Garry Sturrock: Legal age to marry in Scotland – are changes afoot?

Garry Sturrock: Legal age to marry in Scotland – are changes afoot?

Garry Sturrock

Recent legal news has been dominated by the coming into effect of the Marriage and Civil Partnership (Minimum Age) Act 2022 in England and Wales. Previously, the law provided that individuals aged 16 and 17 in England and Wales were capable of entering a marriage, provided that they had parental consent. The 2022 Act abolishes this exception and provides that the minimum age for marriage is 18, with no exceptions. The UK government hails the legislation, which was introduced as a private member’s bill by Pauline Latham OBE MP and was supported by campaign organisations such as Girls Not Brides Coalition, as a significant milestone in better protecting vulnerable young people from forced marriages.

What is the position in Scotland?

In Scotland, the legal age of marriage has been 16 for a considerable period of time. The Marriages (Scotland) Act 1977 provides that a person aged 16 or over is capable of entering into a valid marriage.

The case for reform

There have been repeated calls for the Scottish government to better protect children and raise the age at which an individual in Scotland can marry to 18. Proponents of raising the legal age of marriage cite research which shows that child marriages can lead to negative outcomes including a higher statistical risk of domestic abuse and mental health problems, lower educational attainment and lower economic opportunity. They argue that Scotland has a legal duty to protect the rights of children, defined by the United Nations Convention on the Rights of the Child as being persons under the age of 18. Although not directly dealing with the issue of forced marriage, the UNCRC states that all children generally have the right to be protected from all forms of exploitation and abuse. The United Nations position is that “child marriage” ought to be condemned and eradicated and it has called upon nations to end child marriage by 2030. Those calling for reform of the law argue that Scotland is lagging behind in failing to recognise the internationally recognised definition of a child.

Is change really necessary?

Those who oppose reform claim that raising the legal age of marriage is unnecessary as Scotland already has robust laws in place to prevent forced and coerced marriages. This includes provisions in the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011, which allows Forced Marriage Protection Orders to be granted where there are concerns about a young person being forced into a marriage. It is also argued that raising of the legal age of marriage in Scotland to 18 would “infantilise” young people and infringe on their right to make informed choices. They also point out that it could impact on young people who wish to marry for cultural or religious reasons. Further, there are concerns that raising the age of marriage alone would cause arguable incompatibilities in the law, for example if the age of consent for sexual intercourse remained at 16 and the age of consent to marry was raised to 18. There are also arguments that the raising of the age of consent to marry could have unintended consequences, such as an increase in cohabitations or informal unions which don’t have the same protection as marriage.

Is reform likely?

In response to questions raised in the Scottish Parliament in June 2021, the Scottish government stated that there would require to be a full public consultation before it took any steps to bring or support legislation raising the minimum legal age of marriage to 18. There has been no consultation to date, and it is thus unclear whether the Scottish government does intend to consult on reform.

Garry Sturrock is a senior associate at Brodies LLP

Share icon
Share this article: