Ecclesiastical law

Category: Marriage: Solemnisation

The Solemnization of Matrimony: Duties and Deposits

It was reported in the news media last week that a vicar has taken to charging a deposit of £100 for weddings in his church.  He then forfeits the deposit if the bride arrives late for the ceremony.  (This is, of course, a well known bridal prerogative, but it seems that some brides have been abusing the prerogative by as much as 20 or 25 minutes.)

The vicar’s exasperation at such gross unpunctuality may be understandable.  But is he legally entitled to charge, and forfeit, a deposit in these circumstances?

It is universally assumed that parishioners have a common law right to marry in their parish church.  However, the incumbent and the Church authorities have no general common law right to charge a fee (not even a refundable deposit) for publication of the banns or solemnisation.  A contractual fee for performing the ceremony would constitute the sin of simony (cf Ecclesiastical Committee, 229th Report, para 58).

Common law would enforce an ‘accustomed duty’ of the kind described in the Prayer Book marriage service (i.e a customary marriage fee in a particular parish).  However, such a duty / fee was difficult to prove ‘from time immemorial’, and would only be worth a few pence in the money values of today.

So marriage fees are now charged under statutory authority.  This is provided by the Ecclesiastical Fees Measure 1986, as amended by an Amendment Measure of 2011.  The fees themselves are fixed by a parochial fees order made under s.2 of the 1986 Measure.

(S.12(2) confirms that the Ecclesiastical Fees Measure applies only to England.  How the Church in Wales is able to charge marriage fees is one of the great unsolved mysteries of ecclesiastical law, as the common law right is the same on both sides of the Severn.)

Under the Parochial Fees Order 2017, 2 fees are payable for a marriage service, to

(1) the diocesan board of finance (‘the DBF’) and

(2) the parochial church council (‘the PCC’).

Following the 2011 Amendment, marriage fees are no longer payable to incumbents (cf.s.1(1)).  This is a sensible reform.  Weddings are part of an incumbent’s paid duty.  He should not be paid twice for the same work.  Many weddings are solemnised by non-incumbent clergy.  And the DBF is now responsible for payment of all stipends and other clergy remuneration.  Hence the DBF is the appropriate recipient of the fee that was formerly payable to the incumbent.

These 2 statutory fees correspond to the 2 elements of the common law right

(1) the duty of the incumbent to solemnise the marriage, either personally or by deputy and

(2) the use of the church building for the ceremony.  As the Prayer Book rubric says ‘the persons to be married shall come into the body of the church with their friends and neighbours …’.  The PCC is now responsible for the upkeep of the church building.

As amended, the 1986 Measure empowers an incumbent to waive a fee payable to the DBF in a particular case (s.1(9)).  He may likewise waive a fee payable to the PCC, though only after consulting the churchwardens (s.1(10)).

These provisions indicate that the vicar may waive part of a marriage fee, i.e reduce it by £100, as an incentive to bridal punctuality.  But they do not empower him to impose an additional deposit, over and above the statutory fees.

However, the common law right to marry in church is a bare right, limited to what is legally necessary for the solemnisation, i.e reading the marriage service in the church.  It does not extend to the traditional accompaniments of a church wedding, such as music, bells, flowers and photography.  The extras, as they are called.  All these require the incumbent’s licence.

Canon B35(5) of the revised canons confirms that ‘When matrimony is to be solemnised … it belongs to the minister of the parish to decide what music shall be played, or what furnishings or flowers should be placed in or about the church for the occasion’.  Canon F8(2) provides that ‘No bell … shall be rung contrary to the direction of the minister’ (see also canon F15(1)).

Thus, although an incumbent could not charge a deposit in respect of a bare solemnisation, he may attach reasonable conditions to his licence for any extras.  He is therefore arguably within his rights to charge a deposit against late arrival, as a condition of granting  permission for the extras.

Those who supply the extras (organist, choir, bellringers) generally expect to be paid for their services.  Provision of the extras will then be a matter of contract. The incumbent will usually be the link between the couple and at least some of the suppliers of the extras.  He will be involved in making arrangements for the extras.

