In August 2012 I posted Calling the banns in Scotland: a curiosity for canon law anoraks, on the issue of calling the banns at a church in Scotland, Northern Ireland or the Republic of Ireland for a marriage in England or Wales. What follows continues the theme.
S 13 Marriage Act 1949 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”.
S13 applies equally to Wales as a result of s 78 (interpretation):
“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. It came into effect on 1 January 1978; and the Church of Scotland abolished any internal canonical requirement for banns by Act III 1978 Anent Proclamation of Banns. So the current situation in Scotland is that banns are not published as a preliminary for a wedding in the Church of Scotland; instead, both parties are required to lodge marriage notices with the district registrar of the district in which the marriage, whether religious or civil, is to take place.
However, s 2 of the Act of Assembly provides the saving that:
“… any person usually resident in Scotland and requiring proclamation of banns in order to be married furth of [ie outside] Scotland may have banns proclaimed in any parish church within the registration district within which he or she usually resides”;
and the 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”.
My conclusion was that couples resident in Scotland who are marrying in England or Wales can ask to have their banns called at a Church of Scotland parish church in the registration district(s) in which they reside (the registration district will almost certainly include more than one ecclesiastical parish); but a parish minister can refuse the request without sanction from the secular law – though he or she might be in breach of s 2 Act III 1978.
Recently the issue came up again; and my correspondent directed me to the Church of England web-pages on weddings, which state that:
“… if one or both of you do not live in England, it is recommended that the licence procedure be used rather than banns. This is especially recommended if there is any doubt as to the legal requirements of the home country of a non-British person for recognition of an English Church marriage.”
In its booklet “Anglican Marriage in England and Wales: A Guide to the Law for Clergy” (not available on-line), on page 29 the Faculty Office specifically addresses the publication of banns in Northern Ireland and Scotland as follows:
“7.5 In Scotland the Episcopal Church has never published banns; until the passing of the Marriage (Scotland) Act 1977, banns were ‘proclaimed’ in parish churches of the Church of Scotland. Since 1977 all marriages in Scotland take place after civil preliminaries. It may still be possible to call banns in Scotland in such a way as to satisfy the requirements of Marriage Act s 13, following an Act of the General Assembly of the Church of Scotland in 1978. However, it may be found that it is more convenient to obtain a common licence where one party lives in Scotland, and this is the course generally recommended by the Faculty Office” [my emphasis].
It repeats that advice in the First Supplement: July 2013:
“7.5 Publication [of banns] outside England | Northern Ireland and Scotland – The law in Northern Ireland and the Republic has changed pursuant to (respectively) the Marriage (Northern Ireland) Order 2003 and the Civil Registration Act 2004. Civil preliminaries are now used for all marriages taking place in Ireland. The Faculty Office recommends the same course of action to be taken as where one party lives in Scotland; that a common licence should be obtained”.
So it seems that, even though having banns called in the Church of Scotland for a wedding in England or Wales would appear to fulfil the requirements of the 1949 Act, the safest course is to obtain a common licence.