ONE RULE FOR US AND MANY FOR THEM

An interview with Professor Rebecca Probert, Warwick School of Law

Professor Rebecca Probert, Warwick School of Law, explains some of the more controversial laws that some members of the Royal Family may face when it comes to affairs of the heart. What do you think? Should there be changes to the traditional laws to ensure that everyone is treated equally, royalty or not?

King George III was not a happy man when confronted with the marital antics of his relatives. He had strong ideas of the behaviour he expected from the Royal Family, and these high standards were certainly not being lived up to.

Take his brother, William, Duke of Gloucester, who married illegitimate bride Maria Walpole in a secret ceremony. Another of the King’s brothers, Henry, Duke of Cumberland, married the Hon. Anne Horton, a woman with a ‘somewhat shady’ background. The King decided to take action and the result was the Royal Marriages Act of 1772, specifically affecting the descendents of King George II, “to ensure that he and any subsequent monarch would be able to prevent such scandalous matches from occurring”.

The choice of royal marriage partners had already been curtailed by the Act of Settlement 1701, which gave the succession to Protestant Sophia and her heirs. It ruled out King James II’s Catholic son James Francis Edward and stated that any monarch who married a Catholic had to give up their right to the throne. Sophia died before she could become Queen and therefore the throne passed to her son, now known as King George I. “The Act was rooted in prejudice against Catholics, which was widespread at the time”, explains Prof Probert. However there never was and still is no law stopping a royal marrying a Hindu, Muslim, Atheist or indeed a member of any other religion – at the time of the 1772 Act these people were so thin on the ground in England the law took no account of them.

But in one respect members of the royal family had more freedom than the rest of the population. Legislation passed in 1753 invalidating marriages that were not preceded by banns or licence did not apply to them, allowing members of the Royal Family to continue to marry more privately than their subjects. In 1836, however, this royal privilege itself became a restriction, as new forms of marriage were introduced by the Marriage Act of that year. Since this legislation also stated that it did not apply to members of the Royal Family, the assumption was that they were not entitled to take advantage of these new forms.

At the time there wasn’t a great deal of interest in this law. “The fact that royalty were not entitled to marry in a civil ceremony barely merited comment in the days when few of the population as a whole took this option.” But the end result, says law professor Rebecca Probert in her latest book The Rights & Wrongs of Royal Marriage, was heartbreak, farce, confusion and the possibility of some royal marriages being laid open to legal contention. The prospect of a royal marrying again after divorce or marrying a divorced person has also proved very problematic. Divorce is open to members of the royal family in the same way as the rest of the population, but “the problem comes when they want to remarry”. In previous years the Church of England would not marry someone who had been divorced, believing that “it would be tantamount to consecrating an old infidelity”. It is only relatively recently that the Church has allowed vicars the discretion to marry divorced people if they so choose, although they are still required to take into account whether this would be “tantamount to consecrating an old infidelity”. An alternative option, one taken by Princess Anne in her second marriage to Timothy Laurence, is to marry in the Church of Scotland instead.

When the engagement of Prince William and Kate Middleton was announced in 2010, Professor Rebecca Probert started working on her book detailing the anomalies in the law surrounding royal marriage. The book is published by local Kenilworth company Takeaway, set up to cater for works that need a fast turnaround. Prof Probert notes that happily the marriage of Prince William and Kate Middleton on Friday 29 April 2011 is legally straightforward. Both are unmarried and members of the Church of England, and the couple will be married in Westminster Abbey by the Archbishop of Canterbury, Dr Rowan Williams.

For William’s father, however, his second marriage to Camilla Parker Bowles wasn’t so simple. Before 2005, no descendent of Edward VII had ever married in a civil ceremony in England and Wales. Prof Probert explains that the then-Labour government re-interpreted the law to allow Prince Charles not to marry in the Church of England, with Lord Falconer arguing “that the Marriage Act 1949 did, contrary to what had previously been thought, allow members of the royal family to marry in a civil ceremony in England and Wales”.

Despite this, the law is still unclear about whether future royal couples can marry in civil weddings. “There’s an assumption that it must be OK if Charles and Camilla could do it but this isn’t necessarily the case.” The certificate issued for the marriage to go ahead only related to Prince Charles and Camilla Parker Bowles, and failed to clear up confusion on royal wedding law once and for all.

Prof Probert believes that it would be relatively simple to clarify the law surrounding royal marriage. “I would have a nice, short, simple Act of Parliament implementing a number of reforms related to marriage generally and include a short clause confirming that the marriage laws for the general population also apply to royals.”

Why hasn’t any government taken this step already? According to Prof Probert both political sensibilities (a reluctance to be seen to legislate just for the Royal Family) and the question of legislative scope (should a bill also include changing the law on issues such as primogeniture?) have played their part. The Royals themselves are in a difficult position. “They can’t demand the law be clarified but are the ones vulnerable to legal challenges if it isn’t”.

There’s an assumption that it must be OK if Charles and Camilla could do it but this isn’t necessarily the case...

Professor Probert’s favourite example of legal confusion comes from government files on Prince Phillip, the Duke of Edinburgh, from the 1950s. Officials were worried that, according to a possible strict interpretation of the royal marriage laws, the Prince might actually be illegitimate. Although there was panic behind the scenes, nothing was done.

The conundrum was this: a royal who wishes to marry needs the sovereign’s consent unless they are a descendent of a princess who has married into a foreign family. The Princess Sophia Naturalisation Act of 1705 awarded British nationality to all descendents of Sophia, who was the mother of King George I. This became complicated over decades and centuries of intermarrying when British princesses married who they thought was a foreign prince, but actually as a distant descendent of Princess Sophia, their foreign prince was technically a British subject. Therefore their marriage could be declared void if the permission of the monarch wasn’t sought, and any children would be illegitimate.

Following this line of thought the Duke of Edinburgh’s mother, Princess Alice of Battenberg, was illegitimate due to the lack of the sovereign’s consent to her parents’ marriage. According to Prof Probert the panicking 20th century officials needn’t have worried about Prince Phillip – his mother’s potential technical illegitimacy would break the royal chain back to George II rendering her marriage legal because Princess Alice, as an ordinary subject, then didn’t need the consent of the monarch for her marriage to Prince Andrew of Greece.

In the past, royal marriages developed their own traditions, such as in the days before easy trans-country travel, when marriages between a prince and princess were often celebrated by proxy in the woman’s country for reassurance before she came over to England. Those days have long gone. “The general law of marriage has since moved on – but the law applicable to members of the Royal Family has not … the Royal Marriages Act is basically redundant now” Professor Probert says.

What if a member of the Royal Family wishes to enter into a civil partnership? The Civil Partnership Act 2004 makes no mention of royals – they have the same entitlement to enter into a civil partnership as the rest of the population.

Ironically, if a member of the Royal Family wishes to be legally joined to a loved one, the current law is far simpler if they are gay. In that case, religion and previous marital status pose no barriers whatsoever.

Professor Rebecca Probert will be presenting a mini public lecture at the Festival of Social Sciences on 9 May 2011.

Rebecca Probert is a Professor in the Warwick School of Law. The theme of her research is the boundary between marriage and cohabitation. This has two dimensions. The first is the way in which marriage is defined to distinguish it from cohabitation, or from non-marriage. The second is the question of whether legal rights should be accorded to relationships outside marriage and, if so, how such relationships should be defined.

Her book The Rights & Wrongs of Royal Marriage: How the law has led to heartbreak, farce and confusion... was published in March 2011 by Takeaway.

By Penelope Jenkins