It may therefore be possible for the incumbent to charge a deposit on a contractual basis, as event organiser for the couple and / or as agent for the suppliers.

So the vicar in this case may be entitled to charge a deposit, on the basis of licence and / or contract.  However, the boundary between

(1) common law right (for which only statutory fees are chargeable) and

(2) extras (for which additional fees may be charged)

must always be respected.  Couples will be illegally overcharged if it is not.

Introducing the 2011 Amendment Measure, the Bishop of Exeter admitted that ‘there is considerable variation between parishes on services that are charged as extras over and above the statutory fees … people who are getting married are surprised to be asked for substantial sums for administration, vergers’ fees and so on …’ (House of Lords Official Report 23rd March 2011, column 794).

The Ecclesiastical Committee confirmed that ‘the PCC [has] never had a power to set fees of its own … over and above the statutory fees’ (229th Report, para 70).  If the incumbent has no common law right to charge a marriage fee, a fortiori the PCC has no such right.

The 2011 Measure was intended to resolve the confusion between rights and extras, but it may not have been entirely successful in this.  The 2017 Fees Order explains that the cost of lighting the church is included in the statutory fee, but that the cost of heating it is a contractual extra.  It also provides that the verger (if any) is a contractual extra.  Yet it is arguable that a verger’s work pertains to the use of the building, and is therefore covered by the statutory fee.

Marriage Vows

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.

Marriage Fees and the Church in Wales

According to its internet website (accessed 14th May 2012) the Church in Wales charges fees for publishing banns of marriage and for solemnising marriage in church.  However, the legal authority for these marriage fees in unclear.

The Welsh Church Act 1914 provides that ‘as from the date of Disestablishment [in 1920] … the ecclesiastical law of the Church in Wales shall cease to exist as law’ (s.3(1)). 

However, the later Welsh Church (Temporalities) Act 1919 introduced an important exception to this provision:

‘Nothing in this Act or in the Welsh Church Act 1914 shall affect … the law with respect to marriages in Wales’ (s.6).

If parishioners have the right at common law to the publication of their banns and solemnisation of their marriages in the parish church, how can the Church in Wales charge fees for performing these services?

The Church of England charges marriage fees under the authority of Fees Measures.  Church of England Measures have statutory authority, and so are capable of overriding or restricting common law rights.  However, Fees Measures only apply to England, not Wales.

Common law held that no fee could be charged for marriage, unless the Church could prove an ‘immemorial custom’ in the particular parish, i.e that a marriage fee was paid in that parish from before the time of legal memory.  Such a custom is very difficult to prove, and any customary fee would only be worth a few pence in the money values of today.  Common law also held that a customary fee could not be adjusted for inflation (Bryant v Foot 1867 Law Reports 2 Queen’s Bench 161).

Some 19th century Acts of Parliament provided for marriage fees to be charged in the ‘new parishes’ created at that time.  However, any 19th century fees, like customary fees, would only be worth a few pence today.

The Church in Wales also charges a fee for the grant of a marriage licence.  It is probably entitled to do this.  It is said that ‘a licensor stands on his own price’.  By definition, there is no right to a licence.

However, if marriage by banns is a legal right, it is difficult to see how the Church in Wales can have the legal right to charge fees for this, unless statutory authority is given.

The Right to Marry

Jacqueline Humphreys ‘The Right to Marry in the Parish Church: A Rehabilitation of Argar v Holdsworth’ (2004) Ecclesiastical Law Journal, vol 7, issue 35, p.407).

Humphreys follows earlier commentators in tracing the right to marry in church to the Marriage Act of 1753 (known as Lord Hardwicke’s Marriage Act, after the Lord Chancellor who introduced it).  This Act required that almost all marriages had to be solemnised in the parish church.  A marriage not solemnised in church was not merely illegal but invalid.

The 1753 Act laid the foundations of modern marriage law by making the point that the only valid marriage is a legal one.  Anticipating the European Convention on Human Rights by many centuries, English common law held that a valid marriage required only mutual promises by the couple to live together as man and wife.  A valid marriage did not require solemnisation by a minister (hence the expression ‘common law marriage’).

