In a guest post, HH Peter Collier KC looks critically at the controversy between the treatment of the institution of Holy Matrimony and the institution of civil marriage as distinct realities
The note from the Legal Office Prayers of Love and Faith, GS 1339 summarises the legal background to the decision of the House of Bishops that it should commend Prayers of Love and Faith, a draft of which is contained in Annex B to GS 2289. It sets out legal advice for the General Synod which is to the same effect as the advice which was given to the College and House of Bishops.
GS 1339 – the controversy
I am aware that the suggestion in paragraph 5 of GS1339 that “there is a good case for saying that the institution of Holy Matrimony and the institution of civil marriage are now distinct, even though the legal incidents are generally the same for both” was treated with surprise by some and concern by others.
However, as a lawyer who has given some thought to the history of marriage and to the role of the church in England in relation to the law of marriage, I was not at all surprised by that statement.
The beginning of my understanding is that historically tribe and family are the basic units from which societies have been formed. Traditionally and in most cultures there is a social group that broadly accords with what we would describe as the “family”. The core of this may be two people but, in some cultures, (such as those that recognise polygamy or polyandry) it may be more than two people. As Diarmaid MacCulloch recently pointed out about Jewish polygamy: “It was logical for them to honour this form of marriage, given how many respected names in the Jewish past were polygynists; polygyny remained common in Judaism long after Jesus’s own time, particularly in elite circles, as is usually the case with polygyny”.
Usually, it is in the context of that family group that children are born and brought up. That core relationship today is commonly called a “marriage”.
How that group comes to be formed, and how a “marriage” takes place, with what degrees of social customs, or required formalities, varies from society to society. Many of us will have had some exposure to different customs through attending Islamic or Sikh weddings in this country.
The place of law
As societies become more complex and sophisticated, the regulation of that society through a system of law will inevitably develop. The law may require preliminaries and formalities if a marriage is to be recognised as such in the society. It is likely to regulate not only how you get into such a married status but also what happens when the core relationship breaks down and how the marriage can come to an end.
It is also the case that more complex societies will accord different consequences as a result of a marriage being recognised. It will then treat the two (or more) people as a unit and treat the unit differently from how it would treat those same people individually. This can have an impact on taxes required to be paid or on monetary or other benefits that the state may provide. In our society, there is also a significant amount of law about the place of children and dealing with them if and when a marriage breaks down.
The Judaeo-Christian tradition
In the Judaeo-Christian tradition there are a couple of things worth noting.
I have already referred to polygamy. Although now polygamy is regarded as unacceptable, in the Old Testament polygamy is nowhere forbidden, and at times was common.
As for divorce – Jesus (in what is sometimes referred to as the Matthaean exception which is to be compared with his statements about divorce in Mark and Luke which allowed no exception) said that Moses suffered divorce, i.e. allowed it, as a present custom which he regulated – allowing it for uncleanness/unfaithfulness. This has created a long history of different and developing attitudes to divorce. It is still a matter of conscience for individual Church of England clergy as to whether they will carry out a service of Holy Matrimony for a couple one of whom is divorced. Furthermore, if a person wishes to be ordained and they or their intended spouse has a previous spouse still living, an archbishop’s faculty is required under Canon C4.
The role and impact of the Christian Church
As the Christian Church developed, so did its own canon law through various synods and councils.
Perhaps the most significant of those was the 4th Lateran Council (1215). It dealt in some detail with marriage. It published various canons about marriage. Canon 50 prohibited marriage in the 2nd and 3rd degrees of affinity and Canon 51 forbade clandestine marriages and priests witnessing such marriages, and provided that all marriages must be announced publicly by the priest in church so that legitimate impediments might be made known, and the priest was to investigate whether any impediment existed. That same duty and very similar phraseology remain in our own Canons today – B33.
