Last week the Daily Telegraph and others carried reports of the prosecution of a south London vicar who conducted a “conveyor belt” operation for sham marriages, extending over the period December 2007 and March 2011 and involving 494 illegal immigrants. Although the prosecution is on-going, [see update, below], it is nevertheless timely to summarize the development of the legislation and the changes that are about to be introduced.

Whilst involvement in sham marriages is not restricted to the Church of England, its common law duty to conduct marriage combined with the (present) exemption from the “civil preliminaries” make it particularly susceptible to abuses such as those reported. Lord Hardwicke’s Act was introduced in 1753 to overcome a similar problem of “clandestine weddings”, a key component of which was the mandatory calling of the banns.  Ironically, the problem of “sham marriages” is formally addressed through s 57 Immigration Act 2014 which, when brought into force next year, will exclude the procedures of calling the banns and common licences where one or both of the couple is not a relevant national, i.e. a British citizen, EEA national or Swiss national.

Background

The calling of the banns was introduced in the province of Canterbury in 1200 by Bishop Hubert Walter as a means of ensuring that the Church’s canon law in this area was not circumvented. This was extended to the broader Catholic Church by Pope Innocent III at the fourth Lateran Council; and over the period 1200 and 1342 these provisions [1] were enshrined in over thirty sets of canons and diocesan statutes. Although practices developed whereby a licence to dispense with the banns could be obtained, such dispensations were subject to questioning regarding the eligibility and freedom to marry. The formalisation of marriage by the Church in England was assisted by the common law in the treatment of testamentary and other property-related matters.

Clandestine marriage

The banns and the associated dispensations were retained after the Reformation, and enshrined in the Church of England’s Canons of 1604.[2]  Although the practice of “clandestine marriage” remained widespread, Outhwaite notes:[3]

“people came to believe more and more that a priest’s presence was necessary . . . there was no shortage of impoverished curates or chaplains willing to perform such ceremonies … all counties had such clerics … couples in many areas had access to a church specializing in such business”.

At the Guild Church of St Benet, Paul’s Wharf – the Church of Doctors’ Commons – 13,423 marriages were solemnized between 1708 and 1731. After the Restoration, the anxiety concerning clandestine marriage “was mainly patrician: wealthy parents were determined to avoid their children entering into undesirable and irrevocable matches”.  Lord Hardwicke’s 1753 Act [4] was successful in suppressing “those forms of irregularity that had given so much concern before 1753”, i.e. valid marriages conducted by an Anglican clergyman but not in accordance with canon law. With regard to the validity of clandestine marriages after 1753, those not conducted on accordance with the requirements of the Act were void.

The banns thus gained statutory significance; and when civil marriage was introduced through the Act for Marriages in England 1836, the calling of the banns was retained and separate procedures introduced for civil marriage. Specific provisions were also made for the contracting and solemnization of marriage by Quakers and those professing the Jewish religion.

Sham marriage (and sham civil partnership)

The problem associated with sham relationships is evident from s 24(5) Immigration and Asylum Act 1999 which states that a “sham marriage” means a marriage (whether or not void)—

“(a) entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b) entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules”.

The term is therefore confusing since there is the possibility that the marriage is legally valid, (i.e. not void), and remains valid despite being labelled as “sham”: the problem relates to the purpose of the marriage, which is to circumvent immigration legislation as a means of gaining long-term residency and the right to work and claim benefits in this country. [5] In such cases, the offences that are committed are immigration offences. The Independent Chief Inspector of Borders and Immigration has stated that sham marriages operate at three levels:

• Individual level: marriage used by individuals to circumvent the Immigration Rules and obtain residency in the UK. They might ask a friend to help them or contact someone via the internet who will marry them for a payment;
• Local facilitation: one or more persons who abuse their position by facilitating a number of marriages for financial gain, or other reasons; and
• National/International facilitation: marriages facilitated by organised criminal networks which are often involved in multiple immigration offences.

Under s 24 of the 1999 Act, Registrars are required to report all suspicions of sham marriage to the Home Office (via “section 24 reports”) and in February 2005 the ‘Certificate of Approval’ scheme was introduced which required non-EEA nationals to obtain permission to marry, subject to a fee of £135 for applications. However, following R (Baiai & Ors) v Secretary of State for the Home Department [2008] UKHL 53, the scheme was formally abolished on 9 May 2011 on the grounds that it breached Article 14 (prevention of discrimination) of the ECHR. During the operation of this scheme, the number of “section 24” reports decreased significantly.

