The Constitution of Marriage: Consensus-Copula

‘Marriage … is a lifelong union between one man and one woman …’ (Professor Norman Doe, Christian Law (2013), p.394)

Though formulated less than a decade ago, this alleged ‘principle of Christian law common to Christian Churches’ has not aged well. It was, of course, published in the same year that Parliament approved the Marriage (Same Sex Couples) Act.

Now the Professor’s own ‘ecclesial community’, as he describes it (p.viii), the Anglican Church in Wales, is considering a proposal to authorise a liturgical rite of blessing of same-sex marriage. (Blessing only, because the solemnisation of same-sex marriage in church is at present forbidden by the secular law.)

The proposal is accompanied by an ‘Explanatory Memorandum’ signed by all 6 of the Welsh bishops. This argues that blessing a same-sex marriage is justified by the Bible, as interpreted with the aid of ‘new social, scientific and pyschological understandings of sexuality’.

Despite a widespread and 2,000-year-old perception to the contrary, the Bible does not condemn homosexual acts per se. It condemns only lust (or porneia in Greek), albeit it tends to identify lust with homosexual acts rather than heterosexual ones. The moral quality of a homosexual act therefore depends, not on the act itself, but on the intention or motive of the actors. An act that is motivated by lust is bad. However, one that is motivated by love is good.

Persons who enter a same-sex marriage demonstrate thereby that they are motivated by love, not lust. The Church should therefore bless such marriage.

In pre-modern times legal discussion of marriage concentrated on the conditions necessary for a valid marriage (consent, absence of impediments, dispensation from impediments, ceremonial formalities) and the consequences of invalidity (the legitimacy of children, title to property). Recent incidents of forced marriage, and of marriage ceremonies not recognised by law, have led to a revival of interest in these matters. In modern times, discussion turned to the circumstances (if any) in which a marriage can be dissolved, and the consequences of marriage breakdown (financial support, custody of children).

However, the recent phenomenon of same-sex marriage raises the most fundamental issue of all. What is marriage? Assuming that all conditions for its validity are satisfied, how does a marriage come into being?

The Church in Wales Memorandum does not begin to address this question. Even if it was possible to accept its biblical exegesis on homosexual acts, this does not explain how a same-sex relationship, with or without sexual acts, is capable of constituting a marriage. Allusions to marriage are expressed in fluffy abstractions: ‘faithful and mutual commitment’, ‘loving and faithful commitment’, ‘lifelong fidelity and mutual comfort’.

Recent political controversies on both sides of the Atlantic have prompted much discussion of the constitutions of the United States and the United Kingdom. The American and British constitutions are different in many ways, but they have one thing in common: they are both man-made.

Like the United States and the United Kingdom, marriage also has a constitution. Unlike them, however, this constitution is God-given, not man-made. The Book of Common Prayer teaches that marriage was ‘instituted of God [i.e constituted by God] in the time of man’s innocency’. In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott, Lord Stowell, observed that marriage ‘is the parent, not the child, of civil society’ (p.669). This God-given constitution of marriage is the foundation of all other constitutions of human society.

Consensus-Copula

Marriage has 2 essential constitutive elements, which are conveniently summed up in 2 Latin words (1) consensus and (2) copula.

The Prayer Book describes marriage as a covenant. Lord Stowell described it as ‘a contract according to the law of nature … wherever 2 persons of different sexes engage by mutual contracts to live together (Lindo v Belisario (1795) 161 English Reports 530, p.636). The different terminology reflects the dual heritage of Christianity, Jewish-Biblical (covenant) and Graeco-Roman (contract, natural law).

Secular law agrees with ecclesiastical law. ‘The contract [of marriage] itself, in its essence … is a consent on the part of a man and a woman to cohabit with each other, and with each other only’ (Harrod v Harrod (1854) 69 English Reports 344, p.349)

Consensus or contract / covenant is, of course, not remotely unique to marriage. A vast multitude of human relationships – economic, political, international and ecclesiastical (including the Church in Wales itself, of course) – are constituted by contracts of one sort or another.

