Our earlier post, The Marriage Pledge – Reaction within the US, summarized the issues arising in the United States following the publication of the Marriage Pledge on the First Things website: a debate that is still continuing. In contrast to the many individual commentators on and signatories to the Pledge, the Archibsihop and Primate of the Anglican Church of North America has issued a strongly worded institutional response advising ministers not to sign it, pending a detailed consideration of its implications.
Some commentators have observed that dual state-religion marriage regimes operate outside the US, and we suggested that there are important differences that are of relevance when considering the necessity and value of the Pledge. In this post these issues are considered in relation to secular and religious marriage in Europe, with particular reference to the position within the UK.
The formation and recognition of marriage in Europe is considered in detail in Law and Religion in Europe and Norman Doe identifies three broad categories in terms of their formation and recognition:
- States which recognize the validity and public effects of certain religious marriages formed at the time of their ritual celebration, providing the conditions of civil law are met. Professor Doe notes that these models transcend the traditional church-state models in Europe, and are to be found in “state-church systems” such as that in Denmark and the UK, and also in “separation systems” such as that in Ireland;
- States which recognize Roman Catholic marriage as having civil effect from the time of their ritual celebration: however, marriages conducted by ministers of other faith communities are regarded as essentially civil marriages merely solemnized in a religious context, and are formed on subsequent civil registration; and
- States which do not recognize religious marriages at all, but may permit a religious ceremony subsequent to a civil ceremony, or indeed may penalize their solemnization under criminal law if conducted prior to a civil marriage.
Within each of these categories, specific legal requirements are placed upon religious organizations and those within them (and others) responsible for solemnizing and registering marriage. Whilst these latter issues are of more immediate concern to signatories of the Pledge, there are longer-term implications on state recognition of religious marriage.
With a large percentage of its population professing to be Roman Catholic, France provides a useful example of the third category, where “every minister of religion who habitually conducts religious services of marriage without prior authorization from the civil authorities commits on offence punishment with imprisonment and/or a fine”.
A more extreme example of church-state relations in this category is in the case of Germany, where religious organizations have no competence over marriage, which is an entirely civil matter conducted in a registry office; and religious marriages have no civil effect. Although civil weddings are required to take place before the religious ceremony, there are no attendant sanctions should this not occur. Examples such as these are of particular relevance to the requirement of the Roman Catholic Church for the observance of “canonical form”, as discussed by Dr Ed Peters.
Whilst in general, European states do not recognize the dissolution of an otherwise valid marriage (i.e. divorce) pronounced under religious law as having effect in civil laws, Catholic annulments have civil law status in Portugal, Malta, Spain and Italy, and to a limited extent, the Orthodox Church in Greece.
The United Kingdom falls within the first of the above categories, although the approach to religious marriage varies between its component countries.
England and Wales
An overarching requirement in England and Wales is the common law duty on the Church of England and the Church in Wales to perform marriages (and other occasional offices). This arises from the CofE’s status as the established church in England, and the “vestiges of establishment” pertaining to the CiW. Thus, always provided that the eligibility criteria are satisfied, a parish priest in England or Wales cannot refuse to marry a couple unless one of the statutory “conscience clauses” applies or, in the case of an intended same-sex marriage, which the Church is not legally permitted to perform.
Although the statutory requirements for the registration of a marriage do not form part of the liturgy in the Book of Common Prayer, the service in Common Worship includes the “Registration of the Marriage”, in which Note 10 states:
“The law requires that the Registers are filled in immediately after the solemnization of a marriage. This may take place either after the Blessing of the Marriage or at the end of the service”.
Given this statutory requirement, it would not be possible for anyone falling within the requirements of Part IV of the 1949 Act to opt out of the civil requirements associated with a religious marriage ceremony.
