The response of the Church in Wales to the Equal Civil Marriage consultation had uncanny echoes of the 2010 address of the Archbishop of Wales to mark the 90th anniversary of the Disestablishment of the Church in Wales – Rydym yma o hyd (We are still here). The latter which was delivered ‘to look not just to our past, but more importantly to think about our future’; but in the first point of the 2012 response it was necessary to point out to government that:
‘at no point in the consultation document is the Church in Wales mentioned: paragraph 2.10, for example, refers exclusively to the Church of England’.
This is more significant than the omission of a trade association in a consultation’s standard ‘List of Consultees’ since the absence of a reference to the Church in Wales in any resulting legislation has the potential to have a direct impact on the organization. At one level the matter is academic, since as the response notes:
‘The Church in Wales is in an almost identical position to the Church of England with regard to the solemnisation of marriages. The Church in Wales’ concerns about the legal implications are therefore the same as those of the Church of England’.
However, this needs to be viewed against the historical background of the disestablishment of the Church in Wales, a contentious issue forced through by Lloyd George’s Liberal administration under the 1911 Parliament Act. As enacted, the Welsh Church Act 1914 contained a provision, [s23], intended to end the recognition of ecclesiastical marriage; but this was repealed by the Welsh Church (Temporalities) Act 1919 before the Act came into force on 31 March 1920. However, the Act’s provisions for the transfer of the churchyards and other burial grounds to secular authorities took longer to reverse, and the relevant section, [8(1) (b)], was only repealed by the Welsh Church (Burial Grounds) Act 1945.
Nevertheless, these relatively small changes have resulted in ‘vestiges of establishment’ within the Church in Wales, for which Watkins notes, in (1990) 2 Ecc LJ 110,
‘in Wales, though not in England, there is a valid distinction between canon law and ecclesiastical law. Canon law is that law which is controlled and regulated by the Church in Wales, but ecclesiastical law, in those areas instanced, is regulated by the State and over which the Church in Wales has no actual control’.
Although the provisions on marriage are ‘almost identical’ to those of the Church of England, differences remain in relation to the obligation on an incumbent to marry non-communicant/unbaptized members of the parish, and with regard to the fees charged. The experience of the disestablishment of the Church of England in Wales serves as a timely reminder of the complexity of making changes to any issue, such as the scope of ‘marriage’ where there is overlapping secular and church law.