Annie Elizabeth: marital relations masterclass continued

In my last post we left James having bigamously gone through a marriage ceremony with Margaret in 1872.  Margaret and James were leaving Leeds for Manchester.  Annie Elizabeth and her new man, John William, remain in Leeds and by 1881 there have been five more children, although four of them have died.  The family provisions business in the centre of town is doing very well.  However, contrary to all appearances, they are not married.  Annie Elizabeth is, in fact, still married to James.  And this wrankles.

Facts: divorce petition
On 22nd February 1881 Annie Elizabeth swears an affidavit as follows: that she was married to James in 1866 and had borne his child; that in February 1872 he had gone through a second marriage ceremony with Margaret; that this pretend and illegal marriage had been consummated; that James had committed adultery on that day and on diverse occasions since; and that he had deserted her without just cause, ever since leaving her destitute.  As Annie Elizabeth picks up the pen to sign this as a true version of her sworn affidavit, she is seven months pregnant with her seventh child by John William. The divorce petition is officially filed the following day.

James does not contest the charges.  The Decree Nisi is awarded on 5th July 1881 on the basis of adultery plus bigamy.  The hearing, reported over the following two days in newspapers in London, Leeds and Manchester, does include the true reason for James’s absence (7 years penal servitude).  However, the detail surrounding his release is economical with the truth: ‘In 1871 he was returned to Leeds, but instead of going home he went to the residence of another woman […] whom he afterwards married…’  ‘Severe comments’ are made on the conduct of James’s sister Mary Elizabeth who had been present at both marriages.  The Decree becomes Final on 17th January 1882.

The hypocrisy, injustice and cruelty of this petition shocked me.  James had a great deal to lose, and although it’s true that he had bigamously ‘married’ another woman, he did so in the knowledge that Annie Elizabeth was with another man and had a child.  In other words, Annie Elizabeth had already committed adultery long before James did.

Only by understanding the contemporary grounds for divorce, was I able to make my peace with Annie Elizabeth.  Until 1923 a woman could bring an action for divorce only on the grounds of adultery combined with an aggravating factor, e.g. bigamy, cruelty, desertion.  Annie Elizabeth had no alternative but to cite bigamy and desertion alongside her claim of adultery.  She was, even so, taking a huge risk: as petitioner for divorce her behaviour must be seen to be unblemished.  Any petitioner found also to be an adulteress/ adulterer would be denied the divorce.  Having by now given birth to six of John William’s children, there could be no doubt that Annie Elizabeth was also an adulteress.

The fact of having the finances to file for divorce also sits uneasily with the claim that Annie Elizabeth has been left destitute.  Although the Marital Causes Act of 1857 had opened up the possibility of divorce to all, the cost of obtaining one remained out of the pocket of the vast majority of people.  The location of the Divorce and Matrimonial Causes Court in London meant that petitioners had to be willing and able to pay travel and living expenses for themselves, as well as respondents and any witnesses.


Facts: Freedom to remarry
Annie Elizabeth and James are now divorced and free to marry.  James, having not contested the divorce, does not celebrate any change in his marital status by legally marrying Margaret, although the two of them will remain together for life.  It also seems there is no trial against him for bigamy.

For Annie Elizabeth and John William, however, the divorce enables them to put their life together in order.  Thanks to the relative anonymity afforded by life in a large, industrialised town, it would have been easy to disguise the fact that they were unmarried.  However, a marriage at this late stage might not go unnoticed.  They therefore marry in Halifax, on 23rd January 1882.  Annie Elizabeth’s marital status is correctly recorded as divorced, but a Halifax address is given as her residence.

Analysis: Why is James not prosecuted?
The criminal act of bigamy (regulated by the Offences against the Person Act 1861) is dealt with separately from the citing of bigamy as grounds for divorce.  By this time the granting of divorce on grounds of bigamy did not necessarily lead to a separate criminal prosecution.  It is, in any event, not in Annie Elizabeth’s interest to have the facts open to further scrutiny.


Facts: Domestic Violence
Back in Leeds, Annie Elizabeth and John William have had more children.  By 1886, excluding George, there have been ten live births, although five of these have died.  All is not champagne and roses…

In March 1887 John William is arrested and charged with having assaulted Annie Elizabeth on three occasions by striking and kicking her.  On 1st and 2nd April, three Leeds newspapers carry reports of the hearing against him for domestic violence.  John William, ‘a respectably dressed man’, is said to have recently been frequently drunk.  His attitude does not endear him to the court: ‘When asked if he had anything to say, the accused replied in a flippant manner, “I have not been my own man.  It’s never too late to mend, is it?”’  The magistrate grants a separation order.  John William is fined £5 and ordered to pay Annie Elizabeth 15s per week.

The separation is temporary.  By March 1888 Annie Elizabeth and John William are reunited, since their final baby is born 31st December of that year.  At the time of the 1991 census they are still together.

The Matrimonial Causes Act of 1878 enabled magistrates to grant protection orders to women who were victims of violence from their husbands.  These protection orders differed from ‘judicial separations’, which were granted in the High Court.  However, they amounted to the same thing, giving the woman custody of the children, and frequently including a requirement that the husband pay a regular sum of money to the wife.


I hope this has helped you to see how, by reading around the subject, using the two books by Rebecca Probert, I was able to make sense of this very complicated series of situations Annie Elizabeth found herself in.  I wouldn’t do this amount of work for all my ancestors, but as I’m sure you’ve found for yourself, some of them leap out as having more to say.

As for Annie Elizabeth, John William dies in 1898, leaving her a further 28 years in which she seems, sensibly, to have decided enough is enough.  No more marital relations!

Annie Elizabeth & James: a marital relations masterclass

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
15th 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
4th 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.