For cases in which a civil ceremony precedes a religious solemnization, s46(2) of the Act is unambiguous in identifying the overriding importance of the civil proceedings,
“[n]othing in the reading or celebration of a marriage service under this section shall supersede or invalidate any marriage previously solemnised in the presence of a superintendent registrar, and the reading or celebration shall not be entered as a marriage in any marriage register book kept under Part IV of this Act.”
“[i]f any persons have contracted marriage before the civil registrar under the provisions of the statute law, and shall afterwards desire to add thereto a service of Solemnization of Matrimony, a minister may, if he see fit, use such form of service, as may be approved by the General Synod under Canon B2, in the church or chapel in which he is authorized to exercise his ministry”.
Scotland and Northern Ireland
In Scotland and in Northern Ireland the situation is different. Marriage in Scotland is governed primarily by the Marriage (Scotland) Act 1977, as amended, and in Northern Ireland by the Marriage (Northern Ireland) Order 2003.
Both jurisdictions require the parties to submit marriage notice forms to the registrar of the district where the marriage is to take place. Providing that there is no impediment, the registrar issues a marriage schedule, which must be produced to the person performing a religious marriage and subsequently signed or, in the case of a civil wedding, kept by the registrar and signed after the ceremony. In addition, Scots and Northern Irish marriage law has moved away from the Anglo-Welsh model of authorised buildings and, instead, places the emphasis on registered officiants – and the Marriage and Civil Partnership (Scotland) Act 2014 has completed that process for Scotland. That Act has also widened the scope of what constitutes a marriage ceremony by instituting a new category of ‘belief marriage’ in order to make express provision for humanists. It should also be noted that there is no equivalent in either jurisdiction of the common law duty imposed on clergy of the Church of England and the Church in Wales to marry any person resident in their parish.
The promotion of the Marriage Pledge raises two legal issues: the basis of a state’s recognition of religious organizations to solemnize marriage; and the specific requirements it places on these organizations and the individuals involved. At the present time, the major concerns lie with the legality of the actions/inaction of those acting in accordance with the Pledge. However, as Archbishop Beach has stated, it is equally important that religious bodies consider “the legal, theological, and sociological ramifications of signing such a statement”.
The Pledge asks clergy to declare that:
“We will no longer serve as agents of the state in marriage. We will no longer sign government-provided marriage certificates. We will ask couples to seek civil marriage separately from their church-related vows and blessings”.
In UK terms that would mean, in effect, that clergy were committing themselves to providing nothing but blessings after civil ceremonies. In Scotland and Northern Ireland, weddings are inextricably linked with the concept of the marriage schedule issued by the civil registrar, while in England and Wales to refuse to conduct church weddings would be contrary to the common law duty of clergy in the C of E and the C in W to marry parishioners. We cannot imagine that many UK clergy would sign up to this.
 N Doe, Law and Religion in Europe: A comparative introduction, (OUP, 2011), pp 216-222.
 However certain defences may be pleaded, see Doe (n2) 220.
 i.e. Remarriage following divorce: s8(2) Matrimonial Causes Act 1965; and where gender has been acquired under the Gender Recognition Act 2004, s5B Marriage Act 1949 introduced under the amendment in para. 3, Part 1 of Schedule 4 to Gender Recognition Act 2004. The provision relating to the conduct of services associated with a cremation of s11, Cremation Act 1903 was repealed through s2(5) Church of England (Miscellaneous Provisions) Measure 1992.
 Between the Blessing of the Marriage and the concluding prayers and dismissal.
 Section 55(1). “Every person who is required under this Part of this Act to register a marriage shall, immediately after the solemnization of the marriage, or, in the case of a marriage according to the usages of the Society of Friends, as soon as conveniently may be after the solemnization of the marriage”.
 i.e. section 53(a) to (g).
Suggested citation: David Pocklington and Frank Cranmer: ‘The Marriage Pledge – Its relevance in Europe’ (Law & Religion UK 24 November 2014) (available at http://wp.me/p2e0q6-485)