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The Historical Background to the Marriage (Wales) Act 2010

  • Nicholas Roberts (a1)
Abstract

The Marriage (Wales) Act 2010 illustrates that a disestablished church will always occupy an intermediate position between an established church and one which has never been established: the Church in Wales needed an Act to reform its marriage law, whereas paradoxically the Church of England legislated for itself by Measure. The article outlines how the provisions on marriage evolved during the passage of the disestablishment legislation; accepts the validity of contemporaneous arguments based on inconsistency; and outlines previous occasions when the marriage laws of England and of Wales have fallen out of step. It concludes by accepting that the continued establishment of the marriage law in Wales is inconsistent, but that any change is likely to depend on a wholesale reform of marriage law.

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1 The progress from start to finish of the change in the law was remarkably rapid, as the move to bring the law in Wales in line with that in England seems to have originated with a Private Members' Motion (No 09/13) proposed, debated and passed by the Governing Body of the Church in Wales at its meeting on 21 and 22 April 2009 which requested the Standing Committee ‘take the appropriate steps to encourage the enactment of such legislation’: see <http://www.churchinwales.org.uk/structure/govbody/sep09/docs/GBApril09Minutes.doc>, accessed 6 September 2010. As the Act received the Royal Assent on 18 March 2010, it was passed within 11 months of the proposal first being raised at the Governing Body.

2 Chairman of the Representative Body of the Church in Wales.

3 For convenience, throughout this article, the title of this measure is shortened to Marriage Measure 2008, the title by which it is generally known in common parlance.

4 As demonstrated by their name being entered on the electoral roll of the parish (see below n 7).

5 Marriage Measure 2008, s 1(1); applied in Wales by the Marriage (Wales) Act 2010, s 2(1).

6 Marriage Measure 2008, s 1(3); applied in Wales by the Marriage (Wales) Act 2010, s 2(3).

7 It should be noted that this is a significant extension on the provision of the Marriage Act 1949 s 6(4) allowing for the calling of banns and the solemnisation of marriage in a church which is the ‘usual place of worship’ of one of the parties: for a church to be considered one's usual place of worship it is essential that one's name be entered on the (church) electoral roll of the parish: Marriage Act 1949, s 72. The corresponding provisions in Wales are noted later in this article: see n 81 and text thereto.

9 Such as hotels, stately homes and historic buildings.

10 The number of marriages solemnised in religious buildings (including those that are solemnised other than in buildings of the Church of England and Church in Wales) has dropped by a quarter since 1998; the number of marriages overall has dropped in the same period by 13%. Since the beginning of 2005 there have been more civil marriages in ‘approved premises’ than religious marriages. (Office for National Statistics, Marriages in England and Wales 2008 (published 11 Feb 2010: <http://www.statistics.gov.uk/pdfdir/marr0210.pdf>, accessed 29 Jun 2010).

11 One perhaps ought not to be too dogmatic here: an extreme provision by which a State simply appropriated all religious property would clearly leave its believers with the status of an entirely voluntary association, if indeed they were allowed to associate for religious purposes.

12 It was noted, for example, by Moore, E Garth in An Introduction to English Canon Law (first edition, Oxford, 1967), p 15. Brown, Roger in ‘The disestablishment of the Church in Wales’, (1999) 5 Ecc LJ 252, p 254, is right to note that the Church in Wales was, in a sense, ‘re-established’ by the Welsh Church Act 1914, though it is difficult to agree with him that CAH Green (Archbishop of Wales 1934–44) goes quite as far as this in The Setting of the Constitution of the Church in Wales (London, 1937), p 298.

13 As to the law of marriage so far as it relates to the Church of England, see Hill, M, Ecclesiastical Law (third edition, Oxford, 2007), paras 5.31–5.49;Bursell, R, Liturgy, Order and the Law (Oxford, 1996), pp 157198.

