CANON 34: OF HOLY MATRIMONY

Amended Provincial Synod 2019

Affirmation :

The Anglican Church of Southern Africa affirms that marriage by divine institution is a lifelong and exclusive union partnership between one man and one woman.

1.   Prohibited Degrees

No cleric shall solemnize the marriage of persons who are related to each other within the forbidden degrees, as stated in the Table of Kindred and Affinity annexed to this Canon.

2.   Qualifications for Marriage

No cleric shall join in matrimony two unbaptised persons. A baptised person may be joined in matrimony to one who is under instruction for baptism. The Bishop may allow the marriage of a baptized person with an unbaptised person (not being under instruction for baptism) under such conditions and with such forms of service as the Bishop shall direct.

3.   Prohibition of Marriage

No cleric shall solemnize the marriage of any person whose marriage has been annulled or dissolved by secular authority during the lifetime of the partner to that marriage, unless

(a) the marriage has been declared an invalid union in accordance with section 4 of this Canon, or

(b) the cleric has obtained a licence to solemnize the marriage from the Bishop in terms of section 5 of this Canon.

4(a)   Application for Declaration of Invalidity

Every application for a declaration of invalidity shalt be made to the Bishop either through the Incumbent of the Pastoral Charge in which the applicant resides or habitually worships, or directly to the Bishop, who shall always consult with the said Incumbent and any other priest who may be concerned in the application.

(b)  Bishop’s Decision

The Bishop, who may be assisted by other persons whose advice is desired, shall consider any such application, and has authority to grant or decline the application. After consultation with a person learned in the law who is a Communicant of this Province, the Bishop, shall inform the applicant in writing of the decision and issue a certificate of invalidity if the application is approved.

(c)  Rules of Declaration

The Bishop shall apply the following rules in such cases :

Invalidity of Marriage

(i)     A marriage is invalidated by :
(1)    A relationship within the forbidden degrees of kindred and affinity as stated in the Table annexed to this Canon.

(2)    The bond of a marriage regarded as existing at the time when the marriage in question was solemnized.

(3)    The fact that either of the parties was in error with regard to the identity of the person with whom the marriage was contracted.

Further Grounds for Invalidity

(ii)  A marriage may be declared invalid at the Bishop’s discretion on any of the following grounds:

(1)   The absence of such formalities as are required by the civil authorities.

(2)   The fact that either of the parties was below the age required for a valid marriage by the laws of the country where the marriage was solemnized.

(3)   The fact that either party was precluded from making free and responsible consent to marriage through
a. force or duress;

b. insanity, mental illness or mental deficiency;

c. alcoholic intoxication or the influence of a drug

d. ignorance of the fact that a marriage was being solemnized.

(4)   The permanent impotence or permanent sterility of either party, known to the one but undisclosed to the other at the time of marriage.
(5)   The existence of a concurrent contract inconsistent with a marriage contract recognized as valid by the Church.
(6)   The fact, unknown to the man and not condoned by him, that the woman was pregnant by another man at the time of the marriage.
(7)   The fact that the marriage was contracted solely for reasons other than those for which Matrimony naturally exists.
(8)   The fact, established by evidence relating to behaviour before or after the marriage, that at the time of the marriage either of the parties did not accept the marriage as an exclusive and indissoluble union; provided that such evidence explicitly reveals that from the outset of the marriage no such union was ever intended to exist; provided also that this defect in the original contract can be shown to have been the chief cause of the breakdown of the marriage.
(9)   The refusal to consummate the marriage or the undisclosed intention of one partner at the time of marriage to have no children.
(10)  The fact that either of the parties (not being a catechumen) was unbaptised at the time of the marriage; and that the unbaptised party is unwilling to regard the marriage as binding in the Christian sense, provided that the Bishop had not allowed the marriage in accordance with section 2 of this Canon.

(d)  Bishop’s discretion

The Bishop shall have discretion to withhold any declaration of invalidity under this Canon if the Bishop is of the opinion that the granting of it, though technically in accordance with ecclesiastical law, would be contrary to the principles of equity

(e)  Legitimacy of children

Nothing in this Canon shall be construed as reflecting in any way upon the legitimacy of the children or the civil validity of the former marriage.

(f)  Service to be used

Should an applicant whose former marriage has been declared invalid under this Canon wish to marry, the service used shall be that of the Book of Common Prayer (1662), A Book of Common Prayer (South Africa), or such other service as may be set forth by the Synod of Bishops.

(g)  Issue of certificate

A certificate of invalidity shall not be issued unless the marriage has already been dissolved or annulled by a civil court.

