheme, the calling of banns would no longer be relevant to the validity of marriage, but this would not prevent the Church continuing to follow the practice as a matter of tradition.
The Commission was equally radical about the legal requirements for the wedding itself. The Commission emphasised that it attached ‘great value’ to the principle of ‘strengthening and consecrating the civil tie … by the sanctions of organised religion’93 but nonetheless insisted that, from the State’s perspective, marriage was a purely civil contract. Logic might therefore have driven the Commission to advocate the introduction of the system adopted in most West European states (where marriages have to be contracted before a Public Official). It would then be for the parties to decide whether or not they wanted subsequently to have a religious ceremony in order to impress the ‘seal of religion on that union which has already received the seal of the law’.94 But in spite of the fact that the evidence demonstrated that adopting such a system had not in fact affected the popularity of religious marriage services in continental Europe95 the Commission drew back. They thought that the introduction of (p.18) what was essentially a foreign system would be ‘opposed to the habits and feelings of the great majority of the people of Great Britain and Ireland….’96
Who then should have the privilege of formally witnessing the contract of marriage? For the Chelmsford Commission the criterion was simply whether those concerned could be relied on to administer the system efficiently.97 Registrars would of course be adequately supervised by the State, which effectively employed them. In the case of ministers of religion the test should be whether the position they held made them ‘amenable to public responsibility, and to the censure and discipline of their own religious communities’.98 Hence, the clergy of the Church of England would automatically qualify,99 as would Roman Catholic priests and the ministers actively involved in the service of most Nonconformist communities. But peripatetic missioners would be excluded. The Commission believed there was not the slightest justification for requiring the presence of a Registrar at Nonconformist weddings but not at weddings in the Church of England.100
The Commission took an equally radical stance on other issues. For example, the law allowed marriages to be solemnised only between 8am and 12 noon—a provision, aimed at ‘secret’ weddings,101 which obviously created difficulties for working men and women. The Commission recommended102 simply that the rule be scrapped. The question of whether a marriage should be celebrated at (p.19) (say) 5pm or even 8pm could be left to the good sense of the clergy or Registrar. And the Commission would even have abandoned the requirements that a prescribed formula should be used at some stage in the proceedings and that the wedding should take place in a specified building: once again, these matters could be left to the good sense of those whom the State allowed to discharge the function of witnessing and registering marriages.
Radicalism rejected: reform deferred
These conclusions were certainly what the increasingly well organised Nonconformist groups wanted to hear. But the Chelmsford recommendations were intended to apply to the whole of the United Kingdom. They were all too easily seen as an attempt to achieve uniformity by the imposition of Englishmen’s will on the other nations making up the United Kingdom; and the Scots soon made it clear that they were not prepared to see the end of the informal marriage which, although proscribed in England since 1753, continued to flourish in Scotland. This opposition effectively destroyed any prospect of achieving a United Kingdom marriage law;103 and throughout the twentieth century the United Kingdom continued to enjoy the luxury104 of three distinctive marriage codes. Of course, in logic, the fact that there were no prospects of enacting a uniform law applicable to the whole of the United Kingdom should not have precluded the Government seeking to apply the Chelmsford Commission’s ruthless logic to the law of England and Wales; but in fact progress was limited to meeting the expressed grievances of Nonconformists and others, and even then it was painfully slow.
In 1886 Parliament took the hardly daring step of extending the permitted hours for marriage to 3pm,105 but other changes were more difficult to bring about. In particular, Bills to remedy the long-standing grievance of the law requiring a Registrar to attend marriages in Nonconformist and other registered places of religious worship106 were brought forward but failed to make progress. Eventually, in 1893, the House of Commons set up a Select Committee specifically to look into this matter. The Committee’s Report left no room for (p.20)doubt that dissatisfaction was widespread. Some of the dissatisfaction was founded on matters of principle: the Nonconformist laity regarded this continued discrimination to be ‘a serious indignity’ whilst Nonconformist ministers regarded the law as ‘derogatory to their ministerial character’.107 But the most telling evidence was that of practical failings in the system: the comparatively small number of registrars meant that it was often difficult to arrange a wedding at a time which would suit all those involved. Even worse, Registrars were often late and sometimes—whether ‘by reason of weather, accident, illness, forgetful-ness or other causes’—failed to appear at all. It needs little imagination108 to appreciate the distress caused to the couple and their friends and relatives as the clock moved towards 3pm yet nothing could be done because the Registrar had not arrived and (at a period when there was no telephone or motor transport) could not be found.