Canon law deprecated ‘clandestine marriages’ made without the proper formalities, and sought to punish those who contracted them.  However, canon law agreed with common law that such marriages were valid.  Before 1753 marriage, like baptism, could be valid even though unlawful.

Of course, people are no longer obliged to marry in their parish church, though they are required to submit to some sort of official ceremony if their marriage is to be recognised in law.  Acts of Parliament passed in the 19th century permitted marriage before civil registrars and in non-Anglican places of worship.

Those who trace the legal right to marry in church to the 1753 Act may misunderstand the purpose of that Act.  The 1753 Act did not impose a duty on the clergy to solemnise the marriages of their parishioners, nor did it exactly confer a right on the parishioners.  Rather it imposed a duty on parishioners to marry in their parish church and nowhere else. 

The duty of the clergy to solemnise marriages has never been in doubt.  It was not merely their duty, it was generally in their interest to solemnise marriages, because they gained fee income from so doing.

The 1753 Act was passed, not because the clergy were unwilling to solemnise marriages, but because their parishioners were, for various reasons, unwilling to have their marriages solemnised in church.  Clandestine marriages, solemnised without banns or licence by easygoing clergymen, were a device whereby a young man or woman could marry his or her sweetheart and thereby escape a loveless match arranged by the family for dynastic reasons.  Poor people may have found it hard to afford the fees charged for church marriages.  (Perhaps they still do.)  Roman Catholics and dissenters preferred to marry in their own churches.

It is true, of course, that by obliging parishioners to marry in the parish church, the 1753 Act implicitly gave them the right to do so.  If there is a legal duty to do something there must, of necessity, be a legal right to do it.  However, such a right would not have survived the repeal of the 1753 Act.  Once people were free to marry in register offices and non-Anglican places of worship they could no longer claim a statutory right to marry in their parish church, unless the statutes that replaced the 1753 Act expressly conferred such a right.

The Marriage Act 1949 is the principal Act regulating church-marriage today. It is true that the 1949 Act assumes or implies a pre-existing legal right to marry in church, but it does not confer, or even confirm, such a right.

Nor does the 1949 Act impose a duty on the clergy to solemnise marriages.  Certainly there is nothing in the 1949 Act along the lines of Canon B22(4) (which relates to baptism), to the effect that ‘No minister shall refuse or unduly delay to publish the banns of marriage of a parishioner wishing to be married …’.

The 1949 Act merely regulates the formalities required for marriage in church.  It is therefore procedural.  S.6(1) provides that ‘Where a marriage is intended to be solemnised after the publication of banns of matrimony …’.   However, this reference to an ‘intention’ to be married cannot per se impose a duty to solemnise marriage or publish banns. 

The case of Argar v Holdsworth (1758) 161 English Reports 424 was decided a few years after Lord Hardwicke’s Act.  The Rev Dr Holdsworth was prosecuted in the ecclesiastical court for allegedly refusing to solemnise the marriage of one of his parishioners, Mr Argar, after being presented with a marriage licence.

It has been pointed out that, because Argar v Holdsworth was an ecclesiastical case concerning a marriage licence, it cannot support the existence of a common law or statutory right to the publication of banns of marriage in church.

Humphreys disputes this: ‘This argument … does not bear scrutiny’.  Why not? Because ‘A marriage licence … puts the parties in the same position as if their banns had been read’ (pp.408-9).  If Mr Argar held a valid licence, he had just as much right to be married in church as if his banns had been published in that church.

This may well be true.  However, the case was not directly about Argar’s right to be married, but about Holdsworth’s duty to solemnise the marriage, his duty to obey the ordinary who issued the licence. 

Humphreys admits that Argar v Holdsworth does not expressly refer to the 1753 Act, but she argues that ‘it is likely … the case was dealt with in the light of it’ (p.410).  The prosecution’s statement of case against Holdsworth recited that

‘Every minister is obliged by law to marry such of his parishioners as have resided a month in his parish: that the parties named in the licence [i.e Mr Argar and his intended] are his [Holdsworth’s] parishioners and have resided a month, and have obtained a licence …’ (p.407). 