I have just finished reading Nicholas Orme’s book, Going to Church in Medieval England, which I commend as a fascinating and instructive read. In England and Wales, the medieval Church exercised a huge influence over everyday life. That included influence over the institution of marriage in this country. It was therefore able to effectively impose the Church’s view of marriage – what it was and how it was to be solemnised. Consequently, for several hundred years the Church’s and the State’s views about marriage were one and the same. Church courts had exclusive jurisdiction in enforcing the Church’s view of marriage. It was therefore the canon law that was applied in all circumstances. It was only in church and in accordance with the rites and ceremonies of the church that anyone could enter into a marriage in England.
The church courts continued to be the only ones dealing with marriage until marriage law was removed to the King’s Courts by the Matrimonial Causes Act 1857.
The theology of marriage as understood by the reformers is set out in the introduction to the ‘Form of Solemnization of Matrimony’ in the Book of Common Prayer – a man and woman come together in the sight of God and the face of the congregation to be joined in Holy Matrimony; they declare (by their silence) that there is no impediment to their marriage; they then make various vows of lifelong commitment to one another; they are then blessed. Historically the making of vows had often happened in the churchyard or in the entrance to the church and they then came into the church for the blessing.
There is nothing in the 39 Articles about marriage, apart from it being lawful for bishops, priests, and deacons to marry (32).
The Canons of 1603/4 had no statement about what Holy Matrimony was, just details about preliminaries, and place and time of marriage (42); who can grant licences to marry, and other details about licences (101, 102 & 103); and various provisions about divorce (105,106 & 107).
The beginning of state intervention
The Clandestine Marriages Act 1753 (Lord Hardwicke’s Act) put all that Canon Law onto a statutory basis. It made invalid all marriages that were not performed in accordance with its provisions. They were that a marriage must be carried out in church after the publication of banns, or the obtaining of a licence from the ecclesiastical authorities (i.e. in accordance with the Canons). This was significant because it was the first time when the state lawmakers made laws about marriage, even if the law they made was effectively simply the adoption of the church law.
However, Jews and Quakers were exempt from those requirements. That left some uncertainty about how issues were resolved for them, save that Jewish marriages were dealt with according to Jewish law. As time went by Unitarians were very keen that they should also be exempted. They objected to marriage in any church which involved Trinitarian statements.
There was much discussion in the early 19th century about how Unitarians and other “dissenters” could attain equal marriage status as those being married in accordance with the rights of the Church of England. The matter was ‘resolved’ by the Marriage Act 1836 which introduced what we now call “civil weddings”. It involved registering other buildings for weddings and making lawful weddings that were conducted in such a building in the presence of a registrar and 2 witnesses. This was the first time that the legislature provided for people who were “religiously different” to have the possibility of marrying other than through the rights and ceremonies of the Church of England. However, what actually took place in the “civil ceremony” was significantly different from what took place in church.
At that time the church certainly regarded a civil marriage as a lesser form of marriage. The Bishop of Exeter, Henry Phillpotts, said in the debate in the House of Lords that the bill was “a disgrace to British legislation. [It] is pretended to be called for to prevent clandestine marriages, but I think it will greatly facilitate such proceedings. Not solemnized by the Church of England, may be celebrated without entering into a consecrated building, may be contracted by anybody, and will be equally valid, whether it takes place in the house of God, or in the house of a registering clerk, one of the lowest functionaries of the state. The parties may take one another for better and for worse, without calling God to witness their plighted troth. No blessing sought; no solemn vows of mutual fidelity; no religious solemnity whatever …”. Clearly, in his mind this fell far short of what he and the rest of the Church of England understood by “Holy Matrimony”.
There were various further reforms of that initial law in the 1850s which dealt with such issues as who could authorise synagogues to be registered (there was a problem over which synagogues the Board of Deputies approved of). They replaced the reading out loud of your marriage notice before the local Poor Law Board with displaying notices in the superintendent registrar’s office. They also provided that couples could have an additional religious ceremony, if they wanted to, after marrying before a registrar. Such additional ceremony however would not “supersede or invalidate any Marriages previously contracted”. To those additional services I will return shortly.
