Rebecca Probert

The Impact Of The Marriage Act Of 1753: Was It Really "A Most Cruel Law For The Fair Sex"?

It has been argued that the Marriage Act of 1753, which put the law of marriage in England and Wales on a statutory basis, was a harsh measure that caused hardship to women, who were thereby deprived of the protection offered by the previous law. This essay challenges this view, showing that the formalities prescribed by the Act were hardly novel, and had been observed even when they were not essential to the validity of a marriage, while the protection afforded by the previous law was not as generous as has been claimed. It also argues that the courts adopted a purposive approach to the interpretation of the Act that softened its impact.

Chinese whispers and Welsh weddings

It has been claimed that in the late eighteenth century sixty per cent of couples in the Welsh village of Llansantffraid Glyn Ceiriog married by jumping over a broomstick, and a number of commentators have inferred that informal marriage was widespread in this period. Yet an examination of the primary and secondary sources shows that both the initial claim and subsequent speculations are based on ‘Chinese whispers’ rather than evidence. This casts a new light on the way in which people reacted to the 1753 Marriage Act, and illustrates how myths may be created through uncritical reliance on secondary sources.

Control over Marriage in England and Wales, 1753–1823: The Clandestine Marriages Act of 1753 in Context

It is a belief almost universally shared that the Clandestine Marriages Act of 1753 gave parents absolute control over the marriages of their minor children, and that a failure to obtain parental consent rendered a marriage void. For almost seventy years this Act was in force, from its implementation on March 25, 1754, until it was repealed by the Marriage Act 1823. In this same period historians have discerned the rise of the affective family, characterized by marriage for love and by equality between all members of the family. The tension between these two ideas has resulted in some rather tortuous explanations being advanced in an attempt to reconcile affective individualism and parental power. But was the period between 1754 and 1823 as distinctive as has been assumed?

The Judicial Interpretation of Lord Hardwicke's Act 1753

Abstract It has been claimed that the courts interpreted Lord Hardwickes Act strictly and that any deviation from the form prescribed by the statute rendered the marriage void. A closer examination of the cases reveals that the courts in fact took a more purposive approach. There was a strong presumption in favour of marriage. Where the marriage was one that had subsisted for a long time, the courts’ approach made it difficult to prove non-compliance with the terms of the Act. Where the parties had married without parental consent, a stricter approach was taken, reflecting the aim of preventing clandestine marriages.

The impact of the Clandestine Marriages Act: three case-studies in conformity

This article examines the extent of compliance with the Clandestine Marriages Act 1753 through three parish studies. It demonstrates that the vast majority of the sample cohort of parents whose children were baptized in church, and indeed of couples living together, had married in church as required by the 1753 Act, and shows how the proportion of marriages traced rises as more information about the parties becomes available. Through a study of settlement examinations, the article posits an explanation of why some marriages have not been traced, and argues that researchers should be cautious in inferring non-compliance from the absence of a record in a specific parish. It is also argued that the reason for such high rates of compliance has less to do with the power of statute and more to do with the fact that the 1753 Act was not such a radical break with the past as has been assumed.

Cohabitation and non-marital births in England and Wales, 1600-2012

Today, almost half of all children are born outside marriage, with cohabiting relationships accounting for the majority of such births. But what was the situation in earlier centuries? Bringing together leading historians, demographers and lawyers, this interdisciplinary collection examines the changing context of non-marital child-bearing in England and Wales since 1600. Drawing on Private Acts of Parliament, ecclesiastical court records, reported cases, sessions files, coronial records, poor law records, petitions to the London Foundling Hospital, the registers of the London Bridewell, the records of charitable institutions, surveys and modern demographic data, it not only shows the relative rarity of cohabitation in earlier periods but also discovers the nature of individual relationships. It also explores how differences in the extent of both non-marital child-bearing and cohabitation emerge depending on definition, source material, interpretation and location, building up a more nuanced picture of past practices.

Examining Law Through the Lens of Literature: The Formation of Marriage in Eighteenth-Century England

This article examines what eighteenth-century novels and plays can tell us about the formation of marriage both before and after the Clandestine Marriages Act of 1753. It shows how the practices and, perhaps more crucially, the assumptions, of fictional characters were consistent with legal sources of the time, and that such primary sources fundamentally undermine many modern analyses of the making of marriage.

WESTMORLAND WEDDINGS: A STUDY OF THE 1787 CENSUS

Abstract There has been much speculation about marriage practices in 18th century England, and many commentators have assumed that cohabitation was common, particularly among the lower orders. More recent work on southern parishes has, however, suggested that formal marriage was the norm, and cohabitation vanishingly rare, both before and after the passage of the Clandestine Marriages Act of 1753. This article sets out to test whether that conclusion holds good for those more remote parts of the north-west in which, it has been claimed, informal practices still flourished. Drawing on a cohort of over a thousand couples identified from the Westmorland ‘census’ of 1787, this article discusses the challenges in tracing where and when those couples had married, and shows how all the evidence nonetheless suggests very high levels of compliance with the formal legal requirements. This in turn has important implications for the assumed completeness of parochial registers and the likelihood of family historians being able to trace a marriage.

From lack of status to contract: assessing the French Pacte Civil de Solidarité

It has been suggested that the nature of marriage could be varied by private contract. In France a similar effect has been achieved by allowing couples to enter into an institution delimited by law but regulated by contract. Thousands of cohabiting couples have chosen to register a Pacte Civil de Solidarité . This suggests a strong desire for a real alternative to marriage and raises important issues about commitment in modern relationships. It is speculated that PaCS is likely to rank below marriage but above cohabitation in terms of relationship quality, stability and protection of the weaker party.

Book Review: Adultery: Infidelity and the LawRHODEDEBORAH L., Adultery: Infidelity and the Law. Cambridge, Mass: Harvard University Press, 2016, pp. 260, ISBN 978-0-674-65955 -1, £21.95 (hbk).

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