As governments around the world have legislated to ‘redefine’ marriage, many churches have refused to accept those redefinitions and have continued to affirm the classic Christian, and biblical, view that marriage is a life-long union between a man and a woman. That has made them rethink how they relate to the government in relation to marriage.

History gives a perspective to these questions. In the 19^th and 20^th centuries it has seemed obvious in English speaking nations that church and state work together in the business of getting people married. That, however, is not the only way things are done. Here I’ve put together a summary of how church and state have related on the matter of marriage.

Marriage in the Bible

In the OT marriage is a presumed element of social life — “a social institution”; it is not strictly a “legal institution”. The Old Testament describes many situations in which couples entered into marriage (e.g. Isaac and Rebekah, David and Abigail), it does not give specific process by which marriages were to be entered into and recognised (Gen. 29:19-20,27-8; 34:8; Judg 14:7,12; 1 Sam. 25:39-40, Song. 8:8). Biblical narratives focus on “negotiations, the entry into the husband’s premises and the celebratory feast, rather than upon any particular set of formalities. ¹. In the laws of the OT there is “no set of rules” about how a marriage is established. ² Old Testament law regulated divorce to some extent. It assumes that divorce exists, and it regulates its “misuse” (Deut. 24:1-4). ³

Jackson argues that marriage is not a “religious institution”, which he says requires as “an attribution of sanctity”.⁴ This is not to say that God has no interest in marriage — the law shows God’s interest in all areas of life. Marriage is not enacted in the temple or by priests. There are no cultic arrangements for marriage.

The New Testament affirms the value of marriage and also singleness (1 Corinthians 7). Jesus referred back to the Genesis account as authoritative in his teaching on marriage and divorce (Matthew 19). The distinctive Christian emphasis is that the marriage of a husband and wife is an illustration of the relationship between Christ and his church (Ephesians 5). Marriage is to be “honoured by all” and “God will judge the sexually immoral and adulterous” (Heb13:4).  There is though no direction in the New Testament as to the role of the church in the process by which marriages were to be entered into, though clearly the church was to teach about marriage, and marital conduct was subject to church discipline.

Roman Empire

Roman law did not provide an official ceremony to form a marriage, a ceremony was usually involved if there were property implications for the union.⁵ At least from the laws instituted in 18 BCE by Augustus (63 BCE -14 CE) a legally recognised marriage (matrimonium iustum) was between a man and woman who were both Roman citizens, not married to anyone else, not related to each other and of proper age (12 for girls, 14 for boys).⁶ Marriage required consent from both parties and families. The marriage was formed when the bride had to enter her husbands house (ductio in domum mariti). A marriage required not only initial intention but continued love and commitment (affectio maritalis).

Many people in the Roman Empire then, did not enjoy ius connubii (the ability to marry). If they were not slave, they could enter concubinatus (as Augustine did for 13 years with his unnamed partner). This relationship was much like marriage, though without the same social honour, and the children of such a union were illegitimate (they did not inherit the status of the father), though they were viewed as impurely conceived. Slave could enter contubernium. This did not have any rights of inheritance but gave some security since slave in contubernium could not be separated from each other of their children.⁷

Marriage and the church

The involvement of the church in performing marriage ceremonies may have begun informally. There is no early record of a formal marriage liturgy compared to those that developed for baptism and the Lord’s Supper.  Bishop Ignatius of Antioch writing to Bishop Polycarp of Smyrna around 110, wrote “it becomes both men and women who marry, to form their union with the approval of the bishop, that their marriage may be according to God, and not after their own lust”. Marital love and faithfulness were regular topics of teaching by the Church Fathers.⁸

Tertullian (c. 160 – c. 225) spoke of Christians ‘requesting marriage’ from their priests and wrote glowingly of Christian marriage. Some of passages of his writings have been read to imply that there was a Christian liturgy of marriage, but they do seem to be better understood as the bishop giving permission for marriage and announcing the intended marriage to the congregation. ⁹Bishops were often present at the family home for a wedding and might sign the marriage contract, though this was not a requirement for a valid marriage.¹⁰

Over time it became the practice for Christian couples to have their marriages blessed. But it seems that rarely, if ever was a marriage ceremony performed in the church or by a priest.   

