What Makes a Legal Marriage? A Response to the Catholic Church

201411031133092Dr Maebh Harding is an Assistant Professor, School of Law, University of Warwick.

The recent threat by Ireland’s Catholic bishops to refuse to perform the civil aspects of a wedding if the marriage equality referendum is ratified will have no effect on the legal validity of Catholic marriages in Ireland. Parties to a marriage are married to each other when both of them make a declaration in the presence of each other, a registered solemniser and the two witnesses that they accept each other as husband and wife. Refusal by the solemniser to complete paperwork may create unnecessary hassle for the couple and the civil registration service but does undermine the legal validity of a marriage.

 

If the amendment is carried, the Irish Catholic Bishops will continue to carry out religious marriages but are considering refusing to sign the Marriage Registration Form: a civil form that is returned to the civil registration service as proof of the ceremony. Such a refusal will make it more difficult for couples to obtain civil proof of their marriage but does not affect the marriage’s legal validity. Where the couple has given requisite legal notice and are married by a Catholic priest who is a registered solemniser following the traditional Catholic rites, they are legally married, with or without the completion of a marriage registration form.

Irish marriage law works on the premise that all marriages are legally valid unless certain substantive requirements, the lack of which is declared in legislation to annul a marriage, are not fulfilled. The power to decide whether or not a marriage is legally valid lies in the High Court not the Civil Registration Service. Minor mistakes in protocol such as typographical mistakes on legal paperwork and stuttering over vows have no effect on the legal validity of marriages.

 

The Civil Registration Act 2004 lays down the appropriate procedure for entering into a legally binding marriage in Ireland. Compliance with some rules is declared to be essential to the legal validity of a marriage but other rules are not so essential. Under section 46 marriages are deemed to be invalid in law if the requisite 3 months notice is not given to the Civil Registration office. However failure to complete the marriage registration form does not mean that there is no legal marriage. It merely means that the Civil Registration Service will not be able to register the marriage. In cases where the marriage form is not received by the Civil Registration Service, the parties to the marriage are summoned to provide the duly completed form. If the form is lost or damaged in the chaos and merriment of a wedding a substitute form can be completed. It is not the completion of the form that marries the couple in the eyes of the law.

The substantive requirements for a marriage ceremony are laid out in section 51 of the Civil Registration Act 2004. In order for a marriage to be recognised in law it must be solemnised by a registered solemniser, the parties must accept each other as husband and wife and declare that they know of no impediment to the marriage. The ceremony must be one that is approved by the civil registration service and by the religious body of which the solemniser is a member. Traditional Catholic wedding services have such approval. As long as the couple can prove that these criteria have been satisfied it is open to the spouses to apply to court for a declaration that their marriage is legally valid. In an era where weddings are routinely videoed and the list of registered solemnisers is available to all this should not be difficult evidence to provide.

If the Catholic Bishops act on their threat to refuse to fill out the marriage registration form it will not be the first time the courts have been asked to rule on the legal validity of Catholic marriages where the requisite legal paperwork is not completed.

The requirement for Roman Catholic priests to fill out a form and return it to the Registrar’s office dates from the late 19th century. Section 11 of the Registration of Marriages (Ireland) Act 1863 required the parties to a Roman Catholic marriage were required to obtain a certificate from the registrar of the district in which the marriage is to take place and present it to the priest to be filled out. The certificate was then signed by the parties to the marriage, the priest and the two witnesses. and returned to the registrar of the district in which the marriage was solemnised. However the Act was merely directory and in the 1868 Chelmsford report, Catholic marriages in Ireland were described as left to the operation of the common law. Marriage could take place anywhere, at anytime and in any form as long as they were celebrated by a clergyman in holy orders. For example in the 1912 case of Ussher v Ussher a marriage between two Roman Catholics was carried out in the presence of only one witness. The marriage was recognised by the secular courts as legally valid even though it was not religiously valid as complying with canon law.

The threat of the Irish Bishops to refuse to fill out the marriage registration form, if carried out will create major inconvenience for couples and the civil registration service and require the courts to review the evidence of such weddings. It will, no doubt, dissuade couples from marrying in the Catholic Church. It will not, however, legally invalidate Catholic marriages carried out by a priest who is recognised as registered solemniser and the mover should be condemned for what it is: as a desperate attempt to derail the marriage equality amendment.

 

What Makes a Legal Marriage? A Response to the Catholic Church

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