A Mixed Marriage

by Philip Jones

Some years ago the author of this blog was pleased to be invited to a family wedding.  The groom (a distant cousin) was Welsh, and a member of the Anglican Church in Wales.  The bride was from Hungary, a Catholic country.  Neither had been married before.

An unusual feature of this wedding was that it comprised no fewer than 3 marriage ceremonies, as follows:

(1) early on Saturday morning the couple were married in a civil ceremony conducted by a registrar at a hotel on the Welsh-English border

(2) the couple then proceeded to the local Anglican parish church, where a service was held using the form of service entitled ‘Blessing of a Civil Marriage’ in the Church in Wales Prayer Book of 1984.  The service was conducted by the vicar, though the local Catholic priest attended (in robes) and said a prayer

(3) several weeks or even months later the couple made the journey to the bride’s family home, and were married in a Catholic parish church in rural Hungary (by which time the bride was pregnant).

This happy family event offers a useful case study for comparing the English and Roman Catholic law concerning the solemnisation of marriage.

The English law

In R v Dibdin (1910) Probate 57, the courts repeatedly emphasised that there is only one marriage contract in English law.  The marriage contract is the same, regardless of whether it is solemnised in church or in a civil ceremony:

‘in [English] law, marriage is a civil contract.  The nature and effect of marriage … is precisely the same whether it is contracted according to the rites of the Church or in any other lawful manner.’ (p.98)

‘Marriage, in the view alike of the courts of common law and of the ecclesiastical courts, is not a sacrament: see Article 25.  It is a contract … affecting the status of the parties.  But it is one and the same thing whether the contract is made in church with religious vows superadded … or before a registrar without any religious ceremonies … the Established Church has never refused to recognize any marriage which by our law is valid as being other than a good marriage for ecclesiastical purposes’ (p.109).

‘To the [English] law there is only one contract of marriage.  It may be solemnized in a church … with the rites of the Church of England … or it may be made before a registrar … The result is one and the same in every respect known to the law’. (p.114).

Thus an Anglican who wishes to marry is under no obligation to marry in an Anglican church, or according to a religious ceremony.  In the Church of England (and the Church in Wales) a civil marriage is just as valid as a marriage in church.  The Church cannot solemnise the marriage of a person who has already been lawfully married in a civil ceremony, unless, of course, the previous marriage has ended by death or divorce.

However, the celebrated Christian apologist and Anglican C.S Lewis seems not to have shared the view of the judges in Dibdin.  His own tragically short marriage has been movingly dramatized in the film Shadowlands.  He originally married his American friend Joy in a registry office (not a church) merely in order to secure her legal right to remain in Britain.  Later, when she was diagnosed with cancer, he fell in love with her and wished to have a church marriage.  After initial difficulties with ecclesiastical authority (not because of the previous civil marriage, but because Joy was a divorcee), Lewis and Joy were ‘married’ by a vicar using the marriage service in the Book of Common Prayer 1662.

S.46 of the Marriage Act 1949, entitled ‘Register office marriage followed by religious ceremony’, offers some concession to this religious sensibility.  It provides that:

‘(1) If the parties to a marriage solemnised in the presence of a superintendent registrar desire to add the religious ceremony ordained or used by [their] church … they may present themselves … to the clergyman or minister of the church … and the clergyman or minister … may, if he sees fit, read or celebrate in the church or chapel … the marriage service of the church …’.

However, s.46(2) supports the dicta in R v Dibdin by making clear that

‘Nothing in the reading or celebrating of a marriage service under this section shall supersede or invalidate any marriage previously solemnised in the presence of a superintendent registrar and … shall not be entered as a marriage in any [statutory] marriage register’.

These provisions of s.46 first appeared in s.12 of the Marriage and Registration Act 1856 (19 and 20 Vict, c.119), nearly 100 years before the 1949 Act, when civil marriage was still a relative novelty.  It may be comparable to the provision now contained in the Matrimonial Causes Act 1965, at s.8, which relieves clergy from any duty to solemnise the marriage of a divorced person whose former spouse is still alive.  S.46 is likewise a concession to individual conscience, though of the spouses rather than the clergy.  However, s.46 also protects an officiating clergyman from any possible liability for solemnising what would otherwise be an illegal marriage, and makes clear that the clergyman is not obliged to perform the ceremony. 

