Tuesday, January 02, 2007

An invalid marriage?

Many people are aware that the tribunals of the Catholic Church regularly make judgements regarding the validity of marriages according to Canon (ecclesiastical) law, often reaching a judgement of nullility. This is commonly known as an annulment. It is a judgement that something in the original marriage ceremony did not accord with ecclesiastical law and therefore is, as far as the church is concerned, null and void.

But many are not aware that marriages can be declared null and void by the state also, if something in the way in which the marriage ceremony was carried out does not accord with the law of the land. Marriage celebrants have to be very careful that they observe the norms and requirements of the Registrary of Births, Deaths and Marriages; attempting to contract marriages in a non-valid manner can result in the celebrant losing his licence and the couple being required to be remarried.

Now let me describe a marriage ceremony to you that took place in my family recently. I was not present, so I am going on heresay. I would like you to offer your opinion on the validity of this ceremony.

For a start, both bride and groom are members of the community in which I was raised: the Lutheran Church of Australia. Tragically, their original choice of marriage celebrant could not be present, due to a serious car accident of the intended celebrant's daughter. So another Lutheran clergyman filled in. The event did not take place in a church (which is not a requirement of the Lutheran rite) but in a horse paddock. While thoroughly Christian in its themes and components, the service was not carried out according to the rites of the Lutheran Church but according to an order of service devised by the couple. Friends of the bride and groom acted as "MC"s. The ordained pastor who served as the official celebrant (and who later signed the certificate of marriage for the couple) did not take part in the ceremony in any way, but was a part of the assembled crowd. Witnesses to the event have said that (in effect) the couple "married themselves".

From a theological point of view, there is something in this--the ministers of the sacrament of marriage are the couple and not the celebrant--but the witnesses stress that the "celebrant" did not preside over the rite of marriage. Prayers were offered, but there was no blessing of the couple. Theologically speaking, this is the only thing that really concerns me. The essential Christian component of the ceremony (the blessing by the ordained priest) was omitted.

But legally speaking, I am concerned on the following levels:

1) the Celebrant--a religious celebrant only authorised to conduct marriages according to the rites of his church--would have signed the certificate to the effect that the marriage was conducted "according to the rites of the Lutheran Church of Australia". This was not the case.

2) the Celebrant would have signed himself as the one presiding over the marriage--when in fact, he did not.

3) I do not have a copy of the order of service, but, in my experience, home-made orders of service tend to leave out crucial legal parts of the rite: eg. did they make a declaration of intent? did their vows include the crucial promise to be faithful "until death parts us" as required by law? who authoritatively declared them to be husband and wife in the presence of the assembly?

4) Finally, things get really tricky when, at the last moment, there needs to be a change of celebrant. The pastor who was prevented from attending by reason of his daughter's accident would have been the one who had, up till this point, signed all the requisite forms and received the legal declarations. I presume that this "handing over" of the responsibility was conducted properly.

Some years back, a friend was married under the unfortunate circumstances that his chosen celebrant had been removed from the list of marriage celebrants for negligence in posting certificates through to the Registry in a timely manner. To get around this, they still had their chosen celebrant deliver the homily, prayers and blessing, but had to get another clergyman in to preside over the actual exchange of vows. The latter clergyman was the one who signed the documentation. This case illustrates the close connection between the act of presiding and the act of signing the certificate of marraige. The case cited above seems to break that nexus.

What concerns me about the wedding I have described here is that it might not have met the simple but strict requirements of the state for a valid marriage. Of course, that might save a lot of trouble later in the divorce courts or even before the tribunal of the Catholic Church, but surely it is preferable to begin one's married life in the certainty that the knot has indeed been tied and not simple tangled up a bit.

But I would be interested in your comments.

8 Comments:

At Wednesday, January 03, 2007 4:08:00 pm , Anonymous Anonymous said...

Hi David

I’m not an expert in this field by any means, but as far as I understand it the civil law requirement (set out in the Marriage Act 1961) is not that the celebrant should “preside over” the marriage ceremony, but that it should be “solemnised by or in the presence of” the celebrant. Consequently he doesn’t have to take an active role.

But where the celebrant is also a minister of religion there is an additional requirement; the marriage must be “"solemnized according to any form and ceremony recognised as sufficient for the purpose by the religious body or organisation of which he or she is a minister". No further requirements are imposed; the state evidently does not want to trespass on the role of the various churches in deciding what does or does not constitute, for them, a valid marriage ceremony.