The outcome of Argar v Holdsworth is uncertain, but the ecclesiastical court apparently accepted the prosecution’s statement of case on this point.  According to Humphreys, this shows that the ecclesiastical court ‘understood the new Act [of 1753] to state the right of people … to be married in their parish church’ (p.411).

However, the prosecution’s statement does not have the significance that Humphreys attaches to it.  The only legal point it makes is that the Rev Holdsworth had a duty to obey a valid marriage licence.  It does not discuss Mr Argar’s legal rights.  It is really concerned to establish facts, not law, that:

(1) Argar had obtained a licence and

(2) Argar satisfied the conditions for a licence by being a resident parishioner.

Thus the prosecution was saying that the licence was valid, so the Rev Holdsworth could not defend himself by pleading that it was defective or obtained by fraud.

No doubt the ecclesiastical court was aware of the 1753 Act and the regime that it imposed.  Argar v Holdsworth does not positively deny the existence of a common law or a statutory right to marry in church, but it does not support it either.  The 1753 Act simply did not apply to the case.  Mr Argar was complaining that he could not get married in church.  The 1753 Act was directed at people who were the exact opposite of Mr Argar, those who refused to marry in church.

Notwithstanding the insufficiency of Argar v Holdsworth, it is argued that there is a common law right to marry in the parish church.  However, the right has nothing to do with Lord Hardwicke’s Marriage Act.  It is proprietary in origin.  The parish church is the parishioners’ church.  It was originally provided, donated, so that the parishioners might worship, receive religious instruction and the sacraments from the minister, and have their marriages solemnised. The solemnisation of parishioners’ marriages is one of the purposes for which the parish church exists. 

The rights of parishioners over their church, though not specifically their right to marry in church, are alluded to in the dictum of Chief Justice Holt in Britton v Standish (1705) 90 English Reports 976 that

‘Parishes were instituted for the ease and benefit of the people, and not of the parson, that they might have a place certain to repair to when they thought convenient and a parson from whom they had right to receive [religious] instruction’.

Marriage Licences: Rights, Duties, Dispensation and Divorce

Though decided over 115 years ago, the case of Brinckmann (1895) 11 Times Law Reports 387 may be the last reported case concerning an ecclesiastical marriage licence.  It seems strange that there should be no modern cases concerning marriage licences when there are so many cases concerning licences (described as faculties) to permit dealings with churches and churchyards.  Brinckmann was decided by Dr Tristram, the last surviving ‘Doctor’ of Doctors’ Commons.

Dr Tristram observed that

‘the practice of granting licences for marriage in England was coeval with the introduction of the publication of banns.  By the early English canon law the publication of banns or a marriage licence was a condition precedent to the celebration of a regular marriage in facie ecclesiae‘ (p.388).

A marriage licence is often described as a ‘dispensation’ from banns.  This may be inaccurate.  It is true that a licence dispenses with the need for banns.  However, dispensation in the legal sense is dispensation from a law, not a need.  A common licence is an alternative to banns, rather than a dispensation from them.

The only marriage licence which may properly be regarded as a dispensation is the Archbishop of Canterbury’s special licence.  The law requires that all Church of England marriages must be solemnised only in an authorised church or chapel, as Tristram said, in facie ecclesiae.  The special licence dispenses from this general rule by allowing marriage to be solemnised outside an authorised place of worship (now confirmed by the Marriage Act 1949, s.79(6)).

Tristram held that ‘any British subject who has resided for 15 days in the Diocese … [if] there is no impediment … is entitled as of rightto a licence for the celebration of [his] marriage’ (p.389).  However, did not give any reason or cite any authority for this opinion.

A licence is, by definition, a permission to do something to which there is no right.  To speak of a right to a licence is rather a contradiction in terms.  If there is a right to a licence, that obviates the need for the licence.  There can, at most, be only a qualified right to a licence (i.e a right to a licence if certain conditions have been satisfied).

Dr Tristram further suggested in Brinckmann that a right of appeal lies to the Archbishop against the refusal of a marriage licence by the ordinary.  The publication Anglican Marriage in England and Wales (3rd edition, 1999), which contains guidance to clergy from the Archbishop of Canterbury’s faculty office, does not refer to such a right.  No modern canon or statute confers such a right.  However, an appeal is consistent with the Archbishops’ metropolitical jurisdiction to ‘correct and supply the defects’ of their diocesan bishops (canon C17(2)).