14 Watkin, T‘Vestiges of Establishment – the ecclesiastical and canon law of the Church in Wales’ (1990) 2 Ecc LJ 110. See also ‘Disestablishment, self determination and constitutional development of the Church in Wales’ in Doe, N (ed), Essays in Canon Law (Cardiff, 1992), 25 at 33ff.

15 Parliamentary Under-Secretary of State, Ministry of Justice.

16 HL Deb vol 715 col 1293 (11 Dec 2009). The statement is accurate as regards the legal rules of the State on marriage, but is surely too broad as it stands.

17 Ibid, col 1292.

18 Ibid, col 1293.

19 For a good brief general account, see Brown, ‘Disestablishment’, 252–264.

20 Going back as far as the Marriage Act 1836, which introduced both civil marriage (by the superintendent registrar in the presence of a registrar) (s 21), and marriages in ‘registered buildings’ (s 18) in the presence of a registrar (s 20). The Nonconformist and Roman Catholic churches could thus avail themselves of the latter provisions. The Marriage Act 1898 provided for a marriage to be solemnised in the presence of an ‘authorised person’ ie a person authorised by the trustees or governing body of a registered building: such an ‘authorised person’ might be the minister, or a member of the congregation. After the 1898 Act, therefore, religious marriages could be solemnised in non-Anglican places of worship without the attendance of someone from outside the congregation to represent the State. The Marriage Act 1949 preserved this general scheme, which operates via the concepts of the registered building (Marriage Act 1949, s 41) and the authorised person (Marriage Act 1949, s 43), rather than by making provision for particular denominations.

21 Under the Church of England Assembly (Powers) Act 1919.

22 Brown, ‘Disestablishment’, 252–264; for more detailed accounts, see Morgan, K, Wales in British Politics 1868–1922 (first edition, Cardiff, 1963); Morgan, K, Freedom or Sacrilege? (Cardiff, 1966); and Bell, PMH, Disestablishment in Ireland and Wales (London, 1969), chs 78.

23 Watkin, ‘Vestiges of Establishment’, 112.

24 HC Deb vol 47 col 113 (20 Jan 1913).

25 HC Deb vol 38 col 361 (7 May 1912) (written answer by the Home Secretary, Reginald McKenna to William Ormsby-Gore). The Constitution of the Church in Wales (Ch I, Part II, s 7) currently defines a member as ‘any person whose name is entered on the electoral roll of a parish’ (in addition ‘member’ includes ‘office holders’, members of the Governing Body and the Representative Body and their committees, and clerics and deaconesses who are in receipt of a pension from the Representative Body).

26 HC Deb vol 45 col 69 (9 Dec 1912) (written answer by McKenna to Ormsby-Gore as above).

27 ‘He shall prick that annual blister, Marriage with deceased wife's sister’ per the Queen of the Fairies in Iolanthe: Gilbert, WS, The Savoy Operas (London, 1932), p 231. The ‘blister’ had eventually been pricked only 5 years previously by the Deceased Wife's Sister's Marriage Act 1907.

28 HC Deb vol 47 col 116 (20 Jan 1913).

29 The amendment was prompted by the recent decision of the House of Lords in Thompson v Dibdin [1912] AC 533. Although the 1907 Act had permitted a clergyman on grounds of conscience to refuse to solemnise the marriage of a man with his deceased wife's sister, the case held that he could not decline to admit to Holy Communion as ‘notorious evil livers’ a couple who had contracted such a marriage.

30 HC Deb vol 47 col 141 (20 Jan 1913).

31 Ibid.

32 Youngest son of the 3rd Marquess of Salisbury, and MP for Oxford University from 1910.

33 This is clear from the exchange at HC Deb vol 47 col 124 (20 Jan 1913):

Lord Hugh Cecil: The Church would a great deal prefer to be placed in the position of a Nonconformist body, and to be subject to the same conditions in regard to marriages if on those terms she had complete liberty to her own services.

Mr Llewellyn Williams: Even the presence of the registrar?