The unique constitutive element of marriage is therefore the union, or copula, that proceeds from the consensus.

Consensus is inseparable from copula. Lacey and Mortimer confirm that ‘the institution [of marriage] consists in [1] a contract [consensus] and [2] its fulfilment [copula]’ (Marriage in Church and State (1912-47), p.39). They explain the relationship between the two

‘the surrender of the body is common alike to marriage and to illicit intercourse … the intention which makes it marriage cannot be adequately expressed without words or their equivalent’.

Thus sexual intercourse per se does not constitute copula. Copula requires prior consensus. Pre-marital intercourse between the couple is not consummation.

Lord Stowell observed that ‘A marriage is not every casual commerce [i.e sexual relationship]; nor would it be so even in the law of nature … But when 2 persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabitation … That, in a state of nature, would be a marriage and … in the sight of God’ (Lindo v Belisario again, p.636).

Union, or copula, has both a metaphysical and a physical dimension.

The Prayer Book tends to emphasise the metaphysical dimension of union. The couple are ‘joined together by God’. Marriage signifies ‘the mystical union that is betwixt Christ and His Church’. However, the Prayer Book does refer to the physical dimension of union as ‘one flesh’.

The concept of marriage as one flesh is, of course, of biblical origin, and is affirmed by Christ Himself

‘the Creator made them from the beginning male and female … For this reason a man shall leave his father and mother, and be made one with his wife; and the two shall become one flesh … they are no longer two individuals; they are one flesh’ (Matthew 19, vv4-6).

This makes clear that marriage engages, not merely the constitution of all human society, but the very constitution of the human person, created male and female.

A married couple are joined together by a metaphysical act. Marriage is made in Heaven. But even Divine Grace yet requires human cooperation. The newlyweds cannot simply rely on God to effect their union. They are called to do their bit as well! The physical dimension of copula is effected by marital intercourse. Intercourse between the couple completes, or consummates, their marriage. The biblical phrase ‘one flesh’ could hardly make this clearer.

The precise relationship between consensus and copula was much discussed in the mediaeval Church. Robert E Rodes noted that ‘mediaeval canon law vacillated between [1] consent and [2] marital intercourse as the effective consummation of the marriage’ (‘Canon Law as a Legal System’, Natural Law Forum (1964) p.47n)

Messrs Coriden, Green and Heintschel relate that

‘the Paris school [theologians] taught that consent alone was necessary for a true marriage, while the Bologna school [canonists] held that consent was the beginning of marriage, but only with sexual consummation did a true marriage come into existence’ (The Code of Canon Law. A Text and Commentary (1985), p.812)

The papacy, characteristically, struck a compromise between these 2 schools of thought

‘true marriage exists from the moment of consent; when this consent is completed with sexual intercourse, the property of absolute indissolubility is added … the two becoming one flesh’.

Law has much more to say about consensus than about copula. If a marriage contract is validly made then consummation is presumed. However, proven non-consummation is a ground of nullity in law.

It is interesting to compare the English and Roman Catholic laws on this matter. Non-consummation is not an automatic ground of nullity under either law. In England and Wales, an unconsummated marriage is said to be voidable rather than void. There is a prima facie right to a decree of nullity, but this may be lost on equitable grounds (Matrimonial Causes Act 1973, ss.12 and 13).

In Roman Catholic law an unconsummated marriage may be dissolved, rather than annulled, for a ‘just cause’ (1983 Code, canon 1142). This power forms a rare exception to the Catholic teaching that a valid marriage contract is indissoluble. In England and Wales a non-consummation case can be decided by the local county court. In the Catholic Church such cases are reserved to the Pope himself. No lesser authority may decide them.

English law therefore implies a spouse’s right to consummation of the marriage. Roman Catholic law implies the couple’s joint duty to consummate. However, both laws make clear that an unconsummated marriage is constitutionally incomplete.

