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Banns of Marriage: Their Development and (Possible) Future

  • David Pocklington (a1) and Frank Cranmer (a2)
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A marriage in the Church of England or the Church in Wales may take place following the publication of banns of marriage (preferably during morning service) on three Sundays, by special licence of the Archbishop of Canterbury, by common licence or on the authority of a certificate issued by a superintendent registrar. Reports of the death of the church wedding have been somewhat exaggerated: in 2014, the Church of England conducted almost 50,000 weddings, while the Church in Wales conducted just over 3,000.

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References
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2 Marriage Act 1949, ss 6–14; Canon B 34(1)(a); Canon B 35. In the case of an intended marriage after banns, their public announcement is obligatory even when the couple are ‘celebrities’: see General Synod Legal Advisory Commission, ‘Celebrity marriages in Anglican cathedrals and churches’ (2017), available at <https://www.churchofengland.org/media/3956663/celebrity-marriages.pdf>, accessed 4 April 2017.

3 Ecclesiastical Licences Act 1533, s IV (which declares, inter alia, that ‘all Children Procreated after solempnyzacion of any mariages to be had or don by vertue of suche licences or dispensacions shal be admytted reputed and taken legittimate in all courtes as well spirituall as temporall and in all other places, and inherite the inheritaunce of their parentes and auncestours’); Canon B 34(1)(b).

4 Marriage Act 1949, ss 15 and16; Canon B 34(1)(c).

5 Marriage Act 1949, s 17; Canon B3 4(1)(d).

6 Research and Statistics Department, Archbishops’ Council, Statistics for mission 2014, Table 12: Diocesan marriages and services of prayer and dedication after civil marriages, 2009–2014, available at <https://www.churchofengland.org/media/2432327/2014statisticsformission.pdf>, accessed 6 June 2017.

7 The Church in Wales, ‘The Church in Wales: membership and finances 2014’, Table 1: Participation in parish life for 2014 and 2013, available at <http://cinw.s3.amazonaws.com/wp-content/uploads/2013/09/Members-Finance-2014-English.pdf>, accessed 6 June 2017.

8 See Outhwaite, R B, Clandestine Marriage in England, 1500–1850 (London, 1995).

9 Under the doctrine of coverture, a husband on marriage ‘became entitled to all choses in possession belonging to his wife in her own right (including those acquired after marriage), and to the whole of the rents and profits of her lands during the continuance of the marriage, except in so far as such property was the separate estate of the wife’: Greenberg, Daniel (ed), Jowitt's Dictionary of English Law (third edition, London, 2010) vol II, p 1427. The doctrine was gradually eroded, principally by the Married Women's Property Acts 1870 and 1882.

10 Morris, R M (ed), Church and State in 21st Century Britain: the future of church establishment (Basingstoke, 2009), p 47.

11 Canons 62, 63, 101–104.

12 Outhwaite, Clandestine Marriage in England, p 21.

13 Approximately 11 per cent of the total. The National Archives, ‘How to look for records of Nonconformists’, suggests a higher figure: ‘it has been estimated that in the 1740s, nearly 15% of all marriages in England were celebrated in the Fleet’; available at <http://www.nationalarchives.gov.uk/help-with-your-research/research-guides/nonconformists/>, accessed 30 March 2017.

14 Outhwaite, Clandestine Marriage in England, p 85.

15 The position in Scotland was quite different. Irregular marriage continued until the Family Law (Scotland) Act 2006 abolished marriage by cohabitation with habit and repute; even then, those irregular marriages that already subsisted were unaffected by the abolition: see F Cranmer, ‘Irregular marriage in Scots law’, 2015, available at <https://www.academia.edu/32257157/Irregular_marriage_in_Scots_law_2015_Cardiff_LLM_>, accessed 4 April 2017.

16 Probert, R, ‘Cohabitation: current legal solutions’, (2009) 62:1 Current Legal Problems 316345 at 319. See also Probert, R, ‘Common-law marriage: myths and misunderstandings’, (2008) 20 Child & Family Law Quarterly 122 ; Catherine Fairbairn, ‘“Common law marriage” and cohabitation’, House of Commons Library Briefing Paper, 9 March 2017, available at <http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03372#fullreport>, accessed 31 March 2017.

17 Outhwaite, Clandestine Marriage in England, p xxii.

18 Under s VIII, the sentence for conducting a clandestine marriage was to be ‘transported to some His Majesty's Plantations in America for the Space of fourteen Years, according to the Laws in Force for Transportation of Felons’; under s XVI, falsifying or tampering with marriage registers was deemed a felony and the perpetrator would ‘suffer Death as a Felon without Benefit of Clergy’.

19 R Probert, ‘Tracing marriages in 18th century England and Wales: a reassessment of law and practice’, The National Archives, 2010, <http://media.nationalarchives.gov.uk/index.php/tracing-marriages-in-18th-century-england-and-wales-a-reassessment-of-law-and-practice/>, accessed 21 February 2017.

