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THE PLACE OF WORSHIP IN SOLEMNIZATION OF A MARRIAGE

Published online by Cambridge University Press:  21 July 2015

Wendy Kennett
Wendy Kennett*
Affiliation:
Lecturer in Law, Cardiff University
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Abstract

The recent decision of the United Kingdom Supreme Court in Regina (Hodkin and another) v Registrar General for Births, Deaths and Marriages concerned the registration of the premises belonging to the Church of Scientology in London as a place of worship, specifically for the purpose of enabling a marriage to take place there which would be valid in law. This article examines the continuing significance of a registered place of worship in the English law rules on formalities of marriage. It provides a brief history of the role of religion in the solemnization of marriages in England and Wales, and the emergence of the “place of worship” as a constituent element in the celebration of a valid marriage. The role of marriage at a registered place of worship in the current legislation governing the formalities of marriage is considered, along with the impact on that scheme of the Marriage (Same Sex Couples) Act 2013. The exceptional character of the approach adopted by English law is highlighted by a comparative survey of laws on the solemnization of marriages, which also demonstrates some of the problems arising out of alternative solutions. Finally, recent attempts to reform the law are noted, followed by some concluding remarks on possible future developments.

Keywords

marriageformalitieshistorycomparative
Type
ARTICLES
Information
Journal of Law and Religion , Volume 30 , Issue 2 , June 2015 , pp. 260 - 294
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2015 

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References

1 MA v JA, [2012] EWHC 2219 (Fam), [2012] All ER (D) 338 (Jul).

2 Regina Hodkins v Registrar General of Births, Deaths and Marriage, [2013] UKSC 77; [2013] WLR (D) 492.

3 The nullity of a marriage for failure to comply with certain provisions of the Marriage Act 1949 is stated in section 49 of that Act, but in each case the noncompliance must be knowing and wilful.

4 Burns v Burns, [2007] EWHC 2492; [2008] 1 FLR 813.

5 Richard H. Helmholz, Marriage Litigation in Medieval England (Cambridge: Cambridge University Press, 1974), 4–5; G. E. Howard, A History of Matrimonial Institutions Chiefly in England and the United States with an Introductory Analysis (Chicago: University of Chicago Press, 1904), 1:156ff.; Mary Ann Glendon, The Transformation of Family Law: State Law and Family in the United States and Western Europe (Chicago: University of Chicago Press, 1989), 19ff.

6 In the mid-eleventh century, the Decretum of Gratian—the basic text on which the masters of canon law lectured and commented in the universities—stated that “clandestine marriage should not be made.” Gratian, Decretum, column 30, q. 5 c. 1; see also ibid., column 32, q. 2; column 12; column 30, q. 5; column 3.

7 Helmholz, Marriage Litigation, 45; Howard, Matrimonial Institutions, 332.

8 Howard, Matrimonial Institutions, 295ff.

9 Ibid., 309. This move is linked to changes in marriage customs which began to allow the bride to appoint a marriage officiant: “[F]rom the moment that custom sanctioned the choice of any third person in place of the father or other natural protector, the clergy appropriated this function as their exclusive right. While the church ‘bestowed her blessing upon tradition through the natural guardian, she directed against the lay chosen guardian her excommunication.’” Ibid., quoting Sohm, Das Recht der Eheschliessung (Weimar, 1875), 164.

10 James A. Brundage, Law, Sex and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 2009), 268–69. This had been a much contested question, and in the medieval period generated a large case law analyzing whether particular forms of verbal expression constituted consent in the present tense (per verba de praesenti). Howard, Matrimonial Institutions, 340ff.; Helmholz, Marriage Litigation, 25–73.

11 This occurred at a time when developing rules of primogeniture made parental control over marriage increasingly important. Charles Donahue Jr., “Law, Marriage, and Society in the Later Middle Ages: A Look at the English and ‘Franco-Belgian’ Regions,” in Proceedings of the Thirteenth International Congress of Medieval Canon Law (Esztergom-Budapest, August 3–9, 2008), Monumenta Iuris Canonici C:14, ed. Peter Erdö and Sz. Anzelm Szuromi (Vatican City: Biblioteca Apostolica Vaticana, 2010), 17–39.

12 Cristellon, Cecilia, “Does the Priest Have to Be There? Contested Marriages before Roman Tribunals: Italy, Sixteenth to Eighteenth Centuries,” Österreichische Zeitschrift für Geschichtswissenschaften 20, no. 3 (2009): 17Google Scholar.

13 Howard, Matrimonial Institutions, 310ff. (comparing English and French sources, suggests that priestly control of marriage was relatively slow to develop in England). Howard also notes that marriage at the church door continued to be common in England until the sixteenth century. The liturgies of Edward VI and Elizabeth I were the first to require the ceremony to be performed in the body of the church.

14 Helmholz, Marriage Litigation, 72. Canon law rules on marriage were significantly in conflict with previous traditions. For example, earlier customs did not regard marriage as indissoluble. Moreover, marriages within kinship groups were likely to be found invalid as within the prohibited degrees.

15 See now Canon 1118 of the 1983 Code of Canon Law, under which marriage in a church is the default position, but marriage in another “suitable place” may be authorized. The Code of Canon Law: Latin-English Edition (Washington, DC: Canon Law Society of America, 1983).

16 Witte, John Jr., “Church, State, and Marriage: Three Reformation Models,” Word & World 23, no. 1 (2003): 42Google Scholar.

