Marriage and Divorce

by Philip Jones

The Divorce and Matrimonial Causes Act 1857 enabled the dissolution of lawful marriages and the freedom of divorced persons to remarry.  Neither canon law nor English common law recognised divorce, except in the limited sense of nullifying an invalid marriage, or ordering a permanent separation of husband and wife, but without dissolution of the marriage bond.

Assuming that it exists, the common law right to marry in church may conflict with the Church’s teaching on marriage, if the parishioner wishing to marry has been divorced from a former spouse.  Canon B30 is clear that ‘The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and life-long … till death …’.  Canon B30 affirms the teaching expressed and maintained in the Book of Common Prayer.

S.8(2) of the Matrimonial Causes Act 1965 provides a partial solution to the apparent difficulty.  It provides that

‘No clergyman … shall be compelled (a) to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living or (b) to permit the marriage of such a person to be solemnised in the church or chapel of which he is the minister’.

This provision is generally understood as a concession to the consciences of individual clergy who object to remarriage after divorce.

S.5A of the Marriage Act 1949 confers similar protection on clergy (like Canon Thompson in Banister v Thompson) who object to solemnising marriages which would formerly have been void by reason of the prohibited degrees.  S.5B extends the protection to clergy who ‘reasonably believe’ that one of the parties to the marriage has had a sex change under the Gender Recognition Act 2004.  In a sex change case, however, an English incumbent does not have the right to forbid the solemnisation in his church.

Professor Norman Doe gives a wider interpretation of s.8(2) of the 1965 Act than as a mere conscience clause for ‘traditionalist’ clergy:

‘Implicit in the words ‘no clergyman shall be compelled to solemnise’ are the proposition ‘a minister may refuse’ and ‘a minister may solemnise’.  By its ban on compulsion it confers upon the minister a public law right to choose refusal or solemnisation’ (The Legal Framework of the Church of England (1996) Clarendon Press, p.380).

On Doe’s view s.8(2) confers a complete discretion on individual clergy.  However, a Church of England report of 1983 offered a more restrictive interpretation:

‘[the divorced parishioner] no longer has the legal right to be married in church … any question of marriage in church in such circumstances is wholly a matter for the Church which is clearly entitled to establish (without any conflict with the state) her own domestic tribunals or pastoral criteria for determining whether she will permit such a marriage to take place in church’ (quoted in another Church of England report Marriage in Church after Divorce (2000) at p.26).

The legislative history of s.8(2) supports this latter interpretation.  S.8(2) is the most recent version of a clause which dates back to the original Act of 1857.  According to his biographers, the clause was inserted into the 1857 Act at the insistence of William Ewart Gladstone, the future Prime Minister.  Gladstone argued trenchantly against the 1857 Act.  Though he failed to prevent it, he managed to secure the insertion of the conscience clause by way of concession from the government.

However, the 1857 version of the clause was much more restrictive of the incumbent’s discretion than the present s.8(2).  An incumbent was only relieved of his apparent duty to solemnise the marriage of a divorced person if that person had been divorced on the ground of his or her adultery.  The incumbent had no discretion to refuse to marry other divorced parishioners.

Moreover the incumbent’s discretion was restricted still further by a provision to the effect that, even where a party had been a respondent to a suit for adultery, the incumbent was still obliged to permit the solemnisation if another authorised clergyman from the same diocese was willing to officiate in the incumbent’s place.

However, subsequent versions of the clause indicate an apparent retreat by Parliament, leaving the Church freer to regulate itself in the matter.  The Matrimonial Causes Act 1937 (also known as the ‘Herbert Act’ after its promoter, Sir Alan Herbert), substituted a provision which purported to grant much wider discretion to the incumbent.

Like the present 1965 Act, the 1937 Act permitted the incumbent to refuse to solemnise the marriage of any divorced person, regardless of the reason for the divorce, if the former spouse were still alive.  Also, the incumbent was no longer obliged to allow another clergyman to officiate in his place.

The 1937 Act contained a third provision, that a clergyman should not be liable to any proceedings or penalty, either for solemnising, or for refusing to solemnise, the marriage of a divorced person.

This provision afford twofold protection.  It made clear that a ‘traditionalist’ clergyman could not be sued for refusing to permit the marriage of a divorced parishioner in his church.  However, it also protected the more liberal clergyman from prosecution in the ecclesiastical courts for solemnising marriages regarded as contrary to the Church’s teaching.

This third provision, granting immunity from legal proceedings, was removed by the Matrimonial Causes Act 1950.  As Dale’s Law of the Parish Church (2nd edition 1957) observed, the removal of immunity left open the possibility that clergy might be subject to disciplinary proceedings in the ecclesiastical courts if they did solemnise the marriage of divorced persons.  They no longer enjoyed the protection of the secular law against this possibility. 

The removal of this immunity by the 1950 Act, and the extension by the 1937 Act of the clause to any marriage involving a divorced person, regardless of the grounds of the divorce, suggests that the intention of Parliament since that time has been to leave the Church free to regulate its own approach towards solemnising the marriage of divorced persons.  Thus s.8(2) evolved.

It is therefore argued that the wording of s.8(2) cannot be interpreted as conferring a discretion on individual clergy to solemnise the marriage of a divorced person.  It means no more than what it says, that a clergyman cannot be compelled to solemnise the marriage of a divorced person, or permit such solemnisation in his church.

By s.8(2) Parliament is saying to the clergy ‘We have no objection to your solemnising the marriage of a divorced person, but we shall not protect you from ecclesiastical discipline if you do’.  S.8(2) is a concession to the conscience of the Church as a whole, rather than to individual clergy.  Thus there is no contradiction between s.8(2) and the Church’s teaching.