INTRODUCTION
The background to the passing of the Immigration Act is generally well known and it is recognised that the present Government has had concerns – either of its own or pressed upon it – about levels of immigration in this country. It is clear that all political parties are under some pressure to respond to public concerns over this area, which will clearly be one of the major issues in the campaigns leading up to the forthcoming general election.
The Government has expressed its concerns on a number of occasions in recent years about the incidences of sham marriages – that is to say, marriages contracted purely in order to obtain some supposed advantage in an application or applications for leave to remain in the United Kingdom – and these concerns have extended to the Church of England. We might note at this point that the definition of a sham marriage now appears in section 55 of the new Act. Prior to that, it had been noted by Lord Bingham in the House of Lords in the Baiai case in 2008Footnote 2 that it would be difficult to improve on the definition contained in Article 1 of the EC Council Resolution of 4 December 1997:
a marriage concluded between a national of a Member State or a third-country national legally resident in a Member State and a third-country national, with the sole aim of circumventing the rules on entry and residence of third-country nationals and obtaining for the third-country national a residence permit or authority to reside in a Member State.
I shall revert to this topic a little later but suffice it to say at this stage that – except for the well-publicised cases of a very small minority of clergy who appear to have abused their position as registrars of marriage in conducting marriages that were clearly sham – these incidences are very rare indeed and, taken as a proportion of the number of annual marriages conducted in the Church of England, the number has been statistically minute. In the light of this, it is not entirely surprising, however, that the Government decided that any new scheme to combat sham marriages should include the Church of England within its remit. The House of Lords had made a declaration of incompatibility regarding the now discontinued Certificates of Approval scheme, on the basis of discrimination between civil and Anglican marriage preliminaries. All non-Anglican religious ceremonies took place pursuant to civil preliminaries, and so fell within the Certificates of Approval scheme; Anglican marriage preliminaries were exempted. The legal challenge through the domestic courts was based on an interplay of Articles 9, 12 and 14 of the European Convention, relating respectively to the freedom to manifest religion, to the right to marry and to the prohibition of discrimination.
THE IMMIGRATION ACT 2014
Turning now to the Immigration Act itself, the provisions relating to marriages in the Church of England are contained in sections 57 and 58 and Schedule 4 of the Act. In outline, these provide that, from the implementation date (2 March 2015), a person or persons who are not ‘relevant nationals' may only marry pursuant to the issue of a superintendent registrar's certificate and may no longer be married by ecclesiastical preliminary, with the exception of the Archbishop of Canterbury's special licences, to which I shall return later. A ‘relevant national’ is defined as a British Citizen, a national of an European Economic Area (EEA) state other than the United Kingdom or a national of Switzerland. From the implementation date it will no longer be lawful for the marriage of a person who is not a relevant national to be solemnised after the publication of banns or on the authority of a common licence. In such cases the couple concerned, after having resided in England and Wales for a minimum of seven days, must give notice together in person at a designated register office (and there are at present a limited number of these – 70 or so), unless each of the parties who is a non-EEA national is exempt from immigration control, in which case notice must be given at the parties' local register office. If they inadvertently arrive at the wrong register office to give notice, they will be sent away to attend the correct one. There is a 28-day waiting period following the giving of the notice and this period may be extended for up to 70 days where the Home Office has reasonable grounds to suspect that a proposed marriage is a sham. The Registrar General and the Secretary of State have powers to reduce the notice period where they are satisfied there are compelling reasons to do so but it is my understanding that these exceptions will be rare.
Schedule 4 of the Act provides for regulations to be made as to the evidence that parties will need to submit in support of their application; however, the regulations have yet to be published, far less made, and we are not likely to see these until sometime in February, which will be less than one month before the provisions come into force. I do not propose to go into any further detail about the new provisions and would refer people to the guidance note issued by the Legal Office on 17 December 2014, which sets out succinctly the requirements which the clergy and others will have to follow from 2 March. However, I would just comment at this point that special licences from the Faculty Office will still be available for couples who are not relevant nationals but only in circumstances where no other preliminary is available: that is to say, in cases where the building itself (usually a private chapel) is not registered for marriages or where neither party to the marriage has a legal qualification for that building either under the Marriage Act 1949 or under the Marriage Measure 2008. The Faculty Office will shortly be issuing further guidance on this and also a further supplement to the Marriage Guide for Clergy ubiquitously known as the ‘yellow book’.
