Luther, in his commentary on Matthew (v.vi.vii) said:
“How are we to deal with matrimonial affairs and with questions of divorce, I have already explained, viz., that they should be left to those skilled in the law, and should be put into the hands of the secular rulers. For marriage is a secular and external matter, just as wife and child, house and property and the rest, and so is subject to the jurisdiction of the civil ruler, which in its turn is subject to the law of reason.”In the Calvinist territories jurisdiction was handed over to the civil power more promptly, though with the proviso that the civil courts should deal with marriage according to the teaching of the scriptures.
In England, spiritual courts were retained but in accord with the Act of Supremacy, the source of all jurisdiction, including the spiritual courts, was the Crown. So article 37 of the 39 articles of religion in the 1562 version reads:
“The King’s Majesty hath the chief power in this Realm of England, and other his Dominions, unto whom the chief Government of all Estates of this Realm, whether they be Ecclesiastical or Civil, in all causes doth appertain, and is not, nor ought to be, subject to any foreign Jurisdiction.”Marriage cases in England remained under the ecclesiastical courts until 1567 when a secular court was established to deal with them.
The reformation in England is a special case, but the Council of Trent condemned the protestant subjection of marriage cases to the civil courts in Canon 12 on the Sacrament of Matrimony in Session 24:
“If any one says, that matrimonial causes do not belong to ecclesiastical judges; let him be anathema.”Being familiar with all this, I was most interested to read the article by Steve Baker, MP for Wycombe: Why I voted against the Marriage (Same Sex Couples) Bill. He argues that the state should get out of marriage altogether. I hope he will not be disturbed to discover that he is agreeing with the Council of Trent against Luther and Calvin.
We could argue that if the SSM Bill completes the rest of its passage through Parliament, the state will have effectively got out of marriage since the institution which results will not actually be marriage at all.
I agree with those (including Bishop Egan) who are suggesting that we should withdraw from the civil registration of marriage. If Catholics want to get married, they can come to the Church and be married. If they then want to register their union with the state (to enjoy such legal, civil or financial benefits as might be available) they could do so afterwards. I think we should be careful to insist on keeping this order, rather than submit to a French style arrangement where the Town Hall “marriage” has to be done first. There is no reason now for the state to impose that.
Given our present arrangements, and especially given the discussion on widening civil partnerships, I would argue that the best option would be for Catholics to get married in Church and then, if they consider it beneficial, to go and register their “partnership” at the register office. This would be preferable since you can register a civil partnership without any ceremonies, simply by signing the civil partnerships schedule. In order for this to be possible, the registration of a civil partnership would need to be extended to heterosexual couples. With all the talk of equality, it seems difficult to find a justification to retain the rule that they can only be for couples of the same sex.
When in the past, I have suggested that we might de-register our Churches and conduct weddings according to the form of the Church and leave couples free to go to the Register Office or not as they choose, canon lawyers have come up with various objections. One that used to be brought forward was the possibility of a suit for “alienation of affection.” Consulting a barrister about this, I was assured that unless you live in Mississippi or Carolina, this is not possible. Another argument put to me was that we might be in trouble for conducting a “simulated marriage.” I would be interested to hear from lawyers whether this is a well-grounded fear. If it is, and since the whole law concerning marriage is now up for grabs and we in the Catholic Church have made a creditable nuisance of ourselves over same-sex “marriage”, our legislators might be fairly glad to get us off their backs in at least one respect by altering the law so that marriages according to the form of the Catholic Church can take place without fear of prosecution with civil registration left as an option.
It would be good for us to return to the situation envisaged by the Council of Trent. There is no good reason why we should be encumbered by the fiasco that is now likely to become the law on marriage in our country.
23 comments:
"It would be good for us to return to the situation envisaged by the Council of Trent. There is no good reason why we should be encumbered by the fiasco that is now likely to become the law on marriage in our country."
Nail. On. Head. Hit.
Thank you, Fr.
Sorry Father but Neil Addison informed us this morning on Protect the Pope blog that under section 75 of the 1949 Marriage Act it is a criminal offence to undergo a religious marriage ceremony without having corresponding civil marriage provisions.
So there is no choice involved - if you want a Church wedding you MUST have a civil marriage as well...
Which is where we come into difficulties because I still cannot see why this new 'marriage act' is not an intrinsically unjust law in which we are expressly forbidden to formally or proximately materially co-operate.