Constitution and Purpose

The Prayer Book identifies 3 purposes of marriage, ‘the causes for which matrimony was ordained’:

(1) children. Thus children are not constitutive of marriage. Copula does not require conception. The Prayer Book explicitly acknowledges this by providing that a prayer for the procreation of children ‘shall be omitted where the woman is past child-bearing’.

(2) sexual love. Influenced, no doubt, by celibate mediaeval theologians, the Prayer Book is somewhat grudging in its treatment of this purpose, describing it as ‘a remedy against sin, and to avoid fornication, [for] such persons as have not the gift of continency …’. (This also explains the paucity of reference to marriage as ‘one flesh’.)

Lacey and Mortimer astutely point out that marriage qua ‘remedy against sin … seems to conflict with the statement that it was instituted in the time of man’s innocency’ (op cit, p.28).

Modern liturgies are more generous. Common Worship states that ‘Marriage brings husband and wife together in the delight and tenderness of sexual union’. Its predecessor, the Alternative Service Book (1980), stated that marriage is given so that the couple ‘may know each other in love, and, through the joy of their bodily union, may strengthen the union of their hearts and lives’.

(3) Archbishop Cranmer, the first married Archbishop of Canterbury, sought to balance the negative mediaeval view of sex by the providing that marriage is also ‘for the mutual society, help, and comfort, that the one ought to have of the other, both in prosperity and adversity’ (D MacCulloch, Thomas Cranmer (1996), pp.420-1)

Purposes (2) and (3) are essentially the same – love. They merely refer to different aspects of married love, erotic or sexual love, and friendly, companionable love. Thus marriage has 2 essential purposes, love and children.

It is important not to confuse the constitution of marriage (what is marriage?) with the purpose of marriage (what is it for?). Pleasant-sounding abstract references to marriage (such as those in the Church in Wales Memorandum) tend to do this.

Faith assures that God constituted marriage out of love for humanity, and love is, of course, a good motive for marriage. But love, like children, is not constitutive of marriage. Sad though it is, a marriage can still exist without love, just as it can exist without children.

Mere tender feelings cannot be constitutive of marriage. And the suggestion that love is constitutive of marriage carries the false implication that the only valid marriage is a happy one.

The Marriage Quadrilateral

The phenomenon of same-sex marriage raises 2 questions, which this analysis has sought to answer

(1) What is marriage? Marriage is consensus-copula.

(2) What is marriage for? Love and children.

Consensus, copula, love, children. Having identified this marriage quadrilateral, let us apply it to a same-sex relationship.

A same-sex relationship is not incompatible with consensus. It is, of course, perfectly possible for 2 persons of the same sex to make a contract, or ‘covenant’, to live together unto their lives’ end.

A same-sex relationship is biologically incapable of producing children. However, as discussed, children are not constitutive of marriage. A childless marriage is prima facie just as validly constituted as any other.

A same-sex relationship is capable of love. But again, love, like children, is not constitutive of marriage.

However, a same sex relationship is incompatible with copula. Even the current secular law does not deny the obvious biological fact, which it has no power to change. As amended by the 2013 Act, it acknowledges that its non-consummation provisions (discussed above) ‘do not apply to the marriage of a same-sex couple’ (1973 Act, s.12(2)).

It may be thought that the mediaeval uncertainty about consensus-copula affords some sort of precedent for same-sex marriage. However, that debate concerned only the indissolubility of marriage, a different issue. It involved no denial that sexual consummation is a duty of marriage, or that procreation is a purpose of marriage.

Modern permissiveness is essentially the divorce of consensus-copula, albeit for contradictory reasons. Cohabitation outside marriage (what used to be called ‘living in sin’) implies that prior consensus is not necessary to copula, and may even hinder or restrict copula in some way. Same-sex marriage, by contrast, implies that consensus alone constitutes marriage, without the need for copula. Thus the permissive society both rejects the marriage contract and insists upon it.

