Marriage – Government to block marriage & civil partnership for some prisoners

It may come as a surprise to many people, but being in prison is not in itself a bar to marriage or civil partnership.

Why is the right to marry/civil partnership protected?

In certain faiths and communities, marriage is considered an important part of life and a rite of passage. Even for those who do not belong to a religion, marriage can take on a spiritual significance, and be considered a stabilising force for a relationship and a symbol of a commitment to a lifelong union. There may be a social or religious impact for prisoners or their potential spouses belonging to faiths or communities in which having a child outside of marriage can be stigmatised, though this is unlikely to be relevant unless a child was conceived just before one partner’s imprisonment.

Currently, prisoners can enter into marriage in the place of their detention, according to the Marriage Act 1983. The Civil Partnership Act 2004 provided for same sex couples to enter into a civil partnership, followed by the Marriage (Same Sex Couples) Act 2013. In December 2019, civil partnerships were extended to opposite sex couples, as Civil Partnership (Opposite-sex Couples) Regulations 2019 amended the 2004 Act.

Under Section 27A of the Marriage Act 1949, the governor must decide whether they have any objection to the prison being named on the notice of marriage as the place where the marriage is to be solemnized. In exercising this discretion, the governor must be mindful of the need to make every effort possible to facilitate the prisoner’s exercise of the right to marry, as per Article 12 of the European Convention on Human Rights.

Is consent normally given?

Subject to considerations of security, permission for a marriage or civil partnership to take place inside a prison should be given in the following circumstances:

• In the case of sentenced prisoners, at the time of their application, the prisoner is not expected to be released or deported, or to have the opportunity to marry or enter a civil partnership while on Temporary Release, within three months of submitting their request.
• In the case of unsentenced prisoners, the prisoner is likely to remain in custody for three months or longer after their application.
• In the case of prisoners who have less than three months to serve at the time of their application, where there are exceptional compassionate reasons for allowing the marriage/civil partnership to take place inside the prison sooner, for example, where the marriage/civil partnership is between parents whose child is expected to be born within three months (medical evidence of the likely date of birth will be required) or in the case of someone who is terminally ill.
• Prisoners wishing to marry or enter into a civil partnership will also need to confirm that they are not already in a marriage/civil partnership; 18 years or older at the time of the marriage or civil partnership; and not a close relative of their intended partner.

How common is marriage in prison?

Marriages and civil partnerships in prison are relatively infrequent. In 2022, around 60 prisoners applied to marry in prison, out of a total prison population of approximately 80,000. There has only been one marriage application from a whole life prisoner in recent years.

What changes are proposed?

The Government wants to prevent whole life prisoners from forming a marriage or civil partnership. It considers that this is necessary to reinforce the seriousness of whole life orders, and in doing so uphold public confidence in the Criminal Justice System.

The government argues:

'...that the public is likely to perceive it as inappropriate for prisoners subject to the single most severe punishment in England and Wales criminal law to be allowed to form marriages or civil partnerships while serving their sentence in prison or another place of detention. It is possible that allowing this to continue could undermine confidence that the Criminal Justice System is able to deal with such prisoners in a manner reflecting the seriousness of their offending.'

There were 66 prisoners serving whole life orders in a prison in England and Wales, as of December 2022. This figure has risen slightly over the last decade: in 2013 there were 42 whole life prisoners. It has been fairly stable since 2017, when there were 64 whole life prisoners; since then, the number has not dropped below 63 or risen above 66.

Provisions to ban such marriages are in The Victims and Prisoners Bill, which is currently before Parliament.

Anyone who might be affected by this change should urgently explore the available options before legislation is brought into force.

How can we help?

We ensure we keep up to date with any changes in legislation and case law so that we are always best placed to advise you properly. If you would like to discuss any aspect of your case, please contact us on 0208 309 5010 or email newenquiries@nelson-guest.co.uk.