17 Ibid., 44.

18 Variously a magistrate, notary, or the aldermen of the city. Henk Looijesteijn and Marco H. D. van Leeuwen, “Establishing and Registering Identity in the Dutch Republic,” in Registration and Recognition: Documenting the Person in World History, ed. Keith Breckenridge and Simon Szreter (Oxford: Oxford University Press, 2012), 214–19. Regulation of marriage was regarded as a priority in order to prevent property disputes. All those intending to marry had to appear before civil authorities and provide evidence of, for example, name, address, and parental consent before being given permission to publicize the wedding.

19 Ibid. Again the legislation also included measures concerning publicity and parental consent to prevent clandestine marriages.

20 Canons were enacted in 1571, 1575, 1584, 1597, 1604, and 1640. Richard H. Helmholz, The Oxford History of the Laws of England, vol. 1, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford: Oxford University Press, 2004), 264–69. The core rules regulating marriage remained unchanged; however, modifications included raising the age of valid consent to marriage to sixteen for boys and fourteen for girls and clarifying the circumstances in which a license to marry without banns could be issued.

21 This prohibition was withdrawn in 1657. Thereafter both civil and religious ceremonies were permitted until 1660.

22 McLaren, Dorothy, “The Marriage Act of 1653: Its Influence on the Parish Registers,” Population Studies 28, no. 2 (1974): 319CrossRefGoogle ScholarPubMed (challenging the view that many people ignored the new marriage laws and continued as before). Just as today, the existence of a civil wedding need not have ruled out a parallel religious one.

23 12 Cha. 2 c. 33. See R. B. Outhwaite, Clandestine Marriage in England: 1500–1800 (London: Hambledon Press, 1995), 13.

24 Further restrictions were also imposed by the Quaker Act 1662, the Conventicle Act 1664 and the Five Mile Act 1665. See 14 Cha. 2 c. 4 (The Act of Uniformity) (1662); 14 Cha. 2 c. 1 (The Quaker Act) (1662); 16 Cha. 2 c. 4 (The Conventicle Act) (1664) (repealed 1689); 17 Cha. 2 c. 2 (The Five Mile Act) (1665).

25 See section XIX of the Act of Toleration 1689 (1 Will & Mary c 18).

26 See generally, Rebecca Probert, Marriage Law and Practice in the Long Eighteenth Century (Cambridge: Cambridge University Press, 2009). Probert demonstrates that by this time private exchanges of vows (per verba de praesenti) were interpreted as contracts to marry, which could be enforced by the ecclesiastical courts, but it was expected that the marriage itself would take place in a church.

27 Boulton, Jeremy, “Itching after Private Marryings? Marriage Customs in” Seventeenth-Century London,” London Journal 16, no. 1 (1991): 15CrossRefGoogle Scholar; John R. Gillis, For Better, for Worse: British Marriages, 1600 to the Present (Oxford: Oxford University Press, 1985), 90 (“While the bishops retained nominal control over sale, they often issued blanks to surrogates among the parish clergy, who, for the sake of the lucrative fees, made mockery of the controls on age and parental consent they were supposed to administer. Both bishops and surrogates were supposed to administer oaths and demand securities, but these too were laxly attended to.”).

28 Outhwaite, Clandestine Marriage, 15–26; Newton, Gill, “Clandestine Marriage in Early Modern London: When, Where and Why?,” Continuity and Change 29, no. 2 (2014): 151CrossRefGoogle Scholar.

29 Gill Newton, “Clandestine Marriage in Early Modern London.”

30 Boulton, “Itching after Private Marryings?”

31 Outhwaite, Clandestine Marriage, 65ff.

32 Lawrence Stone, Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1990), 122–23; see also Outhwaite, Clandestine Marriage, 75–98.

33 One factor in the success of the legislation was the changing attitude of society towards ecclesiastical laws and the binding nature of an exchange of promises. See Outhwaite, Clandestine Marriage, 87.

34 An exception was retained for the archbishop of Canterbury's special license, under which the marriage could be celebrated at any time and in any place. This enabled the wealthy to continue to conduct private ceremonies at home.

35 They were further supported by a legal rule to the effect that the marriage of a minor by license was invalid without parental consent. In the case of marriage of a minor by banns, the banns were invalid where parental objections were made known.

36 See Outhwaite, Clandestine Marriage, 84.

37 Ibid., 127.

38 For details see ibid., chapter 7; Stephen Cretney, Family Law in the Twentieth Century: A History (Oxford: Oxford University Press, 2003), chapter 1.

39 The 1823 Marriage Act provided that a marriage would only be automatically void if the parties had “knowingly and wilfully” failed to comply with its formal requirements. Where one of the parties was an innocent dupe, therefore, the marriage could no longer be annulled.

40 Probert, Marriage Law and Practice, chapter 9.

41 The requirement that a registrar be present continued to be a source of grievance until it was removed by the Marriage Act 1898. See further Cretney, Family Law in the Twentieth Century, 19–20.

42 The most recent prior legislation, the 1823 Act for Amending the Laws respecting the Solemnization of Marriages in England, required publication of the banns in the church or chapel for the parish where the parties were resident, and solemnization of the marriage in that church or chapel “and in no other place whatsoever.”

43 Hansard includes a speech by the bishop of London in 1839—complaining of the harm done to the church by the new law on registration of births because there was no longer any necessary connection with baptism—to the effect that “[t]he Marriage Act would do but little harm, because it would never be much acted on.” House of Lords Debate 5 May 1839, volume 45 cc 1253–61.

44 Office for National Statistics, “Marriages in England and Wales (Provisional) 2011,” June 26, 2013, http://www.ons.gov.uk/ons/publications/re-reference-tables.html?edition=tcm%3A77-292280. Statistics from 1837 to 2010 relating to the form of ceremony can be found in Table 2 of the reference table providing details of marriages by area of occurrence, type of ceremony, and denomination.

