Marriage Act 1753
Encyclopedia
The Marriage Act 1753, full title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act (citation 26 Geo. II. c. 33), was the first statutory legislation
in England and Wales
to require a formal ceremony of marriage
. It came into force on 25 March 1754. The Act was precipitated by a dispute about the validity of a Scottish marriage, although pressure to address the problem of clandestine marriage had been growing for some time.
of the Church of England
. This had stipulated that banns should be called or a marriage licence obtained before a marriage could take place and that the marriage should be celebrated in the parish where at least one of the parties was resident. However, these requirements were directory rather than mandatory and the absence of banns or a licence – or even the fact that the marriage was not celebrated in a church – did not render the marriage void. The only indispensable requirement was that the marriage be celebrated by an Anglican
clergyman. The common but mistaken assumption that a simple exchange of consent would suffice is based on later, erroneous readings of ecclesiastical case law
: such an exchange created a binding contract to marry rather than a legal marriage.
and Quakers were exempted from its provisions, although the Act did not go so far as to declare such marriages valid and it was many years before their legal standing was assured. Nor did the Act apply to members of the British Royal Family
. Indeed, members of the Royal Family have been consistently exempted from all general legislation relating to marriage since this date, which is why doubts were expressed in 2005 about the ability of Prince Charles to marry Camilla Parker-Bowles in a civil ceremony, civil marriage being the creation of statute law. It was also provided that the 1753 Act had no application to marriages celebrated overseas or in Scotland
.
The Act was highly successful in its stated aim of putting a stop to clandestine marriages, i.e., valid marriages performed by an Anglican clergyman but not in accordance with the canons. Thus the notorious practice of clandestine Fleet Marriage
s associated with London
’s Fleet Prison
was ended, although there were various short-lived and abortive attempts to claim exemption for the Savoy Chapel
in the Strand
and the parish of Temple
in Cornwall
. The early death of the Savoy’s minister on board ship while waiting to be transported for his flouting of the Act may have discouraged others from making similar claims, even if his demise was due to gout
rather than to the conditions of his imprisonment.
However, some couples evaded the Act by travelling to Scotland. Various Scottish “Border Villages” (Coldstream Bridge
, Lamberton
, Mordington
and Paxton Toll) became known as places to marry. And in the 1770s the construction of a toll road
passing through the hitherto obscure village of Graitney led to Gretna Green
becoming synonymous with romantic elopements.
A similar traffic to the Isle of Man
also sprang up, and in 1757 the Legislature
of the Island passed an Act to prevent Clandestine Marriages in very similar terms to the English Act of 1753. But the Manx Act differed in one significant respect from the latter, in requiring clergy from abroad, who were convicted of conducting marriages in breach of the Act's requirements, to be pilloried and have their ears cropped
, before being imprisoned, fined and deported. The Act was repealed in 1849.
and Stephen Parker
, have often misconstrued both the requirements of the Act and the canon-law requirements which directly preceded it. It has been widely but wrongly asserted, for example, that the Act rendered invalid any marriage involving minors, i.e. those under 21, unless parental consent had been given. In fact, this was true only for the minority of marriages celebrated by licence. While the parent of a minor could forbid the banns and so prevent a marriage from going ahead, a marriage by banns that took place without active parental dissent was valid. This gave rise to the practice whereby underage couples would resort to a parish where they were not resident to have the banns called without their parents' knowledge. Since the Act specifically prohibited the courts from inquiring into the parties' place of residence after the marriage had been celebrated, such evasive marriages were still valid. The only way in which an aggrieved parent could challenge such a marriage was if there had been a mistake amounting to fraud in the calling of the banns.
It has also been mistakenly asserted that the Act abolished common-law marriage
, along with informal folk-practices such as handfasting
, broomstick weddings
and mop wedding
s. However, since neither the name nor concept of “common-law marriage” existed in England and Wales at this time, this can be shown to be untrue, while recent scholarship has argued that ideas such as handfasting
and "broomstick" or “mop" weddings are the result of Victorian folk-lore
and late 20th-century New Age
mythology
.
But for another perspective on handfasting, see further here.
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
to require a formal ceremony of marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. It came into force on 25 March 1754. The Act was precipitated by a dispute about the validity of a Scottish marriage, although pressure to address the problem of clandestine marriage had been growing for some time.
Background
Before the Act, the legal requirements for a valid marriage in England and Wales had been governed by the canon lawCanon law
Canon law is the body of laws & regulations made or adopted by ecclesiastical authority, for the government of the Christian organization and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern and Oriental Orthodox churches, and the Anglican Communion of...
of the Church of England
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
. This had stipulated that banns should be called or a marriage licence obtained before a marriage could take place and that the marriage should be celebrated in the parish where at least one of the parties was resident. However, these requirements were directory rather than mandatory and the absence of banns or a licence – or even the fact that the marriage was not celebrated in a church – did not render the marriage void. The only indispensable requirement was that the marriage be celebrated by an Anglican
Church of England
The Church of England is the officially established Christian church in England and the Mother Church of the worldwide Anglican Communion. The church considers itself within the tradition of Western Christianity and dates its formal establishment principally to the mission to England by St...
clergyman. The common but mistaken assumption that a simple exchange of consent would suffice is based on later, erroneous readings of ecclesiastical case law
Case law
In law, case law is the set of reported judicial decisions of selected appellate courts and other courts of first instance which make new interpretations of the law and, therefore, can be cited as precedents in a process known as stare decisis...
