The Legal Position of the Clergy Part 7

[193] Ridsdale _v._ Clifton (1877) 2 P. D. 276. The First Prayer Book of 1549 prescribed unleavened wafers, but directed that each must be divided and distributed in two or more pieces, in order, no doubt, that the symbolism indicated in 1 Cor. x. 17 might not be wholly lost.

[194] Read _v._ Bishop of Lincoln, _ubi sup._ The legality of the usual hymns and music has been long recognised; Hutchins _v._ Denziloe (1792) 1 Hag. Cons. 170.

[195] Martin _v._ Mackonockie (1868) L. R. 2 P. C. 365; (1869) L. R. 3 P. C. 52; Read _v._ Bishop of Lincoln, _ubi sup._

[196] Read _v._ Bishop of Lincoln, _ubi sup._

[197] Archbishops' Hearing at Lambeth (1900) _Times_, May 2. See ch.

viii. -- 1.

[198] Canon 68; Prayer Book Rubric.

[199] Canon 69.

[200] Canon 29.

[201] Canon 21; Prayer Book Rubric.

[202] Canon 22.

[203] This rubric, with the subst.i.tution of "Morning Prayer" for "Matins," was repeated in the Prayer Books of 1552 and 1559. On the other hand, in our present Prayer Book, where the allusion to Morning Prayer is omitted from the rubric, the intention that it shall, in the ordinary course, precede the Holy Communion is indicated by the fact that Matt. xxvi. and John xviii. have been removed from the Gospels for Palm Sunday and Good Friday, where they had previously stood with the succeeding pa.s.sages which form our present Gospels for those days, and have been made the Second Lessons at Morning Prayer. In the earlier Prayer Books no special second lessons were a.s.signed for those two days.

But as to the use of Morning Prayer, the Litany, and the Holy Communion together, or in varying order as separate services, see now -- 1 above.

The Prayer Book does not seem to contemplate Communion more than once in the day. Where the Office is used oftener, it must be repeated entire on each occasion.

[204] (1547) 1 Edw. 6, c. 1, s. 8.

[205] Canons 26, 27, 109; Prayer Book Rubric.

[206] (1875) L. R. 4 A. & E. 463, rev. on app. (1876) 1 P. D. 80.

[207] See p. 94 above, and note (2) on that page.

[208] Swayne _v._ Benson (1889) 6 Times Law Rep. 7.

[209] The pa.s.sage in the statement _Concerning the Service of the Church_ at the beginning of the Prayer Book, respecting the bishop taking order for the appeasing of doubts concerning the manner of understanding and carrying out the contents of the Book, might apply to the treatment of such persons.

[210] -- 2 above.

[211] 35 & 36 Vict. c. 35, ss. 5, 6.

[212] Phill. Eccl. Law, Pt. iii. ch. viii. pp. 645-7.

CHAPTER VI

MARRIAGE

1. With the exceptions mentioned in --7 below, the inc.u.mbent or minister of the church of an ancient or new ecclesiastical parish, or of a church or chapel specially authorised for the publication of banns and solemnisation of marriages, is bound, in the case of persons who are legally competent to be married in that church or chapel, to publish or permit the publication of banns and solemnise or permit the solemnisation of marriage, either after due publication of banns or under a licence from the bishop or the Archbishop of Canterbury, and he may consent to the solemnisation of the marriage upon a proper registrar's certificate. If he improperly refuses publication of banns or solemnisation of marriage, it is an ecclesiastical offence for which he is liable to be punished under the Clergy Discipline Act, 1840, but it is a question whether he would be liable to a civil action or an indictment for the refusal.[213] On the other hand, a clergyman who knowingly and wilfully solemnises a marriage in an unauthorised building or outside the lawful hours (unless under special licence from the Archbishop of Canterbury), or without due publication of banns (unless under licence from him or from the bishop, or upon a proper registrar's certificate), will be guilty of felony; and a marriage solemnised with the knowledge of the parties thereto elsewhere than in an authorised building or without publication of banns or the registrar's certificate, unless with a sufficient licence, will be void.[214]