45 A further reason for registering is to obtain exemption from business rates. It is, however, clear from the Explanatory Note to section 68 of the Local Government Act 2003 that registration is merely a convenient evidence of entitlement to exemption. In 2003 it was anticipated that the Places of Worship Registration Act 1855 would be repealed as a result of proposed changes to the law governing marriage. For further details on these proposed changes, see text at notes 124–129 below.

46 The Marriage Act of 1949, 12, 13, & 14 Geo. 6 c. 76.

47 See Cretney, Family Law in the Twentieth Century, 23–24.

48 Part I of the 1949 Act deals with restrictions on marriage, such as the prohibition of marriages between those who are closely related and the age at which the parties can lawfully marry (with or without the consent of a parent or guardian); Part IV deals with the particulars of registration of marriages and maintenance of records; Part V ensures that the scheme of the act applies to naval, military, and air force chapels; and Part VI sets out certain general provisions, including statutory offenses relating to the solemnization and registration of marriages. The Marriage Act of 1949, 12, 13, & 14 Geo. 6 c. 76.

49 The greater freedom of time and place of marriage under the archbishop of Canterbury's special license also continues to exist. It was supplemented in 1970 by similar provision for non-Anglican marriages under a Registrar General's Certificate in the Marriage (Registrar General's Licence) Act 1970, but was restricted to cases in which one of the intending parties to the marriage is seriously ill and not expected to recover, and so cannot be moved.

50 As a result of doubts about the effectiveness of these checks, the Immigration Act 2014 now requires civil preliminaries in all cases where one of the parties to be married is not a “relevant national.” See further below at text between notes 150 and 152.

51 But see further below at text accompanying note 58.

52 This provision may be contrasted with the following one, under which both persons must profess the Jewish religion. Section 47 establishes when a marriage according to the usages of the Quakers may be authorized even if one of the parties is not a Quaker.

53 Probert, Marriage Law and Practice, 234.

54 “Subject to the consent of the minister or one of the trustees, owners, deacons or managers of the building.” Marriage Act 1949, section 44.

55 The Marriage (Registration of Buildings) Act 1990.

56 Approval of premises is dealt with in Marriage Act 1949, section 46A. It provides for regulations to be made governing approval by local authorities of premises for the solemnization of marriages. The current regulations are the Marriages and Civil Partnerships (Approved Premises) Regulations 2005 (as amended).

57 Marriages and Civil Partnerships (Approved Premises) Regulations 2005, Schedule 1 Paragraph 1. See also The Registrar General's Guidance for the Approval of Premises as Venues for Civil Marriages and Civil Partnerships, 6th ed. (General Register Office, 2013).

58 See Church of England Marriage Measure 2008, sections 6, 12, 15, and 16; see also Russell Sandberg, Law and Religion (Cambridge: Cambridge University Press, 2011), 62–63. The 2008 Measure coexists with the 1949 Act without directly amending it, and it requires the provisions of the Act on the publication of banns and the issue of certificates confirming the publication of banns to be read “as if” they incorporate the provisions of the Measure.

59 Church of England Marriage Measure 2008, sections 45(2), 45A(4), 46B(4).

60 Marriage Act 1949, section 43, deals with the appointment of authorized persons, who are responsible for registration of the marriage.

61 See Marriage Act 1949, sections 44(2), 45(1), and 46B(2).

62 The possibility of a conscience clause for registrars was raised several times by way of amendment to the Marriage (Same Sex Couples) Bill, but was rejected. See Marriage (Same Sex Couples) Bill, House of Lords Debate (February 26, 2013), column 220ff.; House of Lords Debate (March 12, 2013), column 268ff.; House of Commons Debate (May 20, 2013), column 926ff. (especially column 934); House of Lords Debate (June 17, 2013), column 103ff.; House of Lords Debate (July 8, 2013), column 39ff.

63 The Church of England itself may legislate for this by Measure, which will then require parliamentary approval by an affirmative Resolution of each House. If the church in Wales decides it wants to solemnise same-sex marriages, then the lord chancellor “must” bring forward the necessary amending legislation. Marriage Act 2013, column 30, section 8.

64 As well as the possibility of “opting in” to the celebration of same sex marriages, the Act also provides for the possibility of “opting out”—that is, reversing the opt-in procedure in relation to any of its constituent elements. The opt-in and opt-out elements are listed in a table in section 2(3) of the 2013 Act. They include giving consents, applying for the registration of a building, and authorizing a person to be present at the solemnization of a marriage of a same-sex couple in a building registered under section 43A of the 1949 Act.

65 In relation to the Quakers, this authority is specified in the new section 26B(3) of the 1949 Act. Clarification of the position for the different branches of Judaism is also provided in section 26B(5). For other religious organizations the governing authority is defined in section 26A(4) as “the person or persons recognized by the members of the relevant religious organization as competent for the purpose of giving consent for the purposes of this section”—a provision which may well give rise to disputes about centralization and decentralization of authority within various religious organizations (such as Baptists and Congregationalists).

66 Marriage Act 1949, section 26A. Section 43B provides for the appointment of authorized persons to allow same-sex marriages to be solemnized without the presence of a registrar.

67 Once a religious organization has opted in, the solemnization of a same-sex marriage at the residence of a housebound or detained person may take place in accordance with the rites of that organization, see Marriage Act 1949, section 26B(6), and a “death bed marriage” may be solemnized in accordance with those rites under section 1 of the Marriage (Registrar General's Licence) Act 1970.

