Holy Matrimony, Divorce, and Remarriage

According to the Canons of The Episcopal Church

 by

Kenneth E. North

             This article presents the current Episcopal Church canon law pronouncements on the issue of Holy Matrimony, Divorce and Remarriage. It concludes by tracing the historical development of this topic through various canonical changes.

 Current Canon Law

             Canon I.19 addresses “Regulations Respecting Holy Matrimony: Concerning Preservation of Marriage, Dissolution of Marriage, and Remarriage.” Section 3 contains the prohibition against remarriage:

 No Member of the Clergy of this Church shall solemnize the marriage of any person who has been the husband or wife of any other person then living, nor shall any member of this Church enter into a marriage when either of the contracting parties has been the husband or the wife of any other person then living, except as hereinafter provided:

 So, the canon imposes a prohibition on members of the clergy from solemnizing any remarriage, and prohibits any member of the Church from entering into a remarriage.

 Any exception to this prohibition requires compliance with the following:

 1. the member of the clergy must have adequate evidence that the prior marriage was annulled or dissolved by final judgment of a civil court,

 2. the member of the clergy must instruct the parties to the proposed marriage of required continuing concern for the well-being of the former spouse and children, and

 3. the member of the clergy must consult with and obtain the prior consent of the bishop of the diocese in which the member of the clergy is canonically resident, as well as affirmation of that consent from the bishop of the diocese in which the marriage is to be solemnized.

 Thus, the Church permits remarriage after divorce if there has been a civil judgment of divorce or annulment, and the bishop consents to such remarriage.

             The canon concludes with the incorporation of all provisions of Canon I.18, “Of the Solemnization of Holy Matrimony.” Section 4 of that canon provides: “It shall be within the discretion of any Member of the Clergy of this Church to decline to solemnize any marriage.”

Historical Development

            The first pronouncement of a General Convention on the solemnization of Holy Matrimony was a joint resolution passed at the Convention of 1808. That joint resolution provided:

Resolved, That it is the sense of this Church, that it is inconsistent with the law of God, and the Ministers of this Church, therefore, shall not unite in matrimony any person who is divorced, unless it be on account of the other party being guilty of adultery.

             The Convention of 1868 enacted the first canonical legislation on the subject. That canon provided: “No minister of this Church shall solemnize Matrimony in any case where there is a divorced wife or husband of either party still living; but this Canon shall not be held to apply to the innocent party in a divorce for the cause of adultery, or to parties once divorced but seeking to be united again.” This 1868 canon was repealed by the Convention of 1877 and replaced with a new canon that was binding not only on the Clergy, but also upon the offending parties. The 1877 canon was essentially the same as the 1868 canon, except that it did, for the first time, permit remarriage after divorce if the cause of the divorce arose prior to the marriage, i.e., in those instances wherein the marriage was a nullity.

             The next revision was enacted by the Convention of 1904 and contained the Matthean exception. This continuing exception permitted the innocent party to a divorce ended due to adultery to remarry within the Church. The exception is grounded in Matthew 5:32, but was not followed by Western canon law generally, or the canons of the Church of England. However, while continuing the Matthean exception, the revision inserted a one-year waiting period after a divorce due to adultery before remarriage was permitted. It also required that satisfactory evidence regarding the facts of the case be submitted to the Ecclesiastic Authority, which was required to take legal advice to confirm that the situation of the applicant conformed to canonical mandates. It also permitted remarriage in those instances in which a marriage was annulled, i.e., the cause of the divorce arose prior to the marriage, by a civil court.

               The Convention of 1922 amended the canon by adding language which forbade members of the Church, in addition to a clergyman who solemnized the marriage of a divorced person, from remarrying contrary to the Church canons.

             The next round of change activity regarding remarriage began with the Convention of 1931. It maintained the essence of the canon adopted by the Convention of 1904, as modified by the 1922 Convention. However, it added a new provision that specified grounds upon which a former marriage annulled or dissolved by a civil court could be declared null and void by a bishop. The listed Impediments to marriage were:

             1. Consanguinity,

            2. Lack of free consent,

            3. Mistake as to the identity of either party,

            4. Mental deficiency sufficient to prevent intelligent choice,

            5. Insanity of either party,

            6. Failure of either party to have reached the age of puberty,

            7. Undisclosed impotence,

            8. Venereal disease in either party, and

            9. Facts which would make the marriage bigamous.

 The amended canon went on to provide that:

 "Any person whose former marriage has been annulled or dissolved by a civil court and pronounced null by the Bishop, may be married by a Minister of this Church as if he had never previously been married.”

 The Convention of 1937 amended Impediment 2 to read “Lack of free and legal consent of either party.” Impediment 7 was also amended to read: “Impotence or sexual perversion of either party undisclosed to the other.” The Convention of 1943 followed by separating the solemnization of Holy Matrimony and the regulations respecting Holy Matrimony into separate canons.

 The Convention of 1946 expanded the list of Impediments, which now constituted a bar to first marriage, as well as a basis for permission to remarry. The additional Impediments were: “Concurrent contract inconsistent with the contract constituting canonical marriage,” and “Attendant conditions: error as to the identity of either party, fraud, coercion or duress, or such defects of personality as to make competent or free consent impossible.”  The Matthean exception was not mentioned. This Convention also amended the canon pertaining to remarriage by imposing a one-year waiting period after any civil court annulment or dissolution. In the case of a prior marriage, the bishop was tasked to determine whether the parties to the proposed remarriage “intend a true Christian marriage,” and whether any of the canonical Impediments are shown to exist or to have existed which manifestly establish that no marriage bond as the same is recognized by this Church exists,...."

             The 1973 Convention removed the canonical prohibition against the remarriage of members of the Church whose former spouse was still living, and whose prior marriage was valid from its inception.

 Sources

 1. Constitution & Canons For the Government of the Protestant Episcopal Church in the United States of America Otherwise Known as The Episcopal Church as Revised by the 1997 Convention.

 2. Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as The Episcopal Church, 1981 Edition.