Jonathan Redvers Harris reports on the Cost of Conscience initiative on marriage

Many readers will know of Second Time of Asking – an initiative in marriage, divorce and possible further marriage, sponsored by Cost of Conscience, taking the form of workshops held in London, York and Bristol in October 2000 and June 2001. Working in association with concerns raised by the Provincial Episcopal Visitors, the aim of the initiative has been to articulate an understanding of a western theology of marriage, in Anglican terms, which may command a wide degree of support and form the basis for a pastoral provision to improve marriage discipline both within and without the ‘traditionalist constituency’.

Our initiative, of course, arises from the flawed report, Marriage in Church after Divorce, produced last year by a House of Bishops’ working party, chaired by Michael Scott-Joynt, Bishop of Winchester. This is the report in which it was proposed that ‘by way of exception’ the local incumbent be permitted to solemnize the further marriage of a divorced person, with a former spouse still living, where the circumstances fell within nationally agreed pastoral criteria.


The contributors to Second Time of Asking’s workshops have been many and various. In addition to the many who have participated in some worthwhile discussions, we benefited considerably from a number of papers and addresses. Robert Beaken presented valuable material on the predicament of maintaining a Christian vocation to matrimony in the face of a secular society; Martin Burr delivered some barristerial papers on the civil law of nullity and the Human Rights legislation; William Davage reminded us of the dangers of ignoring the Church of England’s historical context; Robin Ellis pressed upon us some archdeaconly concerns about the practical difficulties of the proposals; Kenneth Macnab led us through a digest of materials from the Fathers of both East and West; David Pym surveyed Anglican theological scholarship from the First World War until the Root Report; David Sherwood gave a former solicitor’s scrutiny of the Scott-Joynt proposals; Nicholas Turner set before us the experience of the Church of the Province of Southern Africa on the validity of marriage, and the possibility of invalidity; and, for my part, I offered some reflections on nullity and its treatment in previous Church of England reports. Valuable secretarial help was provided by Bridget Gillard. In short, a mixed bunch of historians, theologians and civil and canon lawyers – and a good number of us with many years in the parochial ministry.

The fate of Scott-Joynt

As for Scott-Joynt itself, the proposals are probably now, as they say, ‘dead in the water’. By the end of March this year, Diocesan Synods had been asked to respond to the recommendations of the Working Party, and it seems that a sufficiently large number have voted them down for the proposals to be unworkable. It was, after all, of the essence of Scott-Joynt’s proposals that the national pastoral criteria should command acceptance throughout the dioceses – and this acceptance is manifestly not there. Indeed, the London Diocesan Synod has overwhelmingly passed a motion to be sent to General Synod, proposing the establishment of diocesan, regional or provincial panels to deal with applications, and permitting the grant of special licences (for those recommended in exceptional circumstances) to divorced applicants to be married in their own parish church or in another church of the deanery. It is not known whether this motion will function as an amendment or not, but Scott-Joynt’s own proposals are now unlikely to see the light of day. So why does Scott-Joynt seem to have been fatally flawed?

Lite theology

For a start, despite the report’s purporting to be ‘a discussion document’, it never seemed really interested in encouraging open discourse. Any discussion as to a panel-based mechanism for handling further marriages was abruptly foreclosed with a pre-emptive strike in the prefatory note, while similarly any possibility of exploring an internal nullity procedure was disposed of as not – wait for it – ‘appropriate’. By the same token, only one further marriage would be allowed for by Scott-Joynt; yet, if an argument could be mounted for a second chance, then, despite the complexity of relationships involved, a third or fourth opportunity for marriage would not, surely, be ruled out.

Scott-Joynt was woefully short on theology. It simply will not do for a report in AD 2000 to shunt into an appendix material from a report over twenty years ago (Lichfield, 1978) and expect to be taken seriously. The complete lack of consideration of, say, the synoptic texts makes the report a very impoverished document; indeed, it does not even ask whether what it is doing is following the teaching of Our Lord. And, unsurprisingly, the very few sweeping observations that the report does make on the theological background are inadequate. For example, the claim that the Church Fathers ‘increasingly understood Jesus’ words describing divorce and remarriage as ‘adultery’ to have not just a moral but an ontological force,’ (my emphasis) is to import a greater sense of development into the patristic period on this point than the data may allow.

And then, as in earlier reports, Scott-Joynt makes the false – almost childish – antithesis of ‘legal versus pastoral’, in which ‘legal’ is caricatured as nasty, harsh or judgmental, while ‘pastoral’ is nice, forgiving and accepting. The report eschews ‘legal’ procedures, in favour of ‘pastoral’ – even though it may be through the very thoroughness, equity and consistency of being legal that true pastoral care is exercised. Yet the proposed draft Code of Practice with the incumbent as the focus of decision-making are inescapably juridical procedures.

