Calling the banns in Scotland: a curiosity for canon law anoraks

A message from Kelvin Holdsworth in relation to my throwaway reference to special  marriage licences – Kelvin being Provost of St Mary’s Cathedral, Glasgow – reminded me of one of the stranger provisions of the Marriage Act 1949.

Section 13 reads as follows:

Publication of banns in Scotland, Northern Ireland or Republic of Ireland: Where a marriage is intended to be solemnized in England, after the publication of banns of matrimony, between parties of whom one is residing in England and the other is residing in Scotland, Northern Ireland or the Republic of Ireland, then, if banns have been published or proclaimed in any church of the parish or place in which that other party is residing according to the law or custom there prevailing, a certificate given in accordance with that law or custom that the banns have been so published or proclaimed shall as respects that party be sufficient for the purposes of section eleven of this Act, and the marriage shall not be void by reason only that the banns have not been published in the manner required for the publication of banns in England”.

Moreover, s 78 (interpretation) provides that

“Any reference in this Act to the Church of England shall, unless the context otherwise requires, be construed as including a reference to the Church in Wales”.

In Scotland, banns were abolished by s 27 of the Marriage (Scotland) Act 1977 which came into effect on 1 January 1978 and the Church of Scotland abolished any internal canonical requirement for banns by passing a reciprocal Act of Assembly: Act III 1978 Anent Proclamation of Banns. But s 2 of that Act contains the saving that:

“… any person usually resident in Scotland and requiring proclamation of banns in order to be married furth of Scotland may have banns proclaimed in any parish church within the registration district within which he or she usually resides”.

 So in Scotland after 1 January 1978:

  • banns ceased to be called for Church of Scotland religious marriages as a legal preliminary to marriage; and
  • for religious as for civil marriages, both parties were henceforward required to lodge marriage notices with the district registrar of the district where the marriage was to take place.

In addition, however, the extremely helpful Little History of Scots marriage law published by the General Register Office for Scotland states that:

“Banns may still be called in the (Church of Scotland) parish church for marriages taking place outside Scotland where banns are a requirement in the place of marriage”.

The parenthetical reference to the Church of Scotland puts a useful gloss on the words “in any church of the parish or place in which that other party is residing” in s 13 of the 1949 Act. Having your banns called in the local Episcopal or Roman Catholic church is evidently not what was intended.

Comment: I was unaware of this curiosity until, earlier this year in the course of the day-job, I was involved in answering a query from a Church of Scotland minister as to why he was being asked to read the banns for a couple resident in his parish who had no connection whatsoever with his church but who needed a banns certificate in order to get married in a C of E church in Cornwall. He duly read their banns out of courtesy but thought it quite bizarre to be reading them for an English wedding when they had been abolished for Scots ones – not least because the C of E and the Kirk are not formally in communion with each other.

I wonder whether, in reality, section 13 of the 1949 Act still has any practical legal effect in Scotland, given that there appears to be no mechanism for enforcing it? It must be at least arguable that the publication of banns is no longer “according to the law or custom there prevailing” – the “law or custom” having been overtaken by the abolition of banns by the Marriage (Scotland) Act 1977. I assume that, ultimately, the reason why parish ministers still call banns on request is because of the provisions of s 2 Act III 1978 – and that although Act III 1978 appears to be permissive in respect of the person marrying, compliance is presumably mandatory for the minister in whose parish that person resides. (Would it, perhaps, be regarded as contumacious in the face of an Act of Assembly for a parish minister to refuse such a request?)

As to Ireland, the marriage laws of both jurisdictions are very similar to that of Scotland: see the Marriage (Northern Ireland) Order 2003 and the (Irish) Civil Registration Act 2004 (especially s 51 Solemnisation of marriages and s 52 Places and times for the solemnisation of marriages). And the Republic is beyond the reach of any UK court in any case, so if a clergyperson in Dublin says “Don’t be daft: I’m just not doing that”, what does HMG do? Break off diplomatic relations? Raise it at the EU Council of Ministers? Send a gunboat and start the War of Jenkins’ Banns?

Stranger still, the Ireland Act 1949 was deemed to have come into effect on 18 April of that year, while the Marriage Act 1949 did not come into effect until 1 January 1950. So did the Attlee Government, having just recognised the newly-proclaimed sovereign status of the Republic of Ireland, merely assume that the Church of Ireland in the Republic would be prepared to continue reading the banns for marriages in England or Wales simply out of neighbourliness? (For current practice in the Church of Ireland see Church of Ireland Regulations & Guidelines: Introduction of New Marriage Regulations (NI) January 2004.)

If my analysis is correct, then:

  • people still can ask to have their banns called in Scotland or the island of Ireland so that they can get married in England or Wales; and
  • an incumbent or parish minister can refuse the request without sanction from the secular law – though that person might then become subject to internal canonical sanctions.

Ultimately, the only way to resolve the matter is either by the repeal of s 13 of the Marriage Act 1949 or (in respect of the Church of Scotland) by the repeal of s 2 Act III 1978 – at which point the calling of banns would surely cease to be “according to the law or custom there prevailing” and the reference in s 13 would be rendered completely nugatory.

More radically, the need for a wholesale reform of the Marriage Act 1949 in order to make it appropriate to conditions in a modern, multi-faith society – quite apart from the issue of “equal marriage” on which we have already agitated many electrons – has been obvious for a very long time and I would propose the Marriage (Scotland) Act 1977, as amended, as the model to adapt and adopt. But I’m certainly not holding my breath.

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