Book contents
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 The misunderstood contract per verba de praesenti
- 3 The myths of ‘informal’ and ‘common-law’ marriage
- 4 The little-considered marriage practices of non-Anglicans
- 5 The unacknowledged regularity of clandestine marriages
- 6 The eventual passage and actual terms of the 1753 Act
- 7 The unappreciated success of the 1753 Act
- 8 The unexplored judicial interpretation of the 1753 Act
- 9 The overlooked response of non-Anglicans
- 10 Conclusion
- Index
- References
2 - The misunderstood contract per verba de praesenti
Published online by Cambridge University Press: 10 February 2010
Book contents
- Frontmatter
- Contents
- Preface
- 1 Introduction
- 2 The misunderstood contract per verba de praesenti
- 3 The myths of ‘informal’ and ‘common-law’ marriage
- 4 The little-considered marriage practices of non-Anglicans
- 5 The unacknowledged regularity of clandestine marriages
- 6 The eventual passage and actual terms of the 1753 Act
- 7 The unappreciated success of the 1753 Act
- 8 The unexplored judicial interpretation of the 1753 Act
- 9 The overlooked response of non-Anglicans
- 10 Conclusion
- Index
- References
Summary
The prevailing view that the 1753 Act marked a radical shift in the regulation of marriage is based in large part on the hypothesis that prior to 1754 all that was required to create a marriage was the exchange of consent by the individuals concerned, and that as a consequence couples had no need or desire to marry in church. This chapter, by contrast, will show that an exchange of consent was not a full alternative to regular marriage – in that it did not carry the same legal rights as one celebrated before an Anglican minister – and that it was not regarded by contemporaries in the same way as such a marriage. As a result, couples had no option but to observe the rites and rules demanded by the law.
But if this was the case, then why has such a different view been advanced by other commentators? As with many myths, there is an underlying substratum of facts that are not in dispute. Lawyers today may point to the fact that it is still (technically) possible to enter into a marriage by a simple exchange of consent in certain limited circumstances as evidence that this was possible prior to the 1753 Act. But reading history backwards is a dangerous matter.
- Type
- Chapter
- Information
- Marriage Law and Practice in the Long Eighteenth CenturyA Reassessment, pp. 21 - 67Publisher: Cambridge University PressPrint publication year: 2009
References
, Road to Divorce: a History of the Making and Breaking of Marriage in England (Oxford University Press, 1990), p. 52CrossRefGoogle Scholar
, The Formation and Annulment of Marriage, 2nd edn (London: Sweet & Maxwell, 1969), p. 16Google Scholar
, ‘The Marriage Act of 1753: “A Most Cruel Law for the Fair Sex”’ (1997) 30 Eighteenth-Century Studies233, 234CrossRefGoogle Scholar
, Dicey and Morris on the Conflict of Laws, 13th edn (London: Sweet & Maxwell, 2000), ch. 17Google Scholar
, Marriage Litigation in Medieval England (Cambridge University Press, 1975), p. 26CrossRefGoogle Scholar
, Law, Sex and Christian Society in Medieval Europe (University of Chicago Press, 1987), p. 563CrossRefGoogle Scholar
, A Treatise on the Law of Scotland, as applicable to the personal and domestic relations (Edinburgh: T. & T. Clark, 1846), p. 110Google Scholar
(ed.), Love, Sex and Marriage in the Middle Ages: a Sourcebook (London: Routledge, 2004)Google Scholar
, Law, Marriage, and Society in the Later Middle Ages: Arguments about Marriage in Five Courts (Cambridge University Press, 2007)Google Scholar
, An Introduction to English Legal History, 4th edn (London: Butterworths, 2002), p. 548Google Scholar
, Marriage, Family and the Law in Medieval Europe: Collected Studies ( and (eds.), Cardiff: University of Wales Press, 1996), ch. 8Google Scholar
, Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge University Press, 1987), p. 177Google Scholar
, The Oxford History of the Laws of England, vol. I, The Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (Oxford University Press, 2004), p. 531Google Scholar
, Reports of Adjudged Cases in the Courts of Chancery, King's Bench, Common Pleas and Exchequer (London, 1755), vol. I, pp. 80, 82
, A Letter to a Friend Concerning Marriage Contracts, occasioned by a late Appeal from the Dean of Arches to a Court of Delegates (London, 1740), p. 4Google Scholar
, Birth, Marriage and Death: Ritual, Religion and the Life-Cycle in Tudor and Stuart England (Oxford University Press, 1997), ch. 11CrossRefGoogle Scholar
, Courtship and Constraints: Rethinking the Making of Marriage in Tudor England (Manchester University Press, 2002), p. 38Google Scholar
, ‘Spousals Litigation in the English Ecclesiastical Courts c. 1350-c. 1640’ in (ed.) Marriage and Society: Studies in the Social History of Marriage (London: Europa, 1981), p. 46Google Scholar
, Domestic Dangers: Women, Words, and Sex in Early Modern London (Oxford: Clarendon Press, 1998), pp. 143–4CrossRefGoogle Scholar
, ‘The Canon Law on the Formation of Marriage and Social Practice in the Later Middle Ages’ (1983) 8 Journal of Family History144, 146CrossRefGoogle Scholar
, Considerations upon the Institution of Marriage, with Some Thoughts Concerning the Force and Obligation of the Matrimonial Contract (London, 1739), p. 76Google Scholar