HISTORICAL BACKGROUND
I believe this is a significant moment as it is the first time that any category of marriage solemnised in the Church of England is now required to be conducted following a civil preliminary rather than an ecclesiastical one issued under the control of an official of the Church, whether ordained or legal. This is not the place – you will be glad to hear – for a lengthy discourse on the history of the development of the understanding of marriage both within the Church and outside it. In any event, this area has been covered more than adequately by others, not least Professor Richard Helmholz, a distinguished member of this Society. As church historians know well, the distinction between the law of the church and the law of the land was not one known to our forebears; such a distinction is a purely modern construct. In relation to marriage, Phillimore in the second edition of his Ecclesiastical Law of 1895 states: ‘the Christian law did not affect the civil status and relations of marriage but superadded to it a religious character and proclaimed it to be an ordinance of God’. Helmholz, in Marriage Litigation in Medieval England, reminds us that ‘There was never an English law of marriage apart from that administered by the Church courts.’Footnote 3
In mediaeval times marriage was, of course, necessarily a church affair, save for instances of so-called common-law marriages, which were only finally outlawed by the provisions of the Marriage Act 1753. That Act, commonly known as ‘Hardwicke's Act’, made provision for the marriages of Jews and Quakers to be solemnised within their own communities and to be duly registered. With those exceptions, marriage remained an exclusively Church of England affair and, indeed, the Marriage Act of 1697 was effectively a penal law discouraging interfaith marriages (which meant in effect marriages involving a Roman Catholic party). The report Social Cohesion and Civil Law: marriage, divorce and religious courts states that ‘at common law the basic validity of a marriage was satisfied by simply conformity with canon law rules, and the common law itself ceded control over marriage status, entry and exit, to the ecclesiastical courts'.Footnote 4 By way of comparison, the Roman Catholic Church continues to regard marriage as both a contract (or covenant) and a sacrament and Canon 1058 of the Code of Canon Law of 1983 makes clear that the marriage of Catholics is governed not only by divine law but also by canon law, ‘without prejudice to the competence of civil authority concerning the merely civil effects of the same marriage’.
We know that banns had become the normal preliminary to a church wedding as far back as the twelfth century and they were certainly in use at least by the time of the Lateran Council of 1215, when their use was made mandatory. Marriage licences were apparently introduced in the fourteenth century and were – and of course are – a dispensation from the requirement to read the banns, either in total or to reduce the callings from three to two or one or indeed not at all. One might note in passing that there was always a fee involved, even in the earliest times. It seems that little or no change was brought about by the Reformation in terms of marriage preliminaries and it is clear from the various versions of the Book of Common Prayer that banns were required to be called unless a licence had been obtained.
Professor Helmholz, in Roman Canon Law in Reformation England, notes that ‘the history of the law of marriage … during the Reformation era combines essential continuity with real change’.Footnote 5 The Commonwealth period must, however, have brought some disruption as it was necessary to pass the Marriage Duty Acts 1694 and 1695, which made the calling of banns mandatory. There was little serious attempt to reform or codify the law of marriage until Hardwicke's Act, which was primarily an attempt to deal with clandestine marriages taking place without notice or registration. In particular, it was designed to bring to an end marriages carried out often in the Fleet Prison by libidinous clergy (probably in return for a substantial donation to their gin funds) in the middle of the night where the parties could not in fact see each other and nor could the witnesses, if indeed there were any. It appears that the Fleet Prison was not the only flag of convenience, the Savoy Chapel being another. Shortly after the 1753 Act came into force, the minister of the Savoy Chapel was convicted of offences under the new Act and sentenced to transportation. However, he apparently succumbed to a fatal attack of gout on board ship, which perhaps suggests that he, too, took his fees in spirituous liquors.
