Ecclesiastical law

Month: October, 2012

Church Membership: Religion and Representation

Church Representation Rules 1(2) and 54(1) (Synodical Government Measure 1969, schedule 3).

Lay participation in synodical government has always been subject to a religious qualification.  The qualification differs according to the degree of participation.  A distinction is drawn between

(1) a parish elector (a layperson whose name is on the electoral roll of a parish) and

(2) a lay member of a parochial church council (‘PCC’) or synod.

The present religious qualifications are stated in Rules 1(2) (for electors) and 54(1) (for PCC and synod members) of the Church Representation Rules.  The present Rules date from a statutory instrument of 1994 (no 3118(1)).

The original qualifications were first stated in the Rules for the Representation of the Laity 1(1) and 2(1) (Church of England Assembly (Powers) Act 1919, Schedule 1).  They were rather exclusive in character.  An elector had to be

(1) a baptised member of the Church of England or of another Anglican Church and

(2) not a member of any other religious body not in communion with the Church of England.

Thus the religious qualification was based on communion, and communion meant membership of the Anglican Church.  This had the effect of excluding Protestant non-conformists from participation in synodical government.

A PCC or synod member had to be a communicant member of the Church of England / Anglican Church, not just a baptised member, and thus eligible to be admitted to the Anglican Eucharist.

Within the Church of England / Anglican Church, admission to the Eucharist was conditional upon episcopal confirmation.  The rubric of the Book of Common Prayer provided that a communicant had to be either confirmed, or at least ‘ready and desirous’ to be confirmed, as well as baptised. 

Thus the two degrees of participation in synodical government followed the two degrees of communion in the Church.  An elector had to be ‘in communion’ to the extent of being a baptised member of the Church of England, but was not required to be confirmed.  However, a PCC or synod member, who participated in synodical government to a higher degree than a mere elector,  had to be confirmed or at least ‘ready and desirous’, and so eligible for the full communion of the Eucharist.

In the era of post-war ecumenism, the concept of communion was re-examined.  The result was a greater emphasis on baptism as a sacrament common to all Christian communities.  All baptised persons are ‘in communion’ to some extent. 

It was also thought that, if baptism is the basis of communion, then admission to the full communion of the Eucharist should not, or not always, be conditional upon episcopal confirmation.  This view is consistent with Article 25, which specifically denies that confirmation is a sacrament.  Canon 60 of 1603 describes confirmation as a ‘custom’, though also as a ‘holy action’.

The Admission to Holy Communion Measure 1972 empowered the General Synod to permit baptised members of non-episcopal Churches to be admitted to the Eucharist.  Canon B15A, which was promulged under the authority of the 1972 Measure, confers a right to be admitted to Holy Communion on all ‘baptised persons who are communicant members of other Churches which subscribe to the doctrine of the Holy Trinity, and who are in good standing in their own Church’.

The religious qualifications for lay participation in synodical government were revised in accordance with Canon B15A.  The Church Representation Rules were revised by a statutory instrument of 1973 (no.1865).  That instrument noted that ‘The requirement that [an elector] is not a member of any religious body which is not in communion with the Church of England is abolished’.

Rule 54(1) provides that a PCC or synod member must still be a communicant in the Church of England.  However, the definition of a communicant now includes a person who receives Holy Communion in accordance with Canon B15A, as well as a person who has been confirmed.

Rule 1(2) lacks the clarity and simplicity of Rule 54(1).  It provides that an elector must be

‘(a) a [baptised] member of the Church of England or of a Church in communion therewith resident in the parish; or

(b) to be such a member and, not being resident in the parish, to have habitually attended public worship in the parish … or

(c) to be a member in good standing of a Church which subscribes to the doctrine of the Holy Trinity (not being a Church in communion with the Church of England) and also prepared to declare himself to be a member of the Church of England having habitually attended public worship in the parish …’.

A note to the present Church Representation Rules states that ‘The only Churches at present in communion with the Church of England are other Anglican Churches and certain foreign Churches’.  Thus Protestant non-conformist Churches are still not regarded as being in communion with the Church of England, modern ecumenism notwithstanding.

The wording of Rule 1(2) is convoluted, and may also create an unnecessary ecumenical difficulty.  All baptised individuals may be  members of the Church of England, even though also members of non-episcopal Churches.  They may be in full communion with the Church of England by baptism and sharing in the Eucharist.  However, their Churches are still not in communion with the Church of England.

This does not make much sense of the concept of communion.  It may introduce a false distinction between Church membership and communion.  Surely Church membership is communion?

