Banns of marriage – their development and future

Introduction

The legal requirement to read banns for couples intending to marry in church services was considered by members of the Church of England General Synod on 14 February 2017. Though Synod rejected moves that sought to end this “ecclesiastical preliminary” to marriage, important arguments were cited both for their retention and for their removal. In this post, we summarize the development and current usage in England and Wales, Scotland and the two jurisdictions in Ireland, and examine possible future directions.

Background

Origins

The calling of banns was first introduced to prevent clandestine or unlawful marriages between family members within the prohibited degrees of affinity. Banns later became a deterrent against unscrupulous suitors seeking to take financial advantage of women in an age when a husband acquired his wife’s property on marriage. The triple calling of banns was introduced in Canterbury by Archbishop Hubert Walter in 1200 and extended to Christendom in 1215 by Pope Innocent III at the Fourth Lateran Council. It was not until the Council of Florence (1431-46) that the Church officially accepted the view that wedlock was a sacrament, conferred by the exchange of consent, and gave it parity with the other sacraments.

At the Reformation, the Ecclesiastical Licences Act 1533 gave the Archbishop of Canterbury powers formerly exercised by the Pope to grant licences &c. Nevertheless, a number of forms of clandestine marriage remained: a common ingredient was the breach of the Church’s rules about publicity. The banns and the associated dispensations were retained and enshrined in the Church of England’s Canons of 1603/04, [Canons 62, 63, 101 to 104]. At that time, nearly all marriages in England, including the “irregular” and “clandestine” ones, were performed by ordained clergy.

Lord Hardwicke’s Act and Lord Brougham’s Act

The Marriage Act 1753, “An Act for the Better Preventing of Clandestine Marriage” 26 Geo II c 33 (otherwise known as Lord Hardwicke’s Act), was the first statutory legislation for England and Wales to require a formal marriage ceremony and make the ecclesiastical preliminaries – either banns or a marriage licence – a civil as well as an ecclesiastical requirement. Importantly, under that Act, the banns gained statutory significance. The Act was successful in suppressing valid marriages conducted by Anglican clergy that were not in accordance with canon law and marriages not conducted in accordance with the requirements of the Act were void. The Act addressed marriage both by banns and by special licence and introduced draconian penalties for those who solemnized marriage contrary to its provisions, including transportation for fourteen years and death as a felon for falsifying marriage registers.

The geographical extent of the Act did not include Scotland. One consequence was an increase in “border village weddings” – Gretna, Coldstream Bridge, Lamberton, Mordington and Paxton Toll – since under Scots law it was possible to marry “by declaration de praesenti” [of present consent]; only two witnesses were required, together with assurances from the couple that they were both over the age of 16 and free to marry. Lord Brougham’s Act “for Amending the Law of Marriage in Scotland” 1856, 19 & 20 Vict c 96, significantly curtailed those activities and, inter alia, introduced a “civil preliminary” requiring 21 days’ residence prior to marriage.

Civil marriage

Civil marriage was introduced by the Act for Marriages in England 1836 which allowed marriage in the register office in the presence of the superintendent registrar, subject to certain “civil preliminaries”. These included: notice in writing by one of the parties; marriage to be solemnized within 21 days of notification; registrar to record marriage. Non-Anglican couples who married in their own churches also had to marry in a register office, as did those who did not want a religious ceremony. That continued until 1898, when Nonconformist ministers were authorized to conduct legal marriages in their chapels and report them to the registrar. Specific provision was made for contracting and solemnizing marriages by Quakers and Jews (which had already been acknowledged in Lord Hardwicke’s Act) in 1753). Within the Church of England [and Wales] the calling of the banns was retained.

England & Wales

The Marriage Act 1949 forms the basis for the present-day regulation of marriage: rather than making new law, it consolidated several earlier statutes that regulated many of the practical aspects of marriage, both by civil registrars and by the clergy acting as registrars. Subsequent amendments were made to the provisions relating to banns, below.