68 The application must be accompanied by a certificate stating that the relevant consent has been given and a copy of the consent. Marriage Act 1949, section 43A(3).

69 Section 44C of the 1949 Act deals with registration of shared buildings in circumstances not covered by the 1969 Act. Regulations can be made by the secretary of state by statutory instrument to deal with this situation.

70 The quadruple lock is designed to do the following:

  1. 1.

    1. Ensure that no religious organization or individual minister can be compelled to marry same-sex couples or to permit this to happen on their premises.

  2. 2.

    2. Provide an opt-in system for religious organization who wish to conduct marriages for same-sex couples.

  3. 3.

    3. Amend the Equality Act 2010 to reflect that no discrimination claims can be brought against religious organizations or individual ministers for refusing to marry a same-sex couple.

  4. 4.

    4. Ensure that legislation will not affect the canon law of the Church of England or the Church in Wales. As a result, if either church wanted to conduct a same-sex marriage, it would require a change to primary legislation at a later date and a change to canon law.

71 Marriage Act 2013, section 2(1). It also provides in section 2(2) that

A person may not be compelled by any means (including by the enforcement of a contract or a statutory or other legal requirement)—

  1. (a)

    (a) to conduct a relevant marriage,

  2. (b)

    (b) to be present at, carry out, or otherwise participate in, a relevant marriage, or

  3. (c)

    (c) to consent to a relevant marriage being conducted,

where the reason for the person not doing that thing is that the relevant marriage concerns a same sex couple.

The protections in subsection (2) are also added to the Equality Act 2010. See Equality Act 2010, column 15, section 110, schedule 3.

72 See, for example, Uganda, Marriage Act 1904, column 251, sections 5, 22; Kenya, Marriage Act 1902, column 150, sections 7, 25. The relevance of these provisions depends also on the significance of customary law. In cases where the colonies were composed of emigrants seeking the religious freedom denied to them in England, it was never likely that they would adopt a law on registered places of worship intended to control dissenters.

73 See articles 148–60, 173–75, 182–86.

74 James Traer, Marriage and the Family in Eighteenth-Century France (New York: Cornell University Press, 1980).

75 In the commune where one of the parties, or one of his or her parents, is domiciled or has been resident for at least a month before giving notice of the marriage. Exceptions exist where there is a “serious impediment.” The Procureur de la République can give authorization for the marriage to take place at a party's domicile or residence.

76 In fact, it is a criminal offense habitually to solemnize a religious marriage ceremony before the civil marriage has taken place. Code Pénal, article 433–21.

77 Wardle, Lynn D., “Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions,” Journal of Law & Family Studies 12, no. 2 (2010): 315Google Scholar.

78 See, for example, the website of Hiddush, a nongovernmental organization that campaigns for religious freedom and equality in Israel, accessed February 27, 2014, http://hiddush.org/subchannel-15-0-Marriage.aspx.

79 Dalal Mawad, “Lebanon Civil Marriage Raises Hope for Change” Aljazeera, May 2, 2013, http://www.aljazeera.com/indepth/features/2013/04/20134309242619227.html.

80 But in some countries that officially recognize civil marriages, such marriages may not be available to members of a specified confession, or may be discouraged in practice as a result of cultural traditions.

81 The more complex reality is beyond the scope of this article. For an introduction to the position in Africa see, inter alia, Stibich, Robert, “Family Law in Some English-Speaking African States,” African Law Studies 2 (1969): 49Google Scholar; Kang'ara, Sylvia Wairimu, “Beyond Bed and Bread: Making the African State Through Marriage Law Reform—Constitutive and Transformative Influences of Anglo-American Legal Thought,” Hastings Race & Poverty Law Journal 9, no. 2 (2012): 353–96Google Scholar. In mass emigration destinations, including the United States, Canada, and Australia, the extermination or marginalization of indigenous populations has had the effect that the status of customary marriages provoked little debate until recent decades with the rise in respect for the rights of indigenous peoples. Customary marriages between members of recognized Native American tribes are certainly recognized in the United States. Montana v. United States, 450 U.S. 544, 564 (1980); see also U.S. v. Jarvison, 409 F.3d 1221, 1225 (10th Cir. 2005). The picture in Canada is less certain. See Morse, Bradford W., “Indian and Inuit Family Law and the Canadian Legal System,” American Indian Law Review 8 (1980): 199CrossRefGoogle Scholar. Aboriginal marriages are not recognized as such in Australia. See the Report of the Australian Law Reform Commission on the Recognition of Aboriginal Customary Laws (ALRC Report 31, Part 12). Recognition of common law marriages—or the protection afforded to cohabitants—nevertheless reduces the harshness of this stance in many cases.

82 See also Norman Doe, Law and Religion in Europe: A Comparative Introduction (Oxford: Oxford University Press, 2011), 216–22 (highlighting a third model whereby Roman Catholic marriages are recognized as having civil effect from the time of their ritual celebration, whereas marriages solemnized by ministers of other faith communities are regarded as civil marriages solemnized in a religious context, and are formed on subsequent civil registration).

83 See Zoila Combalía and María Roca, “Religion and the Secular State in Spain,” in Religion and the Secular State: Interim National Reports (Provo, UT: International Center for Law and Religion Studies, 2010), 632–34, 639–40. The reports are available from the International Center for Law and Religion Studies website: http://www.iclrs.org/index.php?blurb_id=975.

84 In Sweden, the Lutheran Church was the established church until 2000. See Maarit Jänterä-Jareborg, “National Report for Sweden,” in Religion and the Secular State: Interim Reports, 682–83.

