The Right to Marry
by Philip Jones
Jacqueline Humphreys ‘The Right to Marry in the Parish Church: A Rehabilitation of Argar v Holdsworth’ (2004) Ecclesiastical Law Journal, vol 7, issue 35, p.407).
Humphreys follows earlier commentators in tracing the right to marry in church to the Marriage Act of 1753 (known as Lord Hardwicke’s Marriage Act, after the Lord Chancellor who introduced it). This Act required that almost all marriages had to be solemnised in the parish church. A marriage not solemnised in church was not merely illegal but invalid.
The 1753 Act laid the foundations of modern marriage law by making the point that the only valid marriage is a legal one. Anticipating the European Convention on Human Rights by many centuries, English common law held that a valid marriage required only mutual promises by the couple to live together as man and wife. A valid marriage did not require solemnisation by a minister (hence the expression ‘common law marriage’).
Canon law deprecated ‘clandestine marriages’ made without the proper formalities, and sought to punish those who contracted them. However, canon law agreed with common law that such marriages were valid. Before 1753 marriage, like baptism, could be valid even though unlawful.
Of course, people are no longer obliged to marry in their parish church, though they are required to submit to some sort of official ceremony if their marriage is to be recognised in law. Acts of Parliament passed in the 19th century permitted marriage before civil registrars and in non-Anglican places of worship.
Those who trace the legal right to marry in church to the 1753 Act may misunderstand the purpose of that Act. The 1753 Act did not impose a duty on the clergy to solemnise the marriages of their parishioners, nor did it exactly confer a right on the parishioners. Rather it imposed a duty on parishioners to marry in their parish church and nowhere else.
The duty of the clergy to solemnise marriages has never been in doubt. It was not merely their duty, it was generally in their interest to solemnise marriages, because they gained fee income from so doing.
The 1753 Act was passed, not because the clergy were unwilling to solemnise marriages, but because their parishioners were, for various reasons, unwilling to have their marriages solemnised in church. Clandestine marriages, solemnised without banns or licence by easygoing clergymen, were a device whereby a young man or woman could marry his or her sweetheart and thereby escape a loveless match arranged by the family for dynastic reasons. Poor people may have found it hard to afford the fees charged for church marriages. (Perhaps they still do.) Roman Catholics and dissenters preferred to marry in their own churches.
It is true, of course, that by obliging parishioners to marry in the parish church, the 1753 Act implicitly gave them the right to do so. If there is a legal duty to do something there must, of necessity, be a legal right to do it. However, such a right would not have survived the repeal of the 1753 Act. Once people were free to marry in register offices and non-Anglican places of worship they could no longer claim a statutory right to marry in their parish church, unless the statutes that replaced the 1753 Act expressly conferred such a right.
The Marriage Act 1949 is the principal Act regulating church-marriage today. It is true that the 1949 Act assumes or implies a pre-existing legal right to marry in church, but it does not confer, or even confirm, such a right.
Nor does the 1949 Act impose a duty on the clergy to solemnise marriages. Certainly there is nothing in the 1949 Act along the lines of Canon B22(4) (which relates to baptism), to the effect that ‘No minister shall refuse or unduly delay to publish the banns of marriage of a parishioner wishing to be married …’.
The 1949 Act merely regulates the formalities required for marriage in church. It is therefore procedural. S.6(1) provides that ‘Where a marriage is intended to be solemnised after the publication of banns of matrimony …’. However, this reference to an ‘intention’ to be married cannot per se impose a duty to solemnise marriage or publish banns.
The case of Argar v Holdsworth (1758) 161 English Reports 424 was decided a few years after Lord Hardwicke’s Act. The Rev Dr Holdsworth was prosecuted in the ecclesiastical court for allegedly refusing to solemnise the marriage of one of his parishioners, Mr Argar, after being presented with a marriage licence.
It has been pointed out that, because Argar v Holdsworth was an ecclesiastical case concerning a marriage licence, it cannot support the existence of a common law or statutory right to the publication of banns of marriage in church.
Humphreys disputes this: ‘This argument … does not bear scrutiny’. Why not? Because ‘A marriage licence … puts the parties in the same position as if their banns had been read’ (pp.408-9). If Mr Argar held a valid licence, he had just as much right to be married in church as if his banns had been published in that church.
This may well be true. However, the case was not directly about Argar’s right to be married, but about Holdsworth’s duty to solemnise the marriage, his duty to obey the ordinary who issued the licence.
Humphreys admits that Argar v Holdsworth does not expressly refer to the 1753 Act, but she argues that ‘it is likely … the case was dealt with in the light of it’ (p.410). The prosecution’s statement of case against Holdsworth recited that
‘Every minister is obliged by law to marry such of his parishioners as have resided a month in his parish: that the parties named in the licence [i.e Mr Argar and his intended] are his [Holdsworth’s] parishioners and have resided a month, and have obtained a licence …’ (p.407).
The outcome of Argar v Holdsworth is uncertain, but the ecclesiastical court apparently accepted the prosecution’s statement of case on this point. According to Humphreys, this shows that the ecclesiastical court ‘understood the new Act [of 1753] to state the right of people … to be married in their parish church’ (p.411).
However, the prosecution’s statement does not have the significance that Humphreys attaches to it. The only legal point it makes is that the Rev Holdsworth had a duty to obey a valid marriage licence. It does not discuss Mr Argar’s legal rights. It is really concerned to establish facts, not law, that:
(1) Argar had obtained a licence and
(2) Argar satisfied the conditions for a licence by being a resident parishioner.
Thus the prosecution was saying that the licence was valid, so the Rev Holdsworth could not defend himself by pleading that it was defective or obtained by fraud.
No doubt the ecclesiastical court was aware of the 1753 Act and the regime that it imposed. Argar v Holdsworth does not positively deny the existence of a common law or a statutory right to marry in church, but it does not support it either. The 1753 Act simply did not apply to the case. Mr Argar was complaining that he could not get married in church. The 1753 Act was directed at people who were the exact opposite of Mr Argar, those who refused to marry in church.
Notwithstanding the insufficiency of Argar v Holdsworth, it is argued that there is a common law right to marry in the parish church. However, the right has nothing to do with Lord Hardwicke’s Marriage Act. It is proprietary in origin. The parish church is the parishioners’ church. It was originally provided, donated, so that the parishioners might worship, receive religious instruction and the sacraments from the minister, and have their marriages solemnised. The solemnisation of parishioners’ marriages is one of the purposes for which the parish church exists.
The rights of parishioners over their church, though not specifically their right to marry in church, are alluded to in the dictum of Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976 that
‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’.