The Clandestine Marriages Act 1753, also called the Marriage Act 1753, long title "An Act for the Better Preventing of Clandestine Marriage", popularly known as
Lord Hardwicke
Philip Yorke, 1st Earl of Hardwicke, (1 December 16906 March 1764) was an English lawyer and politician who served as Lord High Chancellor of Great Britain. He was a close confidant of the Duke of Newcastle, Prime Minister between 1754 and 1 ...
's Marriage Act (citation 26 Geo. II. c. 33), was the first
statutory legislation in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
to require a formal ceremony of
marriage
Marriage, also called matrimony or wedlock, is a culturally and often legally recognized union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between ...
. It came into force on 25 March 1754. The Act contributed to a dispute about the validity of a
Scottish marriage
Marriage in Scotland is recognised in the form of both civil and religious unions between individuals. Historically, the law of marriage has developed differently in Scotland to other jurisdictions in the United Kingdom as a consequence of the di ...
, although pressure to address the problem of irregular marriages had been growing for some time.
Background
Before the Act, the legal requirements for a valid marriage in
England and Wales
England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is Eng ...
had been governed by the
canon law
Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
of the
Church of England
The Church of England (C of E) is the established Christian church in England and the mother church of the international Anglican Communion. It traces its history to the Christian church recorded as existing in the Roman province of Britain ...
. 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
Anglicanism is a Western Christian tradition that has developed from the practices, liturgy, and identity of the Church of England following the English Reformation, in the context of the Protestant Reformation in Europe. It is one of th ...
clergyman. The mistaken assumption that a simple exchange of consent would suffice is based on later conflations between the theological position that consent made a marriage and the actual practice of the
church courts. Prior to the passage of the 1753 Act such an exchange only 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. Those under the age of 21 had to have parental consent if they married by licence; marriages by banns, by contrast, were valid as long as the parent of the minor did not actually forbid the banns.
Jews
Jews ( he, יְהוּדִים, , ) or Jewish people are an ethnoreligious group and nation originating from the Israelites Israelite origins and kingdom: "The first act in the long drama of Jewish history is the age of the Israelites""The ...
and
Quakers
Quakers are people who belong to a historically Protestant Christian set of denominations known formally as the Religious Society of Friends. Members of these movements ("theFriends") are generally united by a belief in each human's abil ...
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
King Charles III 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 (, ) is a country that is part of the United Kingdom. Covering the northern third of the island of Great Britain, mainland Scotland has a border with England to the southeast and is otherwise surrounded by the Atlantic Ocean 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 Marriages associated with
London
London is the capital and largest city of England and the United Kingdom, with a population of just under 9 million. It stands on the River Thames in south-east England at the head of a estuary down to the North Sea, and has been a majo ...
's
Fleet Prison was ended, although there were various short-lived and abortive attempts to claim exemption for the
Savoy Chapel
The King's Chapel of St John the Baptist in the Precinct of the Savoy, also known as the King's Chapel of the Savoy, is a church in the City of Westminster, London. Facing it are 111 Strand, the Savoy Hotel, the Institution of Engineering and Te ...
in the
Strand and the parish of
Temple
A temple (from the Latin ) is a building reserved for spiritual rituals and activities such as prayer and sacrifice. Religions which erect temples include Christianity (whose temples are typically called churches), Hinduism (whose temples ...
in
Cornwall
Cornwall (; kw, Kernow ) is a historic county and ceremonial county in South West England. It is recognised as one of the Celtic nations, and is the homeland of the Cornish people. Cornwall is bordered to the north and west by the Atlantic ...
. 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 ( ) is a form of inflammatory arthritis characterized by recurrent attacks of a red, tender, hot and swollen joint, caused by deposition of monosodium urate monohydrate crystals. Pain typically comes on rapidly, reaching maximal intensit ...
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
A toll road, also known as a turnpike or tollway, is a public or private road (almost always a controlled-access highway in the present day) for which a fee (or ''toll'') is assessed for passage. It is a form of road pricing typically implemented ...
passing through the hitherto obscure village of Graitney led to
Gretna Green
Gretna Green is a parish in the southern council area of Dumfries and Galloway, Scotland, on the Scottish side of the border between Scotland and England, defined by the small river Sark, which flows into the nearby Solway Firth. It was historica ...
becoming synonymous with romantic elopements.
A similar traffic to the
Isle of Man
)
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, image = Isle of Man by Sentinel-2.jpg
, image_map = Europe-Isle_of_Man.svg
, mapsize =
, map_alt = Location of the Isle of Man in Europe
, map_caption = Location of the Isle of Man (green)
in Europe ...
also sprang up, and in 1757 the
Legislature
A legislature is an assembly with the authority to make law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its p ...
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
The pillory is a device made of a wooden or metal framework erected on a post, with holes for securing the head and hands, formerly used for punishment by public humiliation and often further physical abuse. The pillory is related to the stoc ...
and have their
ears cropped, before being imprisoned, fined and deported. The Act was repealed in 1849.
Modern misinterpretation
Modern commentators, after the work of historians such as
Lawrence Stone
Lawrence Stone (4 December 1919 – 16 June 1999) was an English historian of early modern Britain, after a start to his career as an art historian of English medieval art. He is noted for his work on the English Civil War and the history of marr ...
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
Common-law marriage, also known as non-ceremonial marriage, marriage, informal marriage, or marriage by habit and repute, is a legal framework where a couple may be considered married without having formally registered their relation as a civil ...
, along with informal folk-practices such as
handfasting
Handfasting is a traditional practice that, depending on the term's usage, may define an unofficiated wedding (in which a couple marries without an officiant, usually with the intent of later undergoing a second wedding with an officiant), a ...
or
broomstick weddings. 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 is a traditional practice that, depending on the term's usage, may define an unofficiated wedding (in which a couple marries without an officiant, usually with the intent of later undergoing a second wedding with an officiant), a ...
and "broomstick weddings" are the result of Victorian
folk-lore
Folklore is shared by a particular group of people; it encompasses the traditions common to that culture, subculture or group. This includes oral traditions such as tales, legends, proverbs and jokes. They include material culture, ranging fro ...
and late 20th-century
New Age
New Age is a range of spiritual or religious practices and beliefs which rapidly grew in Western society during the early 1970s. Its highly eclectic and unsystematic structure makes a precise definition difficult. Although many scholars conside ...
mythology
Myth is a folklore genre consisting of narratives that play a fundamental role in a society, such as foundational tales or origin myths. Since "myth" is widely used to imply that a story is not objectively true, the identification of a narrat ...
.
[Probert, Rebecca, ''Marriage Law & Practice in the Long Eighteenth Century: A Reassessment'' (Cambridge University Press, 2009) chapter 3]
See also
*
Marriage Act
*
Marriage Act 1836
The Marriage Act 1836 (6 & 7 Will 4 c 85), or the Act for Marriages in England 1836, was an Act of the Parliament of the United Kingdom that legalised civil marriage in what is now England and Wales from 30 June 1837.
Since the Marriage Act 17 ...
References
Further reading
The text of the Act*
External links
Why do people get married after having children?BBC News online
BBC News Online is the website of BBC News, the division of the BBC responsible for newsgathering and production. It is one of the most popular news websites, with 1.2 billion website visits in April 2021, as well as being used by 60% of the U ...
2011-05-26
{{UK legislation
Great Britain Acts of Parliament 1753
Marriage, unions and partnerships in England
1753 in England
Marriage law in the United Kingdom