In this case, marriage ceremony (2), unlike C. S Lewis’s church ‘marriage’, did not purport to be a solemnisation of marriage.  It was a service held merely to bless a civil marriage.

On its wording s.46(1) of the 1949 Act permits the vicar to ‘read or celebrate the marriage service’, even though the couple are already married by law.  In 1856, and in 1949, the only ecclesiastical marriage service provided by ecclesiastical law was that in the Book of Common Prayer.  The 1662 Book makes no provision for civil marriage because, of course, such marriages were unknown in 1662.

Thus s.46 is referring to the 1662 marriage service, not to modern services of ‘blessing’ of a civil marriage.  It is therefore argued that such services do not engage s.46 at all.  Modern blessing services may resemble the marriage service to some extent, but they make clear that the couple are already married. The 1662 marriage service, of course, is based on the assumption that the couple are not already married.  The authority of the secular law is surely not required merely for the Church to bless a civil marriage.    The authorisation of blessing services is a matter for ecclesiastical law only (or in Wales, for the Constitution of the Church in Wales). 

The Roman Catholic Law

Roman Catholic law agrees with English law that there is only one marriage contract.  However, it claims exclusive jurisdiction over the contract where at least one of the parties is a Catholic.  Thus any civil marriage and any Anglican marriage involving a Catholic is generally considered invalid. 

The relevant Roman Catholic law is set forth in the Code of Canon Law 1983.  Secular jurisdiction over marriage is limited to the ‘civil effects’ of the contract (canon 1059).  A Catholic marriage must be solemnised by a Church official (usually a priest, but sometimes a deacon or authorised lay official) (canons 1108, 1112).

Marriage with a non-Catholic is still generally prohibited (canons 1124 and 1129).  However, the Church authority may grant permission for such a marriage ‘if there is just and reasonable cause’ (canon 1125).  The use of the word ‘permission’ (licentia) rather than ‘dispensation’ may imply a more positive attitude to mixed marriage and greater respect for freedom of marriage than in former times.

If permission is granted for a mixed marriage, the marriage should still normally be solemnised in a Catholic ceremony, because it is a Catholic marriage.  However, a dispensation (not a permission this time) is possible to relax the general rule and permit a non-Catholic religious ceremony.  This is only allowed if there would be ‘grave difficulties’ with a Catholic ceremony (canon 1127).  Clearly in this case there were no difficulties about a Catholic ceremony, there was no dispensation and so the normal rule applied.

If there is a Catholic marriage ceremony in accordance with the normal rule, there must not be another, non-Catholic religious ceremony ‘for the purpose of giving or renewing matrimonial consent’.  This reflects the Catholic teaching that marriage is a sacrament which, like baptism or ordination, cannot be repeated.  A non-Catholic religious ceremony might also be seen as impugning the validity or efficacy of the Catholic sacrament.

However, a secular marriage ceremony is not forbidden in Roman Catholic law.  In some countries couples are obliged to submit to a secular ceremony if their marriage is to be recognised by the local secular law.  In France, for example, it is apparently usual for couples to have two marriage ceremonies, one at the Town Hall and one in church.  Roman Catholic law pragmatically tolerates this requirement of secular law, even though it regards only the church marriage as the true marriage contract.

The sequence of marriages ceremonies in this case becomes clear:

(1) The couple could not have been married in the Anglican parish church, because theirs was a Catholic marriage.  Nor could they even have had their Catholic marriage blessed in the Anglican church.  However, they were permitted to make a civil marriage, even though civil marriage is not compulsory in English law as it is in French law. 

(2) The civil marriage in turn made possible the blessing in the Anglican church, because the blessing was of the civil marriage, not the Catholic marriage, which was made some time later.  The blessing would presumably have been somewhat meaningless from the official Roman Catholic viewpoint (despite the attendance of the Catholic priest), since it related to an invalid marriage, and was given by a vicar whose priestly orders are also considered invalid.  However, such a blessing is not actually forbidden by Roman Catholic law.

(3) If the bride had been an Anglican, like the groom, the couple’s marriage would obviously not have been a Catholic marriage.  Their civil marriage ((1) above) would then have been a valid sacramental marriage in Roman Catholic law.  If they had chosen to marry in the Anglican parish church, such marriage would likewise have been a valid sacramental marriage.