Lord Hugh Cecil: Certainly; why not? If the Church is to be Disestablished let it be Disestablished.

34 A point made by the Home Secretary, ibid, col 122.

35 This point was made by Hoare (ibid, col 142) and by George Cave MP (ibid, col 148). It cannot be argued that a parish structure is an indispensable part of Anglicanism. Although the Church of Ireland had retained and does still retain a parish structure, the Episcopal Church of Scotland retains territorial dioceses, but not parishes. For discussion of the parochial system in Wales, see Brown, ‘Disestablishment’, p 28.

36 HC Deb vol 47 col 141 (20 Jan 1913).

37 Ibid, col 144.

38 Section 21 had provided ‘the ecclesiastical law of Ireland, except in so far as relates to matrimonial causes and matters, shall cease to exist as law.’

39 The Matrimonial Causes and Marriage Law (Ireland) Amendment Act 1870, which ran to 42 sections and two schedules. The law of marriage in Ireland was historically distinct from that prevailing in England and Wales and is of some complexity. According to AJ Shatter, Family Law (fourth edition, Dublin, 1997), prior to R v Millis (1844) 10 Cl & F 534; 8 Jur 717 HL (followed in Beamish v Beamish (1861) 9 HL Cas 274) it was assumed that the law of marriage in Ireland followed the common law as it was before the Reformation, accepting sponsalia per verba de praesenti, sponsillia [sic] per verba de futuro et copula, as well as marriage in facie ecclesiae (4.11). Millis, however, suggested that only marriages in the presence of an episcopally ordained clergyman – whether Roman Catholic or Anglican – were valid. In response to this, Parliament passed the Marriage (Ireland) Act 1844; it made special provisions for the various Presbyterian Churches (ss 4–11) (who were more numerous than Anglicans in the northern counties), but specifically did not affect the existing law on Roman Catholic marriages (s 3). (As the Roman Catholic Church was complying with the requirements of the Council of Trent (1563), which required marriage to be in the presence of a priest and two witnesses, the requirements of the Roman Catholic canon law were more onerous than those of the common law.) In addition the 1844 Act followed the Marriage Act of 1836 (see n 19) (which related to England and Wales) in that it provided for marriage in ‘registered buildings’ (s 27), so as to permit marriage in the places of worship of the smaller Protestant denominations, and also for civil marriage before the registrar (s 30). Roman Catholic marriage in Ireland continued after 1844 (and apparently still continues: see Shatter, Family Law, 4.19–4.25) to be virtually unaffected by State law, save that the Registration of Marriages (Ireland) Act 1863 (ss 11 and 14) required their civil registration. The 1870 Act principally established a Court for Matrimonial Causes and Matters (ss 5–31) to hear suits which would hitherto have been heard in the Irish Ecclesiastical Courts, but it also made certain provisions (ss 32–36) respecting the marriage of ‘Protestant Episcopalians’ consequent upon the disestablishment of the Church of Ireland. After 1870, therefore, there continued to be a ‘quasi-establishment’ of the three principal denominations (Roman Catholic, Church of Ireland and Presbyterian) in respect of the marriage laws, and in addition ‘other’ religious marriages, and civil marriages.

40 HC Deb vol 47 col 151 (20 Jan 1913); and again at cols 165–166.

41 ‘As from the date of disestablishment, the law relating to marriage in churches of the Church of England (including any law conferring any right to be married in such a church) shall cease to be in force in Wales and Monmouthshire, and the provisions of the Marriage Acts 1811 to 1898 relating to marriages in registered buildings shall apply to marriages in Churches of the Church in Wales, and every such church may accordingly be registered under and subject to the conditions imposed by those Acts. Provided that: (a) [proviso for registration of existing churches without fee]; (b) A person who at the date of disestablishment is the incumbent of any parochial benefice in Wales or Monmouthshire shall, on making application to the Registrar-General for the purpose, be entitled to be appointed as the authorised person with respect to all churches within his spiritual charge as such incumbent which by virtue of this section become registered buildings.’