The fullest surviving record of early church law from the Synod of Elvira in Spain (300–309 CE) has extensive regulations about marriage and family life.¹¹ Not surprisingly, given the date, they do not assume that the church directly regulates marriage. The rules set out limitations on marriage — no remarriage after divorce “without acceptable cause”, even adultery is not a sufficient cause for remarriage; a man may not marry his dead wife’s sister; no marriage to pagans, Jews or heretics. But they do not assume that the church can refuse such marriages, presumably because the church itself did not officiate the marriages. Rather, it disciplines Christians by refusing communion if they marry in proscribed ways.

While Christians largely followed the social customs and legal patterns of their culture in forming marriages, they certainly expressed a Christian understanding of marriage. The unique feature was the Christian conviction that marriage was permanent: “in a world where divorce and remarriage were both legal and frequent for Roman citizens of all religious persuasions, indissolubility emerged as distinctive of Christian marriage”.¹²

Priests began to officiate weddings with a liturgy from about the 8^th century CE in the Eastern Church.¹³ Emperor Leo VI (866-912) — who ironically had his own scandalous marital history — brought in legislation in the Byzantine empire that a valid marriage required a nuptial liturgy.

This developed more slowly in the West. The earliest evidence of a Western marriage liturgy is from the 12^th century Anglo-Norman services. ¹⁴ Around the same period, the church began to claim jurisdiction over marriage.¹⁵ Within a century or so, marriage law in Europe was the canon law of the church. The church ruled that marriages were conducted publicly by the priest in the church building (in facie ecclesie), though it was recognised that other forms of marriage were also valid. “A private voluntary exchange of promises between a fit man and fit woman of the age of consent was a valid and enforceable marriage at medieval canon law”.¹⁶

The Fourth Lateran Council (1215) forbade clandestine marriage and required that marriages be publicly announced in churches by priests. Yet secret marriages were usually recognised as valid marriages.

The Council of Trent (1545-1563) confirmed the medieval view that the church had jurisdiction over questions of marriage. It was only with this Council that the Roman Church declared that a marriage contract not consecrated by a priest, it was “invalid and null”.¹⁷ Trent determined that a marriage required two witnesses and that there must be thirty days’ notice of the ceremony. From this point, European countries regarded marriages as legal only if conducted by a priest.

Reformation

After the Reformation, marriage continued to be primarily regulated by the church.

While Reformed Churches rejected the view of marriage as a sacrament, they still conducted marriage services. In Geneva marriages were conducted at the church. The couple could attend a weekday or Sunday service and were to arrive “modestly … without drummers or fiddlers, preserving the order and gravity proper to Christians” and to come by the tolling of the bell so the ceremony could be conducted before the sermon.¹⁸ Disciplinary and legal cases in relation to marriage were dealt with by the Consistory, the mixed church and civil body which was formed under Calvin’s Ecclesiastical Ordinances (1541). It consisted of the ministers of Geneva and representatives of the councils (called elders). The consistory could refer unresolved matters to the Small Council for judicial action.¹⁹

In England, the Book of Common Prayer (1549) provided a marriage liturgy including vows. The English canons of 1604, the first major marriage legislation in England, set out the requirements for a marriage following the Prayer Book: banns must be read three times (in services on Sundays or holy days); the marriage must be celebrated by a minister of the parish of one of the couple, before witnesses and recorded in the parish register. ²⁰

In Scotland, John Knox introduced the Genevan Book of Order and in 1562 the General Assembly enjoined the uniform use of it as the Book of Our Common Order in the administration of the Sacraments and Solemnisation of Marriages and Burials of the Dead.

