The Law of Marriage and Civil Partnerships (CP) and Reforms
Forming a Civil Partnership
1. Preliminary Requirements:
◦ Notice of CP: Couples must give formal notice of their intention to enter into a civil partnership.
◦ Waiting Period and Application: There is typically a waiting period after notice is given before the civil partnership can be formally registered.
2. Ceremony Requirements:
◦ Signing of CP Document: The civil partnership is formalised by signing the civil partnership document.
◦ Witnesses and Registrar: The presence of witnesses and a registrar is required during the signing of the document.
3. Registration Requirements:
◦ Registration of CP: It is essential to ensure that the civil partnership is registered with the appropriate authorities to be legally recognised.
Presumption of Marriage
• Application of Presumption:
◦ Used when official records of a marriage are unavailable, often in cases where a marriage took place abroad a long time ago.
◦ The presumption operates in favour of the marriage, and the burden of proof lies with the party claiming that the marriage did not occur.
• Strict Approach by Courts:
◦ Courts take a stringent approach in rebutting the presumption. For example, in Dukali v Lamrani (2012), eight years of cohabitation were deemed insufficient to rebut the presumption of marriage.
Weddings Law
1. Preliminary Requirements:
◦ Public Notice of Intention to Marry: Couples must give public notice of their intention to marry.
◦ Consent Age: Individuals must be at least 18 years old to consent to marriage.
2. Ceremony Requirements:
◦ Registrar: A registrar must oversee the marriage ceremony.
◦ Witnesses and Prescribed Words: The ceremony must include witnesses and the exchange of prescribed words.
◦ Time and Location: The marriage must occur at a specified time and location.
3. Registration Requirements:
◦ Part 4 of Marriage Act 1949: Sets out the detailed requirements for registering a marriage, including the completion of a marriage schedule and its return to the registration authority.
The Law Commission’s Review and Recommendations
1. "Getting Married: A Scoping Paper" (2015):
◦ Criteria for Reform:
▪ Fairness, Modernity, Simplicity, and Cost-Effectiveness: The criteria for reform should ensure that the law is fair, modern, simple, and cost-effective. The current system is seen as outdated and inconsistent.
2. "Celebrating Marriage: A New Weddings Law" (2022):
◦ Current Issues:
▪ Antiquity of Law: The existing marriage laws are based on practices from the 18th and 19th centuries and do not reflect contemporary social norms.
▪ Inconsistency and Complexity: There is a lack of uniform requirements for who must attend weddings and where they can be held.
▪ Inefficiency and Restrictiveness: The law’s restrictions on wedding locations and requirements are seen as unfair and inefficient, particularly highlighted during the COVID-19 pandemic when outdoor weddings were restricted.
◦ Recommendations:
▪ Convenience: Allow online notice of intended weddings.
▪ Publicity: Publish notices online to make them more accessible.
▪ Respecting Beliefs: Permit religious ceremonies in non-traditional venues and allow interfaith ministers to lead ceremonies.
▪ Choice: Broaden the variety of locations where weddings can occur, including outdoor venues.
▪ New Options: Enable officiants not affiliated with religious beliefs to conduct civil weddings.
◦ Officiant-Based Scheme:
▪ Shift to Officiant Regulation: Move regulation from the venue to the officiant, similar to practices in the Channel Islands, US, and Australia.
▪ Officiant Duties: Ensure that officiants verify consent, meet other ceremony requirements, and complete the necessary documentation.
◦ Humanist Weddings:
▪ Campaign for Recognition: There is ongoing advocacy for non-religious belief organisations, such as Humanists, to conduct legal weddings.
▪ Potential for Expansion: Government consideration of authorising humanist celebrants to conduct legal weddings.
Vesting Powers in Officiants
• Rajnaara (2023) Review:
◦ Assessment of the Shift: Evaluates how shifting regulation from venues to officiants could impact practices, particularly looking at Muslim ‘nikah’ marriage practices in Australia.
◦ Training and Oversight: Highlights the need for proper training and oversight of officiants, addressing issues that have arisen with imams not adhering to legal requirements.
• Australia’s Celebrant-Based System:
◦ Advantages: Provides a model where a single religious ceremony can be legally binding through celebrants.
◦ Training: Ensures celebrants are trained on legal aspects to prevent issues of non-compliance.
This comprehensive approach seeks to modernise and simplify the laws surrounding marriage and civil partnerships, addressing both practical and ideological concerns while enhancing fairness and accessibility in the formation and recognition of these unions.