2. The ancient parish churches were the original places for the publication of banns and solemnisation of marriages;[215] but the churches of new ecclesiastical parishes now stand upon the same footing in that respect as those of ancient parishes; and where a portion of an ancient parish has been formed into a new ecclesiastical parish, residents in the new parish are not deemed for those purposes to be within the old parish.[216] Moreover, if, besides the church, there is a public chapel in a parish, and the bishop thinks it necessary so to do for the convenience of the inhabitants, he may grant a licence, with such qualifications as he may deem fit, for banns and marriages in the chapel, in the case of residence within a district specified in the licence; subject to an appeal on the part of either patron or inc.u.mbent to the archbishop of the province, who may confirm, revoke, or vary the licence. But the licence will not preclude residents in the district from having their banns published and marriages solemnised in the parish church, if they prefer this course.[217] In the case of parishes having no parish church in which Divine service is usually performed every Sunday, and in the case of extra-parochial places, the church or chapel of an adjoining parish or chapel may be resorted to for banns and marriages.[218] But the bishop may license for banns and marriages in extra-parochial places and chapelries any church or chapel situate within their limits.[219] Where the church of a parish is pulled down or disused for Divine service owing to being rebuilt or repaired, the publication of banns and solemnisation of marriages may take place in any building within the parish licensed by the bishop for the performance of Divine service during the rebuilding or repair of the church, or if there is no such building, then in the church of an adjoining parish; or, if there is a consecrated chapel within the parish, the bishop may direct that they shall take place within that chapel, and may, with the consent of the inc.u.mbent, give directions respecting the fees. Licences for marriages in the church of the parish are to be construed as licences for marriages in the building, church, or chapel in which they may be temporarily solemnised.[220] Where a church has been rebuilt, repaired, or enlarged, and the position of the Holy Table altered, the validity of marriages and other ceremonies is not affected by the fact, if such is the case, of there having been no re-consecration.[221]

3. Persons are legally competent to intermarry who (_a_) are of a legal age to contract marriage, (_b_) are of sound mind, (_c_) have not at the time a wife or husband living with whom they have contracted a marriage which is recognised by English law and has not been declared void or been dissolved by a divorce a _vinculo_ recognised by English law, and (_d_) are not within the prohibited degrees of consanguinity or affinity. A Christian and a non-Christian may be married in church, as well as Christians of different denominations; and a clergyman cannot make religion or absence of religion a ground for refusing to perform the ceremony.[222]

4. The _minimum_ legal age for contracting marriage is fourteen for the husband and twelve for the wife. In the case of minors the consent of parents or guardians is necessary to their marriage after banns. In the case of the marriage by licence of a minor who is not a widower or widow, the consent to the marriage must be obtained from the father if living, and if he is dead, from some one guardian of the minor (if any).

The mother, whether still a widow or remarried, is by law a guardian of the minor unless she has been removed from the office by the High Court of Justice. If she has been so removed and she remains a widow, and there is no guardian in existence, her consent to the marriage is necessary. Where no requisite consenting party is in existence, the marriage may be solemnised without consent. If the father, mother, or other guardian is of unsound mind, or abroad, or unreasonably withholds consent, the Lord Chancellor or some other Chancery judge may on pet.i.tion make declaration that the marriage is proper, which will supersede the necessity for the consent.[223] This consent of parents is not required in the case of a minor who is illegitimate.[224] A clergyman is not punishable who, without notice of the fact, solemnises the marriage of a party under the lawful age, or the marriage of a minor without the consent of parent or guardian; and the marriage of a minor above the marriageable age without such consent, if it actually takes place, is valid, and cannot be made void.[225] But the marriage of a person under the lawful age can be declared void by him or her on attaining that age. If, however, he or she then consents to the union, no remarriage is necessary.[226]

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 inc.u.mbent 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 publis.h.i.+ng 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 ent.i.tled 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 subst.i.tution 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 inc.u.mbent 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 inc.u.mbent 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]

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 inc.u.mbent 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 inc.u.mbent 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 a.s.sumption 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 s.h.i.+p, 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.

Footnotes

[213] Davis _v._ Black (1841) 1 Q. B. 900; Reg. _v._ James (1850) 3 C. & K. 167.

[214] (1823) 4 Geo. 4, c. 76, ss. 21, 22.