2nd 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…

Marriage Law for Genealogists

Last month I reviewed Rebecca Probert’s book Divorced, Bigamist, Bereaved.  Today’s book, Marriage Law for Genealogists, is by the same author.  The contents are pretty much summed up in the subtitle: ‘What everyone tracing their family history needs to know about where, when, who and how their English and Welsh ancestors married.’  Dealing with marriage law from 1600 to the present day, it applies to our English and Welsh ancestors only because English law doesn’t extend to other parts of the United Kingdom.

The first edition of this book pre-dated Divorced, Bigamist and Bereaved, and you might think it would have made sense for me to read and review them in that order too.  However, I had urgent divorce and bigamy knowledge requirements (which I will outline in next week’s post, a sort of marital relations masterclass provided courtesy of my natural GG grandparents…)

Rebecca Probert is a rare thing: a Professor of Law, the leading authority on the history of the marriage laws of England and Wales, and also a keen genealogist.  She is therefore able to debunk a number of common misunderstandings relating to marriage that have been published in other genealogy texts, and she does that in the first chapter.

One of the most important things I’ll take away from this book is the central point that the authorities actively wanted couples who wished to marry to be so.  There were indeed severe punishments for ‘fornication’, including excommunication (not to mention the eternal punishment in the hereafter), fines, the stocks and whipping. Marriage was also central to the operation of the Poor Law, in the sense that a wife and all legitimate children took their father’s settlement rights at birth.  Illegitimate children, on the other hand, took the settlement not of their mother, but of the parish in which they were born.  A destitute, unmarried family, therefore – even if the father were present – could be resettled in (i.e. sent back to) several different parishes – the father to his, the mother to the parish of her birth, and the children each to the parish in which they were born.  Legitimacy of children was also an important factor if there was property to be shared out after the death of the parents: illegitimate children (even if the parents remained together) would not inherit.  Younger, legitimate offspring would easily succeed in an action preventing the passing of a share of an inheritance to an older child born before the parents’ wedding.  It wasn’t until 1926 that children could be legitimised retrospectively by the eventual marriage of their parents.

So they are the downsides of not marrying; but what I hadn’t realised was that the Law would bend over as far backwards as possible to ensure that those who did go through a marriage ceremony would indeed be considered married, even if the ceremony fell short of certain statutory requirements.  These are dealt with over four chapters:
Who your ancestors married – including mental capacity, bigamy, divorce, same-sex marriage and the ‘prohibited degrees’;
How they married – including banns, licences, civil marriages and non-Anglican religious marriages;
When they married – including age restrictions, parental consent, and restrictions/ preferences for time of day, year and days of the week;
Where they married – including ‘clandestine’ marriages, with reasons for marrying in another parish, marriages at The Fleet, and marriage of English/Welsh nationals in other parts of the world.

I must admit that as I was reading this, at times I wondered what to do with the information I now had.  My concern is with the life and times of my ancestors, not with the impropriety or voidability of a happy union.  Take as an example the section on ‘prohibited degrees of kinship’ (chapter 3).  Contrary to popular belief, English Law has never forbidden marriage between cousins.  However, other close relatives have fallen within the ‘prohibited degrees’, and of course some still do.  These include siblings, parent/child, grandparent/grandchild and marriages between uncle/aunt and nephew/niece.  But prior to the first half of the 20th century the rule didn’t stop there: historically in the eyes of the church, upon marriage a husband and wife became ‘one flesh’.  Consequently, the in-laws were as much a part of one’s family as one’s own parents, siblings, etc.  Therefore in the event of the death of a spouse, remarriage to one of the in-laws from the above categories was also considered incestuous.  Whether such a marriage would be void, voidable or even valid, depended on the year in which the marriage took place – the rules changed several times over the centuries.  As it happens I do have at least two marriages in my tree that fall within the prohibited degrees on account of remarriage after the death of the first spouse to an in-law.  In one of these, I took the fact of being prepared to marry for a second time within the same family as evidence of a good relationship between my great grandmother and her mother-in-law, particularly as my grandmother was named after that mother-in-law (my GG grandmother).  So a happy thing.  I now understand that legally these marriages were void – as though they never happened, and any children of the union were illegitimate.  However, it seems no-one realised, and they died still ‘married’ and probably blissfully unaware that they had been living in sin these past decades.  Really, then – what difference does it make, other than as a saucy bit of gossip – which doesn’t interest me anyway?

I then realised I was looking at this the wrong way.  The usefulness of knowing about such rules is to help us to troubleshoot.  Yes, these two couples in my tree ‘got away with it’ and no harm was done.  But what if your 4xG grandfather Robert marries Sarah and then six months later marries Mary?  No possibility of divorce, no burial record showing for Sarah.  Is Robert a bigamist?  He may be, and it’s also possible that Sarah’s burial record has been lost or mis-transcribed.  But this book gives us the information to be able to think of other possibilities – an annulment, perhaps?  If we know of the rules around void and voidable marriages, when we see something that doesn’t sit easily, we can use our knowledge to start to explore what might have happened.  In this example we could look to see if the marriage might have been within the prohibited degrees, or perhaps there was another reason for an annulment.

One thing I’ll now be exploring is the possibility that some of my missing marriages may have taken place in a different part of the country.  Evidence presented in chapter 6 shows that a surprising number of couples married out of their county of residence, or at the very least in a different parish, perhaps because of a family connection with that parish.

So, to conclude, this is a very useful book, but one you have to work at, and not aimed at beginners.  Not only is it a harder read than Divorce, Bigamist, Bereaved, but also following through on the information presented will require a fair bit of research and thinking outside the box.  That said, it has already resolved a few questions for me; and with an idea of what to look out for, it will be a useful addition to my bookshelf when I need to consult for the detail.

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