42 HC Deb vol 47 col 1884 (3 Feb 1913); the clause was read a second time, and added to the bill.

43 Ibid, cols 2231–2237 (5 Feb 1913). Although the Bill was debated in the following two sessions, before being presented for Royal Assent under the terms of the Parliament Act 1911, the subsequent debates were confined to the general principles involved. To comply with the terms of the 1911 Act the Bill would have to be passed in substantially identical terms as in its first passage, so there was no opportunity to debate or reconsider amendments.

44 By the Suspensory Act 1914.

45 Officially, the ‘Commissioners of Church Temporalities in Wales’ who were established by the Welsh Church Act 1914, s 10.

46 See Brown, ‘Disestablishment’, p 262; Morgan, Wales in British Politics, p 279; Bell, Disestablishment in Ireland and Wales, pp 299–308.

47 Details are to be found in Brown, ‘Disestablishment’, p 262; Morgan, Wales in British Politics, pp 286–290; Bell, Disestablishment in Ireland and Wales, pp 311–315.

48 HC Deb vol 119 col 1061 (11 Aug 1919).

49 Shortt can perhaps be excused some lack of familiarity with the 1919 Bill. The term of office of the Welsh Church Commissioners was due to expire on 31 December 1919, their work had not been completed, and an Amending Bill was clearly required to deal with difficulties in the process of disendowment. The details of the Bill were worked out between Lloyd George and the Welsh bishops, and on 24 July 1919 the bishops were told that a draft Bill was needed within 48 hours. They arranged for it to be privately drafted and submitted to the Government (see Morgan, Wales in British Politics, p 287; Bell, Disestablishment in Ireland and Wales, p 309; Owen, E, The Later Life of Bishop Owen (Llandyssul, 1961)), pp 401421. Shortt was left in ignorance of the details.

50 HC Deb vol 119 col 466 (6 Aug 1919): ‘I think, with regard to all the other matters, that they are really domestic matters. For instance, in the case of marriage, owing to the wording of the Act of 1914, in a large parish with four or five curates the vicar would be the only one able to solemnise marriage, and provision is made by the Bill so that the curates may do so’. This would imply that only a minor amendment to proviso (b) to the Welsh Church Act 1914, s 23 (see n 40) would be required. Clause 6 in the published bill clearly did not and could not resolve the difficulty outlined.

51 HC Deb vol 119 cols 1061–1066 (11 Aug 1919).

52 Ibid.

53 See n 23 to n 25 and text thereto.

54 Although technically Clause 6 was amended, it should be noted that it was originally intended only to declare the permissibility of the traditional marriage service and its preliminaries, even though it would also be necessary to comply with the formalities of the Marriage Act 1898; after amendment it marked a complete reversal of policy from the 1914 Act.

55 HC Deb vol 119 col 1061 (11 Aug 1919).

56 A vote was taken on the Second Reading, but the only opponents to the provisions of the Amending Bill were by then thirty-two Unionists (those among the party who remained diehard opponents of disestablishment), three Welsh Liberals sitting for rural seats (who claimed that it was re-endowing the Church in Wales at public expense) and two Labour members (Morgan, Wales in British Politics, p 290).

57 See Bell, Disestablishment in Ireland and Wales, pp 311–315; Morgan, Wales in British Politics, pp 286–290.

58 HL Deb vol 36 cols 882–921 (14 Aug 1919) (Second Reading); cols 951–973 (15 Aug 1919) (Committee and Third Reading).

59 Green, Constitution of the Church in Wales, pp 310–311.

60 That there has been no change to the established marriage law in Wales is confirmed by the case of Powell v Representative Body of the Church in Wales [1957] 1 WLR 439, in which Wynn-Parry J confirmed that the ancient right of the Rector of Hawarden to issue, concurrently with the Bishop, marriage licences within the historic parish of Hawarden, had not been affected by the Welsh Church Act 1914 as amended by the Welsh Church (Temporalities) Act, 1919. The fact that the rectorship was no longer a corporation sole was held not to be relevant.

