The Marriage Pledge – further developments

Our earlier considerations of the Marriage Pledge covered the initial reactions within the US to its publication on the First Things web site, and the relevance in Europe of such an approach: on the latter we concluded that there would be few UK clergy who would sign up to the Pledge. Nevertheless, the relationship between the state and religion is of general concern, particularly in connection with developments on same-sex marriage. Whilst there has been a continuing dialogue between proponents and opponents, the aspects that will be considered here are: how the Pledge would operate in practice; and the distinction between civil and sacramental marriage.

Operation of the Pledge

In support of the Pledge, First Things has published A Legal Perspective on the Marriage Pledge by Mark McCall[1], in which he considers how it might operate in practice. Importantly with regard to the wider application of his conclusions, he notes “a civil marriage contract is one that has its own special formalities that vary by jurisdiction”. He then discusses the formalities of a marriage contract with reference to that of New York State[2] which comprises four stages:

  • the parties must obtain a marriage licence;
  • the contract must be “solemnized” in statutorily-defined ways;
  • the details of the solemnization must be recorded on the licence and returned to the county clerk;
  • the clerk sends the married couple a “certificate of marriage” as proof of the legal validity of the civil marriage contract.

Within this regime, “any of the following options would be available to the couple and priest subscribing to the Marriage Pledge:

  • The couple first contracts a civil marriage by either a written contract or oral recitations at the courthouse followed at a convenient time by entering into a Christian marriage, [Option 1];
  • The couple first enters into Christian marriage followed in due course by contracting a civil marriage at the courthouse, [Option 2]; or
  • The couple could enter into a Christian marriage without entering into a civil contract at all, [Option 3].”

He notes “[i]n New York [State], the first of these options would be the preferred one in light of the little known fact that New York law on the necessity of marriage licences is surprisingly incoherent,” citing the recent case of Ponorovskaya v Stecklow 2014 NY Slip Op 24140 May 29, Cooper J.

Civil marriage and sacramental marriage

In a parallel post for the Anglican Communion Institute, McCall develops his arguments further with reference to Canon I.18.2 of the General Canons of The Episcopal Church and the TEC’s Book of Common Prayer in relation to how marriage is defined.   However, in Distinguish civil marriage from sacramental? Of course. Divide them? No!, Dr Ed Peters suggests that McCall’s defence of the Marriage Pledge “fails to appreciate what the Pledge actually calls for and, worse, misconstrues the fundamental relationship between so-called civil marriage and Christian matrimony”. This follows an earlier consideration from a Roman Catholic point of view, with reference to Canons 1055 to 1057 of the 1983 Code of Canon Law.  He concludes:

“Opposition to ‘same-sex marriage’ must be grounded primarily on the nature of marriage and not on the theology of matrimony, but even the latter is threatened when, as McCall and others insist, “Christian marriage” is severed from its natural (or as it is sometimes expressed ‘civil’) foundations.”

Comment

As we have noted, within the UK, there will be few UK individual clergy who are likely sign up to the Pledge, particularly in the Church of England and the Church in Wales where this is precluded by their common law duty to celebrate marriage and the inability to separate the civil- and religious elements of the service.  There is also little likelihood of any “corporate action” by any of the mainstream religious groups.  As Ed Peters has observed “it is not clear . . . exactly how religious institutions could unilaterally withhold civil recognition of their wedding rites any more than they could compel civil recognition of their rites by states unwilling to grant it.”

However, a number of observations can be made on the above developments. Option 1 corresponds to the “double weddings” that are permitted in England and Wales under section 46 of the Marriage Act 1949. This does not place limits on the time interval between the civil and religious wedding[3]; and s46§1 merely indicates that the couple “may present themselves, after giving notice of their intention so to do, to the clergyman or minister of the church or persuasion of which they are members“.

Interestingly, the CofE’s own website flags up the “double wedding” option as a wheeze with which to circumvent the “qualifying connection” restrictions so that couples may have “a religious ceremony in a church [of their choice]”. The web page also states that “[s]ervices of prayer and dedication after a civil wedding (“blessings”), also work like this, they can be offered in any church where a Vicar is available to do it”.  However, behind this seemingly innocuous phrase are a number of restrictions:

  • section 43§3 of the 1949 Act precludes any who are “not entitled to solemnize marriages according to the rites of the Church of England . . . to read or celebrate the marriage service in any church or chapel of the Church of England;
  • permission to conduct the service is dependent upon the ordinary; and
  • Canon 36§1 provides the minister with a degree of discretion[4].

Nevertheless, the CofE has produced an Order for Prayer and Dedication after a Civil Marriage for the “second wedding”.  Changing Attitude’s Rough Guide to the Civil Partnership Law observes a parallel between this and services of blessing for those who register a civil partnership, which the Church at present will not provide: it suggests how a couple might work within the provisions of paragraph 18 of House of Bishops’ Pastoral Statement on Civil Partnerships.