The Select Committee accepted the Nonconformist case and was notably unimpressed by the Registrar-General’s objections (a combination of high principle—the clergy were incapable of operating an efficient registration system—and financial self-interest, for reform would mean Registrars losing the fees for attendance at chapel weddings). Legislation followed with unusual speed: the Marriage Act 1898 empowered the governing body109 of registered buildings to authorise persons in whose presence marriages in that building could be solemnised110 without the attendance of any Registrar.111 The parties still had to give notice to the Registrar, who would in due course issue the necessary certificate,112 but the wedding and consequential registration formalities would be dealt with by the ‘authorised person’. In the first eight months113 the governing bodies of 1,262 registered buildings appointed authorised persons to solemnise weddings.
The state of the marriage laws 1900–1960
Marriage was popular at the turn of the century: in 1900, the Registrar General reported the highest number of marriages for a quarter of a century with a marriage rate of 16.5 marriages per thousand of the population, and the eclectic approach of English law seemed to provide an acceptable procedure for people of all religions and none. The Church of England continued to provide the (p.21) setting for the majority of marriages—67.8% of the total. Nonconformist marriages made up 12.4% of the total; whilst Roman Catholic churches accounted for 4.1%. ‘Civil’ marriages in the Register Office—15% of the total—were much commoner than had been predicted in 1836114 notwithstanding the stigma which apparently still attached in some circles to secular marriage.115
The Marriage Act 1898 can in retrospect be seen as completing the reforms of the law begun by Peel and Russell 60 years before. It is true that the need to satisfy the conflicting interests of the Church of England and other religious groups made the law formidably complex; and from time to time Parliament had retrospectively to validate marriages which were (or might be) void by reason of some technical defect.116 It is also true that marriages contracted outside England and Wales continued to cause difficulties.117 But by and large118 the system worked; and to judge by the statute book, the first half of the twentieth century must have been a period of almost universal content with the rules governing the formalities for marriage. In 1934 Parliament decided that it would not do any harm to extend the hours for marriage from 3pm to 6pm;119 but, apart (p.22) from that, legislation in the inter-war years was confined to improving the procedure for remedying the unfortunate procedural errors which occasionally invalidated marriages contracted in good faith120 and to dealing with the arcane (but important) subjects of marriages in foreign countries121 and marriages in ships of the Royal Navy and in Naval, Military and Air Force Chapels.122
But the absence of additions to the statute book is not a safe test of public satisfaction; and in fact the Nonconformist churches continued to feel aggrieved by a law which left them in a position inferior to that of the Established Church.123 In 1936, there were ‘personal and unofficial’ discussions between the Baptist Union and the Registrar-General;124 and apparently a Bill was drafted to gather together and modernise the law, bringing the Free Church (ie Nonconformist) procedures into line with those of the Church of England. But nothing happened—possibly because the furore over reform of divorce law in 1937 made the Government reluctant to introduce legislation which would almost certainly provoke the Bishops (or some of them). Again, Christianity was not the only religion which had its Nonconformists; and at the turn of the century the Registrar-General was involved in a (sometimes acrimonious) correspondence stemming from the growth of Reform and Liberal movements in Judaism.125 The Chief Rabbi did not collaborate with these ‘Nonconformist’synagogues and attempts to resolve the difficulties in the framework of the existing legislation were unsuccessful.126 Only in 1959 was the nettle grasped.127
(p.23) Nor were complaints about the law always based on religious allegiance. Nothing, for example, could be clearer as a matter of legal doctrine than the principle that marriage was a public act, to be solemnised publicly rather than in secret. But in fact people continued to be embarrassed. According to one Superintendent Registrar,128 newspapers employed reporters to do nothing else except go to Register Offices, inspect the Notice Book, and copy out addresses so that they could visit the couple.129
The outbreak of World War II in 1939 prevented any further consideration being given to issues of policy; and the Registrar-General’s pre-War plans for a rationalisation of the law came to nothing. Nonconformists continued to feel aggrieved at their distinctly unequal treatment under the marriage laws; but, in an increasingly secular age, little attention seems to have been given to those grievances.130 Somehow, it seemed, the law could be adapted to the needs of a changing society without the need for legislation amending the substantive law. But there was strong bureaucratic pressure to put the law into a more accessible form. In 1949, the Lord Chancellor told the Cabinet’s Legislation Committee131 (with slight, but no doubt pardonable, exaggeration) that the
’ law relating to marriage is contained in about 40 enactments dating from 1540 and is almost unintelligible owing to the number and complexity of the enactments. Yet the law has to be interpreted and observed by large numbers of clergymen and registrars; and it is, therefore, very desirable to get the law into as simple and intelligible a form as is practicable. [But] if one were to consolidate the law as it stands it would be full of anomalies and ambiguities …’
The situation was just what the recently enacted Consolidation of Enactments (Procedure) Act 1949, allowing ‘minor improvements’ to be made in consolidation legislation without full debate in both Houses of Parliament (with all the attendant opportunities for trouble-making), was intended to deal with; and the Marriage Act 1949was one of the first measures to make use of (p.24) this relaxation in the law.132 The 1949 Act put the legislation in more user-friendly form, without making any changes of substance133 to the content.