England

In his paper for General Synod, Preliminaries to Marriage, GS 2045A: the Revd Stephen Trott notes:

“10. There is a kind of folk memory concerning Banns of Marriage in which it is assumed that everyone who is married in Church first has their Banns published”.

As the paper indicates, this commonly-held viewpoint often obscures the fact that the raison d’être underpinning the banns has changed over their long usage, as has the legislative regime requiring them to be published. Furthermore, “marriage by banns” relates to only one form by which, traditionally, marriage has been solemnized in the Church of England. Currently, four such routes are permissible under s 5 (Methods of authorising marriages) Marriage Act 1949:

  • after the publication of banns;
  • on the authority of the Archbishop of Canterbury’s special licence;
  • on the authority of a common licence; or
  • on the authority a superintendent registrar’s certificate.

Banns, special licences and common licences are usually referred to as “ecclesiastical preliminaries”, while authorisation in the form of a superintendent registrar’s certificate is usually referred to as “civil preliminaries”.

Approved form of the banns

The Church of England Marriage Measure 2008 and the Church of England Marriage (Amendment) Measure 2012 increased the range of churches in which a couple may choose to marry through the introduction of the “qualifying connection” provision, and increased flexibility regarding the service at which the banns are to be published, respectively. The latter provision provided statutory authority for the alternative form of words for the publication of banns of marriage contained in Common Worship, in addition to those in the Book of Common Prayer. By law, banns must be read in the parish church of where each of the persons resides as well as in the parish church with which there is a “qualifying connection”.

The booklet Anglican Marriage in England and Wales: a Guide to the Law for the Clergy (2010) is a comprehensive statement of the law but is available only in hard copy. Since its publication, the Church has published on-line supplements in July 2013 and April 2015. These and other on-line updates on the relevant legislation are published in the Faculty Office Marriage Law News. It should be noted that the 2013 guidance states: “none of the forms requires the parties’ current marital status to be stated”.

“Sham marriage”

“Sham marriages” are not restricted to the Church of England; but its common law duty to conduct marriage combined with a former exemption from the “civil preliminaries” has made it particularly susceptible to abuses: see our post Sham marriage, the church and the law. A “sham marriage” is defined in s 24(5) Immigration and Asylum Act 1999 as a marriage (whether or not void) —

“(a) entered into between a person (“A”) who is neither a British citizen nor a national of an EEA State other than the United Kingdom and another person (whether or not such a citizen or such a national); and

(b) entered into by A for the purpose of avoiding the effect of one or more provisions of United Kingdom immigration law or the immigration rules”.

The term is therefore confusing because there is the possibility that the marriage is legally valid (i.e. not void or voidable) and remains so despite being labelled as “sham”: the problem relates to the purpose of the marriage, which is to circumvent immigration legislation as a means of gaining long-term residency and the right to work and claim benefits in this country, not its validity. In such cases, the offences that are committed are immigration offences.

Under s 24 of the 1999 Act, civil registrars were required to report all suspicions of sham marriage to the Home Office (via “section 24 reports”) and in February 2005 the ‘Certificate of Approval’ scheme was introduced which required non-EEA nationals to obtain permission to marry, subject to a fee of £135 for applications. However, following R (Baiai & Ors) v Secretary of State for the Home Department [2008] UKHL 53, the scheme was formally abolished in 2011 because it breached Article 14 (discrimination) ECHR. During the operation of the scheme the number of “section 24” reports decreased significantly.

The Church of England was not required by law to report suspicions about non-EEA and EEA nationals marrying in its churches; however, it tightened its procedures after cases such as that in September 2010 of a vicar in East Sussex found guilty of conducting 370 sham marriages and jailed for four years. On I April 2011 the House of Bishops issued its quasi-legislative guidance Marriage of Persons from Outside the European Economic Area.