Finally and significantly, the use of any religious service in a register office was prohibited by s.12 of the Marriage and Registration Act 1856. So with s.12, we came rather more by accident than design to the place where there was a very clear distinction between religious and secular marriages.
All then lay pretty dormant until more recent times and the move towards same-sex marriage. In 2013 Parliament decided to legislate to provide that people who went through secular marriage ceremonies could do so even though they were of the same sex. That led to the passing of the Marriage (Same Sex) Couples Act 2013.
The relationship between the state law and the canon law
We have seen what a nineteenth-century Bishop of Exeter had to say in the House of Lords about the 1836 Act. This is what his twenty-first century successor (Michael Langrish) had to say in the House of Lords in 2013 when he said that if the Bill were passed “A basic understanding of marriage, in law, will have irrevocably changed, and with one reality now bearing two different labels; or we will have legislated into being two very different realities, but confusingly bearing the same name.”
The 2013 Act provides that:
s.1(3) No Canon of the Church of England is contrary to section 3 of the Submission of the Clergy Act 1533 (which provides that no Canons shall be contrary to the Royal Prerogative or the customs, laws or statutes of this realm) by virtue of its making provision about marriage being the union of one man with one woman.
And it provides in s.1(4) that any duty of any clerk in Holy Orders of the Churches of England and in Wales to solemnise marriages is not extended by this Act to marriages of same sex couples.
s.11 says – Effect of extension of marriage:
(1) In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite-sex couples.
(2) The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect in accordance with subsection (1).
(3) Schedule 3 (interpretation of legislation) has effect.
(4) Schedule 4 (effect of extension of marriage: further provision) has effect.
(5) For provision about limitations on the effects of subsections (1) and (2) and Schedule 3, see Part 7 of Schedule 4.
(6) Subsections (1) and (2) and Schedule 3 do not have any effect in relation to—
(a) Measures and Canons of the Church of England (whenever passed or made),
(b) subordinate legislation (whenever made) made under a Measure or Canon of the Church of England, or
(c) other ecclesiastical law (whether or not contained in England and Wales legislation, and, if contained in England and Wales legislation, whenever passed or made).
(7) In Schedules 3 and 4—
“existing England and Wales legislation” means— ……
“new England and Wales legislation” means— ……
Very clearly on the face of this secular legislation it is doing much more than saying that only opposite sex couples can enter into what the state recognises as a marriage through a Church of England marriage service; it is saying that as far as it is concerned there are now in existence both marriage as defined by the state which can be between a man and a woman or between two people of the same sex, and marriage as defined by the canon law of the Church of England (although they don’t use the term which the Church always has done – holy Matrimony) which only recognises marriages contracted according to its own rights between a man and a woman.
So parliament is expressly acknowledging that we have two different concepts of marriage – what our canon law provides for and calls holy Matrimony and civil marriage – but that entering into either of them will give rise, within the secular state, to the same consequences, i.e. the same consequences for tax, benefits, the treatment of children living with such a couple etc etc.
There is a very low common denominator for gaining that marital status – namely that two people, having given appropriate notice, in approved premises, in front of an authorised person and 2 witnesses, have declared that there is no impediment to them being married and have contracted to be husband/wife and husband/wife. The length of the contract is unspecified, it is certainly not said to be for life.
Holy Matrimony however includes much more than those minimal requirements. It has very significant additional requirements – the parties must be one man and one woman, they do say that there is no impediment to their marriage and they do make mutual commitments, but they also accept additional responsibilities – the commitment is expressly for life, it is also a commitment to share everything, to care for one another etc etc. There is also an expectation of sexual consummation (and the potential birth of children from the union). There is then the calling down of God’s blessing on all that has taken place. It is all of this that is involved in holy Matrimony, and the wording may vary slightly from marriage to marriage but the package is clearly a very different “contract” from that entered into in a civil marriage.