Subsequently, the Westminster Directory for Public Worship was approved by the Scottish Parliament in 1645. The marriage service involved the consent of the parties, publication of intention and a religious service in a place of public worship on any day of the year (preferably not the Lord’s Day). It consisted of prayer, an explanation of the origin and purpose of marriage, an enquiry as to if there is any impediment, the exchange of vows, the pronouncement that the couple be husband and wife, and a closing prayer. A register of marriages was to be kept.

Europe

I am concentrating on England and Scotland as the background to the Australian situation. It is worth noting though that the French Revolution in 1792 brought the first clear separation of church and state in marriage in Europe. The revolutionaries had a radically different vision of marriage to that of the Catholic church. They laicised the ceremony, established marriage as egalitarian and voluntary, free from parental determination and introduced a liberal divorce law. Marriage was oriented to love and service of the revolutionary society and the new state.²¹

The Napoleonic Code (1804) reversed many of these changes, but continued with the requirement for a civil marriage ceremony before any religious service. This Code was imposed on much of Western Europe during French occupation and was widely adopted in other parts of Europe. Germany, for instance, slowly came to adopt a pattern of required civil marriage. In 1874, under Bismark, Prussia introduced mandatory civil marriage and this was extended to the whole German Empire the next year. Today, many European nations recognise only civil marriages.

The English Marriage Act

It has been common to argue that in England in the 17^th and early 18^th centuries private exchanges of vows were a regular alternative to a church wedding. ²² Probert has argued persuasively that this was not so. She shows that English law required the presence of an ordained priest to create a valid marriage.²³

What was common in the 18th century were “clandestine marriages” which took place in private. Many of these were also irregular. This could be so because the service was not in the parish church of one of the couple, one of the couple was a minor, the banns were not read, there was no license or it as obtained without proper security from the couple, the service was outside the prescribed times of the day (8am-12pm) or the marriage was not recorder in the parish register.²⁴. There was growing demand for such weddings, and despite canon law, many clergy were willing to provide them. Francis concludes that “clandestine marriages proliferated because laypeople demanded them, the clergy were willing to conduct them, and the government and Parliament did not work hard enough to change the status quo”.²⁵.

By the 18th century clergy in parts of London — around Fleet prison and in Southwark — were offering cheap “clandestine” (and usually “irregular”) weddings. Not all the “clergy” offering these services were in fact ordained clerics. Some of these weddings were for couples who should not have married (for instance one of them was still married to someone else), but most where simply in order to save money when it had become quite expensive to be married in a parish church. The Fleet prison was outside of ecclesiastical rule, and the streets around it filled with debtors who technically were in prison. In this uncontrolled area, the wedding trade flourished. In the 1740s about 6,000 of the 47,000 weddings in England were conducted by the 100 or so clergy working from the Fleet, these were about half of London’s weddings.²⁶

Hardwicke’s English Marriage Act (1753) addressed this situation and brought marriage in England under the consistent regulation of the State by limiting marriage to ceremonies conducted by the Church of England in a parish church (apart from marriages for Jews and Quakers). It also brought to an end the right for a person to sue in the Ecclesiastical Court to require their fiancee to marry them on the basis of their promise (or proposal and a sexual relationship).

Francis argues, convincingly, that the Act ended the trade of the “marriage shops” and did not bring the consequences critics claimed (the rise of fornication and demise of romantic marriages). He notes that it triggered an ongoing debate in the Church of England about the role of church, society and government in the formation of marriages. In the long term, its greatest significance was that “the state’s imposition of rules on the process which were not stated explicitly in canon law opened the possibility of secular control of marriage”.²⁷ Although the Act appeared to simply insist on the application of the law of the Church of England, the fact that this was accomplished through civil law indicated the way the “balance of power” had shifted.

The Australian colonies

The 1753 Act was never part of Australian law, and marriages in the Church of England, the Church of Scotland the Catholic Church were all valid in New South Wales.The first relevant colonial legislation in 1825 set up procedures for the registration of births, marriages, and burials and explicitly allowed for these to be conducted by Minister others than of the Church of England (though the registration was still to be done through the parish minister).²⁸ The validity of Presbyterian and Catholic marriages were clarified by legislation in 1834 (with retrospective effect).