85 In fact the Spanish parliament is considering proposals that would significantly liberalize the law on marriage and divorce by authorizing notaries and Secretarios judiciales (court officers with significant procedural powers) both to celebrate marriages and grant divorces in uncontested cases. These are to be found in legislation on non-contentious jurisdiction that has been passed by Congress and is pending before the Senate: see http://www.senado.es/legis10/publicaciones/pdf/senado/bocg/BOCG_D_10_518_3482.PDF.

86 Combalia and Roca, “Religion and the Secular State in Spain,” 632–34, 639–40. The arrangements under the agreements are different from those applying to the Catholic Church in that it is necessary to obtain a certificate of capacity from the civil authorities in advance of the marriage. Furthermore the agreements require the marriage to take place before the minister of religion in the presence of two witnesses, irrespective of whether the religious law in question has similar requirements.

87 Callejón, Pedro Luis García, “El Matrimonio Religioso No Católico Ante El Derecho Español,” Derecho y Opinión 1 (1993): 27Google Scholar. The arrangements under the agreements are different from those applying to the Catholic Church in that it is necessary to obtain a certificate of capacity from the civil authorities in advance of the marriage.

88 Act (1993:305) on the Right to Officiate Marriage within a Religious Community (Sweden).

89 Jänterä-Jareborg, “Religion and the Secular State in Sweden,” 682–83. She also notes that when same sex marriage was authorized in Sweden in 2009, it was considered that the various denominations should decide for themselves whether or not to offer such marriages. To impose a state requirement would interfere with freedom of religion. Indeed, the various religious denominations may impose other conditions on their willingness to solemnize marriages, such as a requirement that both parties to the marriage are members of that denomination.

90 Section 8 of the Marriage (Scotland) Act 1977 differentiates between prescribed religious bodies (see the Marriage (Prescription of Religious Bodies) Regulations 1977 SI 1977/1670), and those that are not prescribed. Per section 9 of the 1977 Act, however, in effect any religious body—defined in section 26(2) of the 1977 Act as “an organised group of people meeting regularly for common religious worship”—can nominate a celebrant. See further Joe Thomson, Family Law in Scotland (London: Bloomsbury Professional, 2011), 14.

91 Disparaging reference was made during the debates on the Marriage (Same Sex Couples) Act 2013 to marriages in Scotland by members of the White Eagle Lodge, pagans, and members of the National Union of Spiritualists.

92 Humanist celebrants could receive temporary authorization under section 12 of the 1977 Act.

93 Convention for the Protection of Human Rights and Fundamental Freedoms, art. 9, April 11, 1950, 213 U.N.T.S 222.

94 “Pair Tie Knot at Humanist Wedding,” BBC News, last modified June 18, 2005, http://news.bbc.co.uk/2/hi/uk_news/scotland/4102310.stm.

95 2014 Act, section 12.

96 Guidance provided on the National Records of Scotland website, on the question of whether it is possible for a family friend to solemnize a marriage, states,

If it is a religious marriage [which includes other belief systems] you are planning and your family friend is not already authorised to act as a celebrant, the Registrar General can grant a temporary authorisation for a particular marriage. A temporary authorisation can only be granted to someone who is affiliated to a religious or belief body and who is supported by office bearers of that body or other belief system to conduct a marriage ceremony on its behalf.

“We Would Like a Family Friend to Solemnise Our Marriage. Is This Possible?, National Records of Scotland, http://www.nrscotland.gov.uk/registration/getting-married-in-scotland/we-would-like-a-family-friend-to-solemnise-our-marriage.

97 Hannah Johnson and Heather Lyall, SPICe Briefing SB 13–51: Marriage and Civil Partnership (Scotland) Bill, November 25, 2013, 5, 19. The 2014 Act does not specify these qualifying requirements; rather, it stipulates that they may be set out in regulations made by the Scottish ministers. 2014 Act, section 12(b)(1E).”

98 Marriage and Civil Partnership Act 2014 (Scotland), The Qualifying Requirements: An Initial Paper (July 2014), http://www.gov.scot/Resource/0045/00459045.pdf.

99 See further below at text between notes 141 and 168.

100 Jurisdiction to regulate marriage is allocated to the Federation in Australia, but exists at state and provincial level in the United States and Canada.

101 Often of specified courts.

102 California Family Code, § 401 (a)–(b) (West 2004); Massachusetts General Laws, chapter 207, § 39 (West 2014).

103 Colorado Revised Statutes § 14-2-109(1) provides that “a marriage may be solemnized … by the parties to the marriage,” but the informal approach to marriage accepted in Colorado is also demonstrated by the fact that it recognizes common law marriage where the parties cohabit, mutually agree to be married, and openly hold themselves out to the public as married. People v. Lucero, 747 P.2d 660, 663 (Colo. 1987).

104 367 U.S. 488, 495 n. 11 (1961). Key US Supreme Court decisions contributing to the jurisprudence on the meaning of religion include United States v. Seeger, 380 U.S. 163 (1965), and Welsh v. United States, 398 U.S. 333 (1970). The concurring opinion of Circuit Judge Adams in Malnak v. Yogi, 592 F.2d 197, 200–15 (3d Cir. 1979), has also been influential and was critiqued by the Supreme Court of the United Kingdom in R (Hodkin) v. Registrar General for Births, Deaths and Marriages, (2013) UKSC 77.