Civil ceremony followed by religious ceremony of marriage or service of prayer and dedication
As already mentioned, that same 1856 statute that barred any religious ceremony in a civil wedding did make provision for an additional subsequent religious ceremony. The same s.12 that barred religion in the register office provided that after a couple have been married in a civil ceremony, they could produce their wedding certificate to the minister of their church and ask the minister of their church to celebrate the marriage service of their church in church? That is still the position in s.46 of the Marriage Act 1949 which repeats that same provision.
I find this provision is not widely known, even amongst our clergy. And indeed recently in a blog post that got some circulation via Twitter a former theological consultant to the House of Bishops stated “The Church of England has recognised, and continues to recognise, marriages that are in line with the form of marriage instituted by God at creation as genuine marriages (i.e. forms of ‘Holy Matrimony’) regardless of where a marriage has taken place (which is why those already married in a register office could not then have a second marriage ceremony in a parish church).”
But they can! And have been able to do so since 1856. The reason for allowing it can only be because it is thought right to allow those who had gone through a civil marriage to additionally go through a religious ceremony. And again, one can only presume that the reason for allowing that is that it has always been thought that it added something. They have been civilly married but now they can see themselves as “properly married” in God’s sight.
However the provision in s.46 of the Marriage Act 1949 was specifically addressed in the 2013 Act to provide for its extension so that it applies in relation to same sex marriages and civil partnerships converted to same sex marriages, except that it “does not authorise the marriage service of the Church of England to be read or celebrated in the relevant marriage of a same sex couple” – s.46(1B). The fact that subsection (1)(B) needs to exist highlights the point that the Church maintains a different legal definition of marriage under the ecclesiastical law and therefore the carve out from s.46 is needed for same sex marriages.
More common however today is the use of the Common Worship service “of prayer and dedication after a civil marriage”? That there is more to marriage in the sight of God than is provided for in a civil marriage ceremony is made clear in the form of words used in that service. The rite begins with each saying to the other “I took you to be my spouse” and then they say together “to have and to hold from that day forward, for better, for worse, for richer, for poorer, in sickness and in health, to love and to cherish, till death us do part, according to God’s holy law, and this was our solemn vow. Today, in the presence of our family and friends, we affirm our continuing commitment to this vow.” So they are adding the elements that are omitted from the civil ceremony and of course there is quite a lot more and it concludes with their being blessed.
Two different realities
The Bishop of Exeter in 2013 spoke of “two very different realities, but confusingly bearing the same name.” It is not only bishops that use this language of different realities for marriage in different contexts.
There is a well-known and often quoted case in our legal history that says “I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”. The case itself is very instructive. Hyde v Hyde [L.R.] 1 P. & D. 130, decided in 1866, was the case of an Englishman who had converted to Mormonism. He met a young woman, also a Mormon, and in due course they went to Utah where they were married by Brigham Young in Salt Lake City. The male petitioner later renounced the Mormon faith but she did not. They separated and he returned to the UK. She then married again. Again her marriage was according to the Mormon form. The man then sued in England for divorce on the grounds of her adultery. The court refused his petition on the basis that it did not recognise his Mormon “marriage” as a marriage. The reason was that the marriage in Utah was potentially polygamous and English courts cannot recognise polygamous marriages.
Lord Penzance, the judge, also said in that case “Different incidents of minor importance attach to the contract of marriage in different countries in Christendom, but in all countries in Christendom the parties to that contract agree to cohabit with each other alone. It is inconsistent with marriage as understood in Christendom, that the husband should have more than one wife.”
Lord Penzance’s definition of “the voluntary union for life of one man and one woman to the exclusion of all others” has come under some criticism in recent years. Rebecca Probert in Child and Family Law Quarterly, Vol 19, No 2, 2007 said that a new definition was needed.
The President of the Family Division had in fact provided such a definition in Bellinger v Bellinger  EWCA Civ 1140  Fam 150  2 WLR 411.
