Katherine Apps KC
Year of call: 2006
Silk: 2023
News
Til death do us part: legality of the ban on civil deathbed marriages during COVID 19
On 23 March 2019 the Prime Minister announced a ban on marriage ceremonies. As greater and greater numbers of people become ill, some seriously, questions begun to emerge – could a person who was critically ill (either with COVID 19 or another condition) still marry their partner before they passed?
The answer given by the Prime Minister's announcement (and currently by the Registrar General's office) is "no." [1] The answer from the Faculty Office of the Church of England is "yes, maybe." This note considers some of the arguments as to whether the position is lawful.'
Civil deathbed marriages
Under the Marriage (Registrar General's Licence) Act 1970 ("1970 Act"), the Registrar General can grant a license for a marriage to occur in an unregistered building (for example in a hospice, hospital or at home) without the person without the prior notification requirements being satisfied (usually 28 or 72 days). The Registrar General must be:
"satisfied that one of the persons to be married is seriously ill and is not expected to recover and cannot be moved to a place at which under the provisions of the Marriage Act 1949….the marriage could be solemnised."
The Marriage Act 1949 also permits marriages according to the Rites of the Church of England, which includes marriage by special license. The Faculty Office of the Church of England states that it continues to issue Special Licenses for a wedding to proceed at home, in hospital or in a hospice where a person is terminally ill (through COVID19 or otherwise).[2]
Legal significance of "marriage"
Whether a person is married or not has legal consequences, for example under the law of intestacy, for survivors' pensions and social welfare benefits. In the time before COVID 19 there had been a flurry of legal challenges considering the lawfulness of some of these provisions (eg Smith v Lancashire NHS Teaching Hospitals NHS Trust [2017] EWCA Civ 1916; McLaughlin's Application [2018] UKSC 48; Langford V Secretary of State for Defence [2019] EWCA Civ 1271).
Being "married" is a protected "status" under Article 14 ECHR and the right to marry is specifically protected under Article 12 ECHR. Article 12 provides:
"Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right."
Being "married" under religious law, but not in accordance with the formalities required in English law under the Marriage Acts,[3] is not recognised as a "marriage" by the Courts, or by government departments (Akter v Khan [2020] EWCA Civ 122; this is under consideration by the Upper Tribunal AAC in Rehman v Secretary of State for Work and Pensions in the content of Widowed Parents Allowance).
A domestic public law argument
The Coronavirus Act 2020 did not repeal or amend the 1970 Act. The Registrar General, therefore, appears to retain the power to grant a license. However, it is reported that the Registrar General has taken a position that no licenses will be granted.[4]
It is unclear how that decision was made (if indeed it was as a matter of policy) or whether decisions are being made in individual cases.
There is a general public law principle that a public authority cannot, by policy, contract or any other means, bar itself from exercising a statutory power: British Oxygen v. Board of Trade [1971] AC 610 at 625D.
If such a policy position has been taken, it could be arguable that the Registrar General's policy is unarguable.
A human rights argument
Only restrictions on marriage under the law of the contracting state can be lawful under Article 12 ECHR. It is also possible to argue that a decision or policy which prevents a person from acquiring marital status disproportionately interferes with Articles 8 and 14 ECHR.
There is a precedent for such a challenge. In R (Baiai) v Secretary of State for the Home Department [2009] 1 AC 287 the Supreme Court upheld a challenge to a requirement that non EEA nationals apply for a certificate of approval of marriage to the Secretary of State before they could lawfully marry.
As Lord Bingham held at [16]:
"The Strasbourg jurisprudence requires the right to marry to be treated as a strong right which may be regulated by national law both as to procedure and substance but may not be subjected to conditions which impair the essence of the right."
Some restrictions on the manner and formality of a ceremony are justified, for example there was no breach of Article 12 ECHR In Akhter v Khan, where a couple had undergone a Nikah ceremony but not a ceremony in accordance with the formalities of the Marriage Act 1949.
In the current pandemic, there could be a risk of infection if weddings carried on "as normal." However, provided social distancing is observed and appropriate PPE is worn, it is difficult to envisage why it would necessarily impossible for a valid deathbed marriage to be conducted safely. It is apparent that the Church of England has taken a different approach in relation to the grant of special licenses for those who are terminally ill.
Whereas some couples are continuing to have "zoom weddings" during the pandemic, and this might provide some comfort, it does not provide for the legal consequences of marriage to occur. As such marriages do not purport to be in compliance with the Marriage Act 1949, the law terms them "non-marriages." As in Akhter v Khan, a non-marriage does not give access to the legal benefits of a valid (or even a void) marriage.[5]
What can be done?
If a public authority (including the Registrar General) has acted unlawfully, a person who is directly affected by that decision can bring an application for judicial review. Given the limited nature of the circumstances in which the Registrar General's powers under the 1970 Act to facilitate a deathbed marriage, it might well be necessary for such an application to be made on an urgent basis.
Beyond deathbed marriages?
The statutory framework for non-deathbed marriages is different (the formalities are set out in the Marriage Act 1949 as amended).
However, if the lockdown were to continue for a significant period of time, similar human rights arguments might potentially be available.
Conclusion
The introduction of a strict "lockdown" was politically popular around the country. However, there is a real risk that the provisions which regulate civil deathbed marriages have been introduced so strictly, that they risk unlawfully and irreversibly denying people who love one another the ability to benefit from the status of marriage.
Katherine Apps is a member of the Public Law team at 39 Essex Chambers and is counsel for the Secretary of State for Work and Pensions in Rehman v Secretary of State for Work and Pensions.
This article is not legal advice and should not be relied on in an individual case. If you have any queries, please contact the public law clerks here.
[1] See eg https://www.warrington.gov.uk/register-office-coronavirus-update
[2] http://www.facultyoffice.org.uk/special-licences/marriage-law-news/
[3] The Law Commission has noted that the privileged position of church marriages compared with other religions is problematic https://www.lawcom.gov.uk/project/weddings/
[4] See fn 1
[5] Parties to a void marriage may access relief under section 11 of the Matrimonial Causes Act 1973
