The Legal Position of the Clergy

by Philip Vernon Smith

[5]. The marriage of a person who is a lunatic or of unsound mind is void, since such a person is not capable of consenting to the ceremony.[227] On the same principle, if a person is forced to go through the ceremony against his or her will, it is no marriage and void.[228]

[6]. Where a married person is absent and unheard of for seven years, a presumption of death arises, and the other party marrying again after the lapse of that time is not punishable for bigamy.[229] But the remarriage will of course be void if it subsequently appears that the absent party was actually alive at the time when it was solemnised.

[7]. A divorce decreed by a competent Christian tribunal between persons domiciled in the country where it is obtained is regarded as valid in England, if valid according to the law of that country.[230] But if a person domiciled in England obtains a divorce in another country to which he has gone for the purpose, that divorce will not be recognised as legal here.[231] If persons obtain a dissolution of marriage by a judicial decree in England, the Divorce Act, 1857, authorises them to marry again after the time for appealing against the decree has expired, or after the marriage has, on appeal, been declared to be dissolved, in like manner as if the marriage had been dissolved by death. A person divorced in England has, therefore, a legal right to require his or her banns to be published and marriage to be solemnised in church in like manner as if he or she were a widower or widow, with the exception that no clergyman is by law bound to marry a person whose marriage has been dissolved on account of the person's own adultery; but in case of his refusal to do so he must permit any other clergyman willing to perform the ceremony to use his church for the purpose.[232] In the banns in such cases the person has to be described, if at all (see § 10), as "unmarried." In the case of a person whose divorce elsewhere than in England is valid according to English law, it would seem that although he or she can legally remarry in England, yet a clergyman is under no legal obligation to publish the banns or perform the ceremony or permit it to be performed in his church. The practice as to granting marriage licences in the case of divorced persons varies in different dioceses.[233]

[8]. Although marriages duly solemnised in England according to English law between foreigners, or between a foreigner and a British subject, are valid throughout the British Empire, these marriages will not necessarily be valid in countries to which the foreigners belong, unless the legal requirements of these countries are complied with. Under arrangements made with France and Belgium, the French Consul and the Belgian Minister respectively will, on application, ascertain in any particular case that the legal requirements of their country have been complied with, and will furnish a certificate to that effect. No similar arrangement has as yet been made with any other foreign State. The following instructions have therefore been issued in the diocese of London, and may, with advantage, be observed elsewhere, namely:—(a) Where both parties to an intended marriage are foreigners, or one of them is a foreigner of any nationality except French or Belgian, or is a foreigner without a permanent residence in England, the marriage should in all cases be by licence, which will only be granted if the chancellor of the diocese is satisfied that the law of the country, to which the foreigners concerned belong, is complied with.[234] (b) Where a foreigner of French or Belgian nationality, whose permanent residence is in England, is a party to an intended marriage after banns with an English subject, the incumbent of the parish should require before solemnising it the production of a certificate from the French Consul or Belgian Minister, as the case may be, that all the legal requirements necessary to the recognition of the marriage as valid in France or Belgium have been complied with.

[9]. Marriages of persons within the prohibited degrees of kindred and affinity specified in the Table set forth by the authority of Archbishop Parker in the year 1563 are unlawful and void.[235] The degrees include illegitimate as well as legitimate relatives and connections; but an illegitimate liaison with a woman or a man does not make her or him a wife or a husband within the meaning of the Table. Thus a man cannot marry his wife's illegitimate daughter or her half-sister, whether legitimate or illegitimate; but he can marry the daughter or sister of a woman with whom he has had unlawful connection.[236]

[10]. Under the Marriage Act, 1823, which slightly differs in language from Canon 62 and the rubrics in the Prayer Book, banns must be published on three Sundays (without an alternative of holy-days), and after the second lesson (instead of after the Nicene Creed) in morning service or in evening service if there is no morning service,[237] according to the form of words prescribed by the rubric. A slight deviation from this form will not invalidate the publication. A clergyman is not obliged to publish banns, unless the parties, at least seven days before the time required for the first publication, deliver or cause to be delivered to him a notice in writing bearing the date of the delivery, and setting forth their true Christian names and surnames, and the house or houses of their respective abodes within the parish or other district over which his authority as to banns and marriages extends, and the time during which they have respectively dwelt or lodged therein.[238] It is not imperative upon him to require this seven days' notice, nor is he punishable for publishing the banns without it, or previously to its expiration. But he is liable to ecclesiastical censure if he dispenses with it, and, without due inquiry, publishes banns between persons not entitled to have their banns published, and then proceeds to marry such persons, even though his action was not knowing and wilful.[239] Where the parties dwell in different parishes or other definite districts for banns and marriages, the banns must be published in the church or chapel of both parishes or districts.[240] If one of the parties resides in Scotland, his or her banns may be published there according to Scottish law or custom, in contemplation of a marriage in England, after publication of the banns of the other party here.[241] And if one of the parties resides in England and the other in Ireland, the banns may be published in each country according to the law or custom prevailing there, although it may differ from the manner required in that part of the United Kingdom in which the marriage is to be solemnised.[242] A person dwells where he eats, drinks, and sleeps. He can only be said to dwell at the place where he temporarily sojourns if he has no permanent abode. But he may dwell in more than one place, if he has a permanent abode in each.[243] The true Christian names and surnames, in which the banns are to be published, mean the full Christian name and surname of each party, and the omission of part of the Christian name, no less than the substitution of a wrong name, by the fraud of both parties, will render the marriage void. But where a party has abandoned his baptismal and family names and is known by repute by different names, his banns ought to be published in his acquired names; and publication in his original names, if intended to deceive, will be improper, and will invalidate the marriage.[244] There is no legal requirement that the status of the parties should be published, and the description of the woman as a widow, when she was, in fact, a spinster, is not an undue publication.[245] The banns must be published from a book and not from loose papers, and after publication must be signed by the officiating minister or some person under his direction.[246] If, in the case of a minor, a parent or guardian openly forbids the banns at the time of their publication by declaring or causing to be declared his or her dissent to the marriage, the publication will be void, and no marriage can be lawfully solemnised upon it.[247] No other forbidding of the banns will render the publication void. It can, at the utmost, only furnish a ground for caution and inquiry as to further proceeding with the matter.