In that case the issue was the validity of a marriage contracted between the appellant (born a man but who had undergone transgender surgery) and the respondent (a man). There were a number of arguments to be addressed one of which was that “The relationship called marriage is and always has been recognised as the union of a man and woman.” (para 124). Thorpe P quoted the above passage from Hyde v Hyde and said at para 128:
“But the world that engendered those classic definitions has long since gone. We live in a multi-racial, multi-faith society. The intervening 130 years have seen huge social and scientific changes. Adults live longer, infant mortality has been largely conquered, effective contraception is available to men and women as is sterilisation for men and women within marriage. Illegitimacy with its stigma has been legislated away: gone is any social condemnation of cohabitation in advance of or in place of marriage. Then marriage was terminated by death: for the vast majority of the population divorce was not an option. For those within whose reach it lay, it carried a considerable social stigma that did not evaporate until relatively recent times. Now more marriages are terminated by divorce than death. Divorce could be said without undue cynicism to be available on demand. These last changes are all reflected in the statistics establishing the relative decline in marriage and consequentially in the number of children born within marriage. Marriage has become a state into which and from which people choose to enter and exit. Thus I would now redefine marriage as a contract for which the parties elect but which is regulated by the state, both in its formation and in its termination by divorce, because it affects status upon which depend a variety of entitlements, benefits and obligations.
Again we see, even before same sex marriage, how far this modern secular definition is removed from the Anglican understanding of what is involved in Holy Matrimony, or what Lord Penzance would have called “marriage as understood in Christendom”.
So what are we to make of the difference? It is worth going back to Hyde v Hyde, because something else was said by Lord Penzance about the relationship between foreign polygamous marriages and monogamous marriages as recognised throughout Christendom:
” But there is no magic in a name; and, if the relation there existing between men and women is not the relation which in Christendom we recognise and intend by the words “husband” or “wife,” but another and altogether different relation, the use of a common term to express these two separate relations will not make them one and the same, though it may tend to confuse them to a superficial observer.”
We have now reached the position which would have been quite unimaginable to Lord Penzance – that in England and Wales the state recognises as a marriage a relationship between two people of the same sex and affords that couple the same status of being married as it does a marriage between a man and a woman, with all its attendant privileges and responsibilities. But the relationship between people of the same sex is not something that would have been recognised by Christendom as marriage, any more than would a polygamous marriage. And in Lord Penzance’s words to express these two separate relations by a common term does not make them one and the same thing. As was also said by the Bishop of Exeter.
In all these circumstances it is not possible to avoid the conclusion that difficult as it may be to grasp as a concept, there are two different realities. On the one hand, there is the institution and status of being married in England and Wales which the state recognises when two people go through the ritual and make a contract provided for in the civil marriage ceremony as set out by the state. But that does not mean, on the other hand, that they have entered into the contract that the Bible teaches us that God intended people to enter into if they want to follow his creation pattern. That is a lifelong commitment of faithfulness in all circumstances, entered into conscious of the need of the support of family and the community, and very much dependent on the blessing of God.
The contracts have some similarities but there are significant differences, and one of them, in our current understanding, is that the Church of England’s marriage contract can only be between a man and a woman. Whether we choose to refer to that as “Holy Matrimony” or simply as “marriage according to the law, rights and ceremonies of the Church of England” really does not matter. Parliament has recognised that there is a difference, the confusion comes as bishops and judges said would happen when we call different things by the same name.
His Honour Peter Collier KC
28 June 2023
 Address to Mosaic Annual Conference 2023
 Owen Chadwick, “The Victorian Church”, Vol. 1, An Ecclesiastical History of England, New York, Oxford: Oxford University Press, 1966.
Cite this article as: Peter Collier KC, “Marriage and/or Holy Matrimony?” in Law & Religion UK, 6 July 2023, https://lawandreligionuk.com/2023/07/06/marriage-and-or-holy-matrimony/