Law and religion round-up – 27th January

“Common law marriage” again, an upcoming holocaust denial case, the faculty jurisdiction – but we haven’t mentioned Brexit because we’ve lost the plot…

The myth of common law marriage

The first findings from this year’s British Social Attitudes Survey carried out by the National Centre for Social Research have revealed that almost half of people in England and Wales – 46 per cent – believes that unmarried couples who live together have a “common law marriage” with the same rights as couples that are legally married. That figure has remained largely unchanged over the last fourteen years (it was 47 per cent in 2005) despite a significant increase in the number of cohabiting couples. In contrast, only 41 per cent of respondents knew that common law marriage is a myth. According to the researchers, people are significantly more likely to believe in common law marriage when children come into the equation; 55 per cent of households with children think that common law marriage exists, while only 41 per cent of households without children do so.

Anne Barlow, Professor of Family Law and Policy at the University of Exeter, commented:

“Our data clearly show that almost half of us falsely believe that common law marriage exists in England and Wales when, in reality, cohabitation grants no general legal status to a couple. Cohabiting couples now account for the fastest-growing type of household and the number of opposite sex cohabiting couple families with dependent children has more than doubled in the last decade. Yet whilst people’s attitudes towards marriage and cohabitation have shifted, policy has failed to keep up with the times. The result is often severe financial hardship for the more vulnerable party in the event of separation, such as women who have interrupted their career to raise children. Therefore, it’s absolutely crucial that we raise awareness of the difference between cohabitation, civil partnership and marriage and any differences in rights that come with each.”

All of which may possibly strengthen the case – which the Government has already conceded – for opposite sex civil partnerships; but that alone will not solve the problem of invincible ignorance. Maybe what is required is a serious attempt by the Government at public education to dispel the misconception? And see:

Holocaust denial

On Thursday, the ECtHR will hand down judgment in Williamson v Germany (No. 64496/17). Richard Williamson, a UK resident, was illicitly consecrated as  bishop by Archbishop Marcel Lefebvre (see below) and is a former member of the Society of St Pius X (SSPX). The case is about his criminal conviction in Germany for incitement to hatred. During an interview for Swedish television recorded at the SSPX seminary in Zaitzkofen, Germany, he said that he believed that there had been no gas chambers during the time of the Nazi regime. He was subsequently convicted of incitement to hatred and fined and his subsequent appeals were dismissed.

Relying on Article 10 ECHR (freedom of expression), he complains that his conviction had breached his right to freedom of expression. In particular, he argues that German law did not apply to his statements because the offence had not been committed in Germany but in Sweden, where his statement was broadcast – and where it was not subject to criminal liability. He also claims that he had never intended his statement to be broadcast in Germany and had tried everything in his power to prevent that from happening.

Not worth a free-standing note because it has little if anything to do with law & religion as we understand it – but we’ll report the outcome, briefly, next week.

SSPX and the Sistine Chapel Choir

On 19 January, Pope Francis issued two Apostolic Letters Motu Proprio – “Ecclesia Dei” and “circa la Cappella Musicale Pontificia” – the latter is only reported on the Italian pages of il Bollettino. The Pontifical Commission Ecclesia Dei was instituted in 1988 following the break with Archbishop Marcel Lefebvre and the subsequent episcopal ordinations that took place without pontifical mandate (see above). The situation for which it was established no longer exists and by the Pope’s motu proprio the Pontifical Commission has been supressed and its tasks assigned fully to the Congregation for the Doctrine of the Faith, within which a specific Section is to be instituted.

The former leader of Ecclesia Dei, Archbishop Guido Pozzo, has been assigned the role overseeing the finances of the Sistine Chapel choir, whose reorganization was announced in the other motu proprio. This places the choir under the administration of the Office of Pontifical Liturgical Celebrations instead of the Prefecture of the Pontifical Household. It will be led by Mons. Guido Marini, the master of ceremonies for papal liturgies, who is now responsible for drafting the choir’s new statutes.

Not shaking hands in Norway

Lise Gran and Ole Kristian Olsby report that Norway’s Anti-discrimination Tribunal recently concluded that a municipality’s refusal to extend a temporary employee’s contract after he had refused to meet their requirement to shake hands with women did not constitute discrimination. The Discrimination Act prohibits discrimination on the basis of religion; however, differential treatment on the basis of religion is lawful if it has an objective purpose, is necessary to achieve that purpose and has no disproportionate negative impact. A majority found the indirect differential treatment to be lawful: its objective purpose had been to treat all genders equally in accordance with the equal treatment of gender principle, there had been no alternative to the municipality’s requirement to shake hands with women and the violation of equal treatment between genders superseded the violation of the employee’s right to freedom of religion. The majority also referred to the fact that, in Norway, women are allowed to be priests, which means that the principle of equality overrides “conservative religion”.