Interestingly, for a ceremony solemnised by or in the presence of celebrated by a celebratent who is not a minister of religion, while a fair degree of latitude is allowed there are some minimal requirements of form. The celebrant must say certain things to the spouses and their witnesses, and the spouses must also say certain things. (“I call upon the persons here present to witness that I, A.B. ( or C.D.), take thee, C.D. ( or A.B.), to be my lawful wedded wife ( or husband)”, or words to that effect.)

The result is that, as a matter of civil law, the form of a ceremony solemnised before a non-religious celebrant is more strictly regulated than the form of a ceremony solemnised before a minister of religion.

No doubt the legislature assumed that ceremonies solemnised before ministers would be conducted according to church laws and regulations; they did not envisage ministers presiding over ‘do-it-yourself’ ceremonies. If they had envisaged that, they would probably have included minimal requirements for those ceremonies too.

Be that as it may, they didn’t. In the circumstances you describe, the question boils down to this. Did the ceremony used here constitute a marriage ceremony “recognised as sufficient for the purpose” by the Lutheran Church of Australia?

I have no idea what the answer to that question is. Note that the requirement is not that the ceremony should be one used or appoved by the LCA, but merely one which it would recognise as sufficient. I’m guessing that, unlike the Catholic church, the LCA doesn’t have a network of tribunals and a body of decided cases which together build up a fairly clear picture of what iregular ceremony would be “sufficient” to unite two people in marriage, so this may not be an easy question to answer with certainty.

My very basic understanding – and I am very happy to be corrected on this – is that the Lutheran tradition is to defer to the state/community on the question of marriage. If the state recognises a marriage as valid, the church accepts the validity of the marriage, and if the state does not recognise a marriage, the church accepts that there is no marriage. (Or is that more of a Calvinist position?) If I am right, here we seem to be in some kind of endless loop – the LCA will recognise the marriage if the state does, and the state will recognise the marriage if the LCA does.

There is, however, a presumption of validity in civil law If the celebrant has signed a certificate that the marriage was solemnised in accordance with the requirements of the Marriage Act (which means, in this case, in a form recognised as sufficient by the LCA) then, as a matter of civil law, that certificate is conclusive.

The uncertainty would have been resolved if the couple (a) had married using the LCA rite of marriage, or (b) had married before a civil celebrant, who would have ensured that there ceremony included the minimal requirements of form for ceremonies not solemnised before a minister.

 
At Wednesday, January 03, 2007 11:34:00 pm , Blogger Schütz said...

On top of which, I have never known a civil celebrant who didn't want to be "up front" and in the spot light!

Thank you, "anon" for your comments. I think you are spot on in your exposition of the situation.

And yes, you are also right about the "endless loop" that emerges when the Lutheran Church and the State enters into conversation over what they will mutally accept as a valid marriage. Of course, Lutherans around the world are being challenged as ideas of what can be legally regarded as a "marriage" are broadening to include polygamy or same sex couples.

You are also right in that Lutherans do not have a network of tribunals. I have never known a marriage to be "anulled" by the Lutheran Church.

Also, in conversation with Pastor Fraser Pearce (of epistolae obscurorum virorum fame--see the side bar under blog links), it is even harder to find what Lutherans regard as the essentials of a Christian marriage service. The situation I describe had Christian elements--the Word of God and prayer, for instance--but the oldest and most consistently present element in specifically Christian rites of marriage is the marriage blessing. This preceded every other Christian marriage liturgical element, including attending the church itself for the blessing. Originally, the priest went to place of the marriage (eg. in Roman times, the bride's father's house) and simply added his blessing to the other rites that constituted marriage in those cultures.

 
At Thursday, January 04, 2007 12:27:00 pm , Anonymous Peregrinus said...

That was me, by the way. I just forgot to sign it. You probably guessed.

“You are also right in that Lutherans do not have a network of tribunals. I have never known a marriage to be "anulled" by the Lutheran Church.”

Tribunals or not, the question must have required a decision now and them. A young and foolish Lutheran, during an episode of new-agery, is married in (say) a more-or-less Hindu ceremony on a beach in Goa. Years later, he presents himself at a Lutheran church, seeking to be married (to someone else). What does the pastor do?

As a matter of civil law (I assume) the pastor will have to satisfy himself that the person concerned in not married, either because the Goan ceremony is not recognised in Australian civil law or because he has been divorced. But, as a Lutheran minister, is he expected to make any enquiry beyond that?

Or, a more difficult case. A candidate for marriage was previously married (to a different spouse) in a Catholic church ceremony in France – impeccably Christian and traditional, but definitely not recognised by French civil law, which requires a civil ceremony as well. And, if not recognised by French law, then not recognised by Australian law. So, clearly free to marry according to Australian civil law. What does the pastor do?