The Church of England is not required by law to report suspicions about non-EEA and EEA nationals marrying in its churches. However, it has tightened its procedures after cases such as that of the vicar in East Sussex who was found guilty of conducting 370 sham marriages and jailed for four years in September 2010. [6] On I April 2011 the House of Bishops issued its quasi-legislative guidance Marriage of Persons from Outside the European Economic Area. which stated inter alia:

• In the case of any intended marriage where a party is a non-EEA national, the clergy should not offer to publish banns; instead the couple should be directed to apply for a common licence in accordance with the arrangements that have been put in place for dealing with these cases by the chancellor of the diocese;

and stressed that:

• Any member of the clergy who thinks that he or she has been subjected to threats or any other improper pressure in connection with an intended marriage should immediately report the matter to the police, the archdeacon and the diocesan registry.

The Immigration Act 2014 introduced further restrictions aimed at minimizing sham marriage. Most are generally applicable; and in relation to the Church, section 57 (Solemnization of marriage according to rites of Church of England) contains measures which, when brought into force, will exclude marriage by banns or common licence where one party or both is not a British citizen or an EEA or Swiss national, i.e. making the Bishops’ guidance mandatory, and additionally restricting the use of the common licence.

The accompanying Explanatory Notes say:

“325.This section amends the 1949 Act [ie the Marriage Act 1949].

1. Subsection (2) amends section 5 of the 1949 Act so that, where a couple wish to get married in the Anglican Church and one or both of them is not a relevant national (British citizen, EEA national or Swiss national), the banns process and the common licence process will not be available [our italics]. In order to get married in the Anglican Church, they will have to obtain superintendent registrar’s certificates (subject to the referral and investigation scheme where applicable), unless the provisions for the Archbishop of Canterbury’s Special Licence or for Anglican preliminaries on board one of HM ships at sea apply.

1. Subsections (3) and (4) amend sections 8 and 16 of the 1949 Act so that, where a couple wish to get married in the Anglican Church following the publication of banns, or following the issue of a common licence, they will have to provide the minister (in the case of banns), or the person granting the common licence, with specified evidence that they are British citizens, EEA nationals or Swiss nationals.”

It should also be remembered that by virtue of s 78 (Interpretation) Marriage Act 1949 “Any reference in this Act to the Church of England shall, unless the context otherwise requires, be construed as including a reference to the Church in Wales”. However, s 57 is not yet in force; and we understand that it is not likely to come into effect until April 2015.

Proxy marriage

Although not of direct relevance to the Church of England, a further complicating factor is proxy marriages. A recent report of the House of Commons Home Affairs Committee states:

“Some countries, such as Nigeria and Ghana, allow proxy marriages in which one or both partners are not present. Proxy marriages may take place where the wedding ceremony takes place in a different country, or even a different continent, from both the people involved. At the same time, both partners are living in the UK and, if genuine, could more easily get married here. In cases of proxy marriage entered into overseas, the question for the Home Office is not so much whether the marriage is genuine, but whether it was lawfully conducted in the country where it took place. The burden of proof is on the Home Office to show, on the balance of probabilities, that the ceremony was unlawful.”

Postscript: marriage in Scotland

The foregoing applies almost exclusively to England and Wales. In Scotland, the calling of banns as a civil legal preliminary to marriage was abolished by s 27 of the Marriage (Scotland) Act 1977 which came into effect on 1 January 1978; and the Church of Scotland subsequently abolished any internal canonical requirement for banns by passing a reciprocal Act of Assembly: Act III 1978 Anent Proclamation of Banns. However, s 2 of the Act of Assembly contains a rather curious saving for the calling of banns for “… any person usually resident in Scotland and requiring proclamation of banns in order to be married furth of Scotland”. Further information for the curious here.

Update

Although the prosecution was on-going at the time of writing, in our weekly  round-up of news on 26 October 2014, we reported that the trial had collapsed:  At the Inner London Crown Court HHJ Madge threw out the case after ruling there had been “bad faith” and “serious misconduct” on the part of the investigating immigration officers. He concluded that immigration officer Maggie Harkins and her superior, disclosure officer John Bradbourne, had lied under oath and concealed evidence that would have harmed their case.

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[1] The Archbishop’s proclamation required: marriages to be solemnized publicly; in the presence of both priest and congregation; and to be preceded by three public announcements in church of the intended union.

[2] Canons 62, 63, 101 to 104.

[3] R B Outhwaite’s Clandestine Marriage in England, 1500-1850, (Hambledon Press, 1995), xxi.

[4] “An Act for the Better Preventing of Clandestine Marriage”, 26 Geo. II. c. 33.

[5] Directive 2004/58/EC, refers to “marriages of convenience”: Recital 28 and Article 35.

[6] http://www.independent.co.uk/news/uk/crime/vicar-jailed-over-sham-marriages-2071508.html

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Suggested citation: David Pocklington: ‘Sham marriage, the church and the law’ (Law & Religion UK 15 September 2014) (available at http://wp.me/p2e0q6-3LM)