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Marriage, Divorce and Annulment in Victorian England | VRChristensen

Marriage, Divorce and Annulment in Victorian England

Of the many wonders of this digital age, perhaps one of the greatest is all the old books that are now being scanned and published, many of them for free, and which are now readily available. I don’t know how I would have navigated much of my research without the internet and the reliable information that is now available. One of my recent finds (and timely, it was) is a book called “Husband and Wife, and the Married Women’s Property Act of 1882″ by Charles E. Baker. This is an 1882 edition of a book that was printed earlier, but which was updated to include the perceived ramifications of The Married Women’s Property Act, which formally passed in November of 1882, but which did not take affect until January of 1883. The Married Women’s Property Act being the backdrop of Of Moths and Butterflies, I found this incredibly pertinent. Moreover, there were some legal questions I had had to sort of blindly navigate around. Finding this text was a godsend. I do not like to guess at legal matters. I loath the idea of inventing research and facts. Fortunately, I know enough about the era and how things were done to have guessed fairly nearly accurately. And it was a relief to have my theories substantiated. This book lays it all out quite plainly.

I discussed in an earlier post, the different means by which a couple might be married. Firstly, by publishing banns in the local parish, secondly by special license (a prohibitively expensive practice), or, thirdly, by what was called an “ordinary license”. This is what anyone with any money would have done. It was on this that I needed specific details, as it seems a practice little understood.

By the canon law of England, the archbishops, bishops, and certain others have power to grant licenses for the solemnisation of matrimony, without the banns being first published, between persons one of whom shall be resident at the time within the diocese of the bishop in whose name such licence is granted.

For avoiding fraud and collusion in obtaining licences for marriage, it is enacted that, before any such licence be granted, one of the parties must personally swear before the surrogate, or other person having authority to grant the same, that he or she believes that there is no impediment of kindred or alliance, or of any other lawful cause, to bar or hinder the proceeding of the matirmony according to the licence; and that one of the parties has, for fifteen days immediately preceding such lincence, had his or her usual place of abode within the parish or chapelry within which such marriage is to be solemnised; and, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, that the consent of the person or persons whose consent to such marriage is required by law has been obtained thereto; but if there shall be no person having authority to give such consent, then, upon oath made to that effect, the licence will be granted. And if any such licence has been procured by a party to such marriage, when one or both of the parties to the marriage are under the age of twenty-one years, not being a widower or widow, by means of such party willfully and knowingly bearing falsely, the marriage, if duly solemnised, will not be void, but the guilty party will forfeit all property accruing from the marriage for the benefit of the innocent party, or of the issue of the marriage, if proceedings for that purpose be instituted within one year after the solemnisation of the marriage.

Generally it may be said that if a name has been assumed and inserted in the licence for the purpose of fraud, in order to enable the party to contract marriage and to conceal himself from the party to whom he is about to be married, then the licence would be void; but where a name has been previously so assumed as to have become the name which the party has acquired by reputation, then the insertion of that name in the license will not render the licence void.

It was mentioned at the commencement of this chapter that the present law of divorce was formed in order to put a stop to the evils that were arising from the too easy manner in whcih marriage might be declared to be altogether null and void but it must not be supposed that marriage may not now be declared to have been illegally contracted and to be void.

It has been previously shown that in order to make a marriage legal, the following requisites are necessary:

1. It must be celebrated after publication of banns, or by special or ordinary licence, or at a registrar’s by licensc or certificate.

2. It must be celebrated in a church or registrar’s office, in which marriages may be legally solemnised, except in the case of special licence.

3. The persons to be married must be single persons, and not related to eachother within the prohibited degrees of consanguinity.

4. They must be of sound mind and sound body (so far as performing the duties of matrimony is concerned), and they must consent to the marriage.

If, therefore, any of these requisites are wanting, the marriage will be voidable, that is to say that the judge of the Divorce Court on hearing the petition and the evidence, an considering whether both parties were fully aware at the time of the marriage of the informality, may decide that the marriage was altogether null and void. But to begin with, the law always presumes that the marriage is valid until it an be proved that it was otherwise, so that strict proof will be required of the informality, and if the informality relates merely to the ceremony, then something further will be required to show that the informality was not a pure mistake of wich no advantage ought to be taken.

Incapacity of mind and incapacity of body also form grounds whereon to present a petition, praying that the marriage may be declared, void and so, too, where one of the parties has been coerced and has gone through the marriage under the influence of force or fear. Fraud, again, if proved, is sufficient ground whereon to obtain a decree for nullity of marriage;

But when the ground on which the suit is based is the respondent’s incapacity of body, the respondent may plead that there has been delay in bringing the suit, and if this, coupled with indirect motives, can be proved,t he petitioner will not be entitled to relief.

So what does all this mean? In Of Moths and Butterflies there is an argument for annullment on grounds purely technical. That being that Archer signed the licence in a name that was not his own. Except that he always knew it to be his name. So on his part, there was no fraud, but because the uncle usurped power over the money, and ultimately over the marriage itself, the fraud may be laid at his door. Was there real grounds for annulment? No. Not really. And non-consumation wouldn’t have held. Not in this case, because Imogen was the refuser (in contrast to the case between Effie Gray and John Ruskin, by which case the world was shocked, not by her desire for annullment, but because of his indifference toward his comely wife), neither would she do anything to bring unsavory attention upon herself. But keep in mind that these fears have generated in a mind used to thinking in such terms. Sir Edmund assmes Imogen would behave so because he would, and because he hates women in general. The threat, truly, is not that the marriage might be disolved, (though she would have had grounds to seek a separation) but that the truth of their combined histories might be made public. Still, it was necessary for me to know who must go to get the license and how it was done, and by what particulars Wyndham might think he had a case agaisnt them. It’s amazing to me how much a man’s word was relied upon back then. No birth certificates (not everyone had one), simply a man’s word and the signing of his name to attest that he was who he said he was.

It was also pointed out to me by a wise and dear friend, that what the law says, and how it was actually carried out, are two different things entirely. Which is obviously true. But, in the end, this is a work of fiction, and yes, I’ve taken a few liberties in order to make the point I wished to make, and to provide that it should resonate with a modern audience in times totally different, and yet while we yearn for very similar things. None of this is to say that the story is an impossible one. It’s just highly improbable. But isn’t that what makes it all so interesting? Besides, if it were true (and what if it is, after all) who would believe it?

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