The Marriage Acts seems to assume that every church will have some kind of system or procedure – not necessarily tribunals – for deciding the question of what amounts to a ‘sufficient’ marriage. And, it seems to me, the realities of life will force churches to develop some kind of answer to that question.

“Also, in conversation with Pastor Fraser Pearce (of epistolae obscurorum virorum fame--see the side bar under blog links), it is even harder to find what Lutherans regard as the essentials of a Christian marriage service. The situation I describe had Christian elements--the Word of God and prayer, for instance--but the oldest and most consistently present element in specifically Christian rites of marriage is the marriage blessing. This preceded every other Christian marriage liturgical element, including attending the church itself for the blessing. Originally, the priest went to place of the marriage (eg. in Roman times, the bride's father's house) and simply added his blessing to the other rites what constituted marriage in those cultures.”

Surely the most fundamental element is the exchange of promises by the spouses? I seem to recall that at one time the exchange of promises, followed by consummation, was sufficient to constitutte a valid marriage, without the necessary involvement of any clergyman at all. So far as I know, while the involvement of a clergyman was common, even expected, it wasn’t a requirement for validity until the Council of Trent – which, of course, the Lutheran tradition would not be constrained by.

 
At Friday, January 05, 2007 10:55:00 am , Blogger Schütz said...

Yes, I did suspect it was yourself, Peregrinus.

The last matter first: I was not talking about what made a valid marriage, but about what made it Christian. For instance, given they had just cause (eg. isolation which made it impossible to marry before a priest) and proper dispensation, the Catholic Church would, I believe, regard a marriage between two baptised Catholics in a civil ceremony as both valid and sacramental. But I would also guess that the Church would require them to have their marriage blessed by a priest at the earliest possible opportunity.

Furthermore, one could conceivably imagine a culture in which vows were not a standard part of marriage. eg. I wonder if the ancient Roman marriage rite had vows between the partners? But the specifically Christian contribution of the Church to the marriage was always the blessing (traditionally of the bride) by the priest.

Now, regarding the Goan Hindu/Lutheran "wedding" scenario, the situation is as simple as you describe. The pastor would ask a) was the marriage legally recognised?, and if so, b) are you now divorced? No further inquiry would be made.

But the French situation you cite would really be a poser for Lutheran theology and praxis. Strict Lutheran principles would say that the person is free to remarry, because he is not married in law. But I rather think that true Christian sentiments would cause the Lutheran celebrant to pause--after all, had not vows been mutually exchanged in the presence of God? His only recourse would be to a tribunal of the Catholic Church to determine whether the marriage is null and void. And that would be an interesting situation. Rather hypothetical though.

It should also be kept in mind that this is a peculiarly UK/Australian/American/Canadian problem for Lutherans, because outside the British dominions, Lutheran Church weddings are not recognised as State marriages (rather as for the Catholic Church in France).

 
At Saturday, January 06, 2007 1:55:00 am , Anonymous Peregrinus said...

The last matter first: I was not talking about what made a valid marriage, but about what made it Christian. For instance, given they had just cause (eg. isolation which made it impossible to marry before a priest) and proper dispensation, the Catholic Church would, I believe, regard a marriage between two baptised Catholics in a civil ceremony as both valid and sacramental. But I would also guess that the Church would require them to have their marriage blessed by a priest at the earliest possible opportunity.

Fair enough. But even then, I think the non-negotiable essential element of a sacramental marriage is the mutual promises of the parties, not a clerical blessing, however desirable and long-established that might be.

Furthermore, one could conceivably imagine a culture in which vows were not a standard part of marriage. eg. I wonder if the ancient Roman marriage rite had vows between the partners?

Yes, it did. And I’m going to go out on a limb here, and say that this is a pretty universal feature of marriage in all societies, even polygamous ones. That’s not to say that it’s a universal feature of all state-sanctioned sexual relationships; there was nothing in classical Rome to prevent a man buying a female slave, and then having sex with her. There was obviously no necessary consent or promise there, but nor was the relationship regarded as marriage.

But the specifically Christian contribution of the Church to the marriage was always the blessing (traditionally of the bride) by the priest.

I dunno. The vows exchanged by the couple themselves (if they are both baptised) are a “contribution of the Church to the marriage”, aren’t they? I accept that the clerical blessing is the formal, visible involvement of the institutional church in the marriage ceremony, but I think we have already established that, however desirable that may be, it is not essential to consitute a valid sacramental marriage.

