by Philip Jones
It has been suggested that civil partnership differs from marriage because the parties to a civil partnership, unlike the parties to a marriage, are not required to exchange vows.
It is true that both ecclesiastical and secular marriage ceremonies generally provide for the exchange of vows by the couple. However, English law and Roman Catholic law are both clear that such vows are not essential to the validity of a marriage.
Harrod v Harrod (1854) 69 English Reports 344 was a chancery case. It concerned a disputed right to an estate. The testator’s will provided that his estate should go to his daughter’s lawful children. The daughter was deaf and dumb. She was married in church and had children. However, it was alleged that she could not understand the marriage ceremony or give consent to be married, on account of her disability. Thus the marriage was a nullity, with the consequence that the children were illegitimate and so could not inherit.
However, the court concluded from the evidence that the daughter
(1) had sufficient mental capacity to consent to be married and
(2) had actually consented to be married.
Thus the daughter had ‘entered the contract of marriage by going through the ceremony with sufficient comprehension of its effect’ (p.354). The children of the marriage were therefore legitimate and so entitled to the estate.
Being deaf and dumb, the daughter was not able to take the marriage vows in the normal way, but this did not invalidate the marriage. Her expression of consent, given with sufficient mental capacity, was enough.
Roman Catholic law has a surprisingly liberal attitude to marriage ceremonies. The Code of Canon Law 1983 provides that it is enough for the couple to be present together, either personally or by proxy, and to express their consent to be married in words, or by sign language if necessary (canon 1104). (Sign language would, of course, have avoided the difficulty alleged in Harrod.) Although words (or signs) of consent are necessary, no particular form of words is required, so long as consent is clearly expressed. The parties may even be allowed to compose their own personal formula of consent. Before 1917, Roman Catholic law allowed that marriage could be validly be contracted merely by letter. (see Code of Canon Law. A Text and Commentary eds Coriden, Green and Heintschel 1985, Paulist Press, New York, p.791)
The normal rule is that Catholic marriage must be celebrated before a Church official and two witnesses (canon 1108). However, in extreme circumstances (danger of death, or no official available for a long time) the parties may marry each other in the presence of witnesses only, without an official being present (canon 1116).
These authorities show that spouses assume the obligations of marriage merely by giving a valid consent to be married. It is not necessary that they take specific vows to perform those obligations. They cannot later avoid the obligations of marriage by pleading that they did not expressly promise to perform them.
This in turn leads to the conclusion that civil partnership cannot be distinguished from marriage merely by the absence of vows. Marriage and civil partnership can only be distinguished on the basis that the obligations inherent in the marriage contract do not inhere in the civil partnership contract.