Civil Partnerships, Marriages and Deaths (Registration etc.) Act 2019

Commentary on provisions of Act

Section 1: Marriage Registration

36. Subsection 1(1) empowers the Secretary of State to make regulations which amend the Marriage Act 1949 (the 1949 Act) for a system under which details relating to marriages in England and Wales will be recorded in documents used in marriage procedures and be entered onto an electronically accessible central register.
37. Subsection (2) sets out amendments that the regulations may, in particular, make to the 1949 Act:

• Paragraph (a) enables the replacement of the existing superintendent registrar’s certificates for marriage (which serve as the authority for the marriage to proceed after civil preliminaries) with a marriage "schedule", which will function not only as the authority for the marriage, but also as the document the parties sign at the solemnization (instead of a register book) and which records the particulars to be registered.
• Paragraph (b) makes similar provision for marriages following ecclesiastical preliminaries, providing for a document that will form the basis of the registration of (although not the authority for) a marriage conducted according to the rites of the Church of England or Church in Wales.
• Paragraphs (c), (d) and (f) enable the amendments to provide for the signing of the above-mentioned documents, their delivery to a registrar, and the registration of the particulars they contain.
• Paragraph (e) enables amendments to be made to require the Registrar General to maintain a marriage register, which will replace the bound marriage register books currently held in register offices but also in some 30,000 churches and other religious buildings.
• Paragraph (g) enables the regulations to amend the 1949 Act to remove provisions in the 1949 Act which are no longer required under the new system of marriage registration.

38. Subsection (3) empowers the Secretary of State to amend the 1949 Act to create a specific criminal offence, aimed at enforcing the registration of marriages. This offence is to be modelled on section 24(2)(e) of the Marriage (Scotland) Act 1977. If a signed schedule or marriage document is not delivered to the registrar to be registered within a certain timescale, the registrar may require a party to the marriage to attend personally at the register office for the purpose of delivering the signed document. Subsection (3) enables the regulations to provide that failure to attend constitutes a criminal offence. The maximum penalty (a fine not exceeding level 3 on the standard scale, currently £1000) is specified in the Act.
39. Subsection (4) empowers the Secretary of State to sub-delegate certain administrative aspects of the registration provisions to regulations made by the Registrar General under section 74(1) of the 1949 Act with the approval of the Secretary of State. The provisions that may be delegated are:

• The power to prescribe the form and content of documents including the marriage schedule and marriage document. These documents will include the particulars to be registered in respect of each marriage. This power is also likely to be used to prescribe notices to be given by the registrar to the parties to the marriage in the event that a signed marriage schedule or document is not delivered for registration.
• The power to make provision in relation to corrections to, or the re-issue of a marriage schedule or marriage document before the marriage is solemnized. Such provision will be necessary to enable the re-issue of documents that have been lost or damaged, or to enable corrections in case of error or where a party's details have changed, for example.
• The power to make provision in relation to the keeping of a signed marriage schedule or document after the particulars set out in it have been entered in the marriage register. It is likely that the signed documents will be retained either by the Registrar General (as is the case for civil partnerships) or by superintendent registrars.
• The power to make provision in relation to corrections to entries in the marriage register or a pre-commencement marriage register book.
• The power to make provision in relation to the keeping of pre-commencement register books, for example whether they should remain in the custody of those who currently hold them (such as members of the clergy and persons authorised by other religious groups).
• The power to make provision in relation to the keeping in a church or chapel of records of marriages solemnized according to the rites of the Church of England.

40. Subsection (5) clarifies that provision in relation to the keeping of books, documents or other records (such as signed marriage schedules, or records held by the Church of England) may specify who may keep them and how they must be stored, and the circumstances in which the book, document or other record must be annotated. This might be used to require pre-commencement marriage register books to be marked to show that they are no longer in use. Subsection (5)(c) also enables the regulations to require books, documents or other records to be sent to the Registrar General or a superintendent registrar.
41. Subsection (6) places a time limit on the Secretary of State’s use of the power to amend primary legislation to a period of three years beginning on the day the regulations are first made.
42. The content in subsection (7) is self-explanatory.

Section 2: Extension of civil partnership

43. Section 2(1) enables the Secretary of State, by regulations, to amend the Civil Partnership Act 2004 so that two people who are not of the same sex are able to form a civil partnership, as long as they are not ineligible under the Civil Partnership Act 2004 for other reasons (for example, because they fall within prohibited degrees of relationship).
44. Section 2(2) requires the Secretary of State to exercise the power in subsection (1) so that regulations extending eligibility to opposite-sex couples are in force no later than 31st December 2019.
45. Section 2(3) enables the Secretary of State to make other provision by regulations if this is appropriate in view of the extension of eligibility. The current civil partnership regime is bespoke to same-sex couples. Subsection (3) enables the Secretary of State to ensure that a coherent scheme can be introduced for opposite-sex couples.
46. Section 2(4) sets out areas in which regulations made under subsection (3) may make particular provision. These include provision relating to:

• Parenthood and parental responsibility.
• Gender recognition
• Financial consequences of civil partnership
• The recognition of similar overseas civil partnerships in England and Wales.

