“Till Death do us Part” – Introduction to the Laws of Marriage
*This article originally posted here.
The laws of marriage went beyond being merely a civil contract, they significantly altered the status of an individual (the woman) in respect of her actions, obligations and property. Because it was also considered a "holy estate", canon law as well as civil law had to be taken into account. Until the nineteenth century, questions of "Marriage" were the almost exclusive jurisdiction of the Church.
Marriage required not only the solemnisation provided by the church but also the "physical union of man and woman in carnal copulation" (and because I love latin legal maxims, here's the maxim for the day "commixtio sexuum"). Because there could be copulation without marriage, it was decided that an intention to marry (a mental element) had to be present and according to Canon Law (and at least until 1753) a promise to marry someone could be held as an indissoluble union, a contract of marriage between two people by consent alone without any form of ecclesiastical ceremony, provided the consent was given in words of the present tense...”I am marrying you...” as opposed to “...I will marry you...”. These irregular marriages were generally legitimised by the parties being compelled to solemnise their marriage publicly at the door of the church. In the event of a dispute with a later marriage, this irregular marriage would be upheld. This archaic concept of marriage lingered through to the 1970s in the form of an action for “breach of promise of marriage”.
For a marriage to be “regular”, publicity of the intention to marry came into formal existence by 1200 when Archbishop Walter required banns to be published on three separate occasions. The calling of banns allowed the congregation to declare any impediment to the marriage such as consanguinity or pre contract.
In these early days, the marriage took place at the door of the church. The priest would call on the couple to declare any impediment. The parties would then speak the words of betrothal and present matrimony and the husband would then place a ring of the wife’s finger (the wearing of wedding ring by a man is a modern concept) and deliver to her the tokens representing dower (see my last blog). The ceremony would conclude with a nuptial mass inside the church.
In 1753 Lord Hardwicke’s Act abolished secret marriages. The publication of banns, the purchase of a licence, the presence of two witnesses and the recording of the marriage in a public register were made compulsory. Interestingly Jews and Quakers were exempt from this Act and there was no special provision for Roman Catholics and non conformists. This was not remedied until 1836 when the civil marriage ceremony was introduced and Non conformist places of worship could be registered under that statute.
Husband and wife were seen in the eyes of both canon and common law as one person (here comes another legal maxim: erunt animae duae in carne una). This one person was, of course, the husband. Modern women may cringe at this quote from Blackelocke "...the very being or legal existence of a woman is suspended during marriage, or at least is incorporated and consolidated into that of the husband...". Of course the origin of this is scriptual, reflecting the Canon Law influence on marriage.
A wife could not own property or enter into contracts. Only acting as an agent for her husband could she make valid contracts. Married women were only given the same contractual rights as men as late as 1935.
Neither could she sue or be sued and nor could she take any legal action against her husband because they were seen to be “one person”. In the case of injury to the wife, a husband could sue for loss he suffered through the loss of the wife’s services or society (consortium). He could sue in trespass against a man who committed adultery with his wife. If the wife absconded with her lover, an action for “enticement” could be brought against the lover, alleging the defendant had maliciously schemed to deprive him of his wife’s consortium by enticing her away. This action was not abolished until 1970! No corresponding rights existed for the wife.
On marriage any property which the woman owned as a single woman became the husbands and could be disposed of by him without recourse. You may recall from my last post, if the husband predeceased the wife she could claim one third of his estate if he died intestate (without a will). If he died testate (with a will) she was only entitled to whatever legacies he saw fit to leave her. Interestingly although a wife’s real property brought by her into the marriage, vested in her husband during the marriage, if she predeceased him he was only entitled to a tenancy by the courtesy. A husband could dispose of her property but on his death the wife would be entitled to claim it back. However if she wanted to alienate the land during her husband’s life time, she would have to have his assent. Any grants of property to the wife during the marriage, vested the property in the husband.
By the eighteenth century an equitable doctrine of "separate use" had begun to be used. In equity, a husband and wife could be seen as separate people and property settled on the wife during marriage could be held on trust for the wife's separate use. Judges noted with concern that this could lead to the wife being coerced into disposing of her equitable estate to her husband and a far thinking judge solved the problem by inserting "the restraint on anticipation" condition into a settlement which prevented the wife from alienating or charging the property during her marriage. This protected the property for the wife until widowhood. It also prevented her from disposing of it legitimately in any other form!
While this equitable doctrine applied nicely to the landed classes, it did nothing for the poorer classes. By the middle nineteenth century, after intensive lobbying, the equitable doctrine of separate use was extended to wages and earnings of working women. This provided some modest protection for those women who worked to keep their families together only to have their husbands take their humble earnings. A further reform in 1882 extended this to property of a married woman, whether acquired before or after a marriage.
Reference: An Introduction to English Legal History: J.H. Baker
Alison Stuart is an award winning Australian writer of historicals with heart. Whether duelling with dashing cavaliers or waywards ghosts, her books provide a reader with a meaty plot and characters who have to strive against adversity, always with the promise of happiness together. Alison is a lapsed lawyer who has worked in the military and fire service, which may explain a predisposition to soldier heroes. She lives with her own personal hero and two needy cats and likes nothing more than a stiff gin and tonic and a walk along the sea front of her home town. She loves to hear from her readers and can be found at her website, facebook, twitter and Goodreads. Her latest book, GATHER THE BONES, is a “Downton Abbeyesque” haunting love story set in 1923.