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Ecclesiastical law

Tag: Divorce and Matrimonial Causes Act 1857

Clergy Discipline and Same Sex Marriage: Inappropriate Conduct?

‘it would not be appropriate conduct for someone in Holy Orders to enter into a same sex marriage, given the need for clergy to model the Church’s teaching in their lives’  (House of Bishops’ Pastoral Guidance)

‘Disciplinary proceedings under this Measure may be instituted against any [ordained minister] alleging … conduct unbecoming or inappropriate to the office and work of a clerk in Holy Orders’ (Clergy Discipline Measure 2003, s.8(1)).

Although the Marriage (Same Sex Couples) Act 2013 effectively forbids the solemnisation of homosexual ‘marriages’ in church, it does not forbid clergy from entering into same sex marriages.  However, the House of Bishops of the General Synod has just issued a robust statement entitled ‘Pastoral Guidance on Same Sex Marriage’, affirming that ‘the Christian understanding and doctrine of marriage as a lifelong union between one man and one woman remains unchanged’.  The statement was published, appropriately enough, on St. Valentine’s Day, 14th February 2014 (accessed on the Church of England’s internet website the following day).

The statement does not explicitly threaten disciplinary action against clergy who take advantage of the 2013 Act to enter into same sex marriages.  However, the assertion quoted above, that to do so ‘would not be appropriate conduct’, may contain a broad hint (reinforced by being printed in bold text on the internet).  The words ‘appropriate conduct’ echo s.8(1) of the Clergy Discipline Measure 2003, also quoted above.

Of course, the House of Bishops is not able to decide authoritatively if making a same sex marriage constitutes misconduct under the 2003 Measure.  The Measure confers that power on the disciplinary tribunals constituted by the Measure, and on the higher ecclesiastical courts (cf s.17 and s.20).  The House can only express the collective or majority opinion of its members.  Nor is the House even in a position, collectively, to institute disciplinary action against clergy.  That is the individual responsibility of each diocesan bishop (cf. s.12).

Criminality and Immorality

As the accompanying Code of Practice points outs, the Clergy Discipline Measure provides no further definition of ‘unbecoming or inappropriate’ conduct (para 28).  However, the legislative history of s.8(1) may give some indication of its intended scope.

In the presecular era there was probably little distinction between law and morality.  Behaviour considered immoral was generally also illegal, at least if done in public.  The 1662 Ordinal (and its predecessors) give opportunity to object to the ordination of a deacon or priest on the ground of a ‘notable crime‘.  Writing in the early 18th century, John Ayliffe suggested that ‘All the causes of deprivation [of clergy] may be reduced to these three heads … want of capacity, contempt [of the ecclesiastical court] and crimes‘ (cited in Combe v De la Bere (1881) 6 Probate Division 157 at 163).

Clergy lifestyles were regulated by canon 75 of 1603.  Canon 75 provides that clergy ‘shall not give themselves to any base or servile labour, or to drinking or riot, spending their time idly … playing at dice, cards or tables, or any other unlawful games’.  Canon 109 deprecates ‘adultery, whoredom, incest or drunkenness … swearing, ribaldry, usury and any other uncleanness and wickedness of life’, whether by clergy or laity.  In the early modern period, the ecclesiastical courts were known affectionately as ‘the bawdy courts’, because they exercised criminal jurisdiction in respect of such behaviours.

In the late 19th century ecclesiastical law was amended to take account of the growing divergence between secular law and Christian morality, in order to preserve clergy discipline.  The Clergy Discipline Act 1892 was passed ‘for better enforcing discipline in the case of crimes and other offences against morality committed by clergymen’ (recital).  It provided that clergy were liable to ecclesiastical discipline for ‘an immoral act, immoral conduct or immoral habit’ (s.2).  It further provided that these forms of immorality ‘shall include such acts, conduct and habits as are proscribed by [canons 75 and 109]’: ‘shall include’ suggests that immoral behaviour is not limited to that suggested by canons 75 and 109.

Then the Ecclesiastical Jurisdiction Measure 1963 provided an ecclesiastical offence of ‘conduct unbecoming the office and work of a clerk in holy orders’ (s.14).  ‘Unbecoming’ may be a rather broader term than ‘immoral’.  The Clergy Discipline Measure 2003 seems to broaden the scope of clergy discipline still further, with its phrase ‘conduct unbecoming or inappropriate’, in s.8(1).

