On 27 February 2024, General Synod approved a Private Member’s Motion which called on General Synod to review Canon C4: Of the quality of such as are to be ordained deacons or priests, and explore the ways in which it could be amended or replaced: Removal of Divorce Impediment to Ordination, GS 2349A, (“the PMM”), and the Paper from the Secretary General, GS 2349B, (“the SG’s paper”). The motion argues for a change in how the associated C4 faculties are processed and states that a completely different system is needed: “the present system can be intrusive and distressing; and does not reflect the widespread acceptance of divorce and remarriage in wider society”.
“The Church of England’s processes reflect both its commitment to the doctrine of marriage as lifelong, and its commitment to grace and the possibility of second chances. Given the promises made by those being ordained, the present system seeks to maintain the right balance between distinctiveness and a commitment to lifelong, faithful, exclusive relationships, together with the need for grace and compassion”.
Legislative background
Section 9 of the Clergy (Ordination and Miscellaneous Provisions) Measure 1964 created an absolute impediment to the ordination of a person who had remarried where one party to that marriage had a former spouse who was still living. The Clergy (Ordination) Measure 1990 substituted a new section 9 into the 1964 Measure which retained the impediment in the case of such a person but introduced the possibility of the relevant archbishop granting a dispensation to ordination. As a result, paragraph 5 of Canon C 4 now provides for the relevant archbishop, on the application of the diocesan bishop concerned, to grant a faculty for the removal of the impediment in a particular case.
Theological principles
The SG’s paper explained that the current legislation is based on two separate but related theological principles; the nature of marriage and the nature of ordained ministry. The document addresses the theological principles and the discernment of vocations to ordained ministry, and concludes: “[t]he question before the House and Synod is therefore whether the questions behind the establishment of paragraphs 4 and 5 of canon C 4 are still considered appropriate and legitimate” [12]:
- Is there good warrant for an exploration of the past and of questions character in relation to previous marriages as part of the discernment process?
- Could repentance and grace be considered enough, rather than seeking an assessment of previous circumstances (which is likely to be subjective, and not necessarily applied consistently, or sensitively)?
- Is Canon C 4 the best way of doing this, or does its current application show drawbacks that outweigh the benefits? And if drawbacks are too significant, would new archbishops’ directions be sufficient to remedy this, or would a different approach altogether be required?
Practical issues
The PMM explores some of the practical issues, noting:
“A number of problems arise – as examples, priests who remarry after they have been ordained face no consequence. This has led to candidates being advised to defer marriage so as not to trigger the C4 faculty process, Also enquiries into previous abusive marriages may create a safeguarding risk for a candidate or their children (it is normal for a former spouse to be interviewed).”
“[4]. This motion is not addressed to issues of principle about marriage, but rather is focussed on decisions that are actually being made some 80 times a year (see Annex1 for detailed figures from 1993, when the first faculties were issued to 2023), and on making those decisions in a better way without the unintended consequences of the current system under the Canon
The provisions of Canon C4 paragraphs 4 and 5 were added in July 1991 by Amending Canon No 9 at a time when remarriage following divorce was a heavily contested issue in the Church of England. The formalities of a reference to an archbishop and the requirement for a faculty would ensure that decisions were taken seriously, and ordinands and ordaining bishops would have protection against legal challenge. Nevertheless, the proposals were heavily resisted. The relevant paragraphs of Canon C4 Of the quality of such as are to be ordained deacons or priests now read:
“[4]. Subject to paragraph 5 of this Canon no person shall be admitted into holy orders who has remarried and, the other party to that marriage being alive, has a former spouse still living; or who is married to a person who has been previously married and whose former spouse is still living.
[5]. The archbishop of the province, on an application made to him by the bishop of a diocese on behalf of a person who by reason of paragraph 4 of this Canon could not otherwise be admitted into holy orders, may grant a faculty for the removal of the impediment imposed by that paragraph to the admission of that person into holy orders, and any request made to a bishop for an application to be made on his behalf under this paragraph shall be made and considered, and any application made by the bishop to the archbishop shall be made and determined, in accordance with directions given from time to time by the Archbishops of Canterbury and York acting jointly.”
It was thought that these provisions would be rarely invoked. Part of the case made when the Amending Canon was considered by the Ecclesiastical Committee, but even from the start, numbers have been consistently higher than originally anticipated, Annex 1 to GS 2349A. The PMM stresses decisions being made are not now occasional and exceptional, and it is no longer assumed in practice that divorce and remarriage is a prima facie bar to ordination [11].
“[12]. The Canon envisages a bar to ordination which no longer exists in practice. The main concern has always been to avoid scandal, and to filter out candidates whose manner of life is inappropriate, rather than regarding the circumstance of remarriage as a prima facie bar to ordination.
[13]. It is normally only when the review of a candidate’s circumstances reveals unresolved or unacknowledged issues of poor conduct that a faculty is refused. It is conduct rather than divorce or remarriage which is in practice the bar to ordination. So one presenting question is why this particular issue of conduct should be singled out for special treatment in the Canon. This special treatment leads to some uncomfortable anomalies and a range of unintended consequences.
