[14]. On production of a certificate of marriage at a registry office, and payment of the customary fees (if any), a clergyman may, if he sees fit, read or celebrate the marriage service over the parties in his church; but this is not to invalidate the previous marriage, nor is the reading or celebration to be entered as a marriage in the parish register.[260] There have, however, been cases of a subsequent marriage in church, not only after a marriage before a registrar, but also after a marriage out of England, the wife's maiden name being used on the occasion.[261]
[15]. The right to fees for publication of banns, giving a certificate of banns where the marriage takes place in the other church in which they were published, and the marriage itself, can only depend in ancient parishes upon custom, presumed to date from time immemorial. A claim to a marriage fee of 13s. (10s. for the rector and 3s. for the clerk) was disallowed on the ground that the amount was unreasonably large and could not have been paid in the time of Richard I.[262] In new ecclesiastical parishes a claim for these fees can only be enforced if they have been set out in a table of fees settled by the Church Building Commissioners or their successors, the Ecclesiastical Commissioners, under the Church Building Act, 1819, or by the chancellor of the diocese under the new Parishes Acts, 1843 and 1856.[263]
[16]. Marriage register books in duplicate are furnished by the Registrar-General to the incumbent of every church or chapel in which marriages may be solemnised; and it is the duty of every clergyman who solemnises a marriage to enter immediately afterwards in duplicate in two of the books the prescribed particulars of the marriage; and the entry is to be signed by him and by the parties married and by two witnesses. An incumbent is to allow searches in all marriage register books in his custody at a fee of 1s. for one year and 6d. for every additional year to which the search extends, and 2s. 6d. for a certificate (besides 1d. for the stamp). In every January and succeeding third month he must send in to the superintendent registrar of births, deaths, and marriages for the district, either directly or through a subordinate registrar, a certified copy of all the entries made by him since his last return, and will receive 6d. for every such entry. And whenever a register book is filled, he is to send one copy to the same registrar and keep the other copy with the registers of baptisms and burials of his parish or chapelry.[264]
[17]. If persons residing in the parish present themselves for Holy Communion as married, a clergyman has no right, (a) in the absence of any ground for suspicion to the contrary, to demand proof of their marriage before admitting them, or (b) to refuse to admit them on a mere suspicion that they are not married and therefore living in sin. If he refuses them Communion, he must be prepared to show either (a) that they actually are not married, or (b) that he had good grounds for believing this to be the case. He is bound to recognise as man and wife persons who have been duly married according to the law affecting them at the time of the marriage, whether ecclesiastically or civilly, and whether in this country or elsewhere; provided that the law was Christian and monogamous; for a marriage according to a law, custom, or rite which contemplates polygamous unions is void in our law.[265] If there is any doubt as to the validity of their marriage, he will always be on the safe side in adopting the affirmative view and acting upon the assumption of their being validly married. In the absence of evidence to the contrary, the law will presume a valid marriage from the fact of long reputation and cohabitation as man and wife, without actual proof of the ceremony having taken place.[266] A marriage is legally valid if performed according to the mode and with the formalities required by the law of the place where it is solemnised.[267] But the capacity of the parties to contract marriage is governed by the law of their domicile; and therefore persons domiciled in this country between whom a marriage would be illegal here, cannot contract a lawful marriage by going for the purpose into another country where such a marriage is legal, and there going through the ceremony.[268] Under the English common law a marriage between British subjects in a foreign country or on board ship, where no statute law binding upon them imposes any further formalities, is recognised as valid in this country if solemnised without banns or licence in the presence of a clergyman of the Church of England, whether priest or deacon (not being one of the parties to it).[269] A marriage between British subjects may also be solemnised outside the United Kingdom in accordance with the regulations of the Foreign Marriage Act, 1892 (55 & 56 Vict. c. 23), before a person authorised thereunder to act as a marriage officer, as it might have been before that Act under the Acts thereby repealed.
CHAPTER VII
BURIAL
[1]. Every person dying in this country and not within the exceptions mentioned below (§ 3) has a common law right to be buried in the churchyard or burial ground of the parish in which he dies, by the clergyman of the parish.[270] Canon 67 prescribes that besides the passing bell (see Ch. VIII. § 1 below) there shall be rung after a person's death no more than one short peal, and one other before the burial and one other after the burial. If he dies out of his own parish, the persons who are responsible for his burial may claim that he be buried in his own parish.[271] If the clergyman or the persons having charge of the ground refuse interment, the ecclesiastical court is the proper tribunal to give relief, and it will compel the interment. The High Court would also compel it by mandamus.[272] But a parishioner has no right to be buried at a particular hour or (except in the case of a private vault or a prescriptive right to a special spot) in a particular part of the churchyard. The incumbent can fix his own time for the funeral, and he and the churchwardens can exercise a discretion as to where each body shall be buried.[273] And neither incumbent nor churchwardens, nor both together, can make a valid sale or grant to individuals or families of a grave-space in the churchyard for their use in perpetuity. Any such attempted transaction is worthless in point of law. An exclusive right of burial in not more than one-sixth part of land given as an addition to a churchyard may be reserved by the donor to himself, his heirs, and assigns in perpetuity,[274] but with this exception no such exclusive right can be acquired in a spot within a churchyard except by faculty.[275] A person not a parishioner and not dying within the parish can only be buried in the parish churchyard, otherwise than in a private vault, by the favour and with the permission of the incumbent and churchwardens,[276] or under a faculty obtained from the Ecclesiastical Courts.[277]
[2]. As regards the burial of bodies cast up on the shore of the sea or of any tidal or navigable water, the rights and duties are the same as if they were the bodies of parishioners of the parish in which they were cast up.[278]