105 See, for example, Amanda Greene, “Humanists Find Ways to Say ‘I Do’ without God,” Religion News Service, May 17, 2013, http://www.religionnews.com/2013/05/17/humanists-find-ways-to-say-i-do-without-god/. A narrow view of the concept of minister of a religious denomination was taken in Washington, DC, but the law has recently been changed to allow civil celebrants to officiate. Washington, DC, Marriage Officiant Amendment Act of 2013 (August 6, 2013).

106 For details, see Rains, Robert E., “Marriage in the Time of Internet Ministers: I Now Pronounce You Married, but Who Am I to Do So?” University of Miami Law Review 64, no. 3 (2010): 809Google Scholar, 814. In November 2012, a federal judge in Indiana refused a request by the atheist Center for Inquiry for expansion of the category of persons authorized to solemnize marriages, stating that a variety of avenues existed that permitted secular celebrants to play a role in marriage ceremonies, including ordination as a member of the Universal Life Church. See David Edwards, “Federal Judge Rules Atheists Must Become ‘Clergy’ to Perform Marriages,” The Raw Story, December 3, 2012, http://www.rawstory.com/rs/2012/12/03/federal-judge-rules-atheists-must-become-clergy-to-perform-marriages/.

107 202 S.E.2d 911, 914 (Va. 1974), cited in Rains, “Marriage in the Time of Internet Ministers,” 821.

108 Ponorovskaya v. Stecklow, 2014 NY Slip Op. 24140 (N.Y. Sup. Ct. 2014). Justice Cooper comments on the conflict between different departments of the New York Appellate Division on the question of validity of marriages performed by Universal Life Church celebrants, see Ranieri v. Ranieri, 539 N.Y.S.2d 382 (N.Y. App. Div. 1989), adopting the reasoning in Ravenal v. Ravenal, 338 N.Y.S.2d 324 (N.Y. Sup. Ct. 1972) and Oswald v. Oswald, 936 N.Y.S.2d 762 (N.Y. App. Div. 2013), but is able to decide the case on a point of private international law.

109 British Columbia Humanist Association, Press Release, Humanist Marriage Officiant Program Rejected by BC Government, February 20, 2013, http://bchumanist.ca/attachments/article/100/Press%20Release%20-%20Officiant%20Rejection.pdf.

110 See Ministry of Justice for Quebec, “Who Can Solemnize a Marriage or Civil Union,” last modified November 13, 2009, http://www.justice.gouv.qc.ca/english/publications/generale/celebrant-a.htm. The relevant provisions on marriage officiants are found in article 366 of the Quebec Civil Code and in the Rules respecting the solemnization of marriages and civil unions.

111 As amended by the Marriage Amendment Act 2010.

112 The particular religions are specified in schedule 1 to the 1955 Act.

113 For further details on Australian marriage law see, e.g., John Neville Turner, “Australia,” in International Encyclopaedia of Laws: Family and Succession, ed. Walter Pintens (The Hague: Kluwer Law International, 1997), 24 (“In Australia, it is ridiculously easy to get married—there are virtually no formalities, and such as exist are regarded as directory, not mandatory. A marriage may be celebrated in any place and at any time.”).

114 Section 39C of the Marriage Act 1961 deals with entitlement to be registered as a marriage celebrant and establishes a list of criteria.

115 These concerns can be seen in responses to a consultation by the Attorney-General's Department. Attorney-General's Department, Changes to the Marriage Celebrant's Program, last accessed February 28, 2014, http://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/ChangestotheMarriageCelebrantsProgram.aspx. See also, David Humphries, “I Do, I Do … but Unfortunately Some Marriage Celebrants Don't,” Sydney Morning Herald, December 10, 2011, http://www.smh.com.au/lifestyle/weddings/i-do-i-do-8230-but-unfortunately-some-marriage-celebrants-dont-20111209-1onnm.html.

116 See further Attorney-General's Department, Changes to the Marriage Celebrant's Program, last accessed February 28, 2014, http://www.ag.gov.au/FamiliesAndMarriage/Marriage/Pages/ChangestotheMarriageCelebrantsProgram.aspx.

117 A Certificate IV in Celebrancy is now required, which involves a thirteen-unit certificate with five core and eight elective modules. One of the major providers of this qualification offers it across seven two-day training sessions, with assessments in between. See the AssentTECS website at http://www.assenttecs.com.au/page/Training_Delivery/Cert_IV_in_Celebrancy. Five hours of ongoing professional development training is also required each year.

118 See the Explanatory Memorandum to the Marriage Amendment (Celebrant Administration and Fees) Bill 2014. These services include “assessing and authorizing new marriage celebrants for registration, reviewing celebrant performance, resolving complaints about celebrants, handling a large volume of enquiries from celebrants, producing information and guidance materials, managing ongoing professional development arrangements for celebrants, and engaging with celebrants and their peak group [the Coalition of Celebrant Associations].” When the Marriage Celebrants Program was launched in 1973 less than 2 percent of couples chose a civil ceremony. Now over 70 percent of marriage ceremonies in Australia are civil ones, and there are about 10,500 commonwealth-registered marriage celebrants administered by the program.

119 These have been introduced by the Marriage (Celebrant Registration Charge) Act 2014 and the Marriage Amendment (Celebrant Administration and Fees) Act 2014 respectively.

120 The speech of Lord Wilson in R. (Hodkin and another) v. Registrar General of Births, Deaths and Marriages explains how a requirement that was originally discriminatory in fact became a “source of valuable privileges” as it became associated with various tax exemptions. See note 1.