Reform deferred, 1960–1994
The intellectual and moral upheavals of the 1960s had their impact on the gradualist approach to the reform of the marriage laws. MPs began to introduce Bills134 to deal with specific problems they had identified; and behind the scenes the Registrar-General’s Office set to work in identifying a number of proposals ‘for bringing this branch of the law into line with modern circumstances’.135 But (p.25) the commitment of the Law Commission, set up by Harold Wilson’s Government in 1965 with the objective of carrying out systematic law reform,136 to codification of the law eventually prompted a comprehensive and published review of the law and practice.137
In December 1969, after some delicate jousting between the various official agencies involved,138 the Commission set up a Joint Working Party139 ‘to enquire into the formal requirements for the solemnisation and registration of marriages in England and Wales and to propose what changes are desirable’.140 The Working Party made a full analysis of the purposes of the law of marriage, set out the present law and practice in some detail, discussed the problems and difficulties which had arisen, and made proposals for reform. Only the rules governing marriages of members of the Royal Family were omitted from the survey.141 The Working Party’s ideas were put out to public consultation;142 and in 1973 the Working Party reported to the Law (p.26)Commission143 (which on the whole144 endorsed the Working Party’s conclusions).
The Working Party considered that the law fell ‘woefully short … particularly perhaps as regards simplicity and intelligibility’ of the criteria for a good marriage law.145 The proliferation of procedures meant that the law was not understood by members of the public
’ or even by all those who administer it. To make matters worse, there is a bewildering diversity in the consequences of a failure properly to comply with the rules…. Whether the marriage is effective or not may depend on the knowledge of the parties regarding the failure. Nor can it be said that the sacrifice of simplicity and intelligibility has enabled the other objectives to be achieved; on the contrary, the system, if such it can be called, manifestly does not promote the uniform or effective investigation of capacity and consents by trained personnel and does not afford an adequate opportunity for objections to be declared and considered…. Rationalisation is clearly long overdue and should be attainable. ‘146
The ‘simplest and most effective’solution would be to enact that civil marriage should—on the Continental model—be the only legally effective way of creating marriage. But in the end this radical solution was rejected:147 it would be likely to arouse strong opposition both from the churches and from the general public.148 Evidently opinion had not changed much since the Chelmsford (p.27) Royal Commission had reached the same conclusion a century earlier.149 So the Commission put forward a less ambitious policy for rationalisation. This was that there should be uniform civil preliminaries for all marriages regardless of where they were to be celebrated.150 Indeed, the Working Party claimed that reform of the existing unsatisfactory system would be impossible unless uniform civil preliminaries were made compulsory for all marriages.151 Detailed proposals were put forward for improving the effectiveness of the procedures: parents consenting to a child’s marriage should be required either to attend personally at the Register Office or have their signature witnessed by ‘a person of standing’;152 there should be provision for the lodging of objections at the General Register Office;153and it should no longer be possible to shorten the period of notice required simply by paying a fee for a licence.154
The Law Commission made few recommendations for substantial change in the law governing the places in which marriages can be solemnised and rejected out of hand155 suggestions that secular venues should be licensed. There was (so it was claimed) no support for setting up commercial ‘marriage parlours’,156 and the answer to complaints about the facilities available and the standard of amenity in some Register Offices157 was to intensify the efforts of the Registrar General and the Association of Local Authorities to raise standards.158 But diversity was still to have its place: people who wanted their marriage associated with a particular religion should still be allowed to have the appropriate ceremony.159 Only minor changes in the procedures for solemnising religious(p.28) weddings were recommended—for example, whatever the form of service, the parties should be made clearly to understand that a marriage celebrated in this country by Islamic or other rites was monogamous;160whilst the Registrar-General should have greater control161 over the ‘authorised persons’ conducting marriages in registered buildings. The Commission’s Report ended with a range of proposals for clarifying the legal effect of irregularities; and for rationalising the criminal offences for breaches of the law.162
Nobody disputed the Law Commission’s view that a new and comprehensive Marriage Act was essential. But by the end of the century nothing of substance to that end had been done. Indeed the incoherence of the law was increased by piecemeal changes dictated by the pressures of the moment.163 No doubt there are many reasons for the failure of successive governments to act. As the Law Commission put it in 1973, ‘reform in this particular field is a topic on which personal views and religious opinions influence decisions’;164 and it does seem that the fact that almost any comprehensive measure would inevitably involve change in the legal position of the Church of England seems to have been particularly important. This was made clear in 1988 by a Working Party established by the Standing Committee of the General Synod of the Church of England.165 To accept a uniform system of civil preliminaries ‘could be interpreted [as a] diminution of the centuries old responsibilities of the Church’ in relation to marriage,166 whilst the notion that the Church of England should be placed in the same position as other churches (involving, as it necessarily would, the end of publication of banns as a legally recognised procedure) was rejected as removing pastoral opportunities for marriage preparation.167
Arguments such as these might not seem particularly powerful to people outside the Church of England or indeed to a Government as impatient of inefficiency and committed to rationalisation and cost-effectiveness as was that led by Mrs Margaret Thatcher between 1979 and 1990. The Thatcher Government did look at the question of the marriage laws from what appeared (p.29) to be a new perspective, setting up an Efficiency Scrutiny of the Registration Service led by a Marks and Spencer executive, Sir Derek Rayner.168 The Scrutiny Report169 duly obliged with accounts of the incompetence of the clergy in discharging their registration duties and the ineffectiveness of marriage notices as a means of achieving publicity for intended marriage. (The Report discovered that notices displayed in Register Offices were used not only by journalists but by photographers, florists and salesmen of ‘insurance, babywear and marital aids’seeking out potential customers).170 The Efficiency Scrutiny made many proposals for streamlining procedures and adapting them to the ‘needs of the larger, more mobile and more anonymous’ population than had existed in Queen Victoria’s time.
