The constitutional requirements for the royal morganatic marriage.

• Author: Pelletier, Benoit
• Position: United Kingdom, Canada

This article examines the constitutional implications, for Canada and the other members of the Commonwealth, of a morganatic marriage in the British royal family. The Germanic concept of "morganatic marriage" refers to a legal union between a man of royal birth and a woman of lower status, with the condition that the wife does not assume a royal title and any children are excluded from their father's rank or hereditary property.

For such a union to be celebrated in the royal family, the parliament of the United Kingdom would have to enact legislation. If such a law had the effect of denying any children access to the throne, the laws of succession would be altered, and according to the second paragraph of the preamble to the Statute of Westminster, the assent of the Canadian parliament and the parliaments of the Commonwealth that recognize Queen Elizabeth II as their head of state would be required.

However, the declaration included in the O.D.L. Report of 1930, the alteration of the laws of succession in 1936-37 and that of the royal style and titles in 1947 and 1952 suggest that the second paragraph of the preamble to the Statute should be considered a constitutional convention rather than a rule of strict law. The lack of assent to a morganatic marriage by the Canadian parliament or any other Commonwealth parliament would have no legal effect.

Cet article analyse les implications constitutionnelles, pour le Canada et les autres pays membres du Commonwealth, d'un mariage morganatique au sein de la famille royale britannique. Le concept de >, d'origine germanique, renvoie a une union 1egale entre un homme de descendance royale et une femme de statut inferieur, a condition que cette demiere n'acquiere pas un titre royal, ou encore qu'aucun enfant issu de cette union n'accede au rang du pere ni n'herite de ses biens.

Afin qu'un tel mariage puisse etre ce1ebre dans la famille royale, une loi doit etre adoptee par le parlement du Royaume-Uni. Or si une telle loi devait effectivement interdire l'acces au trone aux enfants du couple, les regles de succession seraient modifiees et il serait necessaire, en vertu du deuxieme paragraphe du preambule du Statut de Westminster, d'obtenir le consentement du Canada et des autres pays qui reconnaissent la reine Elisabeth II comme chef d'etat.

Toutefois, tant la declaration formulee dans le O.D.L. Report de 1930 que la modification des regles de succession en 1936-37 et celle de la designation et des titres royaux en 1947 et 1952 nous amenent conclure que le deuxieme paragraphe du preambule du Statut ne devrait pas etre considere comme une regle de droit strict, mais plutot comme une convention constitutionnelle. Le defaut de consentement du parlement canadien ou des autres parlements du Commonwealth a un mariage morganatique ne pourrait doric pas etre sanctionne juridiquement.

Introduction I. Morganatic Marriage A. Definition B. Implication of the Definition II. The Statute of Westminster and Its Preamble A. The Law respecting the Succession to the Throne B. The Royal Style and Titles C. Assent 1. Application of the Statute in 1936-37, 1947, and 1952 2. Application of the Statute after 1982 III. The Commonwealth Conclusion Introduction

Upon proclamation of the Constitution Act, 1867, (1) Canada became a federal state. Canada only became a sovereign state, however, in 1931, when the Statute of Westminster endowed Canada with unrestricted powers in matters of external affairs (section 3 of the Statute). (2) The Statute of Westminster also abolished the Colonial Laws Validity Act (3) (subsection 2(2) of the Statute), which had until then emphasized the preponderance of the laws of the parliament of the United Kingdom to the detriment of Canadian laws in cases where they came into conflict. Even after 1931, the British parliament retained the power to amend the most substantial parts of the Canadian constitution, by virtue of section 7 of the Statute of Westminster. Notwithstanding the provisions of section 7, amendment of the Canadian constitution by the British parliament had to be made upon the basis of request and consent from the Dominion of Canada, as required by section 4 of the Statute. From my perspective, this specific provision may be interpreted as confirming Canada's sovereignty over its own affairs, regardless of whether they were of a constitutional nature or not. And, furthermore, by this means the United Kingdom parliament was reduced to the status of a "fiduciary" partner with respect to the Canadian constitution.