Same-sex marriage is also the divorce of the 2 purposes of marriage, love and children. Children are not constitutive of marriage. And marriage is not, of course, a guarantee of children. As the Prayer Book makes clear, children are a blessing, not a right, of marriage. But the constitution of marriage serves the purpose of procreation. A same-sex relationship, by contrast, is constitutionally incapable of serving this purpose. A same-sex relationship is therefore not comparable to a childless marriage.

The link between married love and children first became controversial in the mid-20th century. The famous papal encyclical Humanae Vitae (1968) affirmed ‘the inseparable connection, established by God, which man on his own initiative may not break, between

[1] the unitive significance [love] and

[2] the procreative significance [children]

which are both inherent to the marriage act’ (para 12).

The Lambeth Conference 1930 loosened this connection somewhat by suggesting that ‘where there is … a clearly felt moral obligation to limit or avoid parenthood and where there is a morally sound reason for avoiding complete abstinence … other methods [than complete abstinence] may be used …’ (resolution 15).

However, despite the 20th century confusion over the precise nature of the link between married love and children, there was no denial that the link exists.

It is controversial to equate same-sex love with married love. It may seem self-evident that married love is unique to marriage, i.e consensus-copula. The Catholic Church apparently denies that same-sex love is of the same quality as married love. Homosexualitatis Problema (1986) (not an encyclical, but a letter issued with papal approval) stated that ‘the [homosexual] inclination itself must be seen as obiective inordinata‘ (para 3). The harsh-sounding Latin phrase could perhaps be rendered ‘confused’ in vernacular English. But law and love (and Latin) are different subjects, of course.

The authorities and commentaries discussed above support Professor Doe’s ‘common principle’. A same sex relationship is capable of 1 of the constitutive elements of marriage, and arguably resembles 1 of its purposes. However, it is not capable of the other 2 elements of the marriage quadrilateral. It is therefore not on all fours with the constitution of marriage to which the common principle bears witness.

Akhter v Khan: Sharia Law and Common Law

(2018) Family Court 54

At common law, a marriage was never invalid for lack of ceremony.  It could only be invalid on account of some impediment existing when the marriage was made (e.g consanguinity, or a surviving spouse from a previous marriage).

Since 1753, however, statute law has provided that all marriages must be solemnised in accordance with a legally recognised ceremony.  A common law marriage without ceremony is no longer a valid marriage.

This is clear enough in principle.  However, it raises the practical question of how perfectly the ceremony must be performed for the law to recognise it.  Will the smallest ceremonial slip invalidate the marriage?  Is it not harsh to invalidate a marriage because the couple have made an innocent mistake about the ceremony?  A fortiori is it not unjust to invalidate the marriage where the mistake has been made by the officiating minister, not the couple?

The Marriage Act 1949 now provides for 2 categories of legally recognised marriage ceremonies

(1) marriage according to the rites of the Church of England (Part 2 of the Act) and

(2) marriage under a superintendent registrar’s certificate (Part 3)

Each of these regimes includes a provision concerning void marriages (s.25 and s.49 respectively).

The case cited above concerned a couple who got married in a Muslim religious ceremony, known as a Nikah, which took place ‘at TKC Chowdhury’s in Southall’ (para 20), i.e in England, and was solemnised by an imam in accordance with Sharia law.  The imam warned that a civil ceremony was required for legal recognition of the marriage.  The wife, a trainee solicitor, needed no warning: ‘she was expecting the husband to organise … the civil ceremony … she was concerned that her rights were not protected … that they would be treated as cohabitees’.

However, the husband was not interested in a civil ceremony.  He ‘fobbed the wife off’ (para 26) and became angry (and allegedly violent) when she kept nagging him about the matter.

Despite these difficulties, the Muslim marriage lasted many years and produced children.  Then, eventually, the relationship ‘was shattered by the husband’s proposal to take a second wife’ (para 29).  (This may explain his reluctance to make a civil marriage.)

