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The Church of England and the Law of Divorce since 1837: Marriage Discipline, Ecclesiastical Law and the Establishment

Published online by Cambridge University Press:  06 February 2009

Bruce S. Bennett
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Extract

Ever since Henry VIII, the law of marriage has occupied a special place in the relationship between the Church of England and the state. Changes made to the law since 1857 have raised far-reaching and difficult questions about the nature of this relationship, involving the status of canon law. Marriage in church has remained, perhaps even more than the other rites of passage, an essential point at which the Church of England still touches the lives of great numbers of the otherwise unchurched, and these questions have thus impinged on the practical reality of the Church's work.

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Articles
Information
The Journal of Ecclesiastical History , Volume 45 , Issue 4 , October 1994 , pp. 625 - 641
Copyright
Copyright © Cambridge University Press 1994

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References

The Bell and Davidson Papers referred to are in Lambeth Palace Library.

1 In the old canon law, the term divorce a vinculo was used in the sense of nullity.

2 See Winnett, A.R., Divorce and remarriage in Anglicanism, London 1958, 118–33Google Scholar.

3 Matt. xix. 9.

4 Matrimonial Causes Act, 1857, section 57.

5 A problem arises with the word ‘indissoluble’, which was used by some churchmen to mean that marriage could not be dissolved, and by others to mean that it should not. These differences were often not made clear in debates. In this article the word is restricted to the sense of ‘incapable of being dissolved’.

6 See, for example, Furse, Michael, Stand therefore, London 1953, 196Google Scholar. In Roman Catholic teaching, a marriage between two unbaptised persons, one of whom is converted, is capable of being dissolved. (See the Codex iuris canonici, 1983, canon1143Google Scholar.) This is based on I Cor. vii. 15, a text which some of the reformers interpreted as allowing divorce for desertion.

7 Act for the Submission of the Clergy, 1533, 25 Hen. VIII c. 19. See also Of convocations (1611) 12 Co. Rep. 72.

8 Middleton v. Crofts (1736) 2 Atkyns 650, at p. 653.

9 SirDibdin, Lewis, English church law and divorce, London 1912, 69Google Scholar.

10 Ibid. 45.

11 Parliamentary Debates, 3rd ser., cxlv. 532 (19 05 1857)Google Scholar.

12 Winnett, , Divorce and remarriage, 190Google Scholar There was some doubt as to the legality of refusing licences. In Ex parte Brinckman and Divorce Marriage Licences (1895) 11 TLR 387, 496, the Chancellor of the London diocese ruled that he had no discretion to refuse a licence, but this was partly due to the form of his letters patent. Later opinion (following Prince of Capua v. Count de Ludolf (1836) 30 LJPM & A 71n.) has held that licences are issued at discretion. According to Ex parte Brinckman licences had before 1857 been granted routinely to divorced persons.

13 Report of the archbishop's committee on Church and State, 1916, p. 25.

14 Davidson to Townend, 23 July 1912, Davidson Papers 417, fo. 235.

15 Ibid. and Davidson to Bryan, 13 Apr. 1903, Bell Papers 223, fo. 261.

16 1912–13 Cd. 6478 xviii. 143.

17 This view is assumed in Dibdin's, Lewis frequently quoted article, ‘English church law and divorce’, Quarterly Review ccxv, 531–51Google Scholar.

18 Woodhouse, Margaret K., ‘The Marriage and Divorce Bill of 1857’, American Journal of Legal History iii (1959), 362Google Scholar.

19 Shaw v. Gould, at pp. 84–6, 91–2. The ruling in Rex v. Lolley, Russ. & Ry. 237, was often seen as indicating that English marriage was by its nature indissoluble (see McCarthy v. De Caix [1831] 2 Ru. & My. 614), but this interpretation was held to be erroneous in Shaw v. Gould: pp. 86, 91–2.

21 Banister v. Thompson [1908] P. 362.

22 1 Edw. vi c. 1 s. 8.

23 It was not covered by the earlier act recognising such marriages contracted in the colonies, as Banister was domiciled in England.

24 Rex v. Dibdin [1910] P. 57; Thompson v. Dibdin [1912] AC 533.

25 Rex v. Dibdin [1910] P. 57, at p. 115, per Fletcher Moulton LJ.

26 Ibid. at p. 82.

27 Ibid. at p. 119.

28 Ibid. at p. 134, per Farwell LJ.

29 Hugh Cecil to Davidson, 20 Aug 1917, Davidson Papers. 417, fo. 101.

30 According to the original bill, the parson would still have to lend his church to another clergyman willing to marry either party, but Buckmaster agreed to omit this requirement: 40 Debates of the House of Lords, 5s, 127, 263, 514–15.