5.   Letters of closure

A bishop may issue Letters of Closure if satisfied that:
(a)    there is no prospect of re-establishing a true marriage relationship between the parties of the former marriage, and that a certificate of divorce, valid both in the country where it was issued and in the Diocese, has been produced by the applicant, and its validity, authenticity and finality has been confirmed by a practising attorney or advocate consulted by the bishop;
(b)    the applicant has acknowledged a share in the sin which led to the breakdown of the former marriage, is repentant for the failure to keep the vows made in such marriage, knows the forgiveness of God and can therefore in good conscience move forward in life and faith and is generally forgiving of the former partner and of self,
(c)   the applicant has been given adequate counsel;
(d)   the application is supported by an incumbent of a parish in the Diocese;
(e)    the applicant understands the Church’s teaching concerning marriage as set forth in the Affirmation prefixed to this Canon and in the forms for the solemnisation of Matrimony prescribed by the Anglican Church of  Southern Africa;
(f)  such provision as is in the power of the applicant to make has been made (and is being made) for the spiritual welfare, happiness, care, maintenance, education and advancement of minor, disabled or otherwise dependent children of a prior marriage; and
(g)   the applicant is prepared to fulfil, and is fulfilling, all responsibilities, both moral and legal, in respect of any former marriage.

6(a) Method of application for licence to solemnise a marriage

6 (a) Every application to marry in terms of section 3(b) of this Canon shall be made to the bishop either through the incumbent of the pastoral charge in which it is desired that the marriage shall be solemnised or directly by the applicant. The bishop shall consult with the incumbent and with the incumbents of any parish in which the applicants reside or habitually worship.

(b) The Bishop, who may be assisted for this purpose by any person whose advice the Bishop desires, shall consider such application and has authority to grant or decline it. The Bishop shall inform the applicant in writing of the decision and issue the licence for the solemnisation of the marriage if the application is approved.

(c)  Grounds for granting application

The Bishop shall grant an application only after being satisfied on the following matters:
(i)   that there is no prospect of re-establishing a true marriage relationship between the partners of any former marriage, and that a certificate of divorce, valid in the country where it was issued and in the Diocese, has been produced by the applicant, and its validity, authenticity and finality has been confirmed by a practising attorney or advocate who has been consulted by the Bishop.
(ii) (aa)   that the person desiring to enter into a new marriage acknowledges a share in the sin which led to the breakdown of the former marriage, is repentant for the failure to keep vows made in such marriage and knows the forgiveness of ;

(bb)  such person considers that they can in good conscience make new vows and are genuinely forgiving.

(iii)  that the persons desiring to marry understand the Church’s teaching concerning marriage as set forth in the Affirmation prefixed to this Canon and in the forms for the Solemnisation of Matrimony prescribed by the Church of this Province, and truly intend to enter into such a marriage;
(iv)   that such provision as is in the power of the applicant has been made (and is being made) for the spiritual welfare, happiness, care, maintenance, education and advancement of minor, disabled or otherwise dependent children of a prior marriage,

(v)   that the applicant is prepared to fulfil and is fulfilling the applicant’s responsibilities, both moral and legal, in respect of any former marriage

(d) Notwithstanding the provisions of subsection (c) above, if Letters of Closure in terms of section 5 above have been previously issued to the applicant, the Bishop need only be satisfied in respect of subsections (ii)(bb), (iii), (iv) and (v) before granting the application.

(e) The service to be used for the solemnisation of such a marriage shall be that put forth by the Synod of Bishops for this special purpose.

7.  By whom performed

Where a licence to solemnise a marriage under section 6 of this Canon or to grant Letters of Closure under section 5 is granted no cleric shall be obliged to solemnise such a marriage, and the rite shall be performed by such cleric and in such place as the Bishop shall decide.

8.  Reconsideration of application

Where the Bishop has declined to make a declaration of invalidity in terms of section 4 of this Canon or to grant a licence to solemnise a marriage under section 6 of this Canon, and new facts which may have a bearing on the decision come to the knowledge of the Bishop, the case may be reconsider if a fresh application is made.

9.   Blessings of marriage

Persons with a former spouse or spouses still living who are divorced and remarry by civil rites may have their marriage blessed in church if the Bishop gives permission after being satisfied that their case meets the provisions set out in sections 4, 5 or 6 of this Canon. The form for such blessing shall be that which is set forth by the Synod of Bishops for this special purpose.

10.  Interview of applicants

In all cases provided for in sections 4, 5 and 6 of this Canon the Bishop shall interview the applicants or, if prevented, delegate this duty to a priest who shall not be a priest concerned in the application and who shall report the  findings to the Bishop for the Bishop’s decision.

