Annie Elizabeth & James: a marital relations masterclass

Posted on 12th Jun 2019 by English Ancestors

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.

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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.

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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.

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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.

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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.

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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.

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The story continues next week…

Divorced, Bigamist, Bereaved

Posted on 1st May 2019 by English Ancestors

I bought this book primarily because I was confused by the historic application of the law on bigamy. I knew of a ‘seven-year rule’ for spouses living apart and a ‘presumption of death’ if there had been no contact during this seven-year period, but I also knew there was more to it than that. What, exactly, were the rules for remarriage without divorce in our ancestors’ times? As confusing as this might be for us, I quickly learned that it was frequently misunderstood by our ancestors too.

The full title of Rebecca Probert’s book is Divorced, Bigamist, Bereaved: the family historian’s guide to marital breakdown, separation, widowhood and remarriage: from 1600 to the 1970s. In it, she sets out the law, including changes over this period, in five chapters: Divorced, Separated, Bigamist, Bereaved and Remarriage to the Same Person. The rules are illustrated with actual cases and contemporary newspaper stories, as well as question and answer sections.

It’s as well to start with the law on divorce, since it was the inaccessibility of that for most people that forced many to resort to the alternative, non-legal options. In England and Wales, the Reformation hadn’t changed the central tenet that marriage, once validly entered into, was indissoluble except by death. However, from the 1660s, wealthy men were able to secure private Acts of Parliament allowing them, on the grounds of adultery of the wife, to consider the marriage at an end, and to remarry as if their erstwhile spouse were ‘naturally dead’. Even at the time it didn’t go unnoticed that the rich could effectively buy their right to the freedom to remarry, while the poor faced serious criminal charges and severe punishment if they did the same.

It wasn’t until 1858 that the possibility of divorce was opened up to all. Even so, the court and legal costs, travel expenses to London to the Court for Divorce and Matrimonial Causes, and the travel and accommodation expenses of all witnesses if the petition was contested, would clearly put this remedy out of reach for the vast majority of people. And even then, prior to 1937 the only ground on which a man could divorce his wife was adultery; while until 1923 a woman could bring an action for divorce only on the grounds of adultery combined with an aggravating factor, being: incest, bigamy, cruelty, desertion, rape, sodomy or bestiality.

Little surprise, then, that so many of us come across ancestors who seem to have remarried without having divorced the original spouse. Of course they are easier for us to spot in the censuses than before 1841. We find them ‘married’ with a new spouse, although we can clearly see their original spouse, still very much alive, a few streets away, ‘widowed’, ‘unmarried’ or perhaps also ‘married’ to someone new. Whatever the circumstances, any such marriage is bigamous, and in earlier times the punishment would have been death, transportation, imprisonment or branding. In the absence of a divorce / private Act of Parliament dissolving the former marriage, the only airtight ground for remarriage was the confirmed death of the original spouse. However, by the early 19^th century the courts developed a presumption that a spouse who had not been heard of for seven years could be presumed dead. This, then, is the origin of the much-misunderstood ‘seven-year rule’. However, even then, there was an expectation that the remaining spouse genuinely believed their husband/wife to be dead, and had made efforts to find them. Simply living apart for seven years did not qualify. And even after an absence of many, many years, if the absent spouse turned up alive, the marriage would once more be valid, any interim marriage void, and any offspring of that second marriage retrospectively illegitimised.

Alongside situations like this there are of course cases of bigamy where the perpetrator’s behaviour is blatantly criminal – bigamy with intent to defraud the new spouse out of her inheritance; ‘spontaneous’ bigamy (speeded up by obtaining a licence) designed purely so that the perpetrator could have his wicked way, with the full intention of leaving her the next day… In time, the courts would come to distinguish between those acting with such criminal intent and those who simply didn’t understand, or who at the very least were just trying to move on with their lives after a failed union. The latter would still be found guilty, the second marriage still void, but the actual punishment much reduced.

Rebecca Probert cites letters in newspaper advice columns requesting guidance on whether remarriage in certain situations would be legal. There’s no doubt that people didn’t understand the law; or if they did, they saw little to respect in a system so absurd that different rules regarding the sanctity of marriage applied to the haves and the have-nots. Gradually, this came to be understood even by the courts, and after World War I the law started to move towards the divorce provisions we have today. (Incidentally, if you watched the final episode of A House Through Time series 2 (Newcastle), the expert who talked to David Olusoga about the post-WW1 bigamy and divorce situation was Rebecca Probert. Perfect timing! 😊)

It definitely helps to understand the context when we come across questionable behaviour by our ancestors. It’s easy to have this mental picture of a bigamist as the person in the driving seat – the one who decides to marry twice (or more), stringing all other parties along and leaving havoc in their wake. But this book introduces us to those who married bigamously because they were the ones who had been deserted, when finding a new partner was their own best chance at survival. Take as an example a woman whose husband has deserted her and her young children. With little chance of being able to support her family long-term, she has the choice of relying on the charity of the parish Guardians – which may lead to admission to the workhouse or at the very least having the children taken away and sent as ‘parish apprentices’ to the northern textile mills (see previous post about Robert Blincoe); or marrying again. And yet in marrying again – probably the preferred option from the persepctive of the local parish Guardians – she would be committing bigamy.

Although I started this book wanting to understand more about the law surrounding bigamy, it has helped several other puzzles fall into place. In particular, I’ve made my peace with my natural 2xG grandmother whose divorce petition was… not absolutely truthful.

This is an easy and enjoyable book, to read through once to get the overview, and then to keep on your bookshelf to consult when you need the detail, as new ancestral marital situations come to light.

Click the book cover image to find this book on Amazon.co.uk
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