31 Bell, G. K. A., Randall Davidson, London 1952, 999Google Scholar.

32 44 Deb. HL, 5s, 484–91 (10 March 1921).

33 Minutes of bishops' meetings 18–19 Jan. 1937, Lambeth Palace Library, BM 10, fo. 257

34 See Machin, G. I. T., 'Marriage and the Churches in the 1930s: royal abdication and divorce reform, 1936–7', this JOURNAL xlii 1991, 68–81Google Scholar.

35 Henson diary, 4 Fep. 1937, Durham Cathedral, Dean and Chapter Library, Henson papers 69, p. 9; 1 Apr. 1937, 69, p. 112; 5 June 1937, 69, p. 257; 14 July 1937, 70, p. 27.

36 106 Deb. HL,5s 587(19 July 1937).

37 317 Debates of the House of Commons, 5s, 2091 (20 Nov. 1936).

38 Matrimonial Causes Act, 1937.

39 Church Assembly, 1937, 584–618.

40 Registrar-general's statistical review of England and Wales for the year 795.2, commentary, 252, appendix A.

41 Heywood, Bernard, The Church, marriage and divorce, London 1937, 22–5Google Scholar.

42 Cecil, Lord Hugh, Guardian, 7 05 1937, p. 348Google ScholarMortimer, R., ‘The Church and divorce’, Theology xxxii (1936), 323Google Scholar.

43 In a 1913 case it was ruled that the law already encompassed wilful refusal as a ground of nullity, but this was overturned in 1915: Dickinson v. Dickinson [1913] P. 198; Napier v. Napier [1915] P. 185.

44 The canon law of the Church of England, London 1947, 66–7Google Scholar.

45 See Kemp, E. W., Introduction to canon law, London 1957, 63–7Google Scholar.

46 This had also been proposed in the draft canons of 1879, which were not proceeded with.

47 Draft canon xxxviii of 1947.

48 Draft canon xxxvii of 1947.

49 Draft canon xxxvi of 1947.

50 Royal commission on marriage and divorce (1956), minutes of evidence, 28 May 1952, p. 154, Q. 1247.

51 Canon law of the Church of England, p. vi.

52 Draft canons vii, viii of 1947.

53 Draft canon ix of 1947.

54 Civil judicial statistics, 1952–53 Cmd. 8867 xxiii. 75, p. 25. Of these 198 were granted to the husband.

55 Royal commission on marriage and divorce (1956), minutes of evidence, P. 32.

56 Ibid. p.306.

57 See the comments of Sir Samuel Evans in Dickinson v. Dickinson [1913] P. 198 at p. 207; also 318 Deb. HL, 5s, 11 May 1971, col. 941.

58 The Church and the law of nullity of marriage, London 1955, 45–8Google Scholar. The Morton commission recommended in 1956 that wilful refusal should be a ground of divorce rather than nullity (Cmd. 9678 p. 31), but this was not enacted.

59 The Church and the law of nullity, 41–4.

60 Carpenter, Edward, Archbishop Fisher: his life and times, Norwich 1991, 210Google Scholar.

61 See especially Chronicle of convocation, 1956, 69–81. The Church did, however, secure a measure barring remarried divorcees from ordination: Clergy (Ordination and Miscellaneous Provisions) Measure 1964, s. 9. This restriction has recently been relaxed.

62 Bursell, Judge Rupert D. H., ‘The seal of the confessional’, Ecclesiastical Law Journalii (1990), 84–109Google Scholar.

63 Chronicle of convocation, 1966, 246.

64 See the address, ‘Marriage and divorce’, delivered by Fisher, Geoffrey in 1955, in The archbishop speaks, ed. Carpenter, E., London 1958, 134–53Google Scholar.

65 Royal commission on marriage and divorce (1956), minutes of evidence, 160.

66 Chronicle of convocation, 1956, 59, 238–44.

67 Chronicle of convocation, 1950, 37; 1955, 270–1, 293. The 1955 nullity report ignored it completely: Macmillan, A. T., Church Quarterly Review clvi (1955), 303Google Scholar.

68 Church Times, 2 July 1937, p. 8.

69 Paulsen, Monrad G., ‘Divorce-Canterbury style’, New Society, 4 08 1966, p. 187Google Scholar.

70 Church Assembly, 1937, 601.