Anglican Marriage makes the point that both Archbishops may grant common licences.  The Archbishop of Canterbury may grant common licences throughout England, as well as special licences.

The Archbishops’ jurisdiction to grant a common licence might operate as an appellate jurisdiction.  Thus the Archbishop might grant a common licence if he is of opinion that the diocesan ordinary was wrong to refuse one.  However, Anglican Marriage does not suggest this possibility.  It advises that ‘Applications for such [Archbishops’] licences will not normally be entertained unless there is some good reason why the normal diocesan channels of application cannot be pursued’ (p.28).

It is also arguable that a refusal to grant a licence for capricious or perverse reasons might be subject to judicial review by the High Court.

Dr. Tristram explained the effect of a marriage licence in ecclesiastical law:

‘A marriage licence is equivalent to an … order on the minister to celebrate the marriage, and that he is bound to do so unless information has come to him that there is a legal impediment … unknown to the official when he issued the licence …’ (Brinckmann, p.388).

There is no doubt that the grant of a marriage licence by the ordinary imposes an ecclesiastical duty on the minister to solemnise the marriage.  It is less clear that the grant of a marriage licence confers a common law right on a parishioner, or whether the common law right is limited to marriage by banns.

This question was discussed by the Court of Queen’s Bench in Davis v Black (1841) 113 English Reports 1376.  Mr Davis had obtained a licence to marry in the Rev Mr Black’s church.  Mr Black had received notice of the licence but ‘wrongfully and illegally refused’ to solemnise the marriage.  Mr Davis’ intended bride then died.

Mr Davis sued Mr Black for damages, claiming that he ‘had been put to expenses which were rendered useless, had been injured in his good name and had suffered anxiety of mind’ (p.1376).  (He probably also suffered the loss of a dowry.)

The Court dismissed Mr Davis’ claim on procedural grounds.  It was divided on the question of damages.  Lord Chief Justice Denman suggested that ‘such an action … might … be maintained upon … a public officer [the clergyman] neglecting his public duty to the temporal … damage of an individual’  (p1380).  The other judges doubted this.

However, the case law on pew rights offers some support for a common law right to marry following the grant of a licence.  It is clear that common law will, in certain circumstances, uphold a right to occupy a pew founded on a faculty, or presumed faculty (see for example Stileman-Gibbard v Wilkinson (1897) 1 Queen’s Bench 749).  It should therefore support a right to marry founded on a licence (the terms ‘licence’ and ‘faculty’ are really synonymous).

Brinckmann concerned an application for a marriage licence by a man who had been divorced.  Dr Tristram granted the licence, ‘being of opinion that by law I was bound to grant [it]’ (p.387).  As mentioned earlier, his view was that a right to a licence existed so long as there was no legal impediment to marriage.  Divorce would remove the legal impediment of a previous marriage.

However, the modern Church evidently takes a different view.  According to Anglican Marriage, Church authorities now decline to grant marriage licences where one of the parties has been divorced (p.26).

This reveals an interesting contrast between the practice of the Church of England and that of the Roman Catholic Church.  Roman Catholic law provides that a marriage licence is required where one of the parties has ‘natural obligations’ towards an ex-partner and their children, even if there was no legal marriage, or where a previous marriage has been annulled (Code of Canon Law 1983, canon 1071). 

It is argued that the Roman Catholic law compares favourably with the Anglican practice in this respect.  If a previous marriage has ended in failure and divorce, this should mean that a marriage licence is more necessary, not less.  An application for a second marriage requires more, not less, scrutiny than an application for a first marriage.  The Church should be satisfied that responsibilities towards the former spouse(s) and any children are being honoured. 

However, the statement in Anglican Marriage gives the unedifying impression that the Church authorities prefer to avoid the awkward question of what to do with former wives and children (not to mention the awkward question of the Church’s doctrine of marriage), leaving it instead to the ‘conscience’ of the local incumbent under s.8(2) of the Matrimonial Causes Act 1965.