Is the wording of s.8(1) broad enough to discipline a clergyman for entering into a same sex marriage?  The purpose of the 2003 Measure was to provide a disciplinary regime for clergy similar to that of secular professions such as doctors or lawyers.  The old terminology which suggested that the ecclesiastical courts exercise a ‘criminal’ jurisdiction over clergy was dropped.  The standard of proof of misconduct was also lowered from the high criminal standard to the civil standard (s.18(3)).  Nevertheless, the Clergy Discipline Measure is still penal, or quasi-criminal, in character.  This means that s.8(1) must be interpreted restrictively or narrowly.

Homosexual acts may be capable of constituting misconduct under s.8(1).  This is clear both from the plain wording of s.8(1) and its legislative history.  However, it does not follow from this that entering into a same sex marriage would contravene s.8(1).  Modern ecclesiastical legislation makes clear that the clergy cannot justify their immoral behaviour merely because such behaviour is no longer illegal.  The law has permitted or tolerated homosexual acts for many years now.  However, as a result of the Marriage (Same Sex Couples) Act, same sex marriage is not merely an act that the law permits or tolerates.  It is a status that is positively conferred by law.

It is therefore hard to argue that the law should regard as immoral, or even as unbecoming and inappropriate, the acquisition of a status that the law itself confers.

Doctrine and Discipline

Such an argument is also contradicted by the Court of the Arches’ decision in Banister v Thompson (1908) Probate 362.  The decision, like the House of Bishops’ pastoral guidance, concerned a marriage that was valid in English law but contrary to the Church’s teaching, in that case marriage to a deceased wife’s sister.  Canon Thompson refused to give Holy Communion to a parishioner, Mr Banister, who had made such a marriage.  When disciplined for this, he relied on the ecclesiastical jurisdiction to refuse the Sacrament to an ‘open and notorious evil liver’.

The Court did not deny that Mr Banister’s marriage contradicted the Church’s teaching.  It even admitted the difficulty: ‘the recent Act [legalising marriage to a deceased wife’s sister] seems to recognise a distinction between the civil and ecclesiastical aspects of marriage, and to alter the law as to the one without purporting to affect the law as to the other … This … creates some difficulty for those who are concerned with its administration’ (p.389).

Nevertheless, the Court firmly rejected Canon Thompson’s defence and upheld Mr Banister’s right to receive Holy Communion.  It was ‘impossible to say that these persons [Mr and Mrs Banister], lawfully married … can … be so described [as open and notorious evil livers] merely because they are living together as man and wife’ (p.390).  The Church’s teaching per se was not sufficient to justify the legal sanction.

It is true that the facts of Banister v Thompson were different from those addressed by the House of Bishops.  The case concerned a lay parishioner’s right to the Sacrament, not a clergyman’s tenure of office.  However, it makes the point that the law cannot very well condemn someone for making a lawful marriage, even if the marriage contradicts the Church’s teaching.  The accusation ‘conduct unbecoming or inappropriate’ is couched in milder language than that of ‘open and notorious evil liver’, but the potential consequences (removal from office, prohibition for life from officiating as a clergyman) are still severe.

The House of Bishops’ statement suggests that ‘The effect of the Marriage (Same Sex Couples) Act 2013 … [is that] there will, for the first time, be a divergence between the general understanding and definition of marriage in England as enshrined in law and the doctrine of marriage held by the Church of England and reflected in the Canons and the Book of Common Prayer’ (para 9).  Banister v Thompson, which is now more than 100 years old, reminds us that this is not the case.  The 2013 Act has undoubtedly widened the ‘divergence’ between Church and state concerning marriage.  However, the divergence  began at least as early as 1857.  By permitting the dissolution of the marriage contract by divorce, and remarriage after divorce, the Divorce and Matrimonial Causes Act 1857 effectively denied the Church’s teaching that the marriage contract, once validly made, is indissoluble except by the death of one of the spouses.

Ecclesiastical law responded to the divergence by imposing disciplinary penalties on clergy who became involved in divorce proceedings.  Today the Clergy Discipline Measure makes clear that clergy who are divorced or separated for adultery or unreasonable behaviour are liable to penalties (ss.30 and 31).  Clergy are also required to disclose divorce and separation orders involving them (s.34).

