Folia Theologica et Canonica, Supplementum (2016)
Hanns Engelhardt, Marriage and Divorce In Anglican Canon Law
64 HANNS ENGELHARDT “it is inconsistent with the law of God, and the Ministers of this Church, therefore, shall not unite I in matrimony any person who is divorced, unless it be on account of the other party having been guilty of adultery”.50 In 1868 the first canon was enacted as Canon 11.13: 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 seeking to be united again. After almost 80 years of struggle, the Convention of 1946 eliminated this prohibition of the remarriage of divorced persons, including the Matthaean exception. The present Can. I. 19 “Of Regulations Respecting Holy Matrimony: Concerning Preservation of Marriage, Dissolution of Marriage, and Remarriage” first deals with the case that in an existing marriage the marital unity is “imperilled by dissension” (sec. 1 ). In such case it obliges either party to submit the matter, before taking legal action, to a Member of the Clergy whose duty it is first to protect and promote the physical and emotional safety of those involved and only then, if it be possible, to labor that the parties may be reconciled. The wording of this clause seems to show that the welfare of the individuals involved - not only the couple themselves but e.g. children also - takes precedence before the maintenance of the marriage bond. If the marriage of a member of the Church has been annulled or dissolved by a civil court this member may apply to the bishop or ecclesiastical authority of the diocese of legal or canonical residence for “a judgment as to his or her marital status in the eyes of the Church (sec. 2 (a) clause 1). The application does not presuppose that a new marriage is intended; on the other hand, this procedure is no prerequisite for a new marriage. The Bishop’s judgment may be a recognition of the nullity or the termination of the marriage in question. It seems to be an open question how far the Bishop is bound by the judgment of the civil court. As the reasons for nullity of a marriage may be different in state and church law the Bishop will not be bound by a declaration of nullity. But it may be asked whether any judgment of a civil court by which a marriage is 50 White. E. A. - Dykman, J. A., Annotated Constitution and Canons for the Government of the Protestant Episcopal Church, 398.