[remember it will not validate any potential marriage between baptised non-Catholics going through this ceremony - plus it eliminates notions of consummation, fidelity, cohabitation or even recognition of acknowledgment/interaction/communication between spouses ante and post the marriage ceremony]
Would scandal, false witness against one's neighbour, formal co-operation and conspiracy by omission be invoked by involving oneself with a civil marriage?
If that's the case you can't have a religious marriage either without making criminals of all who are involved...
[and yes - I understand the irony given the Church convalidates and radically sanates on a daily basis - all technically illegal - and the state doesn't bat an eye]
I would very much like this to happen.
Austria, and I think probably Germany has the registry office first rule.
As an Anglican who supports Same Sex Marriages (and the whys and wherefores of that are besides the point), I completely agree, and do so for the Church of England as well as for Roman Catholics and any other denomination.
It would be far better more sensible for the state to allow the registration of civil partnerships of any two people for any reason: love, economics, conveniences; and the churches to conduct marriage as a separate entity entirely.
Tom
Under s75 Marriage Act 1949 it is a criminal offence for anyone to solemnise a Marriage otherwise than in accordance with the Act. Therefore there would be legal problems with a Catholic Church solemnising a Religious Wedding for a couple without a Civil Legaly registered Marriage coming first.
It is fair to say this is done frequently with Muslim Marriages (a subject I have frequently Blogged about) without there being any prosecution however I would not be so sure that a Catholic Priest would not be prosecuted in those circumstances.
If however the Church were to say that the couple can only have a Church marriage afterthey have been through a Civil Marriage ceremony in the Registry Office then that would be legal because the ceremony would be regarded in law as simply a private religious blessing.
This, is what happens in much of Europe where couples go to the Town Hall for the legal registration of Marriage and then go to the Church for the “proper” marriage ceremony.
I do have sympathy however with your idea that Catholics in this situation would be better off having a Civil Partnership rather than a Civil Marriage and I suspect it is almost inevitable that the Civil Partnerships Act will be amended to permit heterosexual Civil Partnerships
I agree entirely. The state is in the process of further removing marriage from what it actually means.
Marriage is the union of one man and one woman for life. If the state chooses to call a different arrangement by the same set of letters then we as a Church, should ensure that real marriage has nothing whatsoever to do with the state's invention.
I understand where you're coming from, but I'd take a lot of convincing that you are right either in practical terms or in principle.
To take the practical first: you think it might get the Government off the Church's back. Well, possibly, but not the ECHR, nor disciples of Tina Beattie wanting their day of glory in court. The strength gained by withdrawing into a ghetto is nearly always illusory.
As for the principles: we cannot simply reinvent marriage as a purely sacramental affair that happens to have the same name as a state institution. Marriage is both a sacrament and a social good.
99% of those legally married will continue to be opposite sex couples. We can't simply turn our backs on them and say we couldn't care less whether they do or don't. It matters that children are brought up by parents who have made a public commitment to each other. If the only form of commitment which they find meaningful is civil marriage then it is right that they should take that step, and we must be able to say so.
We must not be panicked into biting off our noses to spite our faces.
Neil - many thanks for your guidance. Given the massive change to marriage law that the SSM bill is bringing about, I think it would be worth trying to get that section of the marriage act amended. In the present state of affairs, I can't see why anyone in Government would be bothered.
Mr Grumpy - you misread me. I did not speak of us getting the government off our backs but vice versa.
Nor did I say that non-Catholics shouldn't enter civil marriages. I think it is probably good for society that they do so - though that good will be lessened by the passing of the SSM Bill.
I'm talking about marriages in the Catholic Church. Currently in most parishes, the priest is an "Authorised Person" and either he or another AP (parish secretary etc.) has to fill out the civil register and copy thereof, complete the marriage certificate, send another copy as a quarterly return to the local registrar, all under pain of legal penalties. Before any of this happens, the couple have to go for interviews and an identity check at the local RO, then return and collect a certificate (on payment of the required fee) which the priest must have in order to do the civil registration of the marriage.
Incidentally, not all the marriages that we celebrate in Church are sacramental. In the case of a Catholic and a non-baptised person, the marriage is not a sacrament. But more on that in another post...
Father. I take your point however even if the Criminal element of the Marriage Act was removed I would be concerned at the idea of the Church performing Religious Marriage ceremonies if the couple concerned did not have a legally registered Marriage or Partnership.
The Church does have a moral responsibility towards the couple involved that they should not face any legal difficulties over Inheritance rights, Hospital visiting rights etc and the fact is that co-habiting couples who are not in legal marriages have very few rights a problem that the co-habiting couple only find out when something goes wrong. This is also a problem many Muslim wives have discovered when they realise that their religious marriage is not legally recognised.