However, there is still no law to forbid a clergyman who has been divorced from marrying again, even though his former spouse is still alive, or from marrying a divorced person.  There is a general rule that a person who has been divorced and remarried etc may not be ordained, but still nothing to prevent a divorced person who has already been ordained from remarrying.  Even the general rule forbidding ordination is no longer absolute.  A bishop may now obtain a faculty from the Archbishop to permit the ordination of a divorced and remarried person, or the spouse of such person.  (See canon C4(3) and (3A) of the Canons of the Church of England.)

Thus, if a clergyman is to be disciplined for making a same sex marriage, the court may want to know why such a marriage constitutes ‘inappropriate conduct’ under s.8(1) of the Clergy Discipline Measure, when a second marriage following divorce apparently does not.

For these reasons it is suggested that s.8(1), despite its broad wording, is still not broad enough to discipline clergy for making a same sex marriage that is lawful under English law.

This conclusion does not deny the force of the House of Bishops’ statement qua pastoral guidance.  As the statement says, ‘[clergy] getting married to someone of the same sex would … clearly be at variance with the teaching of the Church of England’ (para 26).  The teaching is found in Canon B30 and in the Book of Common Prayer, which are cited in the statement.

Thus for clergy to make same sex marriages is indeed unbecoming and inappropriate in the context of Canon B30 and the Prayer Book.  However, the disciplinary offence of ‘conduct unbecoming or inappropriate’ must be understood in the context of the Clergy Discipline Measure, and not (at least not directly) in the context of Canon B30 and the Prayer Book.  The Clergy Discipline Measure itself must be understood in the context of English law, of which it is a part.

Discipline and Pastoral Care

The case of Bland v Archdeacon of Cheltenham (1972) 1 All England Reports 1012 makes clear that disciplinary proceedings should not be used as a device for resolving a pastoral difficulty, however genuine and serious.  The Rev Mr Bland was found guilty of various ecclesiastical offences and sentenced to be deprived of his benefice.  His cantankerous behaviour had alienated the parishioners to such an extent that his Sunday services were attended only by his housekeeper.  The chancellor therefore held that ‘it is my duty to pass sentence pro salute animarum, for the good of souls, which includes both [Mr Bland] and the souls of [his parishioners] … the convicted clerk and the cures where he was working [should] part company now for ever’ (p.1021).

However, the Court of the Arches strongly disapproved this decision, as based on ‘a wholly wrong approach’.  It held that ‘The paramount consideration in selecting the appropriate sentence for an [ecclesiastical] offence … should be the gravity of the offence.  Censure of deprivation … should never be pronounced in respect of an offence which does not merit such censure merely because it is highly desirable to part an incumbent from his parish and there is no other administrative method of removing him from his benefice’ (p.1021-22).

Of course, the Bland case was not concerned with the Church’s teaching.  However, it was concerned with the relationship between ecclesiastical discipline and pastoral care.  Clergy who enter into same sex marriages create a pastoral problem, for the reason identified by the House of Bishops.  They may not drive their parishioners from the Church as the Rev Mr Bland apparently did, but they still cause the Church’s teaching on marriage to be misrepresented or obscured (cf Pastoral Guidance, para 24).

The Court of the Arches’ dictum in Bland, emphasising that an ecclesiastical penalty must be determined according to the gravity of the offence, reinforces its decision in Banister v Thompson.  How can a lawful marriage be regarded as a ‘grave offence’, or indeed as any offence?

The obvious legal solution to the pastoral difficulty is to amend the law, and so bring clergy discipline into alignment with the Church’s teaching.  This would require new legislation making it a specific ecclesiastical offence for clergy to enter into same sex marriages.

Any amendment of the Clergy Discipline Measure to include such an offence would, of course, require the approval of Parliament, which might not be forthcoming in the present climate of opinion.  However, the General Synod has a common law power to legislate by canon, inherited from the Convocations, which does not require parliamentary approval (see Synodical Government Measure 1969).

It has been suggested that canons made under this common law power are not binding upon lay people, but there is no doubt that they are capable of binding the clergy.  The Marriage (Same Sex Couples) Act 2013 also confirms that ‘No Canon of the Church of England is contrary to s.3 of the Submission of the Clergy Act 1533 [ie. no Canon is contrary to the secular law] … by virtue of its making provision about marriage being the union of one man with one woman’ (s.1(3)).  The phrase ‘provision about marriage’, not being limited to the Church’s teaching on marriage, would seem to be broad enough to encompass a new disciplinary canon forbidding clergy to enter into same sex marriages.

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 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.