The Immigration Act 2014 introduced further restrictions aimed at minimizing sham marriage. Most are generally applicable; and in relation to the Church, s 57 (Solemnization of marriage according to rites of Church of England) contains measures which, when brought into force, will exclude marriage by banns or common licence where one party or both is not a British citizen or an EEA or Swiss national – thereby making the Bishops’ guidance mandatory – and additionally restricting the use of the common licence.

While a special licence remains an option for a small number of cases (for example, death-bed marriages), marriages involving non-UK/EEA/Swiss nationals must now normally take place following civil preliminaries, the couple being required to give notice at a designated register office. The Home Office may increase the notice period from the usual 28 days to 70 days if it decides to investigate the marriage to discover whether it is a sham. After the expiry of the notice period, the superintendent registrar issues the certificate and the marriage may take place. As in the case of any other marriage on the authority of a superintendent registrar’s certificate, the incumbent has a discretion as to whether to permit the marriage to take place.

The paper for General Synod from the Secretary General,  GS 2045B states:

“[9]. As the large majority of marriages according to the rites of the Church of England do not involve non-UK/EEA/Swiss nationals, most marriages in church continue to take place after the publication of banns of matrimony. Most couples are able to demonstrate their entitlement to have banns published by the production of passports.

Wales

S 13 Marriage Act 1949 applies in Wales as it does in England 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”.

For the Church in Wales, the detailed provisions on marriage preliminaries are set out in the Book of Common Prayer 1984.

Under the Marriage Act 1949, therefore, the law in England applies to Wales by analogy and the Church in Wales regulates marriage preliminaries under its canon law – but s 3(1) Welsh Church Act 1914 declared that, on disestablishment, “the ecclesiastical law of the Church in Wales shall cease to exist as law”. Therefor. the canon law of the Church is a set of internal rules by which its members agree to be bound in contract – but one cannot make public, secular law by internal, private contractual agreement.

So would the abolition of the English provisions about banns have a knock-on effect for the Church in Wales? We would not presume to attempt a definitive answer; but we would think that, at the very least, there should be no change in the current law in England without prior consultation with the Welsh College of Bishops.

Scotland, Northern Ireland and the Republic of Ireland 

Generally

S 13 (Publication of banns in Scotland, Northern Ireland or Republic of Ireland) Marriage Act 1949  provides that where a marriage is intended to be solemnized in England after the publication of banns where one of the parties is residing in England and the other in Scotland, Northern Ireland or the Republic of Ireland,

“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 … be sufficient for the purposes of section eleven of this Act”

Scotland

The calling of banns as a prerequisite to marriage was abolished by s 27 Marriage (Scotland) Act 1977, which came into force on 1 January 1978. 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 the Act of Assembly contains the saving under which banns may be called for a party resident in Scotland who is to be married furth [i.e. outside] of Scotland. So after 1 January 1978:

  • banns ceased to be called for Church of Scotland religious marriages as a legal preliminary to marriage;
  • 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;
  • at least in principle, banns might still be called in the Church of Scotland parish church for marriages taking place outside Scotland where banns were a requirement in the place of marriage – and the Church issued a formal instruction about the procedure in such circumstances.

Whether or not the abolition of banns had any adverse effect on the number of weddings in the Church of Scotland is difficult to determine. The relevant extract from Table 7.6 of  Marriages, numbers and percentages, by method of celebration, Scotland, 1946 to 2001 (in Vital Events Reference Tables 2001, published by the National Records of Scotland) shows a fairly steady decline over time:

All marriages Church of Scotland
1971-75 41,404 18,279
1976-80 37,801 15,370
1981-85 35,756 14,177
1986-90 35,440 14,093
1991 33,762 13,124

The decline between 1976-80 (banns having been abolished as from 1 January 1978) and 1981-85 was not as great as the decline between 1971-75 and 1976-80. So Whether the loss of the pastoral opportunity occasioned by non-Church couples going along to the manse to make casual enquiries about having their banns called had any impact on the number who subsequently opted for a Church of Scotland weddings is not at all clear.