The Government adopted a cautious approach. It published a timid Green Paper171 for consultation which seemed to accept that opposition to the introduction of uniform civil preliminaries from within the Church of England172 precluded the Government from reopening the question. Even more surprisingly the Thatcher Government refused to alter its view in the face of pressure from the large numbers who claimed that uniformity would result in ‘a better quality of registration and would allow for a greater use of new technology’. For its part, the Government believed that there were ‘many factors other than administrative advantage’ to be taken into account in this area;173 and that a ‘a wider consensus’ was needed before ‘such fundamental changes’ could be contemplated. Instead, the Government announced that it would concentrate on streamlining the structure of the Registration Service and the procedure for registering buildings for marriages, and on making some (comparatively minor) changes in the procedure for civil marriage.
It did not require much management expertise to see that the Registration Service is beset by anomalies.174Local Authorities seemed to have responsibility without power: registration officers were paid by Local Authorities but not employed by them: indeed they have no legal employer, and they carry out their work on the instructions of the Registrar-General (who is the only person who can dismiss them). The ‘rigid lines of demarcation’ embodied in statute between Superintendent Registrars, Registrars of Births and Deaths and Assistant Registrars (each ‘Principal Officer’ being personally responsible for his own work which could only be delegated to a named deputy) were scarcely compatible with the notions of efficient public service management fashionable in the last two decades of the twentieth century. It was indeed easy enough to make (p.30)ambitious proposals175 for restructuring and placing responsibility and management of the service firmly on Local Authorities, but attempts to put them into practice for long made little progress. The ‘early legislation’ promised for reform of the service never appeared.176
More piecemeal legislation, 1994–2000
(1) Consumerism and the marriage ceremony
Administrative efficiency was only one aspect of the Thatcher Government’s approach to the provision of public services. There was an underlying belief in exposing public services to the pressures of consumer demand, competition and market forces; and this led the Government to propose giving the public a greater choice of marriage ceremony. Local authorities should be made to compete with one another to provide more attractive facilities than the stark and unappealing ambience of many Register Offices. The 1990 White Paper177accordingly proposed giving people the freedom to choose any Register Office they wanted as a venue for their wedding;178 whilst local authorities would be allowed to offer:
’ Further facilities for those who want them and to charge appropriately for these…. For example, different buildings will command different fees and the fee will also vary with the amount of time for which the marriage party wishes to use the premises…. Video or photography facilities may be required, and the local authority may wish to make these available in conjunction with the private sector.’179
But the consumers’ choice of venue for a civil wedding was not to be restricted to Register Offices. The public (so the White Paper declared)180 were ‘enthusiastic about the prospect of civil marriages being able to take place’ in other buildings such as hotels and stately homes; and local authorities should be allowed to offer such facilities.181
The Government provided facilities for Mr Gyles Brandreth182 to bring forward the Bill which became the Marriage Act 1994 and this reflected a subtle but (p.31) important change of emphasis. Under the Act, it is the private entrepreneur who is to take the initiative and offer the service, and the local authority’s role is merely to ‘approve’ premises for the solemnisation of civil marriages.183 A huge business developed whereby the owners of hotels, stately homes and other venues—ranging from football grounds to decommissioned warships184—offer wedding packages for a fee;185 and it is clear that the legislation has met a previously unsatisfied demand: in 1999 37,709 weddings—nearly 15% of all weddings and a quarter of all civil weddings—took place in approved premises.186
In some ways, therefore, it can be said that the 1994 Act privatised marriage; but it is important to note that the Act was carefully drafted so as to be restricted to civil marriage: the premises must have no recent or continuing connection with any religion, religious practice or religious persuasion, no religious service is to be used, any reading, music, words of performance forming part of the ceremony must be secular in character.187