Folia Theologica et Canonica, Supplementum (2016)
Hanns Engelhardt, Marriage and Divorce In Anglican Canon Law
MARRIAGE AND DIVORCE IN ANGLICAN CANON LAW 67 7. Episcopal Church In the Episcopal Church the new Can. 1.18 of 2015 permits solemnizing a marriage of two partners regardless of their sex, i.e. two partners of the same sex as well as of one man and one woman. All references to man and woman, husband and wife have been extinguished. Especially the declaration the parties have to sign does no longer refer to marriage in general, mentioning husband and wife, but is personalized with regard to the parties using just the words “our marriage”. As before, the canon enjoins all members of the clergy to conform to the laws of the State governing the creation of the civil status of marriage. As the Episcopal Church is living in different jurisdictions there may be different regulations concerning the possibility of initiating a marriage. State law may permit contracting a marriage without regard to the sex of the partners; it may permit only a marriage between a woman and a man; lastly, it may permit a marriage between a man and a woman and a civil partnership - but not a marriage - between two persons of the same sex. What does this mean for the application of the canon? If state law permits marriage between a man and a woman only, a member of the clergy is not permitted to perform the rite called “Solemnization of a Marriage” with regard to two persons of the same sex; such action would purport to create a marriage not allowed by state law. Likewise, if state law permits marriage between a man and a woman and a civil partnership - sometimes also called a life-partnership - a member of the clergy is not permitted to perform the rite called “Solemnization of a Marriage” with regard to this union and thereby purport to create a valid - in terms of state law - same-sex marriage. However, if the state does not permit a same-sex marriage with civil status the obligations of the Member of the Clergy depend on the position of state law with regard to religious rites. In Germany e.g., the former law prohibited administering religious rites when no valid civil marriage had been registered beforehand. This prohibition has recently been abolished. It seems therefore that a Member of the Clergy may, in terms of state law, administer any rite he thinks fit. He is, however, obliged to warn the parties that the religious rite does not have any consequences for the civil status, that in the eyes of the state they are not married by virtue of these rites. the General Synod of the Anglican Church in Aotearoa, New Zealand and Polynesia has postponed a decision on whether or not to permit the blessing of same sex marriages until 2018. Meanwhile, a working group shall be appointed by the Primates of the province “to consider possible structural arrangements (...) to safeguard both theological convictions concerning the blessing of same gender relationships.” (ACNS 12 May 2016).