Scottish Episcopal Church

The booklet Anglican Marriage in England and Wales: a Guide to the Law for the Clergy (2010) states: “7.5 In Scotland the Episcopal Church has never published banns”.

Northern Ireland and the Republic

The marriage laws of both Irish jurisdictions are very similar to those 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). Both statutes make provision for marriage schedules as a preliminary to marriage rather than banns. However, it remains at least theoretically possible under the Marriage Act 1949 for a couple to ask for their banns to be called in a parish church, even in the Republic of Ireland. Current practice in the Church of Ireland is in the first  note appended to the Church’s guidance note on the  Marriage Regulations (NI) 2004:

“(i) Since the former practices of the reading of Banns or the issuing of Licenses [sic] have been superseded, the reading of Banns will have no legal effect, unless required for the purposes of solemnising of matrimony in the Church of England or the Church in Wales.”

Conclusions

Ecclesiastical preliminaries

The rejection of the Revd Stephen Trott’s private Member’s motion means that changes in the ecclesiastical preliminaries will not be initiated by the Church of England during the life of the present General Synod, i.e. until 2020. However, as noted in GS 2045B,

“[10]. Between 2001 and 2004, as part of a wider plan for a complete reform of the law relating to marriage (which was itself part of a total reform of the civil registration system), the Government developed proposals which would have involved abolishing ecclesiastical preliminaries to marriage and replacing them with civil preliminaries in all cases”.

On that occasion, however, the House of Bishops and the General Synod made it clear that they were only prepared to support the principle of abolishing ecclesiastical preliminaries on the condition that what replaced them would retain the “one-stop shop” under which the couple would normally need only see the parish priest to make all the arrangements for their wedding. The Government’s proposals were ultimately not proceeded with after they encountered procedural difficulties in Parliament.

Civil preliminaries

At the time of writing, the Law Commission for England and Wales – which had been asked by the then Prime Minister, David Cameron, to look at marriage law – had published Getting Married: A Scoping Paper. It provided an initial analysis of the issues that needed to be addressed to develop proposals for reform but – intentionally – did not make specific recommendations. Instead, the paper set out the questions covering each of the stages of getting married that would need to be considered in any review.

In paragraph 2.20 of the paper, the Commission describes the legal provisions relating to banns as “particularly complex”. You can say that again; and we cannot help wondering whether the system would survive another full-scale review more or less intact or whether the Law Commission would recommend moving to a regime of marriage schedules as in Scotland and both parts of Ireland. But although the scoping paper was published in December 2015, the Government has not yet responded: possibly the present Prime Minister does not share her predecessor’s interest in reform of marriage law – or maybe she just has other fish to fry.

David Pocklington and Frank Cranmer

Cite this article as: David Pocklington and Frank Cranmer, “Banns of marriage – their development and future ” in Law & Religion UK, 23 February 2017, http://wp.me/p2e0q6-8Xo

5 thoughts on “Banns of marriage – their development and future

  1. A valuable summary – but you imply that it was in 1836 that “Specific provision was made for contracting and solemnizing marriages by Quakers and Jews” but this was in fact in the Hardwicke Act.

    • Thank you for your comment, David. The point about Quakers and Jews was probably clearer in our much longer (!) draft in which we said:

      Rebecca Probert observes:

      “[t[he Act [i.e. the 1753 Act] did not state that the marriages of Jews and Quakers would be valid; it merely said that the Act did not apply to them. And this was actually particularly problematic for Quaker marriages, because the validity of Jewish marriages could be tested according to Jewish law, and the church courts were willing to hear evidence of Jewish law and assess the validity of marriages accordingly, but there [were not] really any criteria by which the validity of Quaker marriages could be assessed and there did remain a question mark over their validity until the end of the 18th century”.

      R Probert, ‘Tracing marriages in 18th century England and Wales: a reassessment of law and practice’ (2010) The National Archives, available at http://media.nationalarchives.gov.uk/index.php/tracing-marriages-in-18th-century-england-and-wales-a-reassessment-of-law-and-practice/.

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