This blog post has been contributed by Robert Jago, Module Convenor for Family law.
The Marriage and Civil Partnership (Minimum Age) Act 2022 came into force on 27th February 2023. Under s1 of the Act the Marriage Act 1949 is amended so that the minimum age for a valid marriage is 18. There is a corresponding provision for civil partnerships at s3 of the Act. Prior to this legislation coming into force, it was possible for a person who was 16 or 17 to marry or form a civil partnership with consent from either the parents, a defined third party or a judge. It was also the case that any marriage was void if either of the parties were under the age of 16 at the time of the marriage. Data from 2018 suggests that 147 16-17 year got married to someone of the opposite sex which represents 0.06% of all marriages and the majority of those in this age range were female and over the previous five years an average of 79% of those in this age range getting married were female. [1]
One of the key justifications for the introduction of the legislation is to respond to the ongoing scourge of forced marriage or civil partnership. It has been recognised that previously proving forced marriage or civil partnership required evidence of violence, threats, or any form of coercion for the purpose of causing another to enter into the marriage under s121(1) Anti-Social Behaviour, Crime and Policing Act 2014. Under s2 of the new Act the criminal offence of forced marriage or civil partnership will be expanded so that it is an offence in all circumstances to do anything which is intended to cause a child to marry or enter a civil partnership before they turn 18 and are no longer a child. This means it will now be an offence to cause a child to marry or enter a civil partnership under the age of 18 without the need to provide any form of coercion was used. This is seen as an important development as it removes the burden on children to potentially have to provide evidence of their own parents’ coercion. Under the new law the marriage or civil partnership will simply be void. This will ensure the law is compliant with a United Nations Target from 2015 which includes ‘eliminate all harmful practices, such as child, early and forced marriage…’.[2] It is also important to note that the Act applies to both registered and unregistered ceremonies of marriage.
There had been several previous Private Member’s Bills which attempted to raise the minimum age of consent in these cases to 18 but they had not been successful. A key point raised during the course of the second reading of the 2021-22 Bill in the House of Commons came from Pauline Latham MP where she stated that the ‘provision for marriage at 16 is entirely outdated and prevents children from completing their compulsory educational training before entering into a commitment as huge as marriage.’ She also felt that the legislation would ‘send a very clear message that…it is against the law for a marriage to include a child.’[3] Whilst this is seen as an overwhelmingly positive development in law it is worth reminding ourselves as to why the age of the parties to a marriage provides an important reminder of where society sees the boundaries between childhood and the age of majority.
Cretney (2004) explains that the three reasons why the age of the parties should affect the validity of a marriage, and by extension a civil partnership. Firstly, the youth or old age of a party to a marriage may determine the level of intellectual capacity that the party might have when consenting to the marriage. Secondly, it is implicit, certainly in the marriage contract that consummation should be possible and if a party has not yet reached puberty this would leave one of the parties vulnerable. Finally, it has not been historically unusual for parents to be able to forbid their children to enter a marriage and whilst the Clandestine Marriages Act 1753 precluded children from marrying without parental consent until they were 21. This was then reduced by the Family Law Reform Act 1969 to 18.[1]
Back in 1967 the Latey Committee were asked by Parliament to consider the law relating to minors in England and Wales. The Committee in its report on the Age of Majority[2] recommended that the pre-existing limits on full capacity in civil law should be removed for persons between the ages of 18 and 21. This included the age for ‘free’ marriage, that marriage which is free from any requirements of parental consent. Whether it is a question of consent or of coercion it is now the case that under the new law parental involvement is removed entirely from the discussion around the minimum age requirements for a marriage or a civil partnership. Back in 1967 the Latey Committee indicated that ‘in this field at least the law is useless as a strengthener of family ties, and indeed by the frictions it causes between the generations may well help to wear them through.’ [3] We will need to wait and see what impact this new law has on these ‘frictions’. What is clear is that this legislation is yet another tool to try and prevent forced marriage and just as exiting a marriage or civil partnership has become easier since the passing of the Divorce, Dissolution and Separation Act 2020, so entering into a marriage or a civil partnership in the first place is now a decision very much preserved for an adult rather than a child.
[1] https://researchbriefings.files.parliament.uk/documents/CBP-9373/CBP-9373.pdf pages 7-8
[2] https://sdgs.un.org/goals/goal5
[3] https://researchbriefings.files.parliament.uk/documents/CBP-9373/CBP-9373.pdf quoted at page 20
[4] Cretney, S. (2004) Family Law in the Twentieth Century (OUP, Oxford), pp57-68
[5] https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1968.tb01202.x
[6] https://onlinelibrary.wiley.com/doi/pdf/10.1111/j.1468-2230.1968.tb01202.x para 106