61 Frank Morgan, Honorary Secretary to the Representative Body and to the Governing Body of the Church in Wales.

62 Report of the Archbishops' Commission on the Relations between Church and State (Westminster, 1935), vol II, p 145.

63 This is a contentious topic which has already been widely discussed. That the right exists in these terms is broadly accepted by Bursell, Liturgy, Order and the Law, p 183, and by Hill, Ecclesiastical Law, para 5.34, though in fn 126 he notes the argument to the contrary of Doe, N in The Legal Framework of the Church of England (Oxford, 1996), pp 358362, and of Smith, M in ‘An Interpretation of Argar v Holdsworth (1998) 5 Ecc LJ 34, and the supporting view of Humphreys, J in ‘The Right to Marry in Church: a Rehabilitation of Argar v Holdsworth (2004) 7 Ecc LJ 405. The latest (eighth) edition of Legal Opinions concerning the Church of England (London, 2007) (‘Marriage: right of parishioner to marry in parish church’) pp 376–382 considers Doe's view but affirms the traditional view expressed by Hill and Bursell. Clearly if the ‘Right to Marry’ does not in fact exist in England, then it cannot exist in Wales.

64 In an earlier issue of this Journal, the editor took Baroness Hale of Richmond to task for opining merely that the ‘Church of England believes itself … required to marry for the first time anyone who lives in the parish regardless of faith or the lack of it’: see Hill, M, ‘Editorial’ (2009) 11 Ecc LJ 1, p 2, discussing R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 at para 37.

65 Watkin, ‘Vestiges of Establishment’, p 113. The Book of Common Prayer of the Church in Wales (1984), p 736 clearly states the position of the church on this: ‘Christian marriage is marriage between two baptized persons’, and states that, in other cases, the ‘Minister shall act in accordance with the Bishop's direction’. In The Law of the Church in Wales (Cardiff, 2002) N Doe suggests that, given the ‘powerful legal fiction’ (p 257) of the ‘Right to marry’, the Bishop would have little alternative but to direct the minister to solemnise the marriage (p 258, n 26).

66 The procedure is set out in the Constitution and Canons of the Church in Wales, ch IV D, s 3. The Bishop's Decree must make provision for marriages (ibid, s 4).

67 The Constitution and Canons of the Church in Wales operate as a civil contract only between the members of the Church in Wales (Welsh Church Act 1914, s 3(2)), and Constitution and Canons of the Church in Wales, ch I, pt I, s 2. Ch I, pt II, s 7 defines ‘member’ principally by reference to the electoral rolls kept by each parish (see n 24).

68 See above n 34.

69 The Constitution and Canons of the Church in Wales, ch IX, s 30: ‘Each Chancellor, with respect to the granting of marriage licences and the appointment of surrogates, shall in addition to any jurisdiction or powers conferred on him or her by the Constitution, have the jurisdiction and powers (except as to fees) to which a Chancellor was entitled on 30th March 1920, and shall exercise such jurisdiction and powers according to the law and practice at that time prevailing.’ This is an interesting example of the ‘fossilisation’ of the law relating to those aspects of the Church in Wales which remain established. One would assume that the issuing of common licences (generally in practice through surrogates) is likely to be one of the most frequent exercises of the chancellor's jurisdiction, though it seems unlikely, however, that occasion would often arise for the exercise of any kind of contentious jurisdiction.

70 Each diocese has a court presided over by a chancellor, which is termed the ‘Diocesan Court’ rather than the ‘Consistory Court’.

71 Welsh Church Act 1914, s 3(3). For a discussion of the system of Church courts in Wales, and its shortcomings, see Watkin, T, ‘Welsh Church courts and the rule of law’, (2000) 5 Ecc LJ 460.

