Marriage Law for Genealogists

Posted on 5th Jun 2019 by English Ancestors

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 20^th 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.

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