121 Most recently apparent in the debates on the Marriage (Same Sex Couples) Act 2013.

122 Until recently that proposal had been resisted successfully by the church, see Cretney, Family Law in the Twentieth Century, 9ff., but a breach has been made in the control of the church over those preliminaries by the Immigration Act 2014. As a result of concerns over sham marriages, section 57 of the 2014 Act has strictly limited the possibility of marriage after the publication of banns in cases where “one or both of the persons whose marriage is to be solemnized is not a relevant national” (that is, British, European Economic Area, or Swiss nationals). Instead the civil preliminaries will be required in such cases.

123 Report of the Joint Working Party of the Law Commission and the Registrar General, Law Commission, Solemnisation of Marriage in England and Wales (Law Com No. 53, 1973), annex paragraph 72 (available at the National Archives, Kew).

124 For: Simon Hughes (May 21, 2013, Parliamentary Debate, House of Commons (2013), 1104); against: Baroness Brinton (June 19, 2013, Parliamentary Debate, House of Lords (2013), 299).

125 See the reference to the presence of “at least one person qualified to supervise the solemnisation of the marriage and see that it is duly registered.” Law Commission, Solemnisation of Marriage, para. 22.

126 Ibid., 7.

127 “Civil Registration: Modernising a Vital Service” (treasury consultation paper, 1999).

128 Office for National Statistics, Civil Registration: Vital Change: Birth, Marriage and Death Registration in the 21st Century (Norwich, UK: The Stationary Office Limited, 2002).

129 See in particular, General Register Office, “Civil Registration: Delivering Vital Change” (regulatory reform order consultation document, 2003).

130 House of Commons, Regulatory Reform Committee, Proposal for the Regulatory Reform (Registration of Births and Deaths) (England and Wales) Order 2004 (London: The Stationery Office Limited, 2004), 118; House of Lords, Delegated Powers and Regulatory Reform Committee, “Minutes of Evidence Taken on the Proposal for the Draft Regulatory Reform (Registration of Births and Deaths) (England and Wales) Order 2004,” (November 10, 2004), 14, http://www.publications.parliament.uk/pa/ld200304/ldselect/lddelreg/999/del1011.pdf.

131 Digitization of civil registration records with the ultimate objective of providing online access to such records proceeded under existing legislation. The project was paused in September 2010 and there are currently no plans to continue it: see https://www.gov.uk/government/publications/digitisation-of-vital-events-project-costs/expenditure-on-the-digitisation-of-vital-events-project-of-civil-registration-records, last accessed May 29, 2015.

132 Marriage (Approved Organisations) Bill, 2012–2013, House of Lords Bill [17].

133 See Marriage (Same Sex Couples) Bill, 2013, House of Commons Bill [30] columns 468–77 (England & Wales). Although it was recognized that humanists could have the wedding ceremony of their choice following a civil marriage, the argument for changing the law was based on the fact that religious organizations could solemnize marriages without the disruption of two separate ceremonies, and on the increasing popularity of humanist ceremonies.

134 To be approved by the registrar general.

135 21 May 2013, Parliamentary Debate, House of Commons (2013), columns 1071–122. The position of Quakers and Jews was justified as antedating the 1998 Human Rights Act.

136 Ministry of Justice, Marriages by Non-Religious Belief Organisations: Summary of Written Responses to the Consultation and Government Response (2014).

137 Ibid., 3, 8–9.

138 Ibid., 4.

139 Andrew J. Cherlin, The Marriage-Go-Round: The State of Marriage and the Family in America Today (New York: Vintage Books, 2010), chapter 5.

140 Ibid., 139–40.

141 Rains, “Marriage in a Time of Internet Ministers,” 840–41; see also Cretney, Family Law in the Twentieth Century, 9 (“The 1836 Act was based on a very clear analysis of the respective interests of church and state in marriage. The state had a proper interest in preventing clandestine marriages and in being able to determine whether or not a person was married, with all the legal consequences which followed from that status; and the state was therefore entitled to insist on a universal and efficient system for the registration of marriages. But so far as the actual celebration of the marriage, the State's concern was limited to ensuring that the ceremony be recognised by both parties as binding.”).

142 See above at text between notes 97 and 99, and notes 106 and 119.

143 For a definition of the concept see the Immigration and Asylum Act 1999, section 24(5).

144 Europol Early Warning Notification 2014/8.

145 As a result of several egregious examples of clergymen solemnizing multiple sham marriages, in 2011, the Church of England House of Bishops issued new guidance on the marriage of persons from outside the European Economic Area, recommending that such a marriage should not be preceded by banns but rather a common license should be obtained, and that more stringent procedures and checks should be implemented. This initiative has now been replaced by the provisions in the Immigration Act 2014.

146 Section 19 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, together with the Immigration (Procedure for Marriage) Regulations 2005 (SI 2005/15) and the Immigration Directorate's Instructions.

147 Couples getting married in accordance with the rites of the Church of England were not required to comply with the Certificate of Approval scheme.

148 See, for the House of Lords ruling, R. (on the application of Baiai and others) v Secretary of State for the Home Department, [2007] EWCA (Civ) 478, [2008] H.L 53 (U.K.).

149 O'Donoghue and Others v UK, No 34848/07 ECHR (2010).

150 Ibid., paragraph 83.

151 That is, a British citizen, other European Economic Area national, or Swiss national. See the Immigration and Asylum Act 1999, section 24(6).

152 See especially sections 48–50 of the Immigration Act 2014 and section 28H and schedule 3A to the Marriage Act 1949. To avoid a reference, parties who are not European Economic Area or Swiss nationals will have to prove that they have (a) settled status in the United Kingdom (indefinite leave to enter or remain), (b) an EU-law right of permanent residence in the United Kingdom, (c) a marriage or civil partnership visa, or (d) exemption from immigration control (for example, with the right of abode in the United Kingdom).