Two Catholic priests arrived as chaplains in 1820 and were licensed to conduct marriages, which Macquarie acknowledges would have contravened the English Marriage Act, if it had applied. ²⁹

John Dunmore, the first Presbyterian minister in Sydney, also granted a licence for a marriages in 1823. In 1826 Govenor Darling refused Lang a licence to conduct a wedding. Typically, Lang responded by announcing in the Sydney Gazette that he would from then on solemnise marriages by an announcment of banns (rather than the Govenor’s licensce) and proceeded to do so.

In the colonies there was also allowance for marriages to be formed without an ordained minister, for the practical reason that one was often not easily accessible. In an early extreme example, in March 1788 when a party was sent to settle Norfolk Island, Thomas Jamison (c.1753-1811) the surgeon was authorised by Governor Phillip to conduct marriages. ³⁰ During the Rum Rebellion (1808-1810), Henry Fulton was the only chaplain in the colony, since Samuel Marsden was on leave in England. He was loyal to Bligh and the rebels suspended him from duty, later he refused to return to officate under the rebel regime. In the interim over fifty marriages were conducted by various officers and magistrates, only a handful of which were later given a church ceremony to assure validity. ³¹ Similarly, in Port Dalrymple (Launceston) from its settlement in 1806 till the arrival of Rev. John Youl in 1819, marriages were conducted by the magistrate under a licensing system formalised in 1813. ³² The recognition of non-clerical marriages was determined in an 1836 case, R v Maloney.³³. An 1855 NSW Act allowed that District Registrars could officiate at marriages.

In an 1831 report for the incoming Governor Bourke, the Chaplain Archdeacon William Grant Broughton complained about the disorder of marriage arrangements in the colony. “Parties desirous of a clandestine engagement, or to suit some convenience of their own or often only to show that independence of all positive regulations, resort to the Roman Catholic or the Presbyterian Ministers for the Solemnization of Matrimony, although they have never up to that moment made the slightest avowal of belonging to these persuasions but on the contrary are known to have maintained a different profession.”³⁴ This complaint led to the 1834 legislation mentioned above.

Scotland

Scottish church law did not require marriage to take place in a church building (unlike England), and parental assent was not required (hence the practice of English couple eloping to Gretna Green). A marriage still required the proclamation of banns in the parish church and an authorized celebrant from the Church of Scotland.

Unlike any other jurisdiction in Europe, Scotland continued to recognise consent between two parties free to do so, as sufficient for marriage. Thus, it continued to recognise irregular marriages until 1939. Irregular marriage could be of three forms: marriage per verba de praesenti (a private exchange of vows), marriage per verba de futuro subsequente copula (a promise of future marriage followed by sexual intercourse) and marriage by cohabitation with habit and repute.³⁵

Irregular marriages were probably rare in Scotland, though it is difficult to establish any certain figures.³⁶ Probably most of the “irregular” marriages were so-called “clandestine” marriages in which vows were exchanged, but not before the local Church of Scotland minister. Couples could then receive a warrant by confessing to the authorities that they had entered an illegal marriage. The offence carried no penalty and the authorities accepted the record of conviction as proof of the marriage.³⁷

Members of the seceder churches and other non-conformists often had irregular marriages were. Even after other celebrants were recognised in 1834, banns still had to be read from the local parish church, and members of the non-established churches did not necessarily do this, especially since Session Clerks often charged a significant fee to do so. (The requirement for the reading of banns was removed in 1878).

The website of the National Records of Scotland gives an example from the 1903 register of marriages for the County of Perth of a couple married before two witnesses who have then received a warrant from the sheriff-substitute.

Australia

The arrangement of marriage between church and state in Australia remained much as it had been in colonial period. In 1966 89% of Australian marriages were officiated by clergy, and in 1971 that figure was still 87%. ³⁸ So, largely, marriage in Australia was a matter for the churches, registered by the government, and to some extent regulated by the government.