[11]. On the production and delivery of a certificate of the superintendent registrar of births, deaths, and marriages of the district in which a church or chapel is situate, that due notice of an intended marriage in that church or chapel has been given, and also, if one of the parties resides in another district, of a similar certificate of the superintendent registrar of that district, the marriage may be solemnised in such church or chapel, with the consent of the minister thereof, but not otherwise, in like manner as after due publication of banns. But a superintendent registrar cannot grant a licence for a marriage in a church or chapel of the Church of England.[248]

[12]. A marriage may be solemnised, without banns or registrar's certificate, under a licence of the bishop of the diocese or the Archbishop of Canterbury for that purpose. A bishop's licence is granted by the chancellor of the diocese, through the diocesan registry, for the marriage of the parties in the church or chapelry of the parish in which one of the parties has dwelt for fifteen days immediately preceding. The licence, and also the form of affidavit leading to it, together with all information on the subject, can be obtained either direct from the diocesan registry or through a clergyman who is a chancellor's surrogate. Before it is issued, an affidavit must be made before a surrogate by one of the parties to the intended marriage that there is no legal impediment to it, and that one of the parties has for fifteen days immediately preceding the issue of the licence had his or her usual place of abode in the parish or other district for banns and marriages, in the church or chapel of which the marriage is to be solemnised.[249] An ordinary or special licence can also be granted by the Archbishop of Canterbury. His ordinary licence is issued under the same conditions and has the same effect as a bishop's licence. But his special licence may authorise the parties to be married in any church and at any time, irrespectively of their places of residence and of the canonical hours. On production of a licence for a marriage in a specified church, it is the duty of the incumbent to perform the ceremony, unless he knows that the licence has been fraudulently obtained; and it is not his business to ascertain that one of the parties has actually resided within the parish.[250] The requirement as to correctness of the names of the parties is not so strict in the case of a licence as in the case of banns; and the suppression in the affidavit leading to the licence of part of the name of one of the parties for the purpose of concealment has been held not to invalidate the marriage.[251] The grant of a marriage licence is a matter of favour and not of right.[252]

[13]. The marriage must be solemnised in the church or chapel, or one of the churches or chapels, in which the banns have been published, or in the church or chapel named in the registrar's certificate or in the marriage licence, within due time after the requisite preliminary formalities have been gone through. It should not be solemnised on the same day as the last publication of the banns; but if it does not take place within three months after the complete publication of banns or grant of the licence (as the case may be), it is not to be solemnised until after the banns have been duly republished on three Sundays, or a new licence has been duly obtained.[253] Similarly if a marriage intended to be sanctioned by a registrar's certificate does not take place within three calendar months after notice has been entered by the superintendent registrar, it is not to be solemnised until a new notice has been given and the entry duly made, and a certificate thereof given, as required by the Marriage Act, 1836.[254] Except under the authority of a special licence, it must be solemnised between the hours of eight in the forenoon and three in the afternoon, but the incumbent may appoint his own time for it within those hours.[255] It may be solemnised by either a priest or a deacon,[256] but a clergyman cannot solemnise his own marriage.[257] By canon and statute it must not take place in a private place, but in a church or chapel, and in time of Divine service, and before at least two witnesses. But the canonical regulation as to marriages being solemnised during Divine service is now, by custom, universally disregarded; and even a marriage celebrated in the vestry of a church and in the presence of one witness only has been held to be valid, though such a precedent ought not to be followed.[258] A clergyman who knowingly and wilfully solemnises a marriage elsewhere than in a church or chapel where banns may be lawfully published, or at any other time than between eight in the forenoon and three in the afternoon (unless by special licence from the Archbishop of Canterbury), or without due publication of banns, unless under a marriage licence or on a registrar's certificate, is guilty of felony and punishable accordingly.[259]