On 1st July 2010, a web site was launched by the Deputy Prime Minister to which the public was asked to submit . . . ‘ideas on restoring civil liberties, cutting business and third sector regulations and repealing unnecessary laws’. This your-freedom web site is now closed, although its content is available via the National Archives, and a similar outlet for suggestions by the public is available through the e-petitions scheme launched about one year later.
However, the DPM’s initiative resulted in the Protection of Freedoms Act 2012, which contains a number of disparate measures on issues raised during the consultation process, including: rules for the destruction of samples and impressions of footwear subject to PACE; a Code of Practice for surveillance camera systems; alternative remedies in relation to vehicles left on land; pre-charge detention of terrorist suspects; and trafficking people for sexual exploitation.
Hidden among these provisions is section 114 which provides for the removal of certain restrictions on the permissible times for marriage and civil partnership through modification to the Marriage Act 1949, Marriage (Registrar General’s Licence) Act 1970, and the Civil Partnership Act 2004. When it comes into force, the change in the law will bring England and Wales into line with Scotland and Northern Ireland, but to date the Secretary of States has not published the appropriate Commencement Order.
The early requirements of the Church of England on the prescribed canonical hours for marriage were based upon pre-Reformation canon law, much of which was in place by the end of the 13th century. Canon 62 of the 1603 Canons required priests, under penalty of suspension, to conduct the marriage ceremony between ‘hours of eight and twelve in the forenoon’ and ‘at the church door’, i.e. in public. The reforms within Lord Hardwicke’s Act of 1753 – ‘An Act for the better preventing of clandestine marriages’ – included severe penalties on clergy who contravened its provisions, echoes of which still remained in the 1949 Marriage Act. The introduction of civil marriages in 1837 applied the same time restrictions as Canon 62. These statutory limitations were extended to 3 p.m. in 1886, and to the present time of 6 p.m. in 1934. The Church of England Canons were amended to reflect the statutory provisions, and the current version, Canon B35(3), states:
‘A marriage may not be solemnized at any unseasonable hours but only between the hours of eight in the forenoon and six in the afternoon.’
Prohibited Seasons for Marriage
In addition to the limitations of canonical hours, the early church defined ‘closed seasons’ for marriage – Lent, Advent, and Rogationtide – although it took advantage of the situation by charging more for permitting marriages to occur during these periods. Some churches continue to discourage marriage during the penitential seasons, but there are no canonical restrictions, and in fact, Common Worship specifies the readings and Collects for use
‘[at] Baptisms, Confirmations, Ordinations and Marriages which take place on Principal Feasts, other Principal Holy Days and on Sundays of Advent, Lent and Easter’.
Although reports have suggested ‘couples will be able to marry at any time of the day or night in England and Wales from October’, this is not strictly true and adumbrates the complexity of the legal position. A statement by the Home Office, quoted by the Church Times, confirms the discretionary aspect of these provisions,
‘neither local authorities nor religious groups are required to provide services outside of the traditional hours’.
It further notes:
‘marriages conducted by the Society of Friends, or in accordance with the Jewish faith, as well as some marriages approved on the authority of the Archbishop of Canterbury’s special licence, are already permitted’.
The revocation of section 4 of the 1949 Marriage Act merely removes the statutory restriction on the times for marriage. As such, the existing hours defined in Canon B 35(3) remain unaffected, and a Church of England priest would be committing an ecclesiastical offence under the Clergy Discipline Measure 2003 if he or she conducted a marriage outside these hours, unless this were under the provisions of a Special Licence which permitted the marriage to take place outside canonical hours on medical grounds.
On its disestablishment in 1920, the Church in Wales retained the advantages of ‘ecclesiastical marriage’ including the provision of Special Licences, and although its clergy are not subject to the 2003 Measure, they are bound by canonical obedience to the directions of the bishop, (Const. VII.66).
Comprehensive guidance has been provided by Church House lawyers which additionally identifies the repeal of the criminal offence in section 75(1)(a) of solemnizing a marriage outside the permitted hours, which carried a sentence of imprisonment of up to 14 years. The guidance also clarifies the vexed question of what to do when a wedding scheduled close to the deadline is delayed by the late arrival of the bride – a not uncommon occurrence. It advises:
‘[t]he member of the clergy officiating must say the whole rite and perform the whole ceremony (i.e. one of the authorised marriage services) by 6.00 pm. (The registration of the marriage is required to be made immediately after the solemnization of the marriage (section 55(1) of the 1949 Act). Signing of the registers (but not any part of the marriage service) may, therefore, take place after 6.00 pm.)’ [Emphasis added].
Despite these clarifications for clergy, there is still a communications task for the church to perform, for among the general public there remains the perception that it is possible ‘to marry at any time of the day or night’. The Church of England has been proactive in promoting ‘church weddings’ with its dedicated web site, and although the information on ‘Time of wedding’ correctly states:
‘[t]o be legal the wedding must take place between 8am and 6pm on any day.’
for the avoidance of doubt, it should perhaps add
‘These times are unaffected by recent changes in statutory legislation’.