The wife asked the English court to annul the Muslim marriage, and vindicate the rights that she had feared were not protected.  The court granted a decree of nullity.

This meant that the wife could make a claim for maintenance (‘alimony’, as it is often called) against the husband, including his property and pension rights, on the same terms as a lawful wife in a divorce case (cf.para 7).  A partner in a non-marital cohabitation, by contrast, has no right to make such a claim against her partner when the relationship breaks down.

On one view it may be unsurprising that the court annulled the marriage.  Clearly the marriage was not valid in English law.  However, as the court observed ‘it may appear an easy question to answer.  Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled?  Regrettably it is not that simple’ (para 5).

The comparison with common law marriage indicates the difficulty.  If the courts granted nullity decrees to unmarried cohabitees on the basis that their relationship was an invalid common law marriage, it would be fairly easy for cohabitees to acquire the same financial protection as divorced wives.  However, the courts do not grant such decrees.  So why should a party to a Sharia law marriage be treated more favourably than a party to a common law marriage, when both are equally invalid in English law?

The Matrimonial Causes Act 1973 provides that ‘A marriage … shall be void on the … grounds that it is not a valid marriage under … the Marriage Acts 1949 to 1986 … [inter alia] where … the parties have intermarried in disregard of certain requirements as to the formation of marriage’ (s.11).  (The evident policy of the law is that a man should not be able to avoid financial obligations to his wife on account of some defect in their marriage ceremony.)

The question is what, exactly, does s.11 mean by ‘marriage’ and ‘intermarried’?  The court acknowledged that ‘Unless a marriage purports to be of a kind contemplated by the Marriage Acts it will not be within s.11′ (para 92), i.e it will not be subject to a decree of nullity.  Marriages outside the scope of the 1949 Act, such as common law marriages, will be invalid, but the court still has no power to grant a decree of nullity in respect of them.

As mentioned, there are 2 types of marriage under the 1949 Act in respect of which a decree of nullity may be granted.  The marriage in this case was obviously not a Church of England marriage.  But was it a ‘marriage under a superintendent registrar’s certificate’, even though the superintendent registrar had had no involvement in the marriage?  The court decided that it was.

S.49 of the 1949 Act provides that marriage under a registrar’s certificate ‘shall be void’ where ‘persons knowingly and wilfully intermarry under the provisions of this Part of the Act [i.e Part 3]’, without observing certain requirements laid down by the Act.

The phrase ‘knowingly and wilfully’ indicates that a declaration of nullity depends on the deliberate, intentional conduct (or misconduct), of the parties to the marriage.  A declaration of nullity, like a criminal offence, requires a mens rea, a guilty state of mind.

It is therefore argued that s.49 will apply to persons who

(1) intend to make a marriage contract that will be recognised in English law but

(2) deliberately evade or disregard the legal requirements for recognition.

In this case, the couple did indeed disregard the requirements that the Act imposes for marriage under a registrar’s certificate (2).  Not just ‘certain requirements’ (per s.11) but all the requirements.  But they had a very good reason for this.  In holding their Nikal ceremony they never intended to make a marriage recognised by English law (1).  They intended only to make a marriage recognised by Sharia law.

Thus there was no attempt to evade legal requirements or deceive the registrar.  The only deception was the husband’s promise or indication to the wife that he would arrange a civil ceremony after the Muslim ceremony was over.

The wife, it is true, was anxious that her marriage should be recognised in English law.  But she knew very well that the Muslim ceremony would not achieve this.  Her own evidence stated that ‘I have married in Sharia law only’ (para 20).  Hence her persistent requests to the husband for a civil ceremony.

The husband, by contrast, positively wanted the marriage not to be recognised by English law.  (This would have interfered with his apparent right under Sharia law to marry a second wife.)