Operational difficulties

For many, however, the discussion-stifling, thin theology, and the misuse – or misunderstanding – of certain terms, may doubtless be minor concerns. It is, rather, the sheer unworkability of the proposals and the exposed position of the incumbent which have been the principal focus of criticism for most. Very few priests, it is felt, would either be competent, or willing, to carry out the role of interrogator, judge and jury – as proposed by the report.

The psychological assessments required as to the past and future, the investigation of causes of previous breakdown (going further than simply looking at the decree of divorce, but without the chance to interview the other former spouse), and examination of financial arrangement for a former spouse and children would all be time-consuming matters, drawing on abilities not necessarily possessed by the priest. And the result, in which the incumbent would allow, in exceptional circumstances, couple A to have a further marriage, but not couple B, would leave the priest in an unenviable pastoral relationship with some of his or her parishioners.

A doctrine of divorce

Yet for those of us engaged in Second Time of Asking the greatest weakness of Scott-Joynt is that it starts from a doctrine of divorce. True, it was preceded by a silvery booklet, Marriage, a House of Bishops’ ‘teaching document’ in 1999 which sought, in the Archbishops’ words, ‘on the eve of the new millennium to reaffirm the Church of England’s teaching on marriage’. (Sadly it did little of the kind, and – rather than drawing on Canon B30 and the Prayer Book, where our Church’s teaching is, in point of fact, to be found – it spoke of marriage in terms of ideal, pattern, commitment and relationship, expressing the triumph of the empirical in its rather uncritical acceptance of the notion of ‘breakdown.’). No, Scott-Joynt is based on a priori acceptance of divorce.

The report’s proposals, after all, are founded on the irreconcilable proposition that

‘Nothing in this report should … be taken to imply any change in the Church of England’s teaching on marriage. We nevertheless believe that it can be said of two living people that they were married and are no longer married.’ (p. xi)

No argument is adduced to justify how it is possible at one and the same time to uphold the lifelong nature of marriage as taught by the Church of England, and simultaneously to be able to say that in a particular instance it is nothing of the kind. The acceptance by the report of the possibility ‘by way of exception’ (to use Bishop Scott-Joynt’s own words) of further marriage of the divorced (with former spouse still living) is based, not on the nature of marriage but upon divorce. Thus, the eight pastoral criteria and the twelve linked questions, forming the proposed draft code of practice, are not related to marriage but upon considerations such as the parties’ emotional stability and psychological maturity in relation to the previous breakdown and the new relationship (is the divorced person relatively free of self-deception and self-justification about the past, has he or she learnt from mistakes, is there an attitude of repentance and forgiveness – these are some of the questions to be asked), and upon an assessment of whether the financial provisions for any previous spouse and children are adequate. These all flow from divorce.

Marriage at the centre

In Second Time of Asking we have been drawn to a different approach. We believe that, in the spirit of Our Lord’s teaching – who, when questioned about divorce, began with marriage – so it must be that marriage should be at the heart and foundation of any discussion of ‘hard cases.’ We are of the view that, based on the Church of England’s own formulations of the doctrine of marriage, we can articulate an understanding of marriage which will command a large measure of assent from traditionalists in our Catholic and Reformed Church.

It is only when we place marriage as the focus of our consideration, that we can see when certain unions fall short. So, the increasing popularity of pre-nuptial agreements may result in a union which is not a marriage because the vital ingredient of free consent without condition and reservation is not there. Or, a union contracted principally or solely for reasons of overcoming immigration rules may be considered as no marriage because the purposes of marriage are not present – and, similarly, with the case of an undisclosed intention to have no children by one of the parties. Or, the behaviour by one of the parties very shortly after the marriage – for example, by almost immediate desertion, or widespread adultery – may be evidence that at the time of the marriage either of the parties did not accept the union to be exclusive and indissoluble. In none of these instances will the civil law of nullity (shared by the Church of England almost in its entirety) come to a party’s aid if a marriage is later desired in church with another party. But, in these sorts of circumstances, following civil divorce, and in circumstances where parties have obtained a civil divorce but could have obtained an annulment in the civil court, there seems no reason why a competent ecclesiastical authority, should not be able to assist the incumbent in enabling a ‘further’ marriage to take place. Of course, this would not meet the perceived needs of many of the consumer-driven applicants who, like some of our American Anglican bishops, really only want serial polygamy, but it may help mitigate some of the undoubted harshness of the Church of England’s official marriage discipline, contained in the flouted (by a third of the clergy) Convocation Regulations, while at the same time holding fast to a doctrine of marriage.

The Revd Jonathan Redvers Harris is Director of Second Time of Asking, and Vicar of Houghton Regis in the Diocese of St Alban’s