From Deacon Malcolm Turner by email:
When I married my first (late) wife in 1964 before our churches undertook civil registration, we were married first at the altar during Nuptial Mass according to the Church and then into the Sacristy where the registrar 'married' us according to law. The latter wasn't just a case of signing the registers, it was a short form of civil ceremony, and that part was never meant to precede the church marriage ceremony. It could easily be in that order again.
Deacon Malcolm - that would still be the procedure today for Churches that are not registered for marriage. It is not a bad solution and may well be the one that I have to adopt in practice. One problem is that it is more expensive for the couple for the Registrar to come out than for them to go to the RO or for a parish Authorised Person to do it.
One advantage for the priest is that the Registrar will not wait, so there can be no arriving half an hour late ;-)
On one occasion when celebrating an Old Rite wedding, I took the couple into the sacristy afterwards and got them to say the declaratory and contracting words in the shortest form given in the official handbook.
The UK recognises marriages in foreign countries. Could we go to the nunciature and get married in Vatican territory?
Perhaps we should all get civilly divorced en mass as a protest.
Such civil divorce would have course have no effect on our sacramental marriages which man cannot put asunder.
We could then kick up a gigantic fuss as we would all want civil partnerships but would not be allowed one because the relationship is heterosexual.
That would certainly stir it up and is exactly the sort of tactic the other side deploy
"our legislators might be fairly glad to get us off their backs"
Sadly I suspect not. They want us at their feet, with everyone else.
The last thing the State will accept is anyone being outside its remit.
Father, would the first step be for you to de-register as an Authorised Person?
The State could then send along a registrar to register the marriage for their purposes, but you wouldn't be involved.
The Church should never have got involved with civil marriages.
The State lost its true understanding of marriage in 1698 (the Earl of Macclesfield's divorce - the first true divorce in the modern sense that it did not even attempt to be an annulment).
Since then it has gone from bad to worse, but the State's concept of marriage was fundamentally flawed long before Catholic priests were permitted to register marriages; we should never have got involved.
It costs an extra £300 or thereabouts to get a register to come out, so this could disadvantage couples on a tight budget, whereas a town hall registration costs £35.
Not that it isn't a good idea, I'm glad we got married prior to all this nonsense although will this legislation taint all existing marriages which may have hitherto been thought of as valid?
I would quite like to change our state sanctioned marriage into a civil partnership. It will become that in everything but name anyway.
Our sacramental marriage can remain unchanged.
Insisting on a civil marriage first makes it impossible to contract a marriage void for polygamy or the prohibited degrees without committing a criminal offence and that is an important protection and deterrent. The present system works - I only wish the mosques would register too - and the SSM Bill is irrelevant. The Catholic will refuse to carry out SSM as it now, as I understand it, refuses to marry divorced people with a living ex.
When I was young, someone I know was frivolously and unwillingly divorced by his wife and thereby lost all he had worked for in life. After witnessing this at a young age I have since learnt that all around the modern western world people are having their lives ruined by civil divorce.
So large is the problem that many, especially young men, are purposely avoiding civil marriage just to avoid the impact of civil divorce (they typically use the phrase 'men going their own way' or MGTOW to describe the phenomenon. Be warned before Googling about this that many of them are mean spirited in how they express themselves). Effectively, civil divorce, is a poison that has made civil marriage something that many dread, fear and avoid. Further, they often use the defence of civil marriage within the Church and other Christian groups as evidence of Christianity, especially in institutional form, being a malign presence in their life.
So, whilst moving beyond civil marriage can cause difficulties (inheritance rights, hospital visitation, etcetera) it can also bring great gains in avoiding the civil divorce system that could lead to a great many people enthusiastically embracing the socially and personally beneficial arrangement of marriage and help fix the rift between many young people and the Church, which is unfairly taking flak for a divorce system it never agreed with.
Alice in Wonderland! I would (speculatively) take issue with Neil Addison about the effect of the Marriage Act. The Same Sex Marriage Act - if it goes through (as we hope and continue to pray it will not) - changes the legal meaning of the term 'marriage'. 'Marriage' will no longer be what the Church understands by the sacrament of matrimony. Whatever ceremonies the Church conducts, they will not relate to 'marriage' in the new sense (even if an ill-informed observer might not appreciate this) and hence (I argue) would not infringe the Marriage Act. The civil power is entitled to redefine the legal meaning of a word, but not to oblige us to continue to use the word in its new sense. Catholics (if the law goes through) will have to stop talking about 'marriage' and use what has hitherto been a synonym, such as 'matrimony'.
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