Ecclesiastical law

Category: Marriage

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.


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.

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.

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.

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.

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.