However, in 1971, things were about to change. The 1961 Marriage Act allowed the Attorney-General to “authorize … suitable persons to solemnize marriages”. Garfield Barwick, who introduced the legislations, writes that he envisaged this would allow ministers of small denominations to be registered individually. In 1973 Lionel Murphy used this provision to create Australia’s ‘civil celebrants’. This was the first time an English speaking country instituted a way of solemnising marriages which was distinct from and parallel to church marriages. I’ve traced that story in another post.

By way of a conclusion

While I am not arguing a particular thesis in this overview, a few things are worth noting.

1. In Christian Europe the church regulated marriage long before the state did.
2. The medieval church and the Protestant Church in England (prior to 1604) and Scotland did not require a religious ceremony for a valid marriage.
3. The requirement of a religious ceremony came from: i) the consolidation of Roman Catholic views of marriage as a sacrament; ii) the concern of civil authorities to regulate and record marriages, in part for the protection of couples, though also to protect the property interests of wealthy families.
4. Some Presbyterian churches of Scotland accepted the irregular marriages into the 20^th century.
5. In Australia marriage was largely in the hands of the churches, registered and regulated by the State, until the rise of Civil Celebrants from 1973.

NOTES

1. B.S. Jackson, “The ‘Institutions’ of Marriage and Divorce in the Hebrew Bible.” Journal of Semitic Studies 56. 2 (Aut 2011): 223-24
2. Jackson, 232. Exod. 22:16-17 deals with the seduction of a woman who is not pledge to be married, Dt 22:13-19 deals with claims that a woman is not a virgin at marriage and Dt 22:28-29 deals with a woman who is not pledged for marriage who is raped. Lev 19:6-18 prohibits marriage to close relatives (as well as sexual relations outside marriage). Adultery is prohibited (Ex 20:14; Lev 18:20; 20:10; Nu 5:12, 13, 29; Dt 5:18).
3. Jackson, 241. A priest is not to marry a divorced woman (Lev 21:7, 21:14; also Ezek 44:22); a priest’s daughter who is divorced may return to her father’s home (Lev 22:13). A divorced women is personally accountable for her oaths, at least an oath to marry (Num 30:9).
4. Jackson, 244.
5. M. Jonaitis & E. Kosaitė-Čypienė “Conception of Roman marriage: Historical experience in the context of national family policy concept” Jurisprudencija 2 (2009): 295-316.
6. Jonaitis & E. Kosaitė-Čypienė, 310-11.
7. Jonaitis & E. Kosaitė-Čypienė, 306-10
8. “Lay Christians … were repeatedly enjoined to live in peaceful, monogamous, and heterosexual unions and threatened with spiritual discipline escalating to excommunication for betraying Christian sexual and marital ideals”, J. Witte Jr., From Sacrament to Contract (WJK: 2012. 2^nd ed.), 65.
9. D.G. Hunter, “Augustine and the Making of Marriage in Roman North Africa” Journal of Early Christian Studies 11. 1 (Spring, 2003), 66-73.
10. Hunter, 84.
11. Witte, 65.
12. T.M. Finn, “Sex and Marriage in the Sentences of Peter Lombard.” Theological Studies 72.1 (March 2011): 41–69
13. S.S. Harakas, “Covenant Marriage: reflections from an Eastern Orthodox Perspective”, Covenant Marriage in Comparative Perspective, J. Witte & E. Ellison, eds  (Grand Rapids: Eerdmans, 2005), 102.
14. The priest met the bridal party and their guests at the door of the church. Following inquiries about possible canonical impediments to their union, the priest verified the couple’s consent to be married, and …either …[the] marriage gift from the groom was paid or the terms of the dowry settlement were read aloud. … a wedding ring, [was] blessed by the priest and ceremoniously placed on the bride’s hand by the groom with the priest’s assistance. … The church-door ceremony concluded with the priest’s blessing. Then the bride and groom, carrying lighted candles, followed the priest into the church for the nuptial mass of the Roman marriage rite”, E. Hall, The Arnolfini Betrothal: Medieval Marriage and the Enigma of Van Eyck’s Double Portrait (Berkeley: University of California, 1994), 23-24.
