The Divorce and Matrimonial Causes Act 1857 secularised the English divorce law, by
(1) abolishing ecclesiastical jurisdiction over divorce and
(2) creating a secular court with the power to dissolve marriages as if one of the spouses had died.
Before 1857, the secular state had formally accepted the Church of England’s doctrine of marriage.
Phillimore’s Ecclesiastical Law (2nd edition 1895) observed that the tension between Church and state on the subject of marriage that the 1857 Act created was not unprecedented:
‘It is remarkable that the [marriage] legislation of the Roman emperors, even after they had become Christians, was founded upon heathen principles, and … recognized the liberty of husband and wife to dissolve the [marriage] contract by mutual consent, and retained many provisions of the early Roman law which were incompatible with the Christian character of the contract.’ (p.549)
The Church’s response to secular authority’s adherence to pre-Christian Roman law was ‘to invest the marriage bond more and more with a religious character’ (p.549), in a word, to Christianise marriage. This was a work of centuries.
The Contract and the Sacrament
Patrick Connolly has provided an illuminating account of the development of the Church’s doctrine of marriage, in an article ‘Contrasts in the Western and Eastern Approaches to Marriage’ (2001) Studia Canonica, p.357.
According to Connolly, the mediaeval Latin Church discerned the twofold character of marriage as
(1) a contract (contractus) between the parties and
(2) a sacrament.
In the early Church, marriage was more usually described as a covenant (foedus), a less precise term than contractus, and was not generally regarded as a sacrament. However, from the high middle ages, the Latin Church held that, not only was marriage both contract and sacrament, but that the two were inseparable. The marriage contract was the sacrament.
The corollaries of this doctrine of the inseparability of contract and sacrament were thus:
(1) the spouses themselves, being the parties to the contract, were also the ministers of the sacrament, not the officiating priest
(2) hence the marriage sacrament might validly be administered without the blessing of the Church, by the spouses themselves
(3) however, the Church claimed exclusive jurisdiction over marriage, against the secular authority. If contract and sacrament were inseparable, it was not possible for the secular authority to have jurisdiction over the contract with the Church having jurisdiction only over the sacrament
(4) the woman was of equal status with the man, since her consent was necessary for the making of the contract, and she was co-minister of the sacrament with her husband.
The Greek Church’s concept of marriage is rather different from that of the Latin Church. It is more liturgical and other-worldly. For the Greek Church, marriage is made in Heaven, by God, not by the consent of the parties. The need of consent is not denied. However, it is God Who receives the consent and unites the couple. The Latin Church understood the marriage contract to have been raised by God in Christ to a sacrament. The Greek Church understood that the sacramental grace descends from God onto the contract.
Thus the Greek Church attaches much greater importance to the marriage liturgy than does the Latin Church, even though there was no marriage service in the early Church. The priest is the minister of the sacrament, not the couple. A marriage without the blessing of the Church is invalid, or at least of doubtful validity.
The Second Vatican Council slightly modified the legalistic Latin view of marriage, and revived the term foedus to describe the marriage bond. However, the term contractus was not abandoned. Both the Latin and the Oriental Codes of Canon Law (promulgated in 1983 and 1990 respectively) tend to reflect the Latin concept of marriage, though the Oriental Code places more emphasis on divine action in making a marriage and on the importance of the Church’s blessing to a marriage.
Despite its exalted view of marriage as made in Heaven, the Greek Church would seem to be less strict than the Latin Church in its attitude to divorce. Phillimore remarked that ‘It is not very easy to ascertain what the practice of the Greek Church as to divorce a vinculo has been and is’ (p.549n). This is not surprising, as the very terminology a vinculo is Latin, not Greek. Classical canon law, which contributed so much to the Church’s doctrine of marriage, was very much a phenomenon of the Latin Church, and had little impact on the Greek Church.
Impediments and Indissolubility
The doctrine of the indissolubility of marriage was developed by the mediaeval Latin Church, under the influence of its canonists. Gilbert Burnet, a Church of England bishop, noted that the early Church ‘had no other notion of a divorce but that it was the dissolution of the [marriage] bond: the late notion of a separation [with] the tie continuing not being known till the [Latin] canonists brought it in’ (An Exposition of the 39 Articles (1699), p.289).
It is sometimes glibly remarked that the modern Church of England is itself the result of divorce, an allusion to Henry VIII’s ‘great matter’, and therefore not in a position to be too strict about remarriage after divorce.
This jibe may be answered on its own level by pointing out that it was marriage, not divorce, that precipitated the break with Rome. If divorce in the modern sense (i.e the legal dissolution of a valid but inconvenient marriage) had been available to Henry VIII, the break with Rome would not have been necessary. It was precisely because the English and Roman Churches agreed that marriage was indissoluble that they were forced to split.