153 Clark, Brigitte and Richards, Claudina, “The Prevention and Prohibition of Forced Marriages—A Comparative Approach,” International and Comparative Law Quarterly 57, no. 3 (2008): 501–28CrossRefGoogle Scholar.

154 Code Civil, article 63.2. Considerable discretion can be used in deciding when an interview is necessary. An amendment to the law in 2006 now requires that if one of the couple is a minor, the interview must take place without their parents, legal representative, or future spouse. Failure to comply with these rules can render a civil status officer subject to a fine.

155 SWD (2014) 284 final (September 26, 2014).

156 Ibid., 41.

157 Ibid., 42.

158 See further below at text between notes 161 and 166.

159 See above note 129, paragraphs 3.1.5, 3.4.28, 3.4.34–35, 10.4.8ff; cf. the Australian experience, noted above at text between notes 113 and 119.

160 See, for example, May 21, 2013, Parliamentary Debate, House of Commons (2013) 1114–16.

161 See the Church of the Flying Spaghetti Monster website, accessed February 23, 2014, http://www.venganza.org/.

162 Ministry of Justice, Marriages by Non-Religious Belief Organizations, paragraph 17 (emphasis added).

163 See above at note 98.

164 At para.6. The other objectives are the prevention of sham and forced marriages.

165 At para.15.

166 This benefit was also noted by the Law Commission Working Party in 1973: “It helps to avoid clandestine and irregular marriages by ensuring that weddings take place in buildings which are known to, and recognized in, the community as places where marriages can lawfully take place, and which are under the control of responsible bodies who will see that the requirements of the law are observed.” Law Commission, Solemnisation of Marriage, annex, paragraph 74.

167 John Eekelaar, “Marriage: A Modest Proposal,” Family Law (January 2013): 83.

168 Weddings contribute about £30 million per annum to the income of the Church of England: a small but significant proportion of its overall income, http://www.churchofengland.org/about-us/funding.aspx.

169 June 19, 2013, Parliamentary Debate, House of Lords (2013), column 272.

170 As explained above at notes 117–119 and accompanying text, Australia has recently introduced cost recovery measures through the fees imposed at the stages of application for a license and renewal or registration.

171 Marriage (Same Sex Act), 2013, 27ff.

172 See for example the comments of Baroness Berridge. July 8, 2013, Parliamentary Debate, House of Lords (2013) 101.

173 John Milbank, “The Impossibility of Gay Marriage and the Threat of Biopolitical Control,” ABC Religion and Ethics, April 23, 2013, http://www.abc.net.au/religion/articles/2013/04/23/3743531.htm. Financial incentives as well as tradition weigh against a rapid acceptance of this idea (see above at footnote 168). There might also still be some question under equality legislation of when services were provided to the public, and when they were private.

174 Ephraim Radner and Christopher Seitz, “The Marriage Pledge,” First Things, http://www.firstthings.com/marriage-pledge.

175 In the United States there is also a significant literature on the privatization of marriage, which is completely absent in the United Kingdom.

176 “A Response to the Government Equalities Office Consultation—‘Equal Civil Marriage’—from the Church of England,” The Church of England, last modified June 12, 2012 (hereafter Equal Civil Marriage), https://www.churchofengland.org/media-centre/news/2012/06/a-response-to-the-government-equalities-office-consultation-%E2%80%9Cequal-civil-marriage%E2%80%9D-.aspx. For a Catholic perspective, see Edward Peters, “Distinguish Civil Marriage from Sacramental? Of Course. Divide Them? No!,” In the Light of the Law: A Canon Lawyer's Blog, November 25, 2014, https://canonlawblog.wordpress.com/2014/11/25/distinguish-civil-marriage-from-sacramental-of-course-divide-them-no/, and Edward Peters, “I Guess One in Three Americans Don’t Know a Good Thing When They See It,” In the Light of the Law: A Canon Lawyer’s Blog, December 4, 2014, https://canonlawblog.wordpress.com/2014/12/04/i-guess-one-in-three-americans-dont-know-a-good-thing-when-they-see-it/. But compare John Milbank's distinction between marriage and civil union (above at footnote 173).

177 David Pocklington, “The Marriage Pledge—It's Relevance in Europe,” Law and Religion UK (blog), November 24, 2014, http://www.lawandreligionuk.com/2014/11/24/the-marriage-pledge-its-relevance-in-europe/.

178 Subject to certain statutory conscience clauses and the rules on same sex marriage introduced by the 2013 Act. See further Equal Civil Marriage, 7.

179 Edward Peters, in “The Church and Civil Marriage,” First Things, April 2014, http://www.firstthings.com/article/2014/04/the-church-and-civil-marriage.

180 John Eekelaar, “Marriage: A Modest Proposal,” Family Law (January 2013): 83–85.

181 There is no space here to discuss how far such an approach, with its clearer message, might also help to resolve problems arising from the large numbers of unregistered Muslim marriages in the United Kingdom.

182 This is also similar to the approach adopted in jurisdictions where a temporary celebrant can be authorised, since no particular qualifications or training are required in this situation.

183 One could argue for a state interest in combining solemnization and registration functions.

184 Traditionally the best man takes responsibility for returning the schedule, although legally it is the responsibility of the couple: see Civil Registration: Delivering Vital Change, paragraph 3.4.106ff.

185 No statistics relating to such marriages are available, but a range of newspaper reports and polls suggest a steep climb in the numbers during the last ten years. They are thought to account for approximately 20–25 percent of all marriages.

186 See above at text between notes number 142 and 158.