Marriage and Divorce

The Divorce and Matrimonial Causes Act 1857 enabled the dissolution of lawful marriages and the freedom of divorced persons to remarry.  Neither canon law nor English common law recognised divorce, except in the limited sense of nullifying an invalid marriage, or ordering a permanent separation of husband and wife, but without dissolution of the marriage bond.

Assuming that it exists, the common law right to marry in church may conflict with the Church’s teaching on marriage, if the parishioner wishing to marry has been divorced from a former spouse.  Canon B30 is clear that ‘The Church of England affirms, according to our Lord’s teaching, that marriage is in its nature a union permanent and life-long … till death …’.  Canon B30 affirms the teaching expressed and maintained in the Book of Common Prayer.

S.8(2) of the Matrimonial Causes Act 1965 provides a partial solution to the apparent difficulty.  It provides that

‘No clergyman … shall be compelled (a) to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living or (b) to permit the marriage of such a person to be solemnised in the church or chapel of which he is the minister’.

This provision is generally understood as a concession to the consciences of individual clergy who object to remarriage after divorce.

S.5A of the Marriage Act 1949 confers similar protection on clergy (like Canon Thompson in Banister v Thompson) who object to solemnising marriages which would formerly have been void by reason of the prohibited degrees.  S.5B extends the protection to clergy who ‘reasonably believe’ that one of the parties to the marriage has had a sex change under the Gender Recognition Act 2004.  In a sex change case, however, an English incumbent does not have the right to forbid the solemnisation in his church.

Professor Norman Doe gives a wider interpretation of s.8(2) of the 1965 Act than as a mere conscience clause for ‘traditionalist’ clergy:

‘Implicit in the words ‘no clergyman shall be compelled to solemnise’ are the proposition ‘a minister may refuse’ and ‘a minister may solemnise’.  By its ban on compulsion it confers upon the minister a public law right to choose refusal or solemnisation’ (The Legal Framework of the Church of England (1996) Clarendon Press, p.380).

On Doe’s view s.8(2) confers a complete discretion on individual clergy.  However, a Church of England report of 1983 offered a more restrictive interpretation:

‘[the divorced parishioner] no longer has the legal right to be married in church … any question of marriage in church in such circumstances is wholly a matter for the Church which is clearly entitled to establish (without any conflict with the state) her own domestic tribunals or pastoral criteria for determining whether she will permit such a marriage to take place in church’ (quoted in another Church of England report Marriage in Church after Divorce (2000) at p.26).

The legislative history of s.8(2) supports this latter interpretation.  S.8(2) is the most recent version of a clause which dates back to the original Act of 1857.  According to his biographers, the clause was inserted into the 1857 Act at the insistence of William Ewart Gladstone, the future Prime Minister.  Gladstone argued trenchantly against the 1857 Act.  Though he failed to prevent it, he managed to secure the insertion of the conscience clause by way of concession from the government.

However, the 1857 version of the clause was much more restrictive of the incumbent’s discretion than the present s.8(2).  An incumbent was only relieved of his apparent duty to solemnise the marriage of a divorced person if that person had been divorced on the ground of his or her adultery.  The incumbent had no discretion to refuse to marry other divorced parishioners.

Moreover the incumbent’s discretion was restricted still further by a provision to the effect that, even where a party had been a respondent to a suit for adultery, the incumbent was still obliged to permit the solemnisation if another authorised clergyman from the same diocese was willing to officiate in the incumbent’s place.

However, subsequent versions of the clause indicate an apparent retreat by Parliament, leaving the Church freer to regulate itself in the matter.  The Matrimonial Causes Act 1937 (also known as the ‘Herbert Act’ after its promoter, Sir Alan Herbert), substituted a provision which purported to grant much wider discretion to the incumbent.

Like the present 1965 Act, the 1937 Act permitted the incumbent to refuse to solemnise the marriage of any divorced person, regardless of the reason for the divorce, if the former spouse were still alive.  Also, the incumbent was no longer obliged to allow another clergyman to officiate in his place.

