Marriage

Marriage

After March 25, 1754, when the Hardwicke Act for the Prevention of Clandestine Marriages went into effect, couples marrying in England had to follow certain rules in order to be legally married.  Before that time, all that was needed was that they say their vows before  a clergyman of the Church of England.  The clergyman need not even be in charge of a parish as long as he had been ordained.  Many were to be found in the vicinity of Fleet prison where people were imprisoned for debt. Under these circumstances, it was easy for people to keep the marriages secret. Though secret marriages might be beloved of novelists, they were very much disliked by courts and genealogists. The informal manner of weddings made it easier for bigamists. 

The new act was meant to make marriages more public and regular.  Though people had always been encouraged to have the banns called, it now became a requirement that they do so unless the couple obtained a license from the local bishop or the Archbishop of Canterbury. By 1811 the cost of a special license was £5.  It was mostly used by the aristocracy and men in the public eye. The standard license from a bishop required a bond for £100 to be forfeit if the couple lied about any allegation as well as a slight fee.  This license named the parish in which the wedding would be held.  This license entailed a wait of seven days. The couple still had to marry between the hours of eight and noon.

After the banns were read in the parish church for three successive Sundays, the couple had to be married in that church between the hours of eight in the morning  and noon by an ordained clergyman before two witnesses. Only if both the man and woman were Quakers or Jews were they exempt from this law. All others, even Roman Catholics, had to marry in the parish church of the Church of England unless they had obtained a special license. Even those with a special license had to be married by a man in holy orders.

By law the Roman Catholics were supposed to be married first by an Anglican priest before marrying by their rites, but in practice many married in Catholic rites first. However, the marriage was not valid until and unless they married according to the law by a clergyman of the Church of England.
All  marriages had to be registered in the parish register even if the couple married in a private house by special license.

Usually, the couple signed the register with their witnesses before leaving the church.

Marriage contracts were no longer enforced.  It was an offense against church law for a clergyman to marry anyone who was not a willing participant in the ceremony.

All those under the age of twenty-one needed the permission of a parent or guardian to marry. The father of a legitimate child was the natural guardian. The father was the only one who could name a guardian for the child, and such a guardianship couldn’t be transferred to another except by action of the Court of Chancery.

An illegitimate child was the child of nobody so neither the father nor the mother had the right to give permission for the child to marry by license. This clause in the act   was opposed for nearly all the seventy-five years the act was in force and was the basis for the repeal of most of the act  in 1822.

All minors who married by license without proper permission were not legally married at all.   The marriage was null and void – never existing– from the beginning.

This caused many problems as some couples waited until they had been married for years and had several children to dissolve their marriages on the grounds that one lied about his or her age.  In other cases , the invalidating point was that either bride or groom had been illegitimate and had married by licence without the proper permission.  When the marriage was declared void– as it was according to law– any children were then illegitimate. 

Parliament refused to amend or repeal the act or this clause in it until it seemed that the marriage of a high ranking peer might be declared invalid and his seven sons declared illegitimate.   This led Parliament in 1822 to pass a new marriage act repealing parts of the Harwicke act and strengthening other aspects of it.   Then as if this action had broken a log-jam someplace, several other changes in the laws of marriage followed over the next decade.

Marriage of the Prince of Wales and Caroline of Brunswick at St. James Palace.

The Hardwicke act was only law in England and Wales. It was not the law in Scotland or Ireland or any of the English colonies.

Catholic couples in Ireland could be married by a Catholic priest without the banns being called, though the church preferred that the banns be read.  A Protestant marrying a Catholic had to be married by a Protestant clergyman. This remained the law for most of the 19th century.

The law in Scotland allowed couples to marry by just saying they were married and living publicly as though married. This was considered a valid though irregular marriage. The law in Scotland allowed anyone over the age of fourteen to marry without parental permission. Because no clergyman was needed to make the marriage valid, couples from England would go to Scotland "to be married over the anvil."  They weren’t really or necessarily married over the anvil by a blacksmith.

Robert Elliot, who was one of the marrying men of Gretna in the early years of the nineteenth century, used a form of the regular marriage service. He asked if they were there of their own free will and if they took each other as husband and wife.  He usually gave them a certificate testifying to their marriage. Because consummation was important in Scotland, he also provided a bedchamber if needed.

There were no provisions in the law for proxy marriages anywhere in the British Isles. If a marriage  by proxy took place in a country or countries where they were  permitted, then such a marriage would be  valid in  England. None of the cases which  came before the courts involved  men or women who had  been born and baptized in England.

Royal brides were usually married  by proxy in their home country as a protection  for them on their journey to England.  One of the first  things  they had  to do on reaching England was to be married in an Anglican ceremony.

Dissolving a marriage

A marriage could be dissolved by death, annulment, or divorce.

Annulments were not easy. One couldn’t just decide to marry and get an annulment in a year for either the marriage was valid or it wasn’t. If it wasn’t valid the couple were never married, and if the marriage is valid they can’t get it annulled.

Marriages were null and void if minors married by license without the proper permission, if of the couple  had a living spouse, or if either was considered too young to marry. Shocking to our sensibilities, the age which was considered too young was before age seven.  Children could be married off between the ages of seven and twelve, if female and seven and fourteen, if male. However, when the female reached the age of twelve or the male reached the age of fourteen, the child could repudiate the marriage or decide to stay with it.