: such an exchange created a binding contract to marry rather than a legal marriage.
Effects
The Act tightened the existing ecclesiastical rules regarding marriage, providing that for a marriage to be valid it had to be performed in a church and after the publication of banns or the obtaining of a licence. JewsJudaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...
and Quakers were exempted from its provisions, although the Act did not go so far as to declare such marriages valid and it was many years before their legal standing was assured. Nor did the Act apply to members of the British Royal Family
British Royal Family
The British Royal Family is the group of close relatives of the monarch of the United Kingdom. The term is also commonly applied to the same group of people as the relations of the monarch in her or his role as sovereign of any of the other Commonwealth realms, thus sometimes at variance with...
. Indeed, members of the Royal Family have been consistently exempted from all general legislation relating to marriage since this date, which is why doubts were expressed in 2005 about the ability of Prince Charles to marry Camilla Parker-Bowles in a civil ceremony, civil marriage being the creation of statute law. It was also provided that the 1753 Act had no application to marriages celebrated overseas or in Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
.
The Act was highly successful in its stated aim of putting a stop to clandestine marriages, i.e., valid marriages performed by an Anglican clergyman but not in accordance with the canons. Thus the notorious practice of clandestine Fleet Marriage
Fleet Marriage
A Fleet Marriage is the best-known example of an irregular or a clandestine marriage taking place in England before the Marriage Act 1753 came into force on March 25, 1754...
s associated with London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
’s Fleet Prison
Fleet Prison
Fleet Prison was a notorious London prison by the side of the Fleet River in London. The prison was built in 1197 and was in use until 1844. It was demolished in 1846.- History :...
was ended, although there were various short-lived and abortive attempts to claim exemption for the Savoy Chapel
Savoy Chapel
The Savoy Chapel or the Queen's Chapel of the Savoy is a chapel off the Strand, London, dedicated to St John the Baptist. It was originally built in the medieval era off the main church of the Savoy Palace...
in the Strand
Strand, London
Strand is a street in the City of Westminster, London, England. The street is just over three-quarters of a mile long. It currently starts at Trafalgar Square and runs east to join Fleet Street at Temple Bar, which marks the boundary of the City of London at this point, though its historical length...
and the parish of Temple
Temple, Cornwall
Temple is a hamlet in the parish of Blisland on Bodmin moor, Cornwall, UK. The hamlet is bypassed by the A30 road.-History and antiquities:...
in Cornwall
Cornwall
Cornwall is a unitary authority and ceremonial county of England, within the United Kingdom. It is bordered to the north and west by the Celtic Sea, to the south by the English Channel, and to the east by the county of Devon, over the River Tamar. Cornwall has a population of , and covers an area of...
. The early death of the Savoy’s minister on board ship while waiting to be transported for his flouting of the Act may have discouraged others from making similar claims, even if his demise was due to gout
Gout
Gout is a medical condition usually characterized by recurrent attacks of acute inflammatory arthritis—a red, tender, hot, swollen joint. The metatarsal-phalangeal joint at the base of the big toe is the most commonly affected . However, it may also present as tophi, kidney stones, or urate...
rather than to the conditions of his imprisonment.
However, some couples evaded the Act by travelling to Scotland. Various Scottish “Border Villages” (Coldstream Bridge
Coldstream Bridge
Coldstream Bridge, linking Coldstream, Scottish Borders with Cornhill-on-Tweed, Northumberland, is an 18th century Grade II* listed bridge between England and Scotland, across the River Tweed. A plaque on the bridge commemorates the 1787 visit of the poet Robert Burns to the Coldstream...
, Lamberton
Lamberton, Borders, Scotland
Lamberton is a hilly, former landed estate in Berwickshire, Scotland, its eastern boundary being the North Sea. It is north of Berwick-upon-Tweed, on the Great North Road .-Original family:...
, Mordington
Mordington
Mordington is an agricultural parish in the extreme south-east of Berwickshire in the Scottish Borders region. It is five miles from Berwick-upon-Tweed and borders Northumberland to the east, and south , Foulden to the west, and Lamberton to the north. The parish is bisected by the A6105 Berwick to...
and Paxton Toll) became known as places to marry. And in the 1770s the construction of a toll road
Toll road
A toll road is a privately or publicly built road for which a driver pays a toll for use. Structures for which tolls are charged include toll bridges and toll tunnels. Non-toll roads are financed using other sources of revenue, most typically fuel tax or general tax funds...
passing through the hitherto obscure village of Graitney led to Gretna Green
Gretna Green
Gretna Green is a village in the south of Scotland famous for runaway weddings. It is in Dumfries and Galloway, near the mouth of the River Esk and was historically the first village in Scotland, following the old coaching route from London to Edinburgh. Gretna Green has a railway station serving...
becoming synonymous with romantic elopements.