47. Section 2(5) enables the Secretary of State to make regulations relating to conversion of marriage into civil partnership and vice versa. Same-sex couples are permitted to convert their civil partnerships into marriage by virtue of section 9 of the Marriage (Same Sex Couples) Act 2013 but currently there is no right to convert a marriage into a civil partnership. Regulations made under section 2(5) may also restrict current or newly created conversion rights or bring them to an end.
48. Section 2(6) requires the Secretary of State to consult before making any regulations on conversion.
49. Section 2(7) gives a power to protect the ability to act in accordance with religious belief in relation to matters provided for in regulations made under other parts of this section. This enables appropriate provision to be made to ensure religious freedoms continue to be protected in relation to the new civil partnership regime. By way of example, this power could be used to ensure religious organisations are free to decide whether to host an opposite-sex civil partnership on religious premises.
50. Section 2(8) ensures that regulations will be able to amend, repeal or revoke primary legislation as defined by subsection (9)(b).

Section 3: Report of registration of pregnancy loss

51. Section 3 requires the Secretary of State to prepare and publish a report on whether, and if so how, the law ought to be changed to require or permit the registration of pregnancy losses which cannot currently be registered as still-births under the Births and Deaths Registration Act 1953.

Section 4: Coroners’ investigations into stillbirths

52. Section 4 requires the Secretary of State to prepare and publish a report into whether and, if so, how the law should be changed to enable or require coroners to investigate still-births. There is further supplementary provision about the power to make regulations under the Act is made in Section 5. Section 4(1) places a duty on the Secretary of State to make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to enable or require coroners to investigate still-births. Under section 4(2) "still-births" is given the meaning in section 41 of the Births and Deaths Registration Act 1953. Under Section 4(3) the Secretary of State must publish the report produced.
53. Subsection (4) of Section 4 confers a power on the Lord Chancellor, after the report under section 4(1) has been published, to make regulations. Those regulations may amend Part 1 of the Coroners and Justice Act 2009 ("CJA") to enable or require coroners to conduct investigations into still-births. Part 1 of the CJA contains the current powers of coroners to investigate deaths. A description of the current provisions in Part 1 is provided above in the Legal Background section of these Explanatory Notes.
54. Section 4(4)(b) provides that investigation regulations may limit the circumstances in which investigations are to take place. For example, this could be used to provide that a power or duty to investigate still-births only applies to still-births of a specified gestation. Section 4(4)(c) provides that investigation regulations may provide the purposes of a coroner’s investigation. Under Section 4(4)(d) investigation regulations may make provision equivalent or similar to provisions in Part 1 of the CJA that relate to investigations into deaths.
55. Under subsection (5) of Section 4, regulations may not create criminal offences other than by applying (with necessary modifications), or making equivalent or similar provision to, provision already contained in Part 1 of the CJA. For example, this power could be used to apply the offences in Schedule 6 to the CJA to investigations into still-births. Subsection (5) also provides that regulations may not confer any power to make provision of a legislative character other than applying, or making equivalent or similar provision, to provision already contained in Part 1 of the CJA. For example, this power could be used to make provision equivalent to the Lord Chief Justice’s power in section 45 of the CJA to make rules relating to inquests.
56. Under Section 4(6) the power to make regulations will cease to be exercisable after the period of five years beginning with the day on which the report is published under section 4(3).
57. The power to make regulations amending the CJA under section 4 is subject to the affirmative resolution procedure (section 5(7)).

Section 5: Supplementary provision about regulations

58. Section 5 includes supplementary provision about regulations under the Act.
59. Subsection (1)(a) contains a power to enable the Secretary of State to amend, by regulations, the rarely used Marriage of British Subjects (Facilities) Acts 1915 and 1916 so that they no longer apply in England and Wales. Subsection (1)(b) enables the Secretary of State to make consequential provision in respect of regulations amending the Marriage Act 1949 made under Section 1 of the Act.
60. Subsection (2) confers a power on the Secretary of State to make provision in consequence of regulations under section 2.
61. Subsection (3) enables the Lord Chancellor to make consequential provision in respect of regulations amending part 1 of the Coroners and Justice Act 2009 made under Section 4. .
62. Regulations made under subsections (1) or (2) or (3) may include provision to amend, repeal or revoke provisions made under primary legislation as defined in subsection (9). The regulations may make different provision for different purposes or for specific cases. Regulations made under section 2 and regulations under any other section of the Act that amend, repeal or revoke any provision in primary legislation are subject to the affirmative resolution procedure and require the approval of both Houses of Parliament.