72 ‘He [the Chancellor] is a Queen's judge, in one of the Queen's courts’ (Halsbury's Laws of England, vol 14, 4th edition (London, 1975) at para 1275).

73 Marriage Act 1949, s 5(b). This is not one of the sections of the 1949 Act that does not apply in Wales: see Sch 6. The continued jurisdiction to issue Special Licences in Wales can be explained by the fact that the jurisdiction to issue Special Licences lies with the Archbishop of Canterbury not by virtue of his authority as Archbishop and Metropolitan of the Province of Canterbury but because the powers of the Papal Legate were transferred to his office by the Ecclesiastical Licences Act 1533: for this reason his power to issue Special Licences also extends to the Province of York. Legatine powers which did not relate to marriage were not allowed to continue, at least insofar as they were to apply wholly within Wales. This had the slightly anomalous result that power to grant faculties for the appointment of notaries public, which was also one of the legatine powers, was exercised by the Archbishop of Canterbury throughout England and Wales, but on disestablishment, the power to appoint district notaries within districts situated wholly in Wales was transferred to the Lord Chancellor (Welsh Church Act 1914, s 37). The power to appoint general notaries (ie those having jurisdiction throughout England and Wales) remained with the Archbishop of Canterbury, even if the notary's principal place of business was in Wales. No new district notaries can be appointed since the passing of the Courts and Legal Services Act 1990 (s 57(1)), so the Welsh Church Act 1914, s 37, ceased to have effect (Courts and Legal Services Act 1990, s 57(3)(e)) and the Faculty Office of the Archbishop of Canterbury is again the only authority appointing notaries in Wales, as all such appointments are effective throughout England and Wales.

74 In Brown, R, ‘What of the Church in Wales?’ (1993) 3 Ecc LJ 20, p 26, one of the sections of the article is headed, ‘A national role for a disestablished church’.

75 Ibid, p 28.

76 The Measure also provided (s 3) for marriage by common licence in a church where one of the parties was on the electoral roll of that church.

77 Although this provision was enacted by Measure, when it came before the House of Commons for approval (under the provisions of the Church of England Assembly (Powers) Act 1919) one dissentient member (Dr Sidney Peters MP) argued that it was never intended that this enabling act would extend to changes in the marriage law (HC Deb vol 236 cols 1656–1658 (13 March 1930)). The Forty-first Report by the Ecclesiastical Committee, being a Report on the Marriage Measure, 1930 ((1929–30) Parl Papers viii 92) raised no objection, and simply recommended that it was ‘expedient that it should proceed’, but Dr Peters may have had a point. Although Halsbury's Statutes and Halsbury's Laws of England, both online and in hard copy, cross-reference to Measures of the General Synod, Current Law Statutes do not provide an annotated edition of the Marriage Measure 2008, though they will no doubt do so for the Marriage (Wales) Act 2010. The Canons of the Church of England do not supplement the legislative provisions, save that Canon B 35 (at paras 1 and 2) requires compliance with the general law, and (at paras 3 and 4) repeats certain provisions of it.

78 It also provided for the banns to be called by a clergyman at a service other than the usual one at which banns were called at that church. In setting out the functions of readers and lay workers, the Canons include the calling of banns (Canon E 4 para 2(b) (readers) and Canon E 7 para 5(c) (layworkers)).

79 Both Measures were expressed to extend to ‘the whole of the Provinces of Canterbury and York except the Channel Islands and the Isle of Man’.

80 Marriage Act 1949, s 6(4) permits the calling of banns in a church which is the usual place of worship of either party, and section 12(1) then permits the solemnisation of marriage in any church where the banns have been called. Section 15(1)(b) permits a common licence to be granted for the solemnisation of marriage in a church which is the usual place of worship of either party. As with the Marriage Measure 1930, however, s 6(4) and s 15(1)(b) do not have the scope that they appear to have at first sight, as the 1949 Act, s 72 provides that ‘no parish church or authorised chapel shall be deemed to be the usual place of worship of any person unless he is enrolled on the church electoral roll of the area in which that church or chapel is situated’.

