Family Law: Minimum Age for Marriage; Is Scotland falling behind?

In February of this year, the law in England and Wales changed to raise the minimum age of marriage to 18 years old and abolished any remaining parental consent exceptions. One of the legal minds behind the legislation, Shabina Begum, received the Law Society Legal Heroes award earlier this month for her role in drafting the Marriage and Civil Partnership (Minimum Age) Age Act 2022.

The legislation says that no individual under the age of 18 can enter a marriage or civil partnership, under any circumstances. The act also criminalises the facilitation or encouragement of underage unions and requires responsible parents or guardians to protect their children against underage marriage. Those who fail to protect children in their care can face criminal prosecution and custodial sentences of up to 7 years. Vitally, the legislation applies to non-legally binding traditional and religious ceremonies that are deemed as marriages by parties and their communities.

UK Government and advocacy groups in England and Wales praise the change as an advancement towards eradicating forced marriage. This legislative shift, having passed as a bill through the UK Parliament without opposition, raises the question as to whether Scotland will take a similar route to modernise its law on marriage.

The law in Scotland

At present, the minimum age for marriage in Scotland is 16 and parties do not require parental or guardian consent. In recent years, following the change of an increased minimum age south of the border and the Scottish Government’s commitment to incorporating the United Nations Convention on the Rights of the Child into Scots Law, the calls for reform have been gaining momentum.

The Question of Reform

The United Nations views any marriage of people under the age of 18 as child marriage and has implored every jurisdiction to prohibit the practice. Commentators argue that increasing the minimum age can shield children from the associated effects of child marriages including patterns of limited career development and the increased prospect of domestic abuse. Moreover, many deem the legal and financial commitment associated with marriage to be too significant for a person under the age of 18 to grapple with.

However, it is important to consider whether this narrative is consistent with the autonomy that is awarded to young adults in Scotland in other legal contexts. In particular, people between the ages of 16 to 18 are considered to have the capacity to freely enter into contracts with limited safeguards, vote in Scottish Parliament elections and consent to sexual relationships. Children even younger are considered to have enough agency to knowingly commit crimes and can be held to their actions from the age of 12 under criminal responsibility laws. Importantly, Scots family law is predicated on the ceasing of parental rights and responsibilities at 16 and empowers children of that age to gain almost full independence from their parents.

Opponents of reform argue that removing a young adult’s ability to get married autonomously bears the risk of forfeiting fundamental concepts that lie at the heart of many of our laws. In conjunction with Scotland’s vigorous legislation on forced marriage, they question whether reform is strictly necessary. Opposing this stance, others believe Scotland is failing to meet expectations set by human rights conventions and urge our legislature to fall in line with its peers.

Whilst it appears unlikely that the Scottish Parliament will act upon the debate, the reform in England and Wales has most certainly brought the matter into the public’s focus.