The next significant piece of legislation is the Marriage Act 1836, although I should mention in passing the Royal Marriages Act 1772. Royal marriages were not subject to the restrictions imposed by Hardwicke's Act, and the 1772 Act applies to the descendants of George II. One suspects that the Act was primarily intended at the time to curtail the somewhat irregular habits and relationships enjoyed by some of George III's children more generally, as well as to prevent them marrying Roman Catholics. Briefly the Act requires that persons subject to the Act cannot marry without the consent of the sovereign, which must be given under the Great Seal and declared in Council.
The Marriage Act 1836 was the most significant piece of legislation since Hardwicke's Act and this confirmed that Jewish and Quaker marriages would be good in law but only if properly registered. Equally importantly, it provided for marriages conducted by Roman Catholic and nonconformist clergy to be recognised in law and to be duly registered. The Act also introduced, for the first time, the concept of civil marriage before a superintendent registrar and in a building authorised for that purpose. The Marriage Act 1949 is the modern successor to that legislation, albeit subject to a series of amendments from the 1980s through to the present day, including the Immigration Act 2014. The 1949 Act expanded and developed the law established under the 1836 Act but did not materially alter it.
One might note at this point the position of the part of the Act dealing with Church of England marriages. This is Part II of the Act and places Anglican marriage before civil marriage. This is, I believe, neither an administrative convenience nor a mere accident. On the contrary, it reinforces the view that Church of England (and Church in Wales) marriage remained in the eyes of the law the norm for the citizens of England and Wales. It might also be noted in this context that Anglican marriage pursuant to superintendent registrar's certificate is mentioned only after the provisions for marriage after banns and common licence.
MARRIAGE LICENCES
I noted earlier that marriage licences were an exercise of episcopal or archiepiscopal dispensation. That remains true. However, it now becomes clear that, despite the long history of the granting of such licences, common licences are now regulated by statute, and section 16 of the 1949 Marriage Act sets out in precise terms the conditions under which they may be granted. Common licences thus became a creature of statute.
The Archbishop of Canterbury's special licences are markedly different. The various marriage enactments make only passing reference to special licences, usually by way of saving provisions. Those provisions make clear that nothing in the enactment concerned affects the right of the Archbishop of Canterbury to grant a special licence. This has meant, in effect, that the archbishop's jurisdiction and discretion is absolute and is both unfettered and, effectively, unregulated. I pause there to note that, lest you might think the Faculty Office routinely acts inconsistently, incoherently or even quixotically, I should reassure you that the registrars act only in accordance with instructions set out in a fiat issued and updated regularly by successive archbishops.
CIVIL PRELIMINARIES
Returning to the issue of Church of England marriages pursuant to civil preliminary, we have seen that Anglican marriages carried out under the authority of a superintendent registrar's certificate had become an option (albeit, for reasons mentioned earlier, not necessarily the preferred option) in 1836 and that has remained the statutory position since. However, it should be noted that no member of the clergy can be compelled to perform a marriage on the authority of a superintendent registrar's certificate and section 17 of the Marriage Act 1949 provides that the minister responsible for the church concerned must give his or her consent. I mention in passing that it is clear, from the figures issued from the Office for National Statistics from time to time, that the use of civil preliminaries for Anglican marriages has much reduced in recent years. This is almost certainly due to the change in the regulations concerning the re-marriage of divorced persons in church following the rescission of the Convocation Regulations 1957 and the adoption of the Advice to the Clergy issued by the House of Bishops in November 2002. This has provided a codified procedure for dealing with applications for second marriages in church, replacing the previous blanket ban on such marriages, which has meant that couples and clergy are less reluctant to read the banns publicly announcing the forthcoming second marriage.
The notion of using civil preliminaries for marriages in the Church of England is not, of course, a novel one and was considered at some length in the various General Synod working parties on marriage reform which met between 1999 and 2007. The issue had been initiated in General Synod by a private members' motion proposed by an incumbent in the Guildford Diocese requesting the abolition of banns. He felt strongly that spending some time at the end of the Sunday morning service reading banns for large numbers of people who neither he nor his congregation knew (he was incumbent of a large and populous commuter-belt parish in north-east Surrey) was not conducive either to the good order of public worship or indeed to his pastoral role. His proposal garnered some support and it was agreed to set up a working party to look at this proposal. However, it was quickly decided to widen the remit of the working party to look not just at the mechanics of the preliminaries to marriage but also at the extension of the rights to marry in Church of England churches.