The court’s decision to grant a decree of nullity was influenced by 2 particular facts

(1) the quality of the Muslim ceremony and

(2) the husband’s ungentlemanly treatment of the wife.

However, it is argued that neither of these facts, correctly understood, supports the court’s conclusion on nullity, but actually undermines it.

(1) The court was evidently impressed that the Muslim ceremony ‘bore all the hallmarks of a marriage … it was held in public, witnessed, officiated by an imam, involved the making of promises and confirmed that both husband and wife were eligible to marry’ (para 95).  The couple had ignored the English law concerning marriage, but had scrupulously observed the Sharia law, and the marriage requirements of Sharia law resemble those of English law.

Yet this finding did not justify a decree of nullity.  On the contrary, if the Muslim ceremony ‘bore all the hallmarks of a marriage’ this points to its being a valid marriage, not an invalid one.  The fact that the ceremony resembles a marriage by registrar’s certificate does not mean that it is such a marriage.  S.49 refers only to an unsuccessful attempt to make a marriage contract under the Act.  

And the resemblances of the Muslim ceremony to marriage under a registrar’s certificate apply equally to a Church of England marriage.  Church of England marriages, no less than registrar’s marriages, are public, witnessed, officiated, involve promises etc.  Yet it would be absurd to hold that the Muslim ceremony was a void Church of England marriage, under s.25 of the 1949 Act.  Why then should it be regarded as a void registrar’s marriage under s.49?

It is also arguable that reliance on the Muslim ceremony to support a decree of nullity is unfairly discriminatory, since it favours religious people.  Muslims, Jews and Catholics have centuries-old marriage laws and ceremonies.  Irreligious cohabitees, by contrast, have no recognisable marriage ceremonies other than those provided by English law.  If they neglect the legal ceremonies they can only plead common law marriage.  But, as mentioned, the courts will not annul a common law marriage.  An irreligious cohabitee is therefore at a disadvantage to a cohabitee who has undergone a religious ceremony.

(2) The court found that ‘It was understood by both husband and wife that they were embarking on a process which was intended to include a civil ceremony … The failure to complete the marriage process was entirely down to the husband’s refusal … [of] the civil ceremony’.

The ‘marriage process’ so forensically identified by the court is known in common parlance as an engagement.  The husband had promised to marry the wife in a civil ceremony, or had led her to believe that he would do so, and had not kept his promise.

However, it is no longer possible to sue for breach of promise of marriage.  The Law Reform (Miscellaneous Provisions) Act 1970, s.1 bears the unequivocal heading ‘Engagements to Marry not enforceable at Law’.  It provides that ‘An agreement between 2 persons to marry one another shall not … giv[e] rise to legal rights, and no action shall lie … for breach of such an agreement‘.

The husband behaved badly, but the court had no power to revive a jurisdiction that has been expressly abolished by Act of Parliament.  And if the husband was guilty of breach of promise of marriage, this only reinforces the conclusion that there was no attempt to marry in accordance with the Marriage Acts, and therefore no marriage to annul.

The Married State

Daniel Hill, ‘The State and Marriage: Cut the Connection‘ (Law and Religion UK, blogpost, 21st June 2018)

The title of this polemical blogpost is admirably succinct and self-explanatory.  The learned author does not have a good word to say about the state’s involvement in marriage.  He makes 3 specific criticisms:

(1) ‘the state is intruding itself as a third party into our marriages’

(2) state involvement in marriage discriminates against couples who ‘have chosen not to go through a legally binding ceremony of marriage’.

(3) last, but not least, the bureaucratic character of state involvement in marriage is ‘romance-killing’.

Criticisms (2) and (3) are unpersuasive.  The author writes movingly about an unmarried couple of his acquaintance whose ‘commitment to each other … does not seem to me to be less than the commitment … of many legally married couples’.  Yet their lack of legal marriage means that ‘they are not eligible for [marriage-related] tax breaks … so, what justifies the state in discriminating against them?’