81 Whilst in most of the 1949 Act, a reference to the Church of England was deemed to include the Church in Wales (Marriage Act 1949, s 78(2)), by virtue of s 80(3) and the Sixth Schedule to the Act, ss 6(4) and 15(1)(b) did not apply to Wales. It was not therefore possible for parties in Wales to take advantage of s 12(1), allowing a marriage to take place in any church where the banns had been called (whether or not the parties resided there), or for a common licence to be granted to permit solemnisation of marriage in a church which was the usual place of worship of either party.

82 There was no debate on the bill at Second or Third Reading. In Committee George Thomas (later Viscount Tonypandy) explained (HC Deb 1961–62 (Standing Committee C) col 5 (28 March 1962)) that the purpose of the bill was to apply to Wales the provisions of the 1949 Act which did not apply to Wales as they had been derived from the Marriage Measure 1930 and the Banns of Marriage Measure 1934. Section 1 of the 1962 Act extended s 6(4) and other provisions of the 1949 Act to Wales, providing that references in the Act to ‘electoral rolls’ should extend to electoral rolls kept pursuant to the constitution and regulations of the Church in Wales. The 1962 Act also permitted the calling of banns by lay persons who might be taking a service.

83 In England, of course, the rules governing the composition of electoral rolls are part of the establishment, and therefore ultimately ‘part of the law of the land’.

84 It was held in R. v Archbishops of Canterbury and York, ex parte Williamson [1994] The Times, 9 March 1994, CA, that a Measure is primary rather than delegated legislation: this is acknowledged in the Human Rights Act 1998, s 21(1). See further Hill, Ecclesiastical Law, 1.25, 1.30; Doe, The Legal Framework of the Church of England, pp 60–62.

85 By its spokesman Frank Morgan: see n 61 at p 141.

86 Canon passed 26 September 1935: Green, Constitution of the Church in Wales, p 261.

87 On the basis that the marriage had been contracted in accordance with the law of the State, it could hardly have been invalid; but in theory the minister solemnising the marriage would have been acting in breach of canon law, and thus answerable in the Church courts (using ‘canon law’ here in the sense suggested by Watkin in ‘Vestiges of Establishment’).

88 The Marriage Act 1949 treated the countries of England and Wales differently, but did not differentiate between the Church of England and the Church in Wales per se. Further, it was, in any event a consolidating statute.

89 s 11, and sch 4, para 3.

90 Ahdar, RJ and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005) state (at 358) of s 5B(1): ‘Originally it was worded to provide an explicit exemption for ministers of the Church of England and Church in Wales – based on the premise that they were the only religious bodies legally required to conduct marriages.’ (per Lord Filkin, HL Deb vol 656 col 1072 (10 Feb 2004)).

91 Per David Lammy MP (Parliamentary Under-Secretary of State for Constitutional Affairs): ‘The protection has been given to the Church in Wales, at its request, but the Church of England has said clearly that it does not want it.’ (HC Deb 2003–04 (Standing Committee A) col 162 (16 March 2004)).

92 Apart from when discussing the Gender Recognition Act 2004.

93 Note that this was not the case between the passing of the Marriage Act 1949 and the passing of the Marriage (Wales and Monmouthshire) Act 1962. By an apparent oversight, the disapplication in respect of Wales of certain provisions in the 1949 Act extended to the whole area of Wales (including Monmouthshire), and not to the area covered by the Church in Wales. This anomaly was not corrected until the passing of the 1962 Act (s 2). Prior to 1962, the references in the 1949 Act to the calling of banns in churches, and the disapplication of certain provisions to Wales (by sch 6) meant that, in border parishes, the applicable law depended on which side of the national boundary the parish church lay (HC Deb 1961–62 (Standing Committee C) cols 8–9 (28 March 1962) per George Thomas). The Marriage (Wales) Act 2010, s 1, carefully states that it applies ‘to parishes in the area subject to the Welsh Church Act 1914’. It was not stated in the Standing Committee what the position had been in the border parishes between 1930 and 1949. As the Marriage Measure 1930 extended to ‘the whole of the Provinces of Canterbury and York except the Channel Islands and the Isle of Man’ (s 9), as did the Banns of Marriage Measure 1934 (s 2), then both Measures must have applied to all those border parishes which were part of the Church of England, regardless of the location of the parish church, until the 1949 Act inadvertently re-aligned the ‘marriage law’ boundary to the national boundary.