THE MARRIAGE MEASURE 2008
It is somewhat ironic that the second objective was finally achieved in the Marriage Measure 2008 but we are still left with the banns. The first working group was chaired by the then Bishop of St Edmundsbury and Ipswich, the Rt Revd Nigel Stock, and Peter Beesley and I sat on the working party as assessors for the Archbishop of Canterbury. Among the many proposals considered was the adoption of civil preliminaries for Anglican marriages, either by passing all responsibility for giving of notice and issuing of the preliminary to the couple and the superintendent registrar or, in an adapted form, by a collaborative procedure involving both the priest and the civil registrar. While both models had their supporters, it became clear that General Synod was not prepared to wholeheartedly support these and preferred that the Church of England should continue with the ‘one-stop shop’ system (strongly espoused by the Bishop of London from the floor of Synod), so that in the great majority of cases the priest who was to solemnise the marriage retained control over the issue of the preliminary.
The principal achievement of the 2008 Marriage Measure was to considerably extend the rights of people with long-standing family and other links to parishes to be able to marry in those parishes, following the calling of banns and without the need for special licence, if they hold one of the eight qualifying connections set out in section 1 of the Measure. The application of those qualifying connections has subsequently been clarified and extended by the Marriage Amendment Measure 2012.
None of this, of course, altered the basic system of ecclesiastical preliminaries for marriage in the Church of England and, indeed, there are in fact more marriages taking place by banns in the Church of England now than has been the case, one suspects, for many years.
THE IMMIGRATION ACT 2014
We must return to where we began, with the Immigration Act and the Government's apparent desire to curb the incidence of sham marriages – including, it seems, in the Church of England. I mentioned earlier the few – and I stress very few – cases that have reached the courts involving clergy who have knowingly involved themselves in sham marriages for motives that have not always become clear. It is, however, my earnest belief that these few rogues are not representative of the clergy of the Church of England or Church in Wales and that the vast majority of the clergy treat their duties as registrars of marriages equally seriously with their sacramental and pastoral duties. This has become strongly apparent in the many training sessions my colleagues and I have led in various parts of the country. The clergy want to get it right, whether or not they necessarily agree with the rationale or minutiae of the legal requirements. Be that as it may, as they say, ‘we are where we are’.
At this stage we can only guess at the fallout from the new provisions and in particular the impact they will have on couples seeking to plan their weddings where one (or both) of them is not a ‘relevant national’. For those resident overseas, it is likely that they will be required to travel to the United Kingdom at least twice, possibly three times, before their weddings in order to give notice, co-operate with any investigation carried out by the Home Office and attend any required interviews. One might speculate on the implied threat to couples' legal rights under both the Human Rights Act and the Church of England Marriage Measure. The government may not have even fully appreciated that couples residing overseas still have legal rights under the Measure to marry in a parish church to which either of them has a ‘qualifying connection’.
These requirements, I would suggest, are going to cause considerable hardship to many couples, especially those on limited incomes or those with limited holiday entitlements. There will have to be careful and thorough training offered to the clergy on the new requirements and the need to check nationalities carefully in every single case. On the positive side, the more difficult cases involving an application for a common licence will largely disappear, no doubt to the relief of many of the surrogates and indeed the diocesan registrars also. However, there will clearly be much time expended in the next few months, especially in the diocesan registries, explaining the new requirements both to clergy and to couples planning their weddings.
Whether this will prevent any future incidence of sham marriages in the Church of England is impossible at this stage to calculate. It seems to me to be an oversized sledgehammer to crack a possibly non-existent nut. This is particularly the case following the House of Bishops' Directions of April 2011, which had set in place a rigorous system for requiring common licences to be applied for in the case of all non-EEA nationals, for the conducting of interviews with the couples concerned in order to establish and verify the genuineness of the relationship and the proposed marriage, and for the sharing of documentary evidence with the Home Office as appropriate. In our experience in the five diocesan registries with which I am involved, this system, while being somewhat arduous, cumbersome and certainly expensive, has nonetheless worked well, based as it is upon careful and detailed consultation with the priest who is to solemnise the marriage. One wonders if the civil registration service or the Home Office will have the resources, or indeed the willingness, to conduct such consultations under the future arrangements.