, ‘Marriage and Morals in the Fourteenth Century: the Evidence of Bishop Hamo's Register’ (2006) CXXI English Historical Review467CrossRefGoogle Scholar
, ‘The Heavy-Handed Marriage Counsellor: Regulating Marriage in Some Later-Medieval English Local Ecclesiastical Court Jurisdictions’ (1995) 39 American Journal of Legal History291CrossRefGoogle Scholar
, A Rational Illustration of the Book of Common Prayer of the Church of England (London, 1722), p. 435Google Scholar
, London Church Courts and Society on the Eve of the Reformation (Cambridge Mass.: Medieval Academy of America, 1981)Google Scholar
(ed.), Before the Bawdy Court: Selections from Church Court and Other Records relating to the Correction of Moral Offences in England, Scotland and New England, 1300–1800 (London: Elek Books, 1972)Google Scholar
, The Church under the Law: Justice, Administration and Discipline in the Diocese of York, 1560–1640 (Cambridge University Press, 1969), p. 137Google Scholar
, Pastoral Discipline and the Church Courts: the Hexham Court 1680–1730 (York: Borthwick Papers No. 62, 1982), pp. 29–30Google Scholar
, ‘The Correction Court in the Diocese of Carlisle, 1704–1756’ (1990) 59 Church History191CrossRefGoogle Scholar
, The Church of England Man's Companion, or a Rational Illustration of the Harmony, Excellency and Usefulness of the Book of Common Prayer (Oxford, 1710), p. 152Google Scholar
, , and , Cretney's Principles of Family Law, 8th edn (London: Sweet & Maxwell, 2008), pp. 44–5Google Scholar
, The Rights of the Clergy of that part of Great-Britain, call'd England, 2nd edn (London, 1715), p. 269Google Scholar
, The First Part of the Institutes of the Laws of England, or, a Commentary on Littleton, 10th edn (London, 1703)Google Scholar
, ‘R v. Millis Reconsidered: Binding Contracts and Bigamous Marriages’ (2008) 28 Legal Studies337CrossRefGoogle Scholar
Anon, Baron and Feme: A Treatise of Law and Equity concerning Husband and Wives (London: T. Waller, 1738)
, An Epitome of all the Common & Statute Law of this Nation now in force (London, 1656), p. 720Google Scholar
and (eds.), The Sermons of John Donne (University of California Press, 1957), vol. III, p. 243Google Scholar
, A Digest of the Laws of England (London, 1762–7), vol. I, tit. Baron and Feme, p. 585Google Scholar
, ‘Bastardy Litigation in Medieval England’ (1969) XIII American Journal of Legal History360CrossRefGoogle Scholar
, ‘Examining Law through the Lens of Literature: the Formation of Marriage in Eighteenth-Century England’ (2008) Law and Humanities29CrossRefGoogle Scholar
, A Letter to a Friend concerning Marriage Contracts, occasioned by a late Appeal from the Dean of Arches to a Court of Delegates (London, 1740), p. 18Google Scholar
Anon, Baron and Feme: a Treatise of Law and Equity concerning Husband and Wives (London, 1738), pp. 4–7
, A Series of the Decisions of the Court of King's Bench upon Settlement Cases (London, 1768), p. 234Google Scholar
, When Gossips Meet: Women, Family, and Neighbourhood in Early Modern England (Oxford University Press, 2003), p. 344CrossRefGoogle Scholar
Anon, The Lady's Law or, a Treatise of Feme Coverts, 2nd edn (London, 1737), p. 25
, A Vindication of Marriage, as Solemnized by Presbyterians in the North of Ireland (Dublin, 1702), p. ivGoogle Scholar
, An Answer to a late pamphlet, entitl'd A Vindication of Marriage, as Solemnized by Presbyterians in the North of Ireland (Dublin, 1704), p. 10Google Scholar
and (eds.), An Astrological Diary of the Seventeenth Century: Samuel Jeake of Rye (Oxford: Clarendon Press, 1988), pp. 153–4Google Scholar
(ed.), English Family Life, 1576–1716: an Anthology from Diaries (Oxford: Basil Blackwell Ltd, 1989), pp. 32–3Google Scholar
, The Adventures of David Simple (London: Penguin Classics, 2002; original edn 1744), p. 279Google Scholar
, The Adventures of Peregrine Pickle (Oxford University Press, 1964; original edn 1751), p. 775Google Scholar
, Un abridgment des plusiers cases et resolutions del common ley alphabeticalment digest desouth severall titles (London, 1668), p. 341Google Scholar
, An Institute of the Laws of Scotland in Civil Rights, with Observations on the Agreement or Diversity between Them and the Laws of England (Edinburgh, 1751–3), vol. I, p. 141Google Scholar
, The Memoirs of Miss Sidney Biddulph (Oxford University Press, 1999; original edn 1761), p. 323Google Scholar
, Clarissa, or, The History of a Young Lady (London: Penguin, 1985; original edn 1747–8), pp. 239, 364Google Scholar
, Matrimonial Law and the Materials of Restoration Comedy (Wallingford, Pa.: 1942), p. 74Google Scholar
, An Ordered Society: Gender and Class in Early Modern England (Oxford: Basil Blackwell Ltd, 1988), p. 110Google Scholar
, The Family, Sex and Marriage in England 1500–1800 (London: Weidenfeld & Nicolson, 1977), p. 34Google Scholar
, Common Law Marriage and its Development in the United States (Washington, DC: John Byrne & Co, 1922), ch. 7Google Scholar
, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985)Google Scholar
, ‘Common-Law Marriage: Myths and Misunderstandings’ (2008) 20 Child and Family Law Quarterly1Google Scholar
, ‘Gibbs, Sir Vicary (1751–1820)’, and ‘Scott, William, Baron Stowell (1745–1836)’ in Oxford Dictionary of National Biography (Oxford University Press, 2004)Google Scholar