A possible answer to this question is that the state can hardly be expected to appreciate the couple’s ‘commitment’ to each other (no matter how obvious this may be to family and friends) if the couple neglect or refuse to notify it to the state, by means of a legal marriage.

As for ‘romance-killing’, it is arguable that the legal formalities of marriage are a salutary reminder that marriage is rather more than mere romantic feelings.  The learned author himself describes marriage as ‘a form of shared life’.  It is not merely a shared feeling.

Criticism (1) may have some force, though perhaps not what the author intended.  It is true that a man and a woman marry each other.  They are not married by the state.

The Book of Common Prayer teaches that ‘holy matrimony … is an honourable estate, instituted of God in the time of man’s innocency’, long before the state existed.  Marriage is a God-given status, not a status conferred by mere human law.  It has been argued that the modern state has undermined or corrupted the Divine status of marriage by sanctioning the dissolution of marriages (‘Those whom God hath joined together, let no man put asunder’), and, more recently, by permitting same-sex ‘marriage’.

In the case of Dalrymple v Dalrymple (1811) 161 English Reports 665, Sir William Scott observed that ‘Marriage in its origin is a contract of natural law … It is the parent, not the child, of civil society’ (p.669).  He also observed of ancient Jewish law that ‘Amidst the manifold ritual provisions made by [Moses] there is no ceremony prescribed for the celebration of marriage’.

Indeed for many centuries in England a couple might validly marry without an official ceremony (a ‘common law marriage’).  Common law marriage continued to be valid until Lord Hardwicke’s Marriage Act 1753 provided that no marriage would be recognised at law without an official ceremony (in the parish church).

The 1753 Act was not uncontroversial at the time.  It meant that Roman Catholics and Protestant non-conformists had to submit to the Anglican marriage rite.  Poor people could ill afford the fees.  Grand families may have found it distasteful to marry amidst the hoi polloi of the parish, rather than in the seclusion of private chapels.  Many freedom-loving Englishmen took the view that it was a man’s own business where and how he got married.  Horace Walpole wrote sarcastically to a friend ‘It is well that you are [already] married’, and complained that the 1753 Act was ‘impudent’ and contained ‘as many impediments and formalities … as a treaty of peace’ (Cobbetts Parliamentary History, volume 15, column 32).

Although an official ceremony only became essential in 1753, the state (or the Church, which is the ecclesiastical state) has always exercised jurisdiction over the marriage contract, whether or not the contract was made in an official ceremony.

The learned author is rather vague about what marriage actually is.  He describes it as a ‘commitment’, a ‘personal and intimate relationship’ and ‘a form of shared life’, but not as a contract or status.  However, there is nothing vague about his proposal.  Not only would there be no officially recognised ceremony, but the state would lose all jurisdiction over the constitution, validity and subsistence of the commitment / relationship / shared life that is marriage.  Marriage would become a contract without a jurisdiction, a status unknown to the law.

So who would decide the constitution, validity and subsistence of a marriage, if the state could not?  The parties themselves, presumably.  Yet why should the parties be trusted to respect the God-given status of marriage, any more than the state?  If marriage depends on nothing more than the present wishes and feelings of the parties, it will soon lose the character of both a status and a contract.  It would become a mere sociological phenomenon, or an academic subject for students of natural law.

There is also the likelihood that, absent state authority, marriage questions would be decided, not by the parties jointly, but by the stronger party.  The case of A v L (2010) 2 Family Law Reports 1418 refers to the ability of a husband under Muslim (Sharia) law to divorce his wife by unilateral decision.  The Bible, of course, relates that ‘Moses command[ed] that a man give his wife a certificate of divorce and send her away … because your hearts were hard‘ (Matthew 19, 7-8).

We trust that the learned author is not hard-hearted in seeking to ‘cut the connection’ between marriage and the state.  But his marriage proposal, though thought-provoking, is singularly ill-considered, and should be turned down.

A Mixed Marriage

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.

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.