More on Re Blagdon Cemetery

This week we posted Permanence of Christian burial revisited – III, the third of our reviews of Re Blagdon Cemetery [2002] Fam 299 which, together with Bishop Christopher Hill’s note to the Arches Court [“A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447], has formed a primary reference in cases relating to exhumation and reburial. Our post considers the issue of the “distress or conflict” of relatives and the permanence of Christian burial, after Re Blagdon, and reviews how diocesan chancellors address issues of “a family at war”, the discovery of financial irregularities and adulterous partners and siblings not consulted at the time of the interment. This is not quite how the creation of “family graves” was considered in Re Blagdon which commented:

“Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials”.

Consistory court round-up: I

In 2014 we posted “Ignorance of the Faculty Jurisdiction Rules is no excuse…” and, expanding on this theme, “Risks of disregarding the faculty jurisdiction” in June 2016 and “Deliberate breach of faculty conditions” in February this year. To this sorry litany of failures by incumbents, PCCs, architects and other professionals should be added the more recent example of the “culpable neglect” by the incumbent: Re Plumpton with East Chiltington [2018] ECC Chi 3, in which the PCC was asked if wished “to make representations that some or all of the costs should be paid personally by the First Petitioner…” – i.e. the incumbent. 

Though it did not involve a breach of faculty conditions, it was necessary for the Deputy Chancellor in Re St Peter Chailey [2019] ECC Chi 2 to consider the extent to which the party opponent had conducted himself unreasonably and how, if at all, any such unreasonableness should sound in an order for costs. He determined that the party opponent was liable for 50 per cent of the incremental court costs attributable to the progression of this matter to an oral hearing and for 50 per cent of the petitioners’ inter partes costs, i.e. their counsel’s fees.

Consistory court round-up: II

“Church buildings are to serve the church and not the Church to serve the buildings”. Whilst few would disagree with the generality of the above statement, two of the consistory court cases reported this month have sought to use this premise as a justification for reordering proposal. In Re Holy Trinity Sittingbourne [2018] ECC Can 1 the Deputy Chancellor dismissed the petition, indicating that the bulk of the hoped-for benefits of the scheme could be met by something less than the complete removal of the pews. In Re Christ Church Fulwood [2018] ECC She 3 Chancellor Singleton QC observed [17]:

“The argument that church buildings are subservient to their purpose and, therefore, the assertions of the Petitioners as to their needs for worship and mission must overcome conservation considerations, conflicts with the principle upheld by the law that churches and church buildings are national assets and that the present incumbent and congregation are temporary custodians only. The tension of that conflict is one that has been considered and played out over many years in the reported cases. The Duffield decision and questions are the ultimate iteration of the route to resolution of that conflict in accordance with the established law”.

Legislative business – General Synod

The February 2019 Group of sessions of General Synod will take place in Church House, Westminster 20 to 23 February inclusive, and the first batch of papers was published on 25 January. The legislative business will be taken on Thursday 21 February and will include the Final Drafting/Final Approval stages for the Church Representation and Ministers Measure (which amongst other things will put in place a much-modernised set of Church Representation Rules) and Amending Canon No. 39. The full set of papers relating to these and those in the following paragraph is available here

Synod will also take the Revision Stages for Amending Canon No. 40 (which will put in place a new Canon to provide a legal framework for the regulation of Religious Communities) and for the Church of England (Miscellaneous Provisions) (No.2) Measure and Amending Canon No. 41

The Synod will also be asked to approve the Parochial Fees and Scheduled Matters Amending Order 2019, which will make provision for parochial fees for the years 2020 to 2024 inclusive; the Explanatory Memorandum is here. Finally, the Synod will be asked to enact Amending Canon No. 38 (which it approved in July and which will replace the two former Ecumenical Canons B 34 and B 35 with a single new one) and to make a Code of Practice under the Church of England (Ecumenical Relations) Measure 1986 in the light of the changes introduced by Amending Canon No. 38 and the Ecumenical Relations Measure 2018 (which Synod also approved in July).

A further batch of papers for Synod will be published on Friday 1 February.

Quick links

And finally…

A recent Twitter thread, with contributions from a diocesan chancellor, a bishop’s wife and a legal blogger (dp), was initiated by the picture of an allegedly genuine hymn entitled ‘There’s crap on the door’. According to Hymns to Avoid, the 1896 text comes from an old Presbyterian collection, which was wisely omitted in later editions. It explains “the correct word should be “crepe,” coming from a time where black crepe was placed on the front door of the home of a deceased person during the period of bereavement”.  Although doubts were raised concerning the authenticity of the original photograph, there was no such uncertainty regarding another hymn from the “Godfather of English Hymnody”, Isaac Watts, entitled Blest is the man whose bowels move.

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