Rule 1(2) also contains a strange distinction between Church of England ‘members’ and members of other Churches.  A member of the Church of England is entitled to enrolment as an elector on the basis of residence alone, whereas a member of another Church must be an habitual attender of worship.

It is hard to see the justification for this distinction.  All baptised and resident persons in the parish are parishioners.  The parish church is the parish church of them all.  A distinction between residents and non-residents of the parish may be justified.  However, if baptised persons from outside the parish choose to worship in the parish church, it is also hard to see why any distinction should be drawn as between them.

The effect of Canon B15A is that Church membership is now relevant only to the question of episcopal confirmation.  Rule 54(1) makes clear that, if one has not been confirmed, one must be a member of another Christian Church in order to qualify for membership of a PCC or synod.

However, references to Church membership have no proper place in Rule 1(2), because parish electors do not (and never did) have to be confirmed or participate in the Eucharist.  It is therefore argued that such references should be removed.  Rule 1(2) should be read in conjunction with Rule 54(1), not in isolation from it.  It will then become clear that the three relevant qualifications for enrolment as a parish elector are

(1) baptism

(2) residence in the parish and / or

(3) regular attendance at worship.

The Church in Wales Review

Published in July 2012.  The full text is available on the internet website of the Church in Wales.  It contains some thought-provoking  recommendations concerning ecclesiastical ministry and governance.


The Review observes that the traditional parochial structure (one incumbent of one parish) has been eroded in recent decades by the formation of team and group ministries, and by the amalgamation of parishes (p.6).  It goes a step further than these recent changes, and proposes the abolition of the old parochial structure altogether, or at least ‘moving away from the idea of the parish as the basic unit of ministry’.

The old structure, which is territorial in character, should be replaced by a more congregation-based structure.  The Church will be organized on the basis of congregations rather than parishes (p.7).  Congregations will still exist within a ‘natural geographical unit’, but this will be much larger than a traditional parish.  This new super-parish will be called a ministry area (p.8).  Deaneries, like traditional parishes, will be abolished.

A super-parish or ministry area might contain circa 25 congregations (p.7).  Each congregation will have a leader, who is likely to be either a lay minister or a non-stipendiary minister (p.13).  Perhaps three ministers in the area will be full time (p.7).  The congregation leaders will form a team with responsibility for the whole ministry area, under a team leader.

The change from traditional parish to ministry area would, however, be without prejudice to the legal rights of ‘parishioners’ to be married and buried in their local church and churchyard (p.8).

The abolition of the traditional parochial structure would significantly affect the ancient duty of residence.  Clergy would be obliged only to live within ‘easy access’ of their ministry area (p.23), not actually in it.  Moreover, clergy would cease to be provided with official residences, though their stipends would be increased to take account of this loss.

A single integrated training programme would be provided for all ministers, ordained and lay (p.13).  The programme would cover both pre-ordination and post-ordination training (p.15).  The regime created by the Ecclesiastical Offices (Terms of Service) Measure 2009 does not seem to have achieved a completely integrated training programme for Church of England ministers.

The ministry team and its team leader (who might be the former area dean) would be subject to the oversight of the archdeacon, and thence the bishop.  An archdeacon would be responsible for the oversight of 10 to 12 teams (p.8).

The Review does not propose the abolition of dioceses as well as parishes, but recommends that they share or ‘pool’ their administration in three centres, one in North Wales and two in South Wales (p.17).  (In the Church of England, regular interdiocesan administration was first permitted by the Dioceses, Pastoral and Mission Measure 2007, s.19.)  The six dioceses of the Church in Wales might eventually be reduced to three, but with no reduction in the number of bishops (p.18).


The Review makes two criticisms of the diocesan and provincial structure of the Church in Wales:

(1) it is cumbersome and top-heavy and

(2) it does not provide adequate channels of information and communication.

It therefore argues for

(1) better systems of communication within the Church and

(2) fewer, and smaller, decision-taking authorities.

This suggests that participants in Welsh ecclesiastical governance will be better informed, but also fewer in number.

The Constitution of the Church in Wales is criticised generally as ‘large, complex and unwieldy … an inhibitor of necessary change’ (p.33) but this rather begs the questions

(1) what is necessary change? and

(2) who decides what is or is not necessary?

There are two specific criticisms relating to information and communication

(1) the deliberative processes in the Church: ‘there is no proper flow of ideas and resolutions from parish or deanery to diocese, and from there to the Governing Body and the Representative Body’ (p.4)

(2) the election of diocesan bishops (and the Archbishop): ‘the present system … is … unable to offer the electors adequate information about potential candidates’ (p.32).