. . . But the French situation you cite would really be a poser for Lutheran theology and praxis. Strict Lutheran principles would say that the person is free to remarry, because he is not married in law. But I rather think that true Christian sentiments would cause the Lutheran celebrant to pause--after all, had not vows been mutually exchanged in the presence of God? His only recourse would be to a tribunal of the Catholic Church to determine whether the marriage is null and void. And that would be an interesting situation. Rather hypothetical though.

There would be no need to have recourse to the Catholic tribunal. This is a no-brainer, and the decision of the tribunal would not be in any doubt. From the Catholic perspective, this is unquestionably a valid sacramental marriage. Any canonist would tell the Lutheran pastor so. However desirable from a pastoral or practical point of view, state recognition of the marriage is never a requirement for sacramental validity.

What you describe as the “strict Lutheran principles” surprise me greatly. Suppose the couple had married in a Lutheran ceremony in France, but had neglected the state ceremony. Would “strict Lutheran principles” mean that each was now free to marry someone else in a Lutheran ceremony? The implication is that the Lutheran position is the reverse of the Catholic position; civil recognition is always an essential component to a valid marriage, so a civilly-unrecognised marriage is no bar to a subsequent marriage to someone else.

It should also be kept in mind that this is a peculiarly UK/Australian/American/Canadian problem for Lutherans, because outside the British dominions, Lutheran Church weddings are not recognised as State marriages (rather as for the Catholic Church in France).

Religious weddings are readily recognised for civil purposes in most, if not all, US states. And, with very little hard information, I’m going to go out on a limb here and say that it would surprise me greatly if Lutheran weddings were not recognised for civil purposes in Germany and the Scandinavian countries. And, if you add those counties to the US and the former British dominions, that must account for the great majority of the world’s Lutherans. So I don’t think this problem is all that local.

 
At Wednesday, January 10, 2007 11:41:00 pm , Blogger Schütz said...

I just found your response, Peregrinus, so sorry that I haven't responded earlier.

To clarify matters:

1) I was not talking about what even made a valid sacramental marriage, but about what made a wedding ceremony Christian. In fact, what makes a valid sacramental marriage is that both partners are baptised when they make their vows to one another. No, I was talking about what the specific contribution of the Church was as part of the wedding ceremony in addition to the parts required to contract a valid, even sacramental, marriage. Get it? It is not essential to the contraction of a valid sacramental marriage, but it is essential to any rite of marriage which would seek to call itself "Christian".

2) You said: "The implication is that the Lutheran position is the reverse of the Catholic position; civil recognition is always an essential component to a valid marriage, so a civilly-unrecognised marriage is no bar to a subsequent marriage to someone else." That's it in a nutshell, I'm afraid. Remember, Lutherans see absolutely nothing in marriage that might be described as "sacramental". It is all a matter of the "order of Creation" not "the order of redemption", the "Kingdom on the Left" (ie. the State and the law) not the "Kingdom on the Right" (ie. the Church and the Gospel). Nevertheless, I have a feeling that Lutheran clergy themselves might be a little uneasy when faced with this situation. The fact is that their theology would not be able to enlighten them on why they feel uneasy.

3) "Religious weddings are readily recognised for civil purposes in most, if not all, US states." Yes, that is why I included American in my list. They have this as a left over of the British colonial days.

4) "it would surprise me greatly if Lutheran weddings were not recognised for civil purposes in Germany and the Scandinavian countries". Prepared to be surprised, dear Peregrinus, but Germany does not recognise either Lutheran or Catholic or any other religious service as a legal marriage. Nor, as far as I know, do the Scandinavians, but I could be wrong there. Anyone wish to enlighten me?

 
At Friday, April 27, 2007 5:54:00 am , Anonymous Christine said...

You are also right in that Lutherans do not have a network of tribunals. I have never known a marriage to be "anulled" by the Lutheran Church.

That is because Lutherans, like the Orthodox, accept that in a fallen and sinful world marriages are sometimes broken and that failure can be forgiven.

 
At Saturday, May 05, 2007 2:28:00 pm , Blogger Schütz said...

Indeed it is because human beings are sinful and fallen that marriages fail and are broken. And indeed the failure of marriage is a sin that is forgivable like every other sin. But just because the marriage relationship has broken down does not mean that the marriage itself has ceased to exist. The failure to live up to one's marriage vows can be and is forgiven upon repentance, but absolution does not "wipe out" the marriage itself in such a way as to allow remarriage. Attempted remarriage while still validly married to another person in the eyes of God is a mortal sin and cannot be absolved while continuing to live in the new relationship--just as one cannot receive absolution from any other sinful action while still committing the sin.

 

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