MARRIAGE AND THE LAW PRE 1858

 

The law has many branches and the law of marriage is historically little different as it can involve Ecclesiastical Law and the Common Law. Under the former a valid marriage had to have taken place in the local church of either the bride or the groom; tradition dictated it was normally the bride’s. As a precursor and to ensure anybody had the right to object this was preceded by the reading of the banns in the parish church of both on three consecutive Sundays before the proposed wedding. Both the bride and groom had to be either over twenty one or have parental consent. This along with other rules to do with where the marriage took place made it valid under Ecclesiastical Law.

However, the Common Law recognised any marriage where the parties had stated their consent even if the bride or groom were under age or the marriage was bigamous. Thus under the Common law a valid contract existed between the two which could be enforced. Such marriages were called irregular or clandestine marriages.

Any marriage which did not conform to the norm, for example it was not conducted in the parish of the bride or the groom, was deemed to be irregular. Clandestine marriages were irregular nuptials which for one reason or another also involved secrecy, for instance, the underage girl who wanted to marry despite her parent’s lack of consent. This will often explain why a marriage took place without any geographical links to the area to either the bride or groom or even both. Numerous weddings took place on this basis and in 1753 the Marriage Act was passed making them illegal.

Marriages under the age of twenty one without parental consent were illegal and all had to take place in a Church of England church or chapel. Whilst the Quakers and the Jews were not subject to this requirement until 1836 all non-conformists and Catholics had to marry in the Church of England. The Marriage Act of 1836 also heralded the start of registry offices.

The reading of banns could be dispensed with by applying to marry by licence which involved a marriage bond and allegation. The latter was the document in which it was alleged that there was no impediment to the marriage taking place. The person who normally completed the allegation was the groom who would also be party to a marriage bond which included financial penalties if the allegation turned out to be false. This undertaking would be supported by a relative or close friend who would affirm the contents of the allegation. The need for bonds was abolished in 1823.

Marriage bonds can be a useful source of information although it should be borne in mind that the bond’s existence does not actually guarantee the marriage took place.  The bond will state in which parish the marriage will take place but it does not mean the couple did not eventually marry elsewhere. Subject to this though the bride, groom, other signatory and potential financial penalty will be recorded and possible the name of the parent or guardian who gave permission if one of the parties was under twenty one. This was sometimes open to abuse.

When researching one family it was already known who the legal guardian was but another attested to the prospective bride’s age.  Sarah, the bride, was visiting London from Suffolk where she had grown up and met Fleming French. Finding herself with child a relative purporting to be her guardian gave consent to an underage marriage, presumably a case of needs must, between her and Fleming who was shortly to sail as a surgeon in the Royal Navy. Sarah gave birth a few months later but sadly the child died within weeks. When Fleming returned eighteen months later the couple travelled to Suffolk and married again as if they had never done so in the first place.

The Ecclesiastical courts usually dealt with disputes relating to marriage up until 1858 but a desire to enforce a promise to marriage was dealt with by a civil court as a breach of promise was a common law problem as the promise amounts to a contract and thus breaking it is a breach of contract. It was often felt important for the reputation of the jilted party to be preserved retaining their chances in the marriage market by demonstrating that the failure of the marriage to take place was because the other party was dishonourable rather than through a discovered defect of the jilted party. The records of either can provide useful information and give a fascinating glimpse into the lives of the parties.

Although a Scottish case Anne Thomas v Fleming Pinkstan 1796 is one such case. Anne had brought proceedings for separation from her husband, Fleming, claiming he had threatened, beaten her and in one instance she had had to flee the house. As part of the proceedings she submitted a list of proposed witnesses: a servant and two of her daughters. Fleming responded by bringing proceedings to disallow all their testimony on the basis that as his daughters were in his wife’s care they would be biased and the servant had previously declared that she would willingly do him an ill turn and if necessary would travel to Africa or Jamaica to testify against him. The judges refused his request and allowed all three to be witnesses but with the caveat that the relationship or previous statements of ill will should be borne in mind. It clearly gives a picture of a family in disarray where Fleming anticipated antipathy from all sides. What his wife was presumably unaware of was that Fleming had been part of the Commissary General’s Office in America during the War of Independence and during his time in America bigamously married another woman. After the war he travelled to Canada where he received a land grant only returning to Scotland when he came into an inheritance. He appears to have abandoned his second “wife” in America.  He settled in the house he inherited from his father and never seems to have been reconciled with his wife or daughters.

Over the years we have used court proceedings in divorce to further our research and it always adds an interesting extra dimension and a peek behind the scenes.