15. P.L. Reynolds, How Marriage Became One of the Sacraments (Cambridge: CUP, 2016), 33-40.
16. Witte, 104-105.
17. Witte, 112.
18. Geneva Marriage Ordinance (1546), quoted in John Witte & Robert M. Kingdon, Sex, Marriage, and Family Life in John Calvin’s Geneva: Courtship, Engagement, and Marriage (Eerdmans, 2005) loc.1013-21).
19. Witte & Kingdon, loc. 1331-1332.
20. G. Bray, ed. The Anglican Canons, 1529-1947. (Woodbridge/Rochester: Boydell and Brewer, 1998), 353-55. http://www.jstor.org/stable/10.7722/j.ctt1vgwbvz.
21. Suzanne Desan, The Family on Trial in Revolutionary France (University of California Press, 2004), 49-67; L.E. Talamante, “Creating the Republican Family: Political and Social Transformation and the Revolutionary Family Tribunal” Journal of the Western Society for French History” 38 (2010): 143-62).
22. e.g. “the only thing necessary for a legal marriage was the free consent of both parties, as long as they were of age … were not within the forbidden degrees of kinship, and were free of any other marriage”. L. Leneman, “The Scottish Case That Led to Hardwicke’s Marriage Act”, Law and History Review, 17:1 (Spring, 1999): 162.
23. R. Probert, Marriage Law and Practice in the Long Eighteenth Century: A Reassessment (CUP, 2009).
24. Keith A. Francis, “Canon Law Meets Unintended Consequences: The Church of England and the Clandestine Marriage Act of 1753” Anglican and Episcopal History, 72.4 (December 2003): 456
25. Francis, 464
26. See G. Newton, “Clandestine marriage in early modern London: when, where and why?” Continuity and Change 29.2, (2014): 151–180. © Cambridge University Press 2014 doi:10.1017/S0268416014000137 and J.F. Field, “Clandestine weddings at the Fleet Prison, c. 1710–1750: who married there?” Continuity and Change 32.3, (2017): 349–377.
27. Francis, 486
28. Ian Dodd, <a href="http://“Marriage law in colonial New South Wales: C. H. Currey revisited” Journal of Australian Colonial History, 20, (Jul 2018):15. Dodd (6) explains that all of the colonial territory claimed by Britain was part of New South Wales until the formation of Van Diemen’s Land (1825). It commenced with New South Wales legislation and introduced marriage legislation in 1838. South Australia, was formed in 1836 under a statute that none of the laws of New South Wales applied there. Until relevant legislation was enacted there in 1842, marriage was relatively unregulated. Victoria (1851) and Queensland (1859) adopted New South Wales law before their own legislation was effected. On marriage in the colony see also M. Quinlan, “Marriage, Tradition, Multiculturalism and the Accommodation of Difference in Australia,” The University of Notre Dame Australia Law Review 18.3 (2016) available at: https://researchonline.nd.edu.au/undalr/vol18/iss1/3.
29. Dodd, 14 notes Macquarie’s ‘Letter of Advice and Instructions’ to the two priests “Although, by the laws of England, marriages there can only be legally celebrated by the clergy of the Church of England, yet, as I find that all the provisions of the Marriage Act do not extend to the colonies of Great Britain, you are at liberty to celebrate marriages between parties where both are Roman Catholics.”
30. Dodd, 9.
31. Dodd,11.
32. Dodd,12.
33. Dodd, 5.
34. Dodd, 17.
35. E. Gordon, “Irregular marriage and cohabitation in Scotland, 1855-1939: Official policy and popular practice The Historical Journal 58.4 (2015): 508-09.
36. Gordon, 510-14.
37. Francis Lyall, Church and State in Scotland: Developing law (Routledge, 2016), 172.
38. See I. Castles, Marriages, Australia 1993 (ABS), 15.