The 1937 Act contained a third provision, that a clergyman should not be liable to any proceedings or penalty, either for solemnising, or for refusing to solemnise, the marriage of a divorced person.

This provision afford twofold protection.  It made clear that a ‘traditionalist’ clergyman could not be sued for refusing to permit the marriage of a divorced parishioner in his church.  However, it also protected the more liberal clergyman from prosecution in the ecclesiastical courts for solemnising marriages regarded as contrary to the Church’s teaching.

This third provision, granting immunity from legal proceedings, was removed by the Matrimonial Causes Act 1950.  As Dale’s Law of the Parish Church (2nd edition 1957) observed, the removal of immunity left open the possibility that clergy might be subject to disciplinary proceedings in the ecclesiastical courts if they did solemnise the marriage of divorced persons.  They no longer enjoyed the protection of the secular law against this possibility. 

The removal of this immunity by the 1950 Act, and the extension by the 1937 Act of the clause to any marriage involving a divorced person, regardless of the grounds of the divorce, suggests that the intention of Parliament since that time has been to leave the Church free to regulate its own approach towards solemnising the marriage of divorced persons.  Thus s.8(2) evolved.

It is therefore argued that the wording of s.8(2) cannot be interpreted as conferring a discretion on individual clergy to solemnise the marriage of a divorced person.  It means no more than what it says, that a clergyman cannot be compelled to solemnise the marriage of a divorced person, or permit such solemnisation in his church.

By s.8(2) Parliament is saying to the clergy ‘We have no objection to your solemnising the marriage of a divorced person, but we shall not protect you from ecclesiastical discipline if you do’.  S.8(2) is a concession to the conscience of the Church as a whole, rather than to individual clergy.  Thus there is no contradiction between s.8(2) and the Church’s teaching.

Canon B30 and Sham Marriages

Canon B30(3) provides that ‘It shall be the duty of the minister, when application is made to him for matrimony to be solemnised … to explain to the two persons who desire to be married the Church’s doctrine of marriage as herein set forth …’.  That doctrine is ‘expressed and maintained’ in the Prayer Book marriage service (B30(2)).

The duty imposed by Canon B30 would seem to be very recent.  There is no reference to such a duty in the canons of 1603, in the 1662 Prayer Book, or in Phillimore’s Ecclesiastical Law.

In April 2011 the House of Bishops issued ‘guidance’ to clergy concerning the solemnisation of marriage where one of the parties is from outside the European Economic Area (EEA).  This guidance was issued in response to concern that ‘sham’ marriages were being contracted in order to evade immigration controls.

The guidance acknowledges that non-EEA nationals ‘have the same rights to marry in the Church of England as British citizens’ (page 1).  However, it also refers to Canon B30 in the following terms:

‘If a couple [at least one of whom is non-EEA] decline to attend meetings for the purpose of giving the instruction required by the Canon the member of the clergy concerned will be prevented from carrying out his or her canonical duty.  In those circumstances he or she should inform the couple that the marriage may not proceed until such time as the duty has been carried out.’ (pp2-3).

Canon B30 undoubtedly imposes a duty on the officiating minister to offer religious instruction to the couple, prior to their marriage.  It is not clear, however, that the couple are obliged to receive this instruction.  On its wording, canon B30 does not impose such an obligation.  It is addressed to the officiating minister, not to the couple.  It merely assumes the willingness of the couple to receive instruction.

It is, of course, true that the minister is ‘prevented’ from giving religious instruction if the couple refuse to receive it, but that fact does not put the minister in breach of Canon B30.  A minister cannot be required to perform a duty that has been rendered impossible by the attitude of the couple.

If canon B30 does purport to impose an obligation on the couple to receive religious instruction, this may cause constitutional difficulties.  Canon B30 was promulged by the Convocations in the 1960s.  It could therefore be argued that it cannot ‘bind’ laypeople, only clergy (possibly lay ministers as well), under the rule associated with the case of Middleton -v- Crofts (1736) 26 English Reports 788, because laypeople did not consent to it. 

There is also an obvious conflict between an obligation to receive religious instruction and the ‘human rights’ of the couple.  They should not be forced to receive a religious instruction that may contradict their own religious or philosophical beliefs.