A similar traffic to the Isle of Man
Isle of Man
The Isle of Man , otherwise known simply as Mann , is a self-governing British Crown Dependency, located in the Irish Sea between the islands of Great Britain and Ireland, within the British Isles. The head of state is Queen Elizabeth II, who holds the title of Lord of Mann. The Lord of Mann is...
also sprang up, and in 1757 the Legislature
Tynwald
The Tynwald , or more formally, the High Court of Tynwald is the legislature of the Isle of Man. It is claimed to be the oldest continuous parliamentary body in the world, consisting of the directly elected House of Keys and the indirectly chosen Legislative Council.The Houses sit jointly, for...
of the Island passed an Act to prevent Clandestine Marriages in very similar terms to the English Act of 1753. But the Manx Act differed in one significant respect from the latter, in requiring clergy from abroad, who were convicted of conducting marriages in breach of the Act's requirements, to be pilloried and have their ears cropped
Cropping (punishment)
Cropping is the removal of a person's ears as an act of physical punishment. It was performed along with the pillorying or immobilisation in the stocks, and sometimes alongside punishments such as branding or fines...
, before being imprisoned, fined and deported. The Act was repealed in 1849.
Modern misinterpretation
Modern commentators, after the work of historians such as Lawrence StoneLawrence Stone
Lawrence Stone was an English historian of early modern Britain. He is noted for his work on the English Civil War and marriage.-Biography:...
and Stephen Parker
Stephen Parker
Stephen Parker may refer to:From Western Australia*Stephen Parker , early settler of Western Australia*Stephen Stanley Parker J.P., M.L.C., son of Stephen Parker...
, have often misconstrued both the requirements of the Act and the canon-law requirements which directly preceded it. It has been widely but wrongly asserted, for example, that the Act rendered invalid any marriage involving minors, i.e. those under 21, unless parental consent had been given. In fact, this was true only for the minority of marriages celebrated by licence. While the parent of a minor could forbid the banns and so prevent a marriage from going ahead, a marriage by banns that took place without active parental dissent was valid. This gave rise to the practice whereby underage couples would resort to a parish where they were not resident to have the banns called without their parents' knowledge. Since the Act specifically prohibited the courts from inquiring into the parties' place of residence after the marriage had been celebrated, such evasive marriages were still valid. The only way in which an aggrieved parent could challenge such a marriage was if there had been a mistake amounting to fraud in the calling of the banns.
It has also been mistakenly asserted that the Act abolished common-law marriage
Common-law marriage
Common-law marriage, sometimes called sui juris marriage, informal marriage or marriage by habit and repute, is a form of interpersonal status that is legally recognized in limited jurisdictions as a marriage even though no legally recognized marriage ceremony is performed or civil marriage...
, along with informal folk-practices such as handfasting
Handfasting
Handfasting is a traditional European ceremony of betrothal or wedding. It usually involved the tying or binding of the right hands of the bride and groom with a cord or ribbon for the duration of the wedding ceremony.-Etymology:...
, broomstick weddings
Jumping the broom
Jumping the broom is a phrase and custom relating to wedding ceremonies in different cultural traditions: "many diverse cultures, those of Africa − Europe including Scotland, Hungary and Gypsy culture – include brooms at wedding rituals." It is particularly associated with the Romani gypsy people...
and mop wedding
Mop wedding
Mop weddings, or mop marriages, were once a traditional marriage method, mainly in England. It is presumed that, like the earliest Mop Fairs where they were celebrated, they date back to the 13th or 14th century, though it is possible that the tradition originated in pagan practices.Evidence from...
s. However, since neither the name nor concept of “common-law marriage” existed in England and Wales at this time, this can be shown to be untrue, while recent scholarship has argued that ideas such as handfasting
Handfasting
Handfasting is a traditional European ceremony of betrothal or wedding. It usually involved the tying or binding of the right hands of the bride and groom with a cord or ribbon for the duration of the wedding ceremony.-Etymology:...
and "broomstick" or “mop" weddings are the result of Victorian folk-lore
Folk-Lore
Folk-Lore was released in 2002 by Celtic metal band Cruachan.-Track listing:#"Bloody Sunday" – 4:15#"The Victory Reel" – 1:21#"Death of a Gael" – 5:38#"The Rocky Road to Dublin" – 3:07#"Ossian's Return" – 4:44...
and late 20th-century New Age
New Age
The New Age movement is a Western spiritual movement that developed in the second half of the 20th century. Its central precepts have been described as "drawing on both Eastern and Western spiritual and metaphysical traditions and then infusing them with influences from self-help and motivational...
mythology
Mythology
The term mythology can refer either to the study of myths, or to a body or collection of myths. As examples, comparative mythology is the study of connections between myths from different cultures, whereas Greek mythology is the body of myths from ancient Greece...
.
But for another perspective on handfasting, see further here.
External links
- Civil Marriage in the Catholic Encyclopedia
- Why do people get married after having children? BBC News onlineBBC News OnlineBBC News Online is the website of BBC News, the division of the BBC responsible for newsgathering and production. The website is the most popular news website in the United Kingdom and forms a major part of BBC Online ....
2011-05-26