It was only in 1982, when Canada patriated its own constitution, that the British parliament's power to proceed to such amendments was finally revoked. Patriation notwithstanding, however, Canada continues to owe allegiance to the Crown. In practical terms, this means that Queen Elizabeth II continues to fulfill the role of a constitutional monarch and head of the Canadian state, even if Her Majesty's position is ceremonial and symbolic. Furthermore, with some modifications, the Statute of Westminster is itself still part of the constitution of Canada, by virtue of paragraph 52(2)(b) and the schedule to the Constitution Act, 1982. (4)

The purpose of this study shall be to analyze the scope and the constitutional implications of the second paragraph of the preamble to the Statute of Westminster on a morganatic marriage in the royal family. Indeed, royal marriage serves as a useful tool for exploring larger issues including the application of the Statute of Westminster in Canada today. For the past few years, there have been persistent rumours that a morganatic marriage might be pending between Prince Charles, heir apparent of the House of Windsor and heir to the British Throne, (5) and his companion, Mrs. Camilla Parker Bowles. Although it does not appear that the marriage between Prince Charles and Mrs. Parker Bowles was a morganatic one, all of these rumours show the relevance of the concept of morganatic marriage to today's British monarchy.

A morganatic marriage is commonly defined as a legal marriage in which a member of a royal or noble family marries someone of lower status on the understanding that neither the spouse nor the children will have any claim in the inherited rank or property of the parent of higher status. The question for the purposes of this paper is whether Canada would have to give its assent to such a union, since Canada and the United Kingdom are united by common allegiance to the British monarchy.

The second paragraph of the preamble of the Statute of Westminster, which remains unimpaired by the Constitution Act, 1982 and which, therefore, is still part of the Canadian constitution, provides as follows:

And whereas it is meet and proper to set out by way of preamble to this Act that, inasmuch as the Crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the Crown, it would be in accord with the established constitutional position of all the members of the Commonwealth in relation to one another that any alteration in the law touching the Succession to the Throne or the Royal Style and Titles shall hereafter require the assent as well of the Parliaments of all the Dominions [including the Dominion of Canada] as of the Parliament of the United Kingdom. (6) A morganatic marriage, specifying that the heirs could not legitimately inherit their parent's title of dignity, would alter the laws of the succession to the throne and would therefore require the application of the second paragraph of the preamble to the Statute of Westminster.

If the traditional rules of succession are changed, it will be imperative to determine whether the consent required by the second paragraph of the preamble to the Statute is merely political or whether it is invested with the full force of law. To answer this question, we must consider the nature of the second paragraph of the preamble and establish whether it should be regarded as a strict rule of law or as a convention. A rule of law can characteristically be acknowledged, accepted, and applied by courts in the determination of a dispute. (7) A convention, however, is defined as a rule elaborated empirically by political agreement, not sanctioned by courts, but nonetheless accepted and respected by parties because of a sentiment of necessity. (8)

Finally, the issue of Canada's assent gives rise to the question of whether all fifty-three parliaments of the Commonwealth of Nations would have to give their assent, or only the parliaments of the sixteen members that have Queen Elizabeth II as their head of state.

1. Morganatic Marriage

   1. Definition

      The term "morganatic marriage" derives from the phrase matrimonium ad morganaticum, which became current in the lexicon of the late Roman Empire. Literally signifying a "marriage on the morning gift" or "early morning marriage", the phrase underwent an onomastic transformation during the centuries following the fall of the Roman Empire in the West and prior to the founding of the Germanic kingdoms that established themselves in the former territories of the western empire. In this context, the term became associated with Germanic ideas of social status and rank. Hierarchy of birth assumed numerous applications in Germanic Salic law-particularly in the Frankish kingdoms. Parties to many kinds of transactions were required to possess the same social standing. (9)

      According to the Oxford Companion to Law, a morganatic marriage is "[a] legally valid marriage between a male member of royal, or princely, family, and a woman of lower birth or rank with the conditions that she does not acquire his rank and that any children are not to succeed to his rank, dignity or hereditary property." (10) This is the Germanic definition of the expression; this institution was apparently not always formally recognized in England. (11)

      However, the 1866 case of Kynnaird v...