“Till Death do us Part” – Introduction to the Laws of Marriage by Alison Stuart

Welcome back to History Undress, Alison Stuart! Today she's here with another fascinating post on the Laws of Marriage! Enjoy!

“Till Death do us Part” – Introduction to the Laws of Marriage

Alison Stuart

*This article originally posted here.

In my last post I wrote about the Laws of Succession. Continuing on the "property" theme, this post is a short guide to the laws of marriage in England.

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.

A BEGINNERS GUIDE TO THE ENGLISH LAWS OF SUCCESSION by Alison Stuart

Please join me today in welcoming Alison Stuart, a fellow member of Hearts Through History. I read her article on the laws of succession in our monthly newsletter and just had to share it with you all! Thank you, Alison, for visiting with us today!!!  Enjoy!

A BEGINNERS GUIDE TO THE ENGLISH LAWS OF SUCCESSION

by Alison Stuart

Thank you, Eliza, for the invitation to post my article on the English Laws of Succession...or Laws of Succession 101.

Firstly my qualifications for writing this article - I was a practicing lawyer for over 30 years in the Australian jurisdiction, which is an English common law system rather than the American codified legal system. If you are struggling with understanding the English common laws of succession then don’t panic ...most lawyers don’t understand them either.

A wedding

The English aristocracy depended for survival on the devolution of their estate from one generation to the next and by the mid thirteenth century the common law had set in place certain rules of inheritance which determined who could inherit based on a “parentelic” calculus (now there's a phrase that just rolls off the tongue!) ie those who could trace their blood directly to the deceased. Rather than split the ever diminishing estate between your children (as is the case in many European countries), it was determined you should only have one heir and that heir should be descended from you by direct line.

Male descendents would always be preferred to female (although inheritance by female descendants was possible). The law decreed that your estate went first to children or grandchildren or in the absence of those then to brothers, cousins, nephews etc.  If the deceased died leaving daughters but no sons, then the parentelic calculus  would allow the daughters to inherit over say a brother or a cousin. If there were multiple males in the line then the law of “primogeniture” applied...ie it went to the first born. These basic rules of inheritance lasted into the twentieth century.

However this left spouses, younger siblings, illegitimate children and daughters without any rights of inheritance. In short they could only be provided for during the life of the father. As nothing in the law prevented a newly inherited heir from selling off his newly acquired estate, to prevent a youthful heir from squandering his inheritance, family settlements, away from the will, became common.

One way of disposing of property was to make a gift (generally on marriage) to the couple and their progeny eg “To H and W and the heirs of their bodies begotten”...or the “male heirs of their bodies begotten”. This gift could not then be disposed of until there were no heirs when the gift would revert to the donor. This was called the “fee tail”...or to use the word more common in our writing “entailment”.   Entails in stories we are familiar with are Downton Abbey and Pride and Prejudice.  In the absence of a male heir, for the direct family line to maintain a hold in the land, it was desirable one of the girls marry the heir...always good fodder for a story viz Matthew/Mary and Mr. Collins/Lizzie.

I won’t go into the complications and machinations that lawyers devised to “bar the tail” -  remove the tail from estates to allow the land to pass freely according to the general laws of inheritance. Succession law kept lawyers and courts busy (and still does) for years and years. Dickens wrote about this subject in Bleak House (the case of Jarndyce v Jarndyce).  It is probably surprising to note that the basic laws of inheritance and entailment did not change until the Property Law Act of 1925. 

Bleak House

Example:  Lord Fauntleroy is the proud possessor of Fauntleroy Park.

·       The estate is not entailed and he has three sons. The eldest son inherits Fauntleroy Park.  #2 goes into the church and #3 into the army...If he has no sons but a daughter then the daughter inherits.

·       The estate is entailed and the terms of the original settlement stipulate “male heirs”. If he has a son then it goes to the son by operation independent of the will. If he has a daughter, she is excluded by the entail and the estate goes to second cousin Rufus Stuffnpuff. In the absence of any assets independent of the entail, her prospects are grim!

Dowers and jointures

A wife was completely outside the laws of inheritance - your estate passed to your children or through the entail. Husband and wife were counted, at law, as one person so a husband could not make a gift to his wife during his lifetime with one notable exception. A gift from husband to wife on the day they married, at the church door, could take effect on the husband’s death if he predeceased her. This was “dower” and was subject to the supervision of the church. The dower lands were nominated before the marriage service, and after the husband had given his wife the ring saying “With this ring I thee wed”, he gave her tokens symbolising dower with the words “With this dower I thee endow”.

The effect of the dower was to give the wife an interest for her life in the nominated lands. If the husband died without a will, the widow was deemed to inherit one third of her husband’s estate, independent of any specific dower. However if the bulk of the estate passed outside the will through the entail, there may not have been much for the widow or other children.

There was also a practice of settling land on husband and wife jointly so as to entitle the wife to an estate called a “jointure” instead of a dower.  A wife could elect to take their common law dower or her jointure but not both.

What if a man married an heiress? If his wealthy wife predeceased him, the widower was allowed, by law to continue to enjoy her estate for his life, providing there was a child of the marriage capable of inheriting. So in effect the husband held the land on trust for his child. This was called “tenancy by curtesy”.

The laws of succession are complex and I am happy to answer specific questions if you would like to email me at alison@alisonstuart.com

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.