This development raises, for me, some significant issues concerning the relationship, especially in terms of law, between the Church and the State. The arguments over the establishment of the Church of England and its relationship to the State and Parliament are nothing new and go back at least to Keble's Assize Sermon of 1833, occasioned by the then government's proposals to reform a number of the Irish bishoprics. That piece of ecclesiastical reform would no doubt be seen, in modern times, as desirable and sensible but at the time was seen by many in the Church as unwarranted interference in the Church's internal affairs. Keble and his followers saw the government's proposals as gross Erastianism and of course that sermon, delivered in the university church in Oxford, was subsequently seen as the start of what became known as the Oxford Movement, a call to the Church not only to a renewed quest for holiness but also a demand that the laws of the Church be made by members of that church and not by an increasingly non-Anglican Parliament. The issue of course arose again in the 1920s over the proposed revision to the Prayer Book, which ended in the refusal of Parliament to endorse the agreed amendments to the Book of Common Prayer in 1928. The highly unsatisfactory result was that the new book was nonetheless tacitly accepted by many of the bishops and positively encouraged by some, even if not authorised by Parliament.
In more recent times we have seen the Church's serious concerns surrounding a number of issues – civil partnerships and same-sex marriage being the most obvious ones – being set aside under the onslaught of successive governments seeking to claim the middle ground in British politics and society and thereby adopting a ruthlessly liberal agenda. There are a number of other recent instances where either the Church's voice has not been heard or, dare I suggest, has been so faltering as to be inaudible.
CONCLUSION
I am, I confess, one of those who view the regular, predictable and, frankly, tiresome calls for the disestablishment of the Church of England to be, like the reports of Mark Twain's death, greatly exaggerated. That said, one could be forgiven for becoming increasingly concerned at the instances of a growing mismatch between the traditional beliefs and teachings of the Church and the current cultural mores of the society in which the Church must exist. In his speech to members of this learned Society on 29 May 2012 the then archbishop of Canterbury, Lord Williams of Oystermouth, referred to the complicated debates we are now enmeshed in – about law, ethics and society – and argued that the Church needed to do some hard thinking and some quarrying of its own traditions. He noted that these are tangled questions and he hoped that the lawyers serving the Church would have the opportunity to bring their skill to a sensible conversation on these issues.
Sadly this was not to be. While the present archbishop made it clear in his statement of 28 March 2014 that the Church of England had accepted the position in law as set out in the Marriage (Same Sex Couples) Act 2013, we now have a clear instance of a very basic mismatch between the beliefs of society and the teachings of the Church, clearly set out in Canon B 30, that ‘the Church of England affirms according to Our Lord's teaching that marriage is in its nature a union permanent and lifelong of one man with one woman’. Another recent example of the mismatch between the law of the Church and the law of the State in the area of marriage, albeit perhaps in a minor way, was the amendment to the law on the timing of marriage ceremonies by the repeal of section 4 of the Marriage Act 1949 by section 114 of the Protection of Freedoms Act 2012, which now permits the solemnisation of marriage at any time. However, the law of the Church of England as contained in Canon B 35 continues to require marriage to take place between 8 am and 6 pm. The particularly disappointing aspect of this change was that it took place after little or no consultation with the Church of England.
As I have said, I am no fan personally of any move to separate the Church of England from its position within the establishment and constitution of this country. Nonetheless, it seems to me that we face a growing tension. On the one hand we have the missiological imperative of the gospel to assert the Church's responsibility to show that its approach to difficult moral and social issues may be different from that taken by the rest of society. On the other hand, that must exist in tension with the requirement to minister to people and society in the places and in the circumstances in which they are. To that extent we still face the challenge that Keble attempted to address in 1833. At the conclusion of his preface to the first edition of the printed version of the Assize Sermon, entitled ‘National Apostasy’, he feared that it would one day be said ‘there was once here a glorious Church, but it was betrayed into the hands of Libertines for the real or affected love of a little temporary peace and good order’.Footnote 6
