Change to marriage laws causes disparity between Scotland, and England and Wales. Is Scotland behind the curve regarding popular opinion?

On 27^th February 2023 the law as it applies to marriage and civil partnerships changed in England and Wales. This was as a result of the Marriage and Civil Partnership (Minimum Age) Act 2022 (‘The 2022 Act’). The changes to the 2022 Act introduce a disparity in the ages that people may marry in Scotland compared to England and Wales.

The Marriage Act 1949 provided that a marriage between anyone under 16 years would be void. The implication being that 16 years old was the youngest age at which a person may marry in England and Wales. The changes brought about by the 2022 Act increase the minimum age for marriage to 18 years old. In addition, the requirement for consent of a parent or guardian in certain circumstances has been abolished.

The Marriage (Scotland) Act 1977 (‘The 1977 Act’) provides that anyone can marry so long as they have attained the age of 16 years. There is no requirement in Scotland to obtain the consent of a parent or guardian to marry. The age limits for marriage are the same in Northern Ireland.

As the law currently stands, anyone who is over the age of 16 years old and complies with the necessary preliminary registrations and publications, can marry in Scotland. There is no need to live in Scotland to marry there. Owing to the disparity in the law between Scotland, and England and Wales, the marriage will not be legally recognised for people who are resident in England and Wales aged between 16 and 17 years old at the time of the marriage ceremony in Scotland.

The option of eloping to Gretna Green is now no longer available for those who are under the age of 18 years in England and Wales and intent on marrying.

Why has the change been made?

In a statement dated 27^th February 2023, the Children’s Commissioner for England stated,

“Today’s change in legislation is hugely welcome, and something I have long been calling for as Children’s Commissioner.

“This has largely been informed by my own experiences as a teacher and a Headteacher, where I witnessed young girls being taken out of school and married against their will. They should have had the chance to go on to achieve an education, but instead, they were left with little choice about their future, and at risk of serious abuse within their marriage.

“All children deserve a right to a childhood, and I am hopeful that this change in the law will go some way to protect vulnerable young women and girls from potential exploitation or abuse.”

Age limits for marriage throughout the United Kingdom have been longstanding. It is felt that changes to the current age limits in England and Wales reflect better current public opinion.

The basis for the change now is to ensure that young women and girls in particular are necessarily safeguarded from exploitation and abuse. The change to the law in England and Wales has been hailed as a huge victory for survivors of forced marriage.

What is the feeling in Northern Ireland and Scotland?

In Northern Ireland, a consultation was launched at Stormont seeking public opinion on the raising of the minimum age for marriage to 18 years. The consultation closed in February 2022. Support for an increase in the minimum age was almost unanimous. There is a commitment in Stormont for legislative reform in light of the responses to the consultation process.

In its recent Report to the UN Committee on the Rights of the Child, Together – Scottish Alliance for Children’s Rights has called for an increase to the minimum age to 18 years which would bring it in line with the new law in England and Wales. The Scottish Government recently held a consultation regarding a new funding model to ensure high-quality, accessible specialist services across Scotland for those experiencing any form of violence against women and girls. There has been no indication (yet!) that a consultation will be proposed to consider increasing the minimum age for marriage in Scotland. Given the tenor of public opinion throughout the United Kingdom, and the Scottish Government’s commitment to incorporating the United Nations Convention on the Rights of the Child into Scots Law, it is likely that a consultation will be launched by the Scottish Parliament in light of the wider attitudes throughout the rest of the United Kingdom.