Fortunately, by the late eighteenth century, public opinion shifted so that most people disapproved of marrying children off at such tender ages.  By the beginning of the nineteenth century,  the attitude had shifted to allowing girls to wait until they were seventeen or older before   declaring them of an age to marry. Despite tales of girls being considered on the shelf if not married by age nineteen, quite a few Regency young ladies didn’t marry until they were twenty or even older.

Marriages were also void if one of the couple did not have a proper understanding of what he or she was doing. The church insisted on willing and informed consent, or at least as much informed consent as might be expected of a twelve year old girl.

Marriages could be annulled if one of the couple, usually the male, was impotent.

Marriages did not have to be consummated in England to be valid. The ability to consummate had to be present.  

An interested party could bring a suit to have a marriage annulled by reason of insanity as Mr. Fellow did when his brother the Earl of Portsmouth married his solicitor’s daughter. The commission appointed to rule on the earl’s mental capacity took years to come to the conclusion that the earl had no idea what it meant to be married. It took another suit to have a court declare the marriage null and void.

The decision to annul the marriage of a simple minded old woman to a man less than half her age, took a few days rather than years.

Marriages could also be annulled if the banns were not properly published or read.  The irregularity was most often in the form of the name read out in the banns.  The correct and proper names were important when the banns were read but the court quite often applied sense and went for the intent of the law rather than a literal interpretation.

While names were less important if one married by license, one was supposed to use’s own name or at least one by which one was known for a period of time.

Unfortunately for some, annulments wouldn’t be given just because a man lied about his title, possessions, holdings, or rank in Society. Neither could a man obtain an annulment if the bride was already pregnant with another man’s child. 

Marriages could be annulled if a man or woman married within the prohibited degrees of consanguinity or affinity. These marriages weren’t illegal altogether but could be easily voided. A clergyman had the privilege of refusing to conduct the ceremony in which a man was marrying his deceased wife’s sister or a widow her husband’s brother.
 
Most people did not obtain the sort of divorce which allowed the couple to marry others. Instead, they usually petitioned the church courts for what we would call a legal separation.

Generally only husbands could obtain a divorce because of the adultery of the wife. Two women who managed to obtain parliamentary divorces had to claim incestuous adultery . The husband committed adultery with the wife’s sister making it impossible for the wife to ever cohabit with him again.

Generally, the man had to sue the wife’s lover in court for damages.  He also had to obtain a legal separation from his wife in church court.  Copies of the cases in each court along with proof that the husband had collected damages from the lover were presented to parliament with a petition for a bill of divorce. The usual grounds for the man was adultery on the part of the wife and the fear of spurious issue. The bill was reported in the newspapers but the details weren’t usually.

There is no case on record of a man remarrying his divorced wife.      

The laws in Scotland were different. Just as Scotland had different laws of marriage, their laws of divorce were different from those in England.
A wife could sue a husband for divorce based on his adultery. If the marriage was in Scotland and the couple were considered Scottish, the adultery could have taken place anywhere.  However, if the couple were English or had been married in England , the adultery had to take place in Scotland after the husband was in the country at a set address for six weeks or more.
Guilty lovers were forbidden to marry under the law of Scotland

When Lord Paget and his lover went to Scotland for the requisite six weeks, she wore a black veil the whole time and was never referred to by name. He leased the house for longer than the required six weeks and showed signs of making the place a permanent home.  As soon as the wife was granted the divorce, he and his lover were married there in Scotland and stayed in Scotland for another week or more. As far as I know, no one ever questioned the legality of his divorce or remarriage.

Just a year later, however, the English courts expressed their opinion that foreign courts couldn’t dissolve English marriages by making an example of Mr. Lolly.

Lolly’s wife caught him in adultery in Scotland. The Scottish jurists were wary that this was a put up job but everyone swore to the contrary. Mrs. Lolly obtained her divorce. Mr. Lolly  returned to England where he married another woman and was immediately arrested and charged with bigamy. His Scottish divorce was dismissed as being worthless and he was sentences to seven years in the hulks. There was a great public outcry against this verdict. I have no doubt that some mentioned Lord Paget’s divorce and marriage. Lolly was pardoned. I have no idea what happened to his plans to marry. He would have been better off marrying her in Scotland.

One woman who obtained a divorce in Scotland against her English husband, married and lived in Scotland afterwards. She and her new husband had a son. There was no doubt that the marriage and child were legitimate in Scotland. However, when an English relative left a legacy to a legitimate child of hers, the court in England declared that the child was not legitimate by English law because the divorce was not recognized in English law. It did concede that the child was legitimate heir to the father of all property in Scotland.

Again, I have never heard of any one stating that the children of Lord Paget and his second wife were not legitimate. Debrett doesn’t even make a distinction of the child born before Lord Paget could marry his lover.

Scottish law provided that a child born before the parents married was made legitimate if the parents later married.  Usually, though, the parents had to both be free to marry.

English law was definite that any child born to an unmarried woman was illegitimate and no later marriage of the parents could make the child legitimate.