Marriage Licences: Rights, Duties, Dispensation and Divorce
by Philip Jones
Though decided over 115 years ago, the case of Brinckmann (1895) 11 Times Law Reports 387 may be the last reported case concerning an ecclesiastical marriage licence. It seems strange that there should be no modern cases concerning marriage licences when there are so many cases concerning licences (described as faculties) to permit dealings with churches and churchyards. Brinckmann was decided by Dr Tristram, the last surviving ‘Doctor’ of Doctors’ Commons.
Dr Tristram observed that
‘the practice of granting licences for marriage in England was coeval with the introduction of the publication of banns. By the early English canon law the publication of banns or a marriage licence was a condition precedent to the celebration of a regular marriage in facie ecclesiae‘ (p.388).
A marriage licence is often described as a ‘dispensation’ from banns. This may be inaccurate. It is true that a licence dispenses with the need for banns. However, dispensation in the legal sense is dispensation from a law, not a need. A common licence is an alternative to banns, rather than a dispensation from them.
The only marriage licence which may properly be regarded as a dispensation is the Archbishop of Canterbury’s special licence. The law requires that all Church of England marriages must be solemnised only in an authorised church or chapel, as Tristram said, in facie ecclesiae. The special licence dispenses from this general rule by allowing marriage to be solemnised outside an authorised place of worship (now confirmed by the Marriage Act 1949, s.79(6)).
Tristram held that ‘any British subject who has resided for 15 days in the Diocese … [if] there is no impediment … is entitled as of rightto a licence for the celebration of [his] marriage’ (p.389). However, did not give any reason or cite any authority for this opinion.
A licence is, by definition, a permission to do something to which there is no right. To speak of a right to a licence is rather a contradiction in terms. If there is a right to a licence, that obviates the need for the licence. There can, at most, be only a qualified right to a licence (i.e a right to a licence if certain conditions have been satisfied).
Dr Tristram further suggested in Brinckmann that a right of appeal lies to the Archbishop against the refusal of a marriage licence by the ordinary. The publication Anglican Marriage in England and Wales (3rd edition, 1999), which contains guidance to clergy from the Archbishop of Canterbury’s faculty office, does not refer to such a right. No modern canon or statute confers such a right. However, an appeal is consistent with the Archbishops’ metropolitical jurisdiction to ‘correct and supply the defects’ of their diocesan bishops (canon C17(2)).
Anglican Marriage makes the point that both Archbishops may grant common licences. The Archbishop of Canterbury may grant common licences throughout England, as well as special licences.
The Archbishops’ jurisdiction to grant a common licence might operate as an appellate jurisdiction. Thus the Archbishop might grant a common licence if he is of opinion that the diocesan ordinary was wrong to refuse one. However, Anglican Marriage does not suggest this possibility. It advises that ‘Applications for such [Archbishops’] licences will not normally be entertained unless there is some good reason why the normal diocesan channels of application cannot be pursued’ (p.28).
It is also arguable that a refusal to grant a licence for capricious or perverse reasons might be subject to judicial review by the High Court.
Dr. Tristram explained the effect of a marriage licence in ecclesiastical law:
‘A marriage licence is equivalent to an … order on the minister to celebrate the marriage, and that he is bound to do so unless information has come to him that there is a legal impediment … unknown to the official when he issued the licence …’ (Brinckmann, p.388).
There is no doubt that the grant of a marriage licence by the ordinary imposes an ecclesiastical duty on the minister to solemnise the marriage. It is less clear that the grant of a marriage licence confers a common law right on a parishioner, or whether the common law right is limited to marriage by banns.
This question was discussed by the Court of Queen’s Bench in Davis v Black (1841) 113 English Reports 1376. Mr Davis had obtained a licence to marry in the Rev Mr Black’s church. Mr Black had received notice of the licence but ‘wrongfully and illegally refused’ to solemnise the marriage. Mr Davis’ intended bride then died.
Mr Davis sued Mr Black for damages, claiming that he ‘had been put to expenses which were rendered useless, had been injured in his good name and had suffered anxiety of mind’ (p.1376). (He probably also suffered the loss of a dowry.)
The Court dismissed Mr Davis’ claim on procedural grounds. It was divided on the question of damages. Lord Chief Justice Denman suggested that ‘such an action … might … be maintained upon … a public officer [the clergyman] neglecting his public duty to the temporal … damage of an individual’ (p1380). The other judges doubted this.
However, the case law on pew rights offers some support for a common law right to marry following the grant of a licence. It is clear that common law will, in certain circumstances, uphold a right to occupy a pew founded on a faculty, or presumed faculty (see for example Stileman-Gibbard v Wilkinson (1897) 1 Queen’s Bench 749). It should therefore support a right to marry founded on a licence (the terms ‘licence’ and ‘faculty’ are really synonymous).
Brinckmann concerned an application for a marriage licence by a man who had been divorced. Dr Tristram granted the licence, ‘being of opinion that by law I was bound to grant [it]’ (p.387). As mentioned earlier, his view was that a right to a licence existed so long as there was no legal impediment to marriage. Divorce would remove the legal impediment of a previous marriage.
However, the modern Church evidently takes a different view. According to Anglican Marriage, Church authorities now decline to grant marriage licences where one of the parties has been divorced (p.26).
This reveals an interesting contrast between the practice of the Church of England and that of the Roman Catholic Church. Roman Catholic law provides that a marriage licence is required where one of the parties has ‘natural obligations’ towards an ex-partner and their children, even if there was no legal marriage, or where a previous marriage has been annulled (Code of Canon Law 1983, canon 1071).
It is argued that the Roman Catholic law compares favourably with the Anglican practice in this respect. If a previous marriage has ended in failure and divorce, this should mean that a marriage licence is more necessary, not less. An application for a second marriage requires more, not less, scrutiny than an application for a first marriage. The Church should be satisfied that responsibilities towards the former spouse(s) and any children are being honoured.
However, the statement in Anglican Marriage gives the unedifying impression that the Church authorities prefer to avoid the awkward question of what to do with former wives and children (not to mention the awkward question of the Church’s doctrine of marriage), leaving it instead to the ‘conscience’ of the local incumbent under s.8(2) of the Matrimonial Causes Act 1965.