Canon B30 and Sham Marriages

by Philip Jones

Canon B30(3) provides that ‘It shall be the duty of the minister, when application is made to him for matrimony to be solemnised … to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth …’.  That doctrine is ‘expressed and maintained’ in the Prayer Book marriage service (B30(2)).

The duty imposed by Canon B30 would seem to be very recent.  There is no reference to such a duty in the canons of 1603, in the 1662 Prayer Book, or in Phillimore’s Ecclesiastical Law.

In April 2011 the House of Bishops issued ‘guidance’ to clergy concerning the solemnisation of marriage where one of the parties is from outside the European Economic Area (EEA).  This guidance was issued in response to concern that ‘sham’ marriages were being contracted in order to evade immigration controls.

The guidance acknowledges that non-EEA nationals ‘have the same rights to marry in the Church of England as British citizens’ (page 1).  However, it also refers to Canon B30 in the following terms:

‘If a couple [at least one of whom is non-EEA] decline to attend meetings for the purpose of giving the instruction required by the Canon the member of the clergy concerned will be prevented from carrying out his or her canonical duty.  In those circumstances he or she should inform the couple that the marriage may not proceed until such time as the duty has been carried out.’ (pp2-3).

Canon B30 undoubtedly imposes a duty on the officiating minister to offer religious instruction to the couple, prior to their marriage.  It is not clear, however, that the couple are obliged to receive this instruction.  On its wording, canon B30 does not impose such an obligation.  It is addressed to the officiating minister, not to the couple.  It merely assumes the willingness of the couple to receive instruction.

It is, of course, true that the minister is ‘prevented’ from giving religious instruction if the couple refuse to receive it, but that fact does not put the minister in breach of Canon B30.  A minister cannot be required to perform a duty that has been rendered impossible by the attitude of the couple.

If canon B30 does purport to impose an obligation on the couple to receive religious instruction, this may cause constitutional difficulties.  Canon B30 was promulged by the Convocations in the 1960s.  It could therefore be argued that it cannot ‘bind’ laypeople, only clergy (possibly lay ministers as well), under the rule associated with the case of Middleton -v- Crofts (1736) 26 English Reports 788, because laypeople did not consent to it. 

There is also an obvious conflict between an obligation to receive religious instruction and the ‘human rights’ of the couple.  They should not be forced to receive a religious instruction that may contradict their own religious or philosophical beliefs.

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