Marriage and English Law

The topic of our May 23 meeting was marriage and English law. I presented a book report on Marriage Law for Genealogists: the Definitive Guide (Kenilworth, U.K.; Takeaway, 2012), by Rebecca Probert, LLM. Probert is Professor of Law at the University of Warwick and author of numerous books, including The Changing Legal Regulation of Cohabitation: from Fornicators to Family, 1600-2011, Cretney & Probert’s Family Law, The Rights & Wrongs of Royal Marriage, and Marriage Law and Practice in the Long Eighteenth Century: a Reassessment. In addition to her legal credentials, Rebecca Probert is a practicing genealogist.

The basis of Probert’s work on marriage law includes, as one would expect, English common law. She also includes material from Anglican canon law, original case law, statutes, and legal treatises and other literature, along with her own and others’ analysis of historical research and actual marriage data for communities and cohorts.

Major findings of Probert’s study are that the overwhelming majority of English and Welsh couples married in the Church of England, cohabitation was very rare, and informal marriage practices were non-existent. Probert’s work overturns myths about marriage incorporated in the work of social historians including John Gillis, For Better, For Worse: British Marriages, 1600 to the Present (1985); Lawrence Stone, The Family, Sex, and Marriage in England, 1500-1800 (1977), Uncertain Unions: Marriage in England, 1660-1753, (1992); and Brian Outhwaite, Clandestine Marriage in England, 1500-1850 (1995), as well as popular guidebooks for family historians.

Probert stresses the importance of understanding relevant legal terms–“valid marriage,” “clandestine marriage,” “voidable marriage,” and “void marriage”–as well as the difference between mandatory and directory requirements of the various laws governing marriage. She also points out that changes in laws over time sometimes mean that the status of a marriage at the time it was celebrated may be different from the status of the same marriage after the passage of time.

Some of the common mistaken beliefs that Probert debunks include:

• “Before the Marriage Act of 1753, marriage could be created by informal exchange of consent.” Probert traces this error back to 19th-century judicial errors in American and English legal cases where judges misunderstood the law.
• “Any marriage that did not fully comply with Lord Hardwicke’s Clandestine Marriage Act of 1753 was void.” No, explains Probert. This error is based on the failure to understand the difference between the mandatory and directory requirements of the act. The act’s requirements for banns or licence and marriage in a church were mandatory (i.e., failure to observe them invalidated the marriage), while the place of marriage, requirements for the manner of registration, and witnesses were directory (i.e., failure to observe them did not invalidate the marriage).

Probert presents considerable evidence in support of her thesis that marriage rather than cohabitation was the norm before the late twentieth century, highlighting a variety of reasons for marriage including fear of punishment under fornication laws, insurance against destitution (explaining the differential treatment of married versus unmarried couples and their children under settlement laws), the importance of ensuring the legitimacy of children, and the importance of establishing and maintaining a good name in the community.

Chapters of the book address the Who’s, How’s, When’s and Where’s of marriage in England and Wales from the seventeenth century to the present. Probert’s discussion of each topic includes not only a discussion of the provisions of various laws important to the topic of marriage, but also description of important legal cases showing the kinds of cases that reached the courts and how the courts applied the law, as well as statistical analysis of data from extensive research in parish registers, census records, and civil registration by Probert and others showing actual practice under the various laws.

The chapter on the Who’s of marriage starts with the requirement for mental capacity, including legal interpretations around ability to consent. It then proceeds to discuss the requirements that parties to a marriage be free to marry, without any existing valid marriage, and explains the legal nuances between separation “a menso et thoro,” desertion, annulment, and divorce. This chapter contains a detailed discussion of the degrees of relationship within which couples were prohibited to marry from the pre-Reformation period to the twentieth century, complete with tables, how illegitimacy or adoption were treated, and the treatment of marriages within prohibited degrees.

The How’s of marriage chapter provides a timeline showing changes in legal requirements. From 1600 to 1653, marriage was governed by Anglican canon law. For a period of time during the Commonwealth, from 1653 to 1657, civil marriage was the only valid means of marriage. From 1657-1660 Parliament backpedaled, making civil marriage the only specified method, but not invalidating religious marriages. From the Stuart restoration in 1660 until the implementation of Lord Hardwicke’s Marriage Act in 1754 marriage was once again governed by Anglican canon law. Following the implementation of Lord Hardwicke’s Act in 1754, marriage was governed by that statute,with Anglican rites only permitted (and limited exception for Jews and Quakers). In 1836 statutory change brought back civil marriage and recognized marriage according to rites of religious denominations outside the Anglican church. This chapter is a great explanation of which requirements were mandatory and which were simply directory, as well as how and when marriage requirements changed. Probert explains how the legal requirements and the resulting practices should affect strategies for researching marriages of particular religious and social groups, for example, Catholics, miners, Protestant dissenters, Quakers, and Jews.

The When’s of marriage chapter discusses requirements for age at marriage and parental consent and how they changed over time, as well as what happened when these requirements were not met.

The Where’s of marriage chapter stresses that the requirement to marry in a parish where at least one party is resident was always directory, never mandatory. It presents studies of out-of-parish marriages and explains why couples might have chosen to marry out of parish. This chapter includes a discussion of the Fleet marriages prevalent from the 1690s to the 1740s, along with overseas and shipboard marriages. It is extremely helpful to genealogists trying to determine where to direct their search for marriage records.

I highly recommend that every genealogist researching Engish and Welsh ancestors read Probert’s guide! At U.S. $14.99, it’s a bargain. Probert even has a web page at warwick.ac.uk/marriagelawforgenealogists with links to podcasts, research papers, and a quiz you can take to see whether you’ve mastered key points. You’ll also want to read Probert’s just published sequel, Divorced, Bigamist, Bereaved?: the Family Historian’s Guide to Marital Breakdown, Separation, Widowhood, and Remarriage: from 1600 to the 1970s (Kenilworth, U.K., Takeaway, 2015), available at Amazon.com and other booksellers.