This began as a handout for the Cardiff LLM in Canon Law: it’s about the law on the formation of marriage – “weddings law” – rather than matrimonial law more generally. My grateful thanks to Russell Sandberg for reading it in draft.
1. Weddings law in the UK: how we got here
In 1563, the Council of Trent, concerned about “irregular” marriages, issued its decree Tametsi, declaring that marriage had to be contracted before a duly-authorised priest and two or three witnesses. But that was after the Scottish Reformation of 1560. Religious marriage was very common in Scotland and was regulated by the Church, but there was no statutory provision for non-religious civil marriage: one either got married in a church or, instead, contracted one of the various forms of irregular marriage under the common law. In short, post-Reformation Scotland held to the pre-Tridentine canonical view of marriage – that it was essentially created by the consent of the parties.
In England and Wales until the middle of the 18th century, marriages could take place anywhere provided they were conducted before a cleric of the Church of England; however, growing concern about “clandestine marriages” led to the passing of the Marriage Act 1753 – “An Act for the Better Preventing of Clandestine Marriage”, aka Lord Hardwicke’s Act. It required that all marriage ceremonies must be conducted by a minister in a parish church or chapel of the Church of England – with exceptions for Jewish and Quaker marriages.
In short, English law and Scots law have proceeded from very different assumptions. Continue reading