The controversy over Henry VIII’s marriage concerned the validity of the marriage contract, that is, the impediments capable of preventing the contract from being validly made. There was no dispute that the contract, once validly made, was indissoluble.
The Act of Succession 1533 strongly affirmed the prohibition of marriage within the degrees prohibited by the Bible. It denied any human power to dispense from the divine prohibition. The later Marriage Act 1540, by contrast, denied the Pope’s, and the Church’s, power to forbid any marriage not forbidden by the Bible.
Thus the conclusion of these two Acts was that
(1) all marriages not forbidden by Scripture were lawful and
(2) no marriage forbidden by Scripture could be made lawful.
Phillimore echoed the reformers’ complaint that ‘Before [the Marriage Act 1540], other prohibitions than God’s law admits were … invented by the court of Rome: the dispensation whereof they always reserved to themselves’ (p.570).
In contrast to the English legislation, and against the reformers’ protest, the Council of Trent asserted that
(1) the prohibited degrees of marriage contained in the Bible are not the only impediments to marriage
(2) the Church has power to decree other impediments to marriage besides those in the Bible
(3) moreover, the Church can dispense from impediments to marriage, including at least some of the impediments contained in the Bible (the 24th session, 1563).
The Council also limited the freedom of parties to marry by providing that marriage would in future be invalid unless solemnised in facie ecclesiae by an authorised priest. A comparable rule was not introduced into English law until Lord Hardwicke’s Marriage Act of 1753, nearly two centuries later.
In Lord Stowell’s words, English law emphasised the character of marriage as ‘a contract according to the law of nature antecedent to civil institutions’ (quoted by Phillimore, p.550), not requiring the intervention of a priest. Hence a ‘common law marriage’ required only an exchange of promises by the couple to live together as man and wife.
Thus the reformed English doctrine of marriage was in a certain sense more ‘liberal’ than the Catholic doctrine. It strongly emphasized the freedom to marry, subject only to the prohibitions contained in the Bible. Clandestine marriages were disapproved of, but were still accepted as valid marriages.
However, in another sense, the reformed doctrine was rather stricter. The parties were allowed great freedom to marry but, having exercised this freedom, it was very difficult to escape the consequences of it. A valid marriage could not be dissolved. The ‘unscriptural’ Catholic system of impediments and dispensations at least made it easier to avoid a marriage that the parties now regretted.
Burnet even reproached the Church of Rome with being too lenient in the exercise of its matrimonial jurisdiction. He wrote disparagingly of ‘a foundation laid down for breaking marriages … which is often practised at Rome, as often as the parties, or either of them, will solemnly swear that they gave no inward consent’ (op.cit, p.287).
A modern Anglo-Catholic commentary echoed this criticism, roundly asserting that ‘mediaeval canon law failed miserably as guardian of the holy estate’. The complexity of the law concerning the various impediments to marriage, and dispensations from those impediments, made an immense number of marriages precarious, and led to ‘a general weakening of the sense of sanctity and indissolubility of the marriage bond’ (T.A Lacey and R.C Mortimer, Marriage in Church and State, 1912-47, pp.138-9).
As well as disagreeing with Rome over the impediments to the marriage contract, the Church of England, in common with other reformed Churches, came to deny the mediaeval doctrine of marriage as a sacrament.
Thus Article 25 asserts that matrimony is not a sacrament ‘ordained of Christ our Lord in the Gospel’. This is because it ‘ha[s] not any visible sign or ceremony ordained of God’. In other words, there is no particular rite or ceremony of marriage prescribed in the Gospel, as there is of Baptism and the Eucharist.
However, the Book of Common Prayer clearly affirms the divine origin of marriage as ‘instituted of God in the time of man’s innocency’. The indissolubility of marriage could hardly be more clearly stated than it is in the Prayer Book marriage service.
Ecclesiastical and Secular Jurisdiction
As Phillimore relates, the mediaeval canon law largely continued to regulate marriage in England (and Scotland) after the Reformation. It was only in the late modern period that marriage started to be regulated by Act of Parliament (p.551).
The canons of 1603 empowered the ecclesiastical courts to grant decrees of ‘divorce’, but only in the limited sense of the permanent separation of husband and wife. A divorce granted by the ecclesiastical courts was not sufficient to dissolve the marriage bond. On the contrary, canon 107 provided that, following a decree of divorce ‘the parties so separated shall live chastely and continently; neither shall they, during each other’s life, contract matrimony with any person’.
Like the Roman Catholic courts today, the English ecclesiastical courts prior to 1857 could order the ‘annulling of pretended matrimony’ (canon 106), in which case the parties were at liberty to remarry. However, the nullity of marriage on the ground of an impediment to the original solemnisation was the only instance in which parties to a marriage were permitted by ecclesiastical law to remarry during each other’s lifetimes.
