In this post and the next we have a case study in two parts: a sort of marital relations masterclass courtesy of my ill-starred biological GG grandparents.  I used Rebecca Probert’s books Marriage Law for Genealogists and Divorced, Bigamist, Bereaved to help me clarify the legalities.  I hope it will help you to look at any marital inconsistencies with fresh eyes.  You’ll also see how understanding the law and context of events can (sometimes!) help you see them from the viewpoint of your ancestors.

*****

The marriage
15^th Jan 1866: James and Annie Elizabeth are married at St Peter’s church, Leeds.  It’s likely they have known each other only a few weeks: James is not long out of prison, having been sentenced in April 1865 to 8 months for larceny.  Both give their age as 18, but Annie Elizabeth is not quite 15½.  Their only witness is James’s older sister, Mary Elizabeth.  James and Mary Elizabeth sign; Annie Elizabeth (who we shall see from later documents is literate) only makes her mark.

Analysis: Is the marriage legal?
From the perspective of age?
Yes.  Until the Marriage Act 1929 the minimum age for marriage was 12 for girls and 14 for boys.  (After that Act it was raised to 16 for both.)

From the perspective of lack of parental approval?
Being under 21, both Annie Elizabeth and James were minors.  Not until 1970 would the age of majority be reduced to 18.  However, marriage after banns did not require an active, public statement of parental approval.  Rather the dissent of parents during the three-week period of the publishing of the banns would prevent the ceremony from going ahead.  Here, there was no voiced dissent, therefore the marriage was not invalidated by lack of consent.

From the perspective of elements of deceit?
What if James thought Annie Elizabeth was 18?  What about the fact that Annie Elizabeth was able to sign and yet didn’t?  The issue here would seem to be around the concept of ‘knowingly and wilfully’ failing to comply with the law, a concept introduced by the 1823 Marriage Act.  However, if it wasn’t a problem in the eyes of the law that Annie Elizabeth was just 15, then it’s likely that even if James thought otherwise this would not be an issue.  Similarly, although Annie Elizabeth may have been trying to distance herself in some way from the event by not adding her signature to the paperwork when she could have, a ‘mark’ was sufficient for the law.  In any case, we don’t know if Annie Elizabeth did deceive James; and even if she did, the fact remains that the marriage was not contested.  It is therefore valid.

*****

Two lots of nine months
4^th June 1866: James is brought before magistrates at Dewsbury, charged with stealing a horse.  He is also ‘wanted’ in Leeds for another similar crime.  On 4th July he is found guilty and sentenced to seven years penal servitude.
At the time of the arrest Annie Elizabeth is about 4 months pregnant.  The baby, George, is born in November 1866.  By this time, James is serving an initial nine months under the ‘Separate’ system at Wakefield Convict Prison.  Designed to ‘break’ new prisoners, this involved keeping the individual in solitary confinement, allowing them to see and speak with only the prison warders.  Possibly he doesn’t even know he has a son.
By the time George is baptised in July 1867, James’s nine months under the Separate system are over and he has moved south for the next stage of his sentence.  Meanwhile, aged just 16, Annie Elizabeth is facing life as a single parent with no support, alongside the expectation that she respect the sanctity of her condition as a married woman.

Analysis: What are Annie Elizabeth’s options?
Could the marriage be annulled on the grounds of the falsifications?
No.  And to attempt to rely on them now could be an admission of perjury.

Might she have considered remarriage? 
There was great confusion at the time about the seven-year rule under which if, after a period of seven years of no contact the abandoned partner genuinely believed their spouse was dead, the marriage could be considered at an end.  Many focused only on the ‘seven years’ aspect of this rule, believing they were safe to marry after seven years living apart.  But a remarriage in such circumstances is always bigamous.  It would not have been a legal option for Annie Elizabeth.

*****

2^nd April 1871: the census
James is an inmate at Chatham Public Works Prison.
Meanwhile, back in Leeds:
Little George has a new surname and is listed with his aunt Mary Elizabeth (she who witnessed the marriage) and husband.
Annie Elizabeth is eight months pregnant and listed as the wife of John William.  When their baby is born the following month, she will be baptised as the illegitimate daughter of Ann Elizabeth whose ‘absent husband was transported 5 years ago’.

Analysis: adoption and adultery
At some point between George’s baptism in July 1867 and the census of April 1871, George has been adopted by Mary Elizabeth and her husband.  This suggests he was given up by his mother either because she couldn’t support him, or because the new man in her life refused to support the child of another man.  Prior to The Adoption of Children Act of 1926, such informal adoptions in England and Wales were the norm. 

Has Annie Elizabeth committed a crime?
Not so many decades earlier, Annie Elizabeth and John William would have been hauled before the church courts and punished severely for adultery and fornication.  However, they have not gone through a marriage ceremony, therefore their relationship is not bigamous, and therefore no criminal act has occurred.

*****

James returns
14th December 1871: A Licence is signed for James’s early release: a reduction of 19 months for good behaviour.  He returns to Leeds.  Does he believe Annie Elizabeth will be waiting for him?  Is he shocked to find her with another man and new baby?  Or perhaps the last 5½ years have provided time enough for James to reflect on past errors, and he now wishes to move on with his life?

Analysis: What are James’s options?
Legally, James and Annie Elizabeth are still married.  However, it’s complicated: their son is now settled as the child of his sister and her husband, while Annie Elizabeth is living with another man, with whom she has a baby.  James has two legal options: to ask Annie Elizabeth to return to him, and presumably to accept her child as his own, or to divorce her.

Since 1858 (Matrimonial Causes Act 1857) divorce has been available in England and Wales.  From the perspective of the husband, the only ground for divorce is adultery, which in this case can easily be proven.  On the other hand, petitioning for divorce is far too costly for a labouring man, newly released from prison.  It is out of the question.

*****

What James actually does
14th February 1872: James marries Margaret.  Given the time lapse since his release from prison, they cannot have known each other more than a few weeks.  James gives a false name for his father.  The address given for both on the marriage certificate is Mary Elizabeth’s, where little George, now aged five, also lives.  No doubt James is aware of George’s true identity.
After the ceremony James and Margaret move to Manchester.

Analysis: What crimes has James now committed?
Legally, James has not remarried; rather he has ‘gone through a second marriage ceremony’.  It is that which is the definition of bigamy.  The ‘marriage’ to Margaret has no legal standing at all, and children born of that marriage will be illegitimate.

However, in ‘going through a second marriage ceremony’, James has not only committed the crime of bigamy; he has also violated the conditions of his Licence, which stipulate that he ‘abstain from any Violation of the Law’.  Any violation would result, in addition to any new sentence, in reimprisonment for the remaining months of the original sentence.

*****

The story continues next week…