As we have noted earlier, in Scotland and Northern Ireland, weddings are inextricably linked with the concept of the marriage schedule issued by the civil registrar, so the option of a “double wedding” as in Option 1 or 2 does not arise.  More generally, the civil requirements are an integral component of the religious ceremony; and these options would not be applicable to Christian marriages which are: conducted in the UK; and which have statutory recognition.

Much of the debate on the Marriage Pledge has centred on the ethical concerns and possible actions of the ministers concerned, although the couples involved may also strong views in this respect.  Furthermore, the absence of civil recognition of a marriage and its attendant legal consequences could be a ”show stopper” for couples contemplating Option 3.  For Options 1 or 2, the prospect of participating in both a civil and a religious solemnization might lead to more couples opting for the civil service alone, or to consider a destination/symbolic wedding as in Ponorovskaya v Stecklow.  Weddings conducted outside the UK are subject to a number of legal considerations, which have been summarized by the Home Office, here, which additionally provides guidance on specific requirements[5].

______________________________

[1] A member of the New York bar and a former partner of an international law firm, practising in New York, Washington and Paris. He is a Senior Fellow of The Anglican Communion Institute and a commentator on canon law and polity in The Episcopal Church and the Anglican Communion.

[2] McCall notes that this differs from other US states.  Particular aspects are: a marriage licence is valid for 60 days, after a 24 hour waiting period; a marriage contract can be solemnized in New York is by written contract witnessed and acknowledged before a judge “in the manner required for the acknowledgment of a conveyance of real estate”; “No particular form or ceremony is require  when the contract is solemnized orally, but “the parties” must “solemnly declare” that they “take each other as husband and wife,” such terms to be “construed in a gender-neutral manner”.

[3] The three-month time limit associated with the reading of the banns does not apply, as their publication is not required under these circumstances.

[4] “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”.

[5] Based on: Country of proposed marriage; Domicile in UK/elsewhere: UK country: England; Wales; Scotland; Northern Ireland; Isle of Man; Channel Islands; Partner’s nationality; Same-sex/opposite sex partner.

Cite this article as: David Pocklington, "The Marriage Pledge – further developments" in Law & Religion UK, 28 November 2014, https://lawandreligionuk.com/2014/11/28/the-marriage-pledge-further-developments/

4 thoughts on “The Marriage Pledge – further developments

  1. Option 3 is the same as is currently available to most Muslims, as many mosques haven’t registered themselves for marriages. The couple have their nikah ceremony at the mosque, and then go and have a civil marriage – or don’t.

    There are many couples who don’t have the civil marriage, and only later – usually when the relationship breaks down or one of the couple dies – realise that in the eyes of the civil law, they aren’t married at all, and never were.

    If priests here who currently usually conduct legally-binding marriages were to stop doing so, there would have to be a robust mechanism for ensuring that both parties to the marriage knew exactly what kind of ceremony they were taking part in, and what the consequences would be (or not). I wonder whether a person who assumed they were going to be legally married but turned out not to be, under those circumstances, could have a cause of action against the priest for not properly informing them? After all, a legally-invalid marriage can have major financial consequences as well as social ones.

  2. Thanks for your interesting comments, Jen, which have prompted further thoughts on the Pledge. As you indicate there are interesting parallels with the present situation on Muslim marriage, which also concern issues of civil and religious recognition. Muslim marriage is at the periphery of my legal knowledge, but looking back at a “Formative Essay” for my LLM, I came across a 2002 article by Urfan Khaliq, who echoed your points, and explored the perceptions of the relative importance of civil and religious ceremonies:

    “[t]he diverse views and practices on what Islam requires and the extent to which it is complied with by British Muslims in the sphere of family law is not simple to explain or quantify. It is a common practice among some British Muslims, for example, to consider the civil registration of a marriage under English law to be tantamount to the nikah (marriage contract) and thus removing the need to ‘solemnise’ it in a religious form. Others, however, only have a nikah, and in the event of marital breakdown obtain a talaq (religious divorce) without reference to any court or legal authority either Islamic or ‘civil’, but according to how they understand their rights and duties. In the absence of any form of registration of the marriage, according to the procedure, formalities and stipulations prescribed by legislation, such marriages would be declared void if circumstances were to lead to the intervention of United Kingdom judicial bodies”,
    [“The Accommodation and Regulation of Islam and Muslim Practices in English Law”, (2002) 6 Ecc LJ 31, 332-351].

    The issue of whether a couple appreciates whether their marriage is legally valid, or not, was one aspect of Ponorovskaya v Stecklow in which the defendant claimed that the Mexican “destination” wedding was purely symbolic and without any legal effect, and since there was never a valid marriage to dissolve in the first place sought to dismiss plaintiff’s divorce proceeding on the ground that the complaint fails to state a cause of action. The organization managing the wedding – the Dreams Tulum Resort – was quite specific in its paperwork regarding the options to be chosen: a) civil; or b) religious/symbolic, and expressly stated that a “religious ceremony is not legally valid” and that in order for there to be a legal marriage, “the judge must perform ceremony.”

    At the time of writing, only 311 have signed up to the Pledge, so there is probably some way to go before the practicalities become a concern.

    dp

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