Despite these post-Reformation canons, and all the other authority to the contrary, apologists for modern divorce legislation have seized on Article 25 as evidence that the Church of England abandoned the Catholic doctrine of the indissolubility of marriage at the Reformation.
Indissolubility was first impugned in the parliamentary debate on the bill that became the Marriage Act 1753. Indissolubility constituted an objection to the invalidity of irregular clandestine marriages, which the 1753 Act declared null and void.
The then Attorney-General deprecated ‘a superstitious opinion … that when a marriage between two persons come to the age of consent was once solemnized by a man in holy orders, it was so firmly established by the divine law, that it could not be annulled and made void by any human law whatsoever’ (Cobbett’s Parliamentary History, volume 15, column 6).
He confidently concluded ‘How came we to retain this Popish doctrine … after the Reformation, I shall not pretend to account for: but that it is not a Christian doctrine I have clearly shown’ (column 9).
The suggestion that indissolubility was a mediaeval superstition that the English Church had abandoned (or, at any rate, should have abandoned) at the Reformation was pursued a century later, in debates on the bill that became the 1857 Act.
Lord Chancellor Cranworth asserted that, though ‘Before the Reformation … marriage was considered as being absolutely indissoluble … [but] The effect of the Reformation was totally to change the feelings of the community on this subject’ (Hansard (Lords), volume CXLV, column 484).
After the Reformation, marriage, though still ‘under the sanction of religion’ was ‘a mere civil contract which ought to be dealt with the same way as other civil contracts … namely by considering what was most for the interests of the parties concerned’ (column 485). On this view, the Acts of 1753 and 1857 were merely completing the work of the Reformation.
It is possible that the Attorney-General and the Lord Chancellor misunderstood the Roman Catholic doctrine of marriage. The Roman Catholic Church does not regard all marriage as sacramental. Only marriage between two baptised persons is a sacrament (1983 Code, canon 1055). Other marriages are non-sacramental.
However, marriage is not indissoluble only when it is sacramental. All marriages, whether sacramental or not, are indissoluble. Indissolubility is one of the essential properties of a valid marriage contract (canon 1056). The sacrament adds only a ‘special firmness’ (peculiarem firmitatem) to the indissoluble character of marriage. This Roman Catholic law further undermines the suggestion that the Church of England abandoned belief in the indissolubility of marriage by denying that marriage is a sacrament.
Connolly’s account makes clear that the sacramental character of marriage was relevant to ecclesiastical jurisdiction over the marriage contract, not to belief in the indissolubility of the contract.
Thus the effect of Article 25 was to repudiate, not the indissolubility of marriage, but the distinction between sacramental and non-sacramental marriage. From the Reformation to the present day, English law, in contrast to Roman Catholic law, has held that all marriages are non-sacramental.
The distinction between sacramental and non-sacramental marriage may not have been important in an era when almost everybody was baptised. The post-Reformation secular state still accepted that the marriage contract, even though no longer a sacrament, ‘appertaineth to the spiritual jurisdiction of the realm': Ecclesiastical Appeals Act 1532.
However, as state and society became secularised, Article 25 did ultimately prove fatal to ecclesiastical marriage jurisdiction. If the marriage contract is not also a sacrament, the Church loses any religious claim to jurisdiction over the contract. It has no religious basis on which to oppose the jurisdiction of the secular state. It can still teach what the marriage contract truly is, and hope that the state will listen. However, its only claim to jurisdiction over marriage must be limited to the regulation of its own marriage liturgy.
Even before 1857 there was some tension between Church and state concerning the marriage contract. The post-Reformation ecclesiastical courts sought to give effect to the Divine injunction, repeated in the marriage service, that ‘Those whom God hath joined together, let no man put asunder’. However, they were still subject to the secular authority of Parliament. Divorce in the modern sense could be obtained by a private Act of Parliament.
However, parliamentary divorces were very rare, and they overrode the ecclesiastical jurisdiction only in the individual case. The 1857 Act went much further, by abolishing the ecclesiastical jurisdiction altogether.
Modern secularisation has affected Roman Catholic marriage jurisdiction as well. The Church only claims jurisdiction where at least one of the parties to a marriage is a Catholic (1983 Code, canon 1059). Thus it no longer claims jurisdiction over a marriage between two baptised Protestants, even though such marriage is no less sacramental than a marriage between two Catholics.
The Faculties Office of the Archbishop of Canterbury notes that ‘The Church of England does not recognize nullity decrees made by Roman Catholic marriage tribunals': Anglican Marriage in England and Wales (1998), p.31. It does not explain the reason for this non-recognition, but its position is strictly consistent with the reformed doctrine concerning impediments to marriage. Nullity decrees can hardly be recognised if they are based on impediments and dispensations that are rejected as unscriptural.
However, a greater understanding of Roman Catholic marriage law on the part of English ecclesiastical lawyers might serve the ecumenical cause, and the cause of marriage.