On Thursday 18 May, the Church of England carried a link to a story in the Daily Mail which it summarized as: “Further speculative report that Prince Harry’s girlfriend Meghan Markle could have a royal wedding at Westminster Abbey, despite being a divorcee. [The article] quotes a Westminster Abbey spokesman: ‘The Abbey follows the General Synod Ruling of 2002. Since then it has been possible for divorced people to be married in the Church of England’”.

The Mail comments:

“Prince Harry would be able to marry girlfriend Meghan Markle at Westminster Abbey despite her being a divorcee, the Church of England has confirmed. But the Prince would still require The Queen’s permission and it is believed the Archbishop of Canterbury would need to provide a special licence for any potential nuptials”.

Whilst broadly correct, a degree of clarification is probably necessary.

Royal Marriages

In addition to removing the issue of gender (for persons born after 28 October 2011) in relation to accession to the Crown, S1, and the disqualification arising from marriage to a Roman Catholic, S2, the Succession to the Crown Act 2013 provided that:

“3. A person who (when the person marries) is one of the 6 persons next in the line of succession to the Crown must obtain the consent of Her Majesty before marrying”

Where any such consent has been obtained, it must be: (a) signified under the Great Seal of the United Kingdom; (b) declared in Council, and (c) recorded in the books of the Privy Council. The effect of a person’s failure to comply with these requirements is that the person and the person’s descendants from the marriage are disqualified from succeeding to the Crown.

At the present time, S3 applies to: HRH Prince Charles, The Prince of Wales (b. 1948); HRH Prince William of Wales, The Duke of Cambridge (b. 1982); HRH Prince George of Cambridge (b. 2013); HRH Princess Charlotte of Cambridge (b. 2015); HRH Prince Henry of Wales (Harry) (b. 1984); and HRH Prince Andrew, The Duke of York (b. 1960).

The monarch is not constrained in what criteria she applies in granting or withholding her consent (of which marriage to a divorcee might be just one), but as Supreme Governor of the Church of England, it would be unusual if she did not follow its teaching on marriage, infra. When Prince Charles married Camilla Parker Bowles, a divorcee, on 9 April 2005, Her Majesty is did not attend the marriage ceremony at Windsor Guildhall, although she was present at the service of blessing in Windsor Castle.

Marriage after divorce

In July 2002, the General Synod of the Church of England passed the following motion by 269 votes to 83: That this Synod:

a) Affirm in accordance with the doctrine of the Church of England as set out in Canon B30, that marriage should always be undertaken as a solemn, public and life-long covenant between a man and a woman;

b) Recognize: i) That some marriages regrettably do fail and that the Church’s care for couples in that situation should be of paramount importance; and ii) That there are exceptional circumstances in which a divorced person may be married in church during the lifetime of a former spouse;

c) Recognize that the decision as to whether or not to solemnize such a marriage in church after divorce rests with the minister (or officiating cleric if the minister is prepared to allow his/her church or chapel to be used for the marriage); and

d) Invite the House of Bishops to issue the advice contained in Annex 1 of GS 1449.

Subsection c) resulted in changes to the provisions relating to the remarriage of divorced persons Matrimonial Causes Act 1965, whereby under S8(2):

“No clergyman of the Church of England or the Church in Wales shall be compelled: (a) to solemnize the marriage of any person whose former marriage has been dissolved and whose former spouse is still living; or (b) to permit the marriage of such a person to be solemnized in the church or chapel of which he is the minister”.

It is worth noting the applicability of this “conscience clause” to both the disestablished Church in Wales and the Church of England, as is the Archbishop of Canterbury’s power to grant Special Licences, infra. A detailed examination of the history and implications of this provision is given by Philip Jones in his post Marriage and Divorce. He concludes:

“It is therefore argued that the wording of s.8(2) cannot be interpreted as conferring a discretion on individual clergy to solemnize the marriage of a divorced person. It means no more than what it says, that a clergyman cannot be compelled to solemnize the marriage of a divorced person, or permit such solemnization in his church”.

Thus although in general remarriage after the divorce is possible within the Church of England, there remains a “conscience clause” whereby a priest may refuse to solemnize such a marriage or permit the use of his church for the ceremony. However, this latter requirement is inapplicable in relation to Westminster Abbey (or more strictly, the Collegiate Church of St Peter, Westminster) which is a Royal Peculiar; it therefore belongs directly to the monarch and not to any diocese, and does not come under the jurisdiction of a bishop. Henry VIII retained Royal Peculiars following the Reformation; the Ecclesiastical Licences Act 1533, as confirmed by the Act of Supremacy 1559, transferred to the Sovereign the jurisdiction which had previously been exercised by the Pope.

Special Licence

The requirements preliminary to the solemnization of matrimony, i.e. the “ecclesiastical preliminaries”, are specified in Canon B34. These are the same as for any other marriage: the calling of banns, a special licence, common licence or a superintendent’s registrar’s certificate. In its review of the civil and ecclesiastical preliminaries, the recent legal advice published by the Church, Celebrity Marriages in Anglican Cathedrals and Churches notes “[n]onetheless those requirements (other than a special or common licence) necessitate some publicity and that in itself may cause problems”. The implication in this statement is that if publicity is to be avoided, marriage by Banns is not the way to do it. [See also our recent post Banns of marriage their development and future].

Special licences are granted by the Archbishop of Canterbury under Section III Ecclesiastical Licences Act 1533 in relation to marriages in the Church of England and the Church in Wales. They are not issued automatically and the Faculty Office provides guidance on the six-stage application process. When the application is approved, the Faculty Office prepares and affidavit which must be sworn before and Anglican minister in England & Wales, or at the Faculty Office. However, where an application involves a non-European national, this final step is replaced with the following requirement:

“(6) The couple are required to attend an interview at the Faculty Office in Westminster. If all is in order, the affidavit will be sworn at that same appointment.”

Comment

In summary, the Mail is broadly correct in that the marital status of Meghan Markle is unlikely to be a major factor should she and Prince Harry decide to marry at Westminster Abbey. The position of the monarch is critical with regard to her position as Supreme Governor of the Church of England and the status of Westminster Abbey as a Royal Peculiar.

At the wedding of Prince William, Duke of Cambridge, and Catherine Middleton in Westminster Abbey, the Dean of Westminster, John Hall, presided at the service; the Archbishop of Canterbury, Rowan Williams, conducted the marriage; and Richard Chartres, the Bishop of London, preached the sermon.

In addition, the Archbishop of Canterbury plays an important role in relation to the granting of a Special Licence, should that ecclesiastical preliminary be chosen, and in ensuring the niceties of the Immigration Act 2014 are observed.