[14]. The fact that our archbishops are routinely involved in the pastoral assessment of one sixth of ordination candidates is surely unintended. Other pastoral issues in candidates ’lives are routinely investigated and assessed by those who know them best'”.
Other issues raised were: the impact of the process on candidates [15]; delays [17]; serious anomalies in the treatment of the different kinds of relationships which involve the formation of families and the care of children [19]; difference in treatment of remarriage pre-and post-ordination [20], examples of which were given in [21].
The PMM concludes:
“[26]. My motion does not give details of how the canonical provisions are to be replaced. My strong preference would be for routine decisions to be covered by appropriate guidance and to be made by those who know the candidates best in the context of a fuller picture of the candidate’s life. The circumstances in which it is appropriate to make enquiries into the history of a spouse will also have to be considered. Legal advice may be required on the relevance of equalities legislation to a revised system. And consideration will have to be given to whether there may be occasions when routine enquiry identifies a potentially exceptional case”.
The motion as amended was passed as follows:
‘That this Synod request that the Archbishops’ Council introduce the necessary legislation to revise Canon C4.5 so that a diocesan bishop or acting diocesan bishop may grant a faculty to remove the impediment under Canon C4.4, with national assessment guidelines issued by the Archbishops of Canterbury and York acting jointly to ensure consistency across dioceses.
For: 300 Against:12 Abstain:7
“….does not reflect the widespread acceptance of divorce and remarriage in wider society”. Is the problem here. Shouldn’t Synod consider Jesus’ views as expressed eg in Matthew 19:9 and Mark 10:11-12?
I am so glad that in Scotland even in 1638 there was concern about church cruelty against the innocent divorced: (National Covenant). The argument for the remarriage of divorced people goes like this.
Jesus permits divorce on the grounds of adultery. In the old Testament the punishment for adultery is death, in which case the innocent party would be free to marry, so why should the innocent party suffer because the civil powers don’t carry out the Biblical injunction?
This demonstrates the crazy lengths which people will go to be “Biblical”. Society has changed from the situation where men could divorce their wives for a minor infraction; the words of Christ were not aimed at a society where there is equality of the sexes and people live longer and are much more mobile in every sense.
It was an interesting debate, and one in which I was not called to speak.
It seemed to me that there were a number of principles involved.
First, the Church of England, as Synod is regularly reminded, has a doctrine of marriage. It has been said many times recently from both sides of the LLF debate that there is no intention to amend the doctrine of marriage. One element of that doctrine is that marriage is a lifelong union. Consequently if someone having been divorced marries another person during the lifetime of their former spouse they are breaching that doctrine of marriage, just as they would be by marrying someone of the same sex.
In 1991 in order to accommodate the potential harshness of that doctrine and given the increasing frequency of divorce and remarriage taking place amongst church going people it was felt necessary to take action to “regularise” that practice without denying the doctrine. So recourse was made to the practice of dispensation, whereby a bishop, often the metropolitan, has granted dispensations to permit what would otherwise be impermissible. For more detail about the practice of dispensation (or “economy” as it is termed in the Eastern Church), see Will Adam’s book Legal Flexibility and the Mission of the Church, 2011. He says: “Removal of this particular impediment was not a pre-Reformation example of dispensation, nor was it one of those dispensations habitually granted in the post-Reformation Church of England. This is a new situation and a new dispensation.”
What was proposed in the initial PMM was that legislation should be introduced to remove the canonical impediment. That was met by an amendment which did not ask for the removal of the impediment, but for a revision of the Canon so that a diocesan or acting diocesan bishop may grant a faculty to remove the impediment. That was a less draconian approach and did not raise the inevitable questions about the underlying doctrine of marriage.
The Archbishop of York spoke enthusiastically about passing this responsibility to the diocesan bishops.
However although the amended motion speaks of a diocesan granting a faculty “with national assessment guidelines issued by the Archbishops acting jointly to ensure consistency”, I am not sure that that consistency will be the outcome.
The issuing of a dispensation is an entirely discretionary matter. There can be no process of appeal or review. How those guidelines are interpreted will be entirely within the discretion of 42 diocesan bishops. As we know from the LLF debates there is between them a wide range of views about the outworkings of the doctrine of marriage. Some will approach matters from a more conservative angle than others.
Much will depend on what legislation is now drafted. But if it follows the request in the amended motion, it could have the unintended result of a postcode lottery. That is not now the case as the faculty petitions are considered only by the two metropolitans. Furthermore there is some assurance of consistency as we learned from the Archbishop of York, in that the other Archbishop has to sign off the decision of his brother metropolitan.
What is needed is a revision of the current Archbishops’ Guidelines and greater clarity about any red lines. It is clear that in practice the “three year rule” is not an absolute bar, and that all matters in the Guidelines are only guidelines and that the grant of a faculty being a dispensation, it is a matter of discretion in each case.