Is Gretna Green going to become popular again for runaway couples?

A recent change in English marriage laws may unintentionally create an increase in couples travelling across the border to Gretna Green to get married, just like days of old!

After the recent move in England to make divorce easier by introducing no-fault divorces, by contrast the English legal system has now made it more difficult to get married in the first place.

The recent change, increasing the age of consent for marriage to 18 in England, has led to quite a significant difference between the legal positions north and south of the border in terms of when a person can get married. It also opens a fresh debate about what age is deemed appropriate to get married in any civilised society and how far should the state intervene in personal relationships and the like with arbitrary age restrictions.

On the age allowed for marriage itself, clearly there is now an increasing difference of opinion between Scotland and England on that point, let alone other nations.

Scotland

In Scotland, the age of consent for marriage is still 16 and that has been the case since the Marriages (Scotland) Act 1977. In the past, the age of majority in Scotland has been as low as 12 for girls and 14 for boys — boys were deemed to mature much later than girls, which some may suggest is still as true today as it was then!

The age of 16 was however deemed a more appropriate age in the modern era. That age fits with other legislation, including the right to vote in Scotland and the age of consent for sexual intercourse.

England

The position in England has now become more conservative. The Marriage and Civil Partnership (Minimum Age) Act 2022, which gained Royal Assent in April last year, came into force on 27 February 2023.

It means that 16- and 17-year-olds will no longer be allowed to marry or enter a civil partnership, even if they have parental consent.

Differences in approach

There seems a lack of cohesion in both countries with other age restrictions too, particularly because some of those age restrictions are set by UK law and some by devolved law.

For example, bizarrely, in Scotland you can vote and get married at 16 but not drive to the wedding or have alcohol to celebrate.

In England you can get a driving license before you can get married but not vote to change the law.

Even sentencing practice in criminal courts for teenagers differs in each country depending on their age.

Where does this leave us?

The main rationale for this recent change in England to the marriage laws is to try and reduce forced marriages or the exploitation of vulnerable children, whether or not force is used.

The Anti-social Behaviour, Crime and Policing Act 2014, Section 121 made it a criminal offence in England, Wales and Scotland to force someone to marry.

The court can also make a Forced Marriage Protection Order (FMPO) under the Family Law Act 1996 (as amended by the Forced Marriage (Civil Protection) Act 2007) in England, and in Scotland, under the Forced Marriage etc (Protection and jurisdiction) (Scotland) Act 2011.

Proponents of the new change in England of raising the age of consent for marriage to 18 will argue they are bringing England in line with the United Nations Convention on the Rights of the Child. The UNCRC has long advocated there should be an end to child marriages and crucially recognizes a child as anyone under 18 years old.

That said, the same Convention seeks to advocate more rights for children and there will be many teenagers in England and Wales aged between 16 and 18 who will argue they are mature enough to decide whether they wish to live at home, enter relationships, cohabit or get married, and that such recent changes to the law go too far. They will no doubt want their own rights preserved and acknowledged in line with the UNCRC so there may yet be a challenge in the future about this law change.

Practical issues

Given that parties can easily cross the border and get married in Scotland without too much difficulty it seems unlikely that this provision is going to make a great deal of difference in real terms, especially where the person who may be pressured by their family may have the means to pay for such a trip and set up the wedding arrangements in Scotland just as easily as a venue in England or Wales.

In an age where the rights of children have become more important than ever, one also wonders at the juxtaposition between children aged between 16 and 18 who feel they are being forced into marriage and need protection under the law, and other children of the same age who feel they are mature enough to decide for themselves whether they get married or vote etc. and do not need this rule of law applying to them.

Cross border tensions

Rather than both countries laws becoming more harmonious in relation to marriage and divorce or civil partnership dissolution, when the only real distinction is geographical, this recent provision again moves the Scottish and English legal systems apart.

In Scotland there is an acknowledgement that people of adult age should be entitled to enter freely into any contract themselves without state interference or the need for any consent from their parent or court. This is perhaps a distinction in governmental approaches to arbitrary age restrictions, but it also applies in the courts as well.

Take pre-nuptial agreements as an example: in England and Wales there is governance by the courts as to what arrangements are to be made financially if parties divorce. By contrast, pre-nuptial and post-nuptial contracts have been around and recognised in Scotland for many years without judicial interference or supervision. It remains the case that the courts in England still retain an oversight of whether these should be enforced, even when validly entered into, whereas the courts in Scotland will not usually intervene at all, except in exceptional cases where consent to the agreement or contract was not properly given. That said, the courts in England will give significant weight to nuptial agreements freely entered into, and that has been recognised by English family lawyers as a very positive and welcome move.

Prior to Brexit, the EU was moving all countries closer in terms of family, divorce and maintenance laws, with harmonisation of such laws being encouraged to fit in with the overarching right of freedom of movement without interference of domestic laws. It remains to be seen if another unintended consequence of Brexit is a movement away from such harmonisation, not just with other EU countries but within the United Kingdom itself.

Summary

Is there a right or wrong approach to this age-old problem (excuse the pun!) of when someone is old enough to do something, whether it be to marry, drive, work and so on?

Will Scotland and the rest of the UK continue to adopt different approaches post Brexit or will they try and build on the harmonisation path the EU had started?

Only time will tell if this will be another case of “never the twain shall meet”.

In the meantime, no doubt some savvy marketeer in Gretna will tout Gretna Green on Instagram as the fashionable place for teenagers in England and Wales to run away and get married to defy their “overprotective” parents and the “oppressive legal system” that some rebellious teenagers have decried through the ages.