20 19 & 20 Vict c 96. The Isle of Man provided another option for such marriages, but in 1757 Tynwald passed an Act to prevent clandestine marriages in very similar terms to the English Act of 1753. Clergy from abroad who were convicted of conducting marriages in breach of the Act's requirements would be sentenced to be pilloried and have their ears cropped, before being imprisoned, fined and deported. The Act was repealed in 1849.

21 In J B Priestley's When We Are Married (London, 1938), first staged in 1939 but set in 1908, three highly respectable couples, married in chapel on the same day, gather to celebrate their silver weddings. They get the shock of their lives when the new chapel organist tells them that he has recently met the minister who conducted their triple wedding ceremony – and who admitted that he had not been authorised to solemnise marriages.

22 The exclusion of the Royal Family from the provisions of Lord Hardwicke's Act was carried over into the civil marriage provisions of the 1836 Act: see s 45. This gave rise to questions regarding the marriage of Prince Charles to Camilla Parker Bowles in Windsor Guildhall on 9 April 2005 – which were addressed by a written ministerial statement by the Secretary of State for Constitutional Affairs and Lord Chancellor (Lord Falconer of Thoroton): HL Deb 24 February 2005, col WS87. But see also R Probert, ‘The wedding of the Prince of Wales: royal privileges and human rights’, (2005) 17:3 Child & Family Law Quarterly 363–382.

23 S Trott, ‘General Synod: preliminaries to marriage’, para 10, available at <https://www.churchofengland.org/media/3863407/gs-2045a-preliminaries-to-marriage.pdf>, accessed 21 February 2017.

24 Faculty Office of the Church of England, Anglican Marriage in England and Wales: a guide to the law for the clergy (London, 2010).

25 Available at <http://www.facultyoffice.org.uk/special-licences/marriage-law-news/>, accessed 21 February 2017.

26 See D Pocklington, ‘Sham marriage, the church and the law’, Law & Religion UK, 15 September 2014, <http://www.lawandreligionuk.com/2014/09/15/sham-marriage-the-church-and-the-law/>, accessed 21 February 2017.

27 By contrast, Directive 2004/58/EC, refers to ‘marriages of convenience’: Recital 28 and Article 35.

28 R (Baiai & Ors) v Secretary of State for the Home Department [2008] UKHL 53.

29 T Pugh, ‘Vicar jailed over sham marriages’, The Independent, 6 September 2010.

31 Emphasis added.

32 W Nye, ‘General Synod: preliminaries to marriage – a background paper’, para 9, available at <https://www.churchofengland.org/media/3863420/gs-2045b-preliminaries-to-marriage-a-note-from-the-secretary-general.pdf>, accessed 21 February 2017.

33 For the detail, see Doe, Norman: The Law of The Church in Wales (Cardiff, 2002) 258263 .

34 The Act introduced similar ‘qualifying connections’ for Church in Wales weddings as had been established for England by the Marriage Measure 2008. For the background, see F Cranmer ‘Disestablishing the Church in Wales – at last?’, Law & Religion UK, 15 June 2013, <http://www.lawandreligionuk.com/2013/06/15/disestablishing-the-church-in-wales-at-last/>, accessed 5 April 2017.

35 National Assembly for Wales Constitutional and Legislative Affairs Committee, Report of the Inquiry into Law-making and the Church in Wales (Cardiff, 2013), para 82.

36 The Faculty Office's booklet, Anglican Marriage in England and Wales (see note 24), para 7(5) states that ‘In Scotland the Episcopal Church has never published banns’.

39 See the Marriage (Northern Ireland) Order 2003 and the (Irish) Civil Registration Act 2004 (especially s 51 (Solemnisation of marriages) and s 52 (Places and times for the solemnisation of marriages)).

41 Law Commission, ‘Getting married: a scoping paper’, 17 December 2015, available at <http://www.lawcom.gov.uk/wp-content/uploads/2015/12/Getting_Married_scoping_paper.pdf>, accessed 21 February. The Representative Body of the Church in Wales was consulted during the preparatory work for the paper.

42 Though the Commission on Devolution in Wales, chaired by Paul Silk, which published its second (and final) report, Empowerment and Responsibility: legislative powers to strengthen Wales, in March 2014, stated at paragraph 12(11)(1) that it made no recommendation on ‘the law of marriage and burials, licensing and Sunday trading’. See also Cranmer, F, ‘Wales and the law of marriage: “vestiges of establishment” revisited’, (2015) 174 Law & Justice 96108 .

1 We would like to thank Norman Doe and Sharon Thompson of the School of Politics and Law at Cardiff University for their helpful comments. An earlier, and shorter, version of this comment appeared on the Law and Religion UK blog, edited by the authors, in February 2017.

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
  • URL: /core/journals/ecclesiastical-law-journal
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