11.  Blessings of customary union

The marriage of persons who have entered into a customary union may be blessed (according to the form provided in the prayer book or such other form as shall be authorised by the Synod of Bishops) on the following conditions:
(a)   that neither partner is bound by another marriage contract, civil or customary;
(b)   that their marriage fulfils all the conditions required by custom for a recognised and permanent union and, where possible, has been registered by state authority;

(c)  that the requirements of sections 2, 4 and 5 of this Canon, where applicable, have been fulfilled;
(d)  that the two persons publicly acknowledge before the congregation that they accept the Affirmation prefixed to this Canon as binding on their union,
(e)  that any other regulation issued by the Bishop in such a case has been observed.

12 (a) Canon 34 in its entirety applies to all Clergy licensed in the Anglican Church of Southern Africa.

(b)   (i) Clergy who have been divorced seeking permission to remarry in Church, or clerics seeking permission to be remarried in church to a divorced person to whom Letters of Closure have not been granted under section 5, should see three bishops (active or retired) from within the Anglican Church of Southern Africa, at least one of whom should be from another Diocese.

(ii) The Bishop dealing with the application shall decide on the other bishops who are to interview the cleric.

(iii) The Bishop shall ensure that the prescribed forms are completed in every case where permission to marry after divorce or Letters of Closure are sought, that these forms be made available to the additional interviewing bishops, and that a copy is placed in the cleric’s personal and confidential file lodged with the diocese.

13.   When a bishop is considering an application from (i) a divorced cleric to marry in terms of section 6 of this Canon; or from (ii) a cleric seeking permission to marry a divorced person to whom Letters of Closure have not been granted; or from (iii) a divorced cleric to be granted a licence or permission to officiate, the initiating bishop should at this stage, where possible, interview the former spouse to hear that person’s side of the story, and ensure that this person receives pastoral counsel. The Bishop may, especially where distance is a factor, ask another bishop or a deputy to conduct the interview and give pastoral counsel on the Bishop’s behalf.

14.   When a person who has been divorced and has not married again is being considered for ordination, that person should be advised to apply for Letters of Closure.   This should happen as early as possible in the process of discernment. Copies of the prescribed forms should be placed in the ordinand’s or cleric’s personal and confidential file lodged with the diocese. The same would apply when a cleric from another diocese seeks work in a diocese. No application on the part of an ordinand for ordination should be considered where there is evidence of contempt for the institution of marriage or abusive behaviour.

15.   In the case of clergy who have been divorced applying for a licence or permission to officiate, or of those seeking ordination, such an application should not be considered without Letters of Closure having been issued.

16.   No application on the part of a cleric for a licence from the bishop, or for permission to officiate, or for re-marriage after divorce, should be considered where there is evidence of contempt for the institution of marriage or abusive behaviour.

17.  Place of marriage

Except with the Bishop’s permission, marriage shall be solemnised only in a church or chapel or other place customarily used for worship.

18.  Times of marriage

Marriages may be solemnised at any time of the day between the hours of six in the morning and nine in the evening, but not at other times except by permission of the Bishop.

19.  Restricted period

Marriages shall not be solemnised from Palm Sunday to Easter Eve inclusive without dispensation from the Bishop.

20.  Delegation powers

A diocesan bishop may delegate all or any of the authorities, rights and powers, and assign any of the obligations the bishop has in terms of this Canon to a bishop suffragan in the diocese, which delegation or assignment or both may  be withdrawn at any time.

A TABLE OF KINDRED AND AFFINITY WHEREIN WHOSOEVER ARE RELATED ARE FORBIDDEN TO MARRY TOGETHER

A man may not marry his

Mother
Daughter
Father’s mother
Mother’s mother
Son’s daughter
Daughter’s daughter
Sister
Father’s daughter
Mother’s daughter
Wife’s mother
Wife’s daughter
Father’s wife
Son’s wife
Father’s father’s wife
Mother’s father’s wife
Wife’s father’s mother
Wife’s mother’s mother
Wife’s daughter’s daughter
Wife’s son’s daughter
Son’s son’s wife
Daughter’s son’s wife
Father’s sister
Mother’s sister
Brother’s daughter
Sister’s daughter
Brother’s daughter’s daughter
Brother’s son’s daughter
Sister’s daughter’s daughter
Sister’s son’s daughter

A woman may not marry her

Father
Son
Father’s father
Mother’s father
Son’s son
Daughter’s son
Brother
Father’s son
Mother’s son
Husband’s father
Husband’s son
Mother’s husband
Daughter’s husband
Father’s mother’s husband
Mother’s mother’s husband
Husband’s father’s father
Husband’s mother’s father
Husband’s son’s son
Husband’s daughter’s son
Son’s daughter’s husband
Daughter’s daughter’s husband
Father’s brother
Mother’s brother
Brother’s son
Sister’s son
Brother’s son’s son
Brother’s daughter’s son
Sister’s son’s son
Sister’s daughter’s son

The Table shall be in every Church publicly set up
and fixed at the charge of the Parish.