The Review recommends that diocesan conferences should be renamed diocesan synods, in order to improve the deliberative process, and that candidates for election to the Governing Body should be required to produce a ‘short manifesto’, so that electors can be better informed’ (p.5).

However, even with the benefit of election manifestos, the Governing Body and the Representative Body are deemed unsuitable for ‘comprehensive leadership’ (p.34).  Instead the Review proposes the smaller Standing Committee as the principal engine of the Church’s governance.  The size of the Electoral College (which elects the diocesan bishops and the Archbishop) should also be significantly reduced (p.32).

Pew Rights

The right to occupy a particular pew in the parish church may be acquired by

(1) Act of Parliament or other statutory authority or

(2) faculty.

There may also be a right to occupy a particular seat or stall ex officio, in which case neither statute nor faculty will be required.  It was held in the case of Spry v Flood (1840) 163 English Reports 438 that ‘In an ancient parish church … the rector would be entitled … according to the common law … to the chief seat in the chancel, whether he be [lay] rector, or spiritual rector only, unless some other person … [could] prescribe for it … from time immemorial’  (p.438), i.e by proving an immemorial custom recognised at common law.  However, ‘The rector has [no] common law right to any particular pew in a new church’ (p.441), i.e a church constituted by statutory authority.

Cathedral officeholders will have ex officio rights to occupy particular cathedral stalls, under the cathedral’s own constitution.

While ex officio rights to occupy particular seats in ancient cathedrals and churches have existed since mediaeval times, counsel in Spry v Flood suggested that ‘the right to pews did not commence until the Reformation’ (p.439).  Pre-Reformation seating arrangements for lay worshippers were probably rather informal. 

Statutory Rights

In the 18th and 19th centuries pew rights were quite often conferred by private Act of Parliament.

In the case of St. Mary’s, Banbury (1987) 1 All England Reports 247, a faculty was sought for the removal of pews in the church.  The church had been built pursuant to an Act of 1790.  The Act provided that the trustees of the church were to allot ‘such one pew or seat as shall be sufficient to contain commodiously [the] subscribers’, those who had paid for the church building (p.252).  All such pews were to vest in the original subscriber’s heirs, not merely the subscriber personally. 

The successors in title of the original pew-holders objected to the removal of the pews, asserting their title from the Act of 1790.

The Court of the Arches agreed that ‘no faculty may destroy the statutory rights’ (p.253) and that, accordingly, the courts had no power to permit the removal of the pews without the pew-holders’ consent.

The New Parishes Acts and Church Buildings Act Amendment Act 1869 provides that pew rights acquired under the 19th pastoral legislation and later surrendered to the bishop or the Ecclesiastical Commissioners should be subject to the common law governing pews and sittings.

The Mission and Pastoral Measure 2011, s.41(7) provides that a pastoral scheme may determine claims to sittings in respect of a designated parish church (though not in other places of worship).  A pastoral scheme has statutory authority and so is capable of overriding an earlier statutory right to a pew, or a pew faculty.

Pew Faculties

Besides statutory rights, pew rights may be granted by faculty.  If the faculty is extant, the right to occupy the pew should be easy to establish.  If no faculty can be found, the claimant has to prove occupation of the pew sufficient to satisfy the court that a faculty was granted but was later lost.  This is the doctrine of presumed lost faculty.

Sir John Nicholl, Dean of the Arches in the early 19th century, explained the nature of pew faculties in two cases

(1) Parham v Templar (1821) 161 English Reports 1401 and

(2) Fuller v Lane (1825) 162 English Reports 348.

Nicholl held that ‘an exclusive right [to a pew] can only be

[1] in virtue of a faculty, or

[2] by length of time which presumes a faculty’ (Parham, p.1404). 

Payment of a pew-rate or pew-rent does not confer an exclusive right to a pew (p.1402).

It seems that the ecclesiastical court has no jurisdiction to grant a pew faculty to a non-parishioner: ‘no faculty is deemed, either here or at common law, good to the extent of entitling … a non-parishioner to a seat’ (Fuller, p.352).  This suggests that a faculty granted to a parishioner will automatically lapse, or at any rate will cease to be enforceable, if the parishioner moves out of the parish, though the modern definition of a parishioner is not limited to persons resident in the parish.

Pew faculties were controversial.  They were elitist, tending to exclude poorer parishioners and encourage them to defect to dissenting chapels.  Sir John Nicholl stated that ‘[pew] faculties … have certainly been granted in former times with too great facility’ (Fuller, p.352).  He observed that ‘By the general law … all the pews in a parish church are the common property of the parish … for the use in common of the parishioners … so as best to provide for the accommodation of all’ (p.350).