94 Bell, Disestablishment in Ireland and Wales, p 305.

95 Brown, ‘Disestablishment’, p 252–253.

96 This was provided for the Welsh Church Act 1914, s 9. The plebiscites were conducted by the Welsh Church Commissioners. Bell, Disestablishment in Ireland and Wales, p 305, points out the punctilious way in which the commissioners went about their work, whilst noting the incongruity of holding these plebiscites at the height of the First World War. Ballot papers were sent to men serving in the Forces. (Second Report of the Commissioners for Church Temporalities in Wales (1917–18) Cd 8472 viii 93, p 4.) He is mistaken in stating that the 19 votes were conducted in March 1916. The First Report of the Commissioners for Church Temporalities in Wales (1914–16) Cd 8166, p 5 makes it clear that the polls were conducted in all the parishes in January/February 1915. The results in 17 of the parishes showed that there was a ‘marked preponderance of opinion’ in favour of remaining part of the Church of England, so that the Commissioners considered that they need take no further action. In the two remaining parishes – Llansilin and Rhydycroesau – they decided that they need to carry out a more precise ballot, and these were the ballots that were carried out in March 1916. Both the 1915 and 1916 ballots were on the basis that all inhabitants of the parish over the age of 21, whether male or female, were entitled to vote; this was a broader franchise than that applicable for local government purposes under the Local Government Act 1894, and did not apply in parliamentary elections until the Equal Franchise Act 1928. (Were these pioneering examples of universal adult suffrage?) Non-resident ratepayers could also vote. The difficulties in conducting the ballot were exacerbated by the fact that there was no suitable electoral register. The return rate was a quite remarkable 85.5% in Llansilin, and 86.3% in Rhydycroesau (or an astonishing 97.2% and 96.6% respectively if one counts late and spoilt papers). Llansilin voted by 255 to 228 in favour of forming part of the Church in Wales, and Rhydycroesau by 98 to 78 in favour of remaining part of the Church of England.

97 And so the Marriage (Wales) Act 2010 applies to a small part of England as well as to Wales.

98 Even if the Act-making powers of the Welsh Assembly under Part 4 of the Government of Wales Act 2006 should be implemented, registration of marriages would remain excepted from its legislative competence (sch 7, para 12). Marriage is, however, a devolved matter in Scotland (eg the Marriage (Scotland) Act 2002).

99 Watkin, ‘Vestiges of Establishment’, pp 111–113.

100 Ibid, pp 110–111.

101 Ie, matters for the internal or domestic law of a voluntary association.

102 Ie, the law governing the established church.

103 As was proposed by the Law Commission, Report on the Solemnisation of Matrimony in England and Wales (Law Com No 53), (London, 1973), paras 17 and 23. The Commission noted that banns would no longer be required, unless the Church chose to retain them as an ecclesiastical requirement (paras 18, 19 and 23). This is the solution which was in 1919 held to be impracticable when to be applicable in Wales only.

104 Office for National Statistics, 2003.

105 See Probert, R, ‘Lord Hardwicke's Marriage Act – Vital change 250 years on?’ [2004] Fam Law 585. It would appear from the article that the proposal for joint State and ecclesiastical preliminaries was acceptable to the General Synod of the Church of England, but not to the Church in Wales which preferred to retain banns.

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