Disputes over pew rights were formerly decided by the ecclesiastical courts.  A parishioner could enforce a pew right by an action for ‘perturbation of seat’.  However, this ecclesiastical jurisdiction was abolished by the Ecclesiastical Jurisdiction Measure 1963 s.82(2). Thus a pew right can now be enforced only in the secular courts, if at all.  The secular courts have enforced pew rights based on a presumed lost faculty, as the following cases demonstrate. 

Phillips v Halliday (1891) Appeal Cases 228.

The claimant and his ancestors had occupied a particular house in the parish since 1680.  There was evidence of occupation of the pew by the ancestors.  They had repaired it and kept it under lock and key since 1819, a period of 70 years.

The House of Lords agreed that this evidence was sufficient to presume that a lost faculty had once been granted to an earlier owner of the house and his heirs.

The House of Lords approved Lord Stowell’s dictum that ‘The strongest evidence of [a lost faculty] is the building or repairing [of a pew] time out of mind’ (p.233).  However, Lord Stowell did not say that evidence of repair is essential.  Evidence of other acts of ownership may suffice.

‘Time out of mind’ refers to living memory only (as distinct from immemorial custom, which runs from 1189).  Possession is a fact, not a law or custom.  The claimant had to prove possession for a period longer than any living person could remember.  The period of 70 years was deemed sufficient in this case.  Reference was made to a case where a possession of 36 years was accepted as sufficient.

The House of Lords also held that, where repair or other acts of possession are proved, ‘the fair inference … is that that was not the commencement of this dealing with the pew, but that the pew had been in the possession of the family prior to that time …’ (p.230).

Although there was no documentary evidence of faculty in the claimant’s case, the church books referred to a transaction of 1680 when his predecessor in title had apparently ‘bought’ a pew with payment to the vicar and churchwardens.  The right to occupy a pew may not be bought or sold at common law.  (Perhaps it would constitute the sin of simony.)

The House of Lords accepted that ‘a transaction of that sort … could have no validity’ (p.235), but still it did not preclude the subsequent acquisition of a lawful title to occupy the pew.

Stileman-Gibbard v Wilkinson (1897) 1 Queen’s Bench 749

An incumbent and churchwardens sought a faculty to put new seats and stalls in the chancel.  Mr Gibbard objected.  He claimed an exclusive right to use the site of the proposed stalls for attending divine service.  He therefore applied to the High Court for an order restraining the faculty proceedings in the ecclesiastical court.

Mr Gibbard’s claim was rather more than a mere right to sit in a particular pew, or pews, to the exclusion of others.  He claimed ‘an exclusive right in the nature of an easement to use the sites … and for that purpose to have, erect and use pews and seats thereon’ (p.750, emphasis supplied).

Mr Gibbard’s title to the pew sites was derived from his ownership and occupation of a particular house in the parish, which had been built in the 1690s.  In 1871 the existing pews were replaced by chairs.  The woodwork of the old pews was removed to Mr Gibbard’s house.  In 1885 temporary wooden platforms were placed on the sites, apparently on the authority of the incumbent and churchwardens.  Mr Gibbard protested at this but did not take legal action.

The High Court upheld Mr Gibbard’s claim to the pew sites, and granted a prohibition.  It held that the removal and replacement of the pews in 1871 ‘was an act of ownership … in conjunction with [Mr Gibbard’s] undisturbed possession during the period of legal memory, [sufficient] to prove [his] right’ (p.760).  Mr Gibbard’s right took the form of a presumed lost faculty granted to a previous owner of his house.

The Court held that mere undisturbed possession of the pew is not enough to establish a presumed lost faculty.  The claimant must ‘shew some acts of user, or assertion of proprietary right, in addition to possession’ (p.758).  Mr Gibbard had not been able to prove repair.  However, following Phillips v Halliday, lack of evidence of repair was not fatal to his claim.  He would only have had to prove repair ‘if repair had been necessary’ (p.759).

In 1850 the then existing pews had been re-lined with baize covers by Mr Gibbard or a predecessor in title.  However, the Court held that this did not constitute repair or indeed an act of ownership, notwithstanding its permanent character.

It was suggested that Mr Gibbard had abandoned his right to the pews by removing them in 1871.  The Court rejected this.  By replacing the pews with chairs Mr Gibbard had merely ‘alter[ed] his mode of enjoyment of the right to sit in that part of the chancel … But he did not discontinue his enjoyment’ (p.761).  The law will not conclude that a legal right has been abandoned without proof of an intention to abandon it.

The Marriage Contract

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.