Catholic Religious-Only Marriages and the Making of the Marriage Act 1836
Under the Clandestine Marriages Act of 1753 and its replacement, the Marriage Act of 1823, the only route to a legally recognized ceremony was to marry after ecclesiastical preliminaries in an Anglican church.8 An exception existed for the marriages of Quakers and Jews - and for members of the Royal family - although neither the 1753 Act nor its successor specified what was required for such marriages or what their status was.9 Despite this insistence on an Anglican ceremony in the overwhelming majority of cases, the evidence suggests that religious-only marriages were rare during the second half of the eighteenth century.
Such religious-only marriages as did occur were most likely to be Anglican ceremonies where the parties had failed to comply with some element of the legal framework.10 The Quakers apart, Protestant dissenting denominations had not developed their own marriage practices before 1754 and so married in the Church of England without any additional ceremony.11 English Catholics, by contrast, had navigated the competing requirements of conscience and law by having two ceremonies, either on the same day or with the Catholic ceremony preceding the Anglican one.12It was only in the early nineteenth century, with increased immigration from Ireland, that religious-only marriages began to occur on any significant scale. Irish Catholic immigrants were thought to be far more likely than their English religious counterparts to be married by a Catholic priest without going through the legally required Anglican rite.13 The result, those seeking reform claimed, was that these religious-only marriages were all too often repudiated at a later date,
Religious-Onh M-CiTTicigesinEnglcindcind Wales 13 ‘rendering the most sacred obligations subservient to the transitory indulgence of criminal passions’, and bastardizing any children of the union.14
Throughout the parliamentary debates in the 1820s and 1830s over the non-recognition of Catholic marriages, comparisons were drawn between the law of England and that of the couple’s country of origin.
As one MP argued, ‘[i]n their own country they could be married by the Catholic priest, and the marriage was legal’.15 The fact that Ireland was now part of the United Kingdom made this argument all the more compelling: one Catholic bishop, Dr William Poynter, pointed out that ‘the conditions to which the Roman Catholics in England are subjected, in this respect, are not exacted from their fellow subjects of their own communion in Ireland, nor in Scotland’.16Considerable emphasis was placed on the hardships to the wives and children resulting from the non-recognition of Catholic marriages conducted in England. Mr O’Connell alluded to the way in which
a married woman, however respectable, and who had never done anything to violate the laws of society, might, at the end of eight or ten years, if her husband thought proper to select a younger or more pleasing partner, be left upon the parish with eight or ten children, the whole of whom would be bastardized.17
Those tasked with administering the poor law in the big London parish of St Luke drew attention to the fact that the children of these religious-only marriages derived no settlement from their parents but were chargeable to the parish where they had been born; the result was that they were a burden on the rates, and, ‘unblest by relative protection, are exposed to pauperism, seduction, immorality, and every anti-social crime’. In their view, ‘great moral evils, much individual calamity, and many public and parochial injuries, result from these circumstances’.18
As this suggests, the numbers involved were thought to be large. The parish authorities in St Luke referred to ‘thousands of such marriages being annually celebrated’ and warned that the resulting ‘evils and injuries’ were ‘far more numerous... than persons not conversant with the subject apprehend or believe’. The MP who had introduced the bill emphasized its urgency because a ‘dozen cases likely to cause bastardy occurred in a single day’.19 And another put the overall number of Catholic marriages at over four times this, suggesting that ‘upwards of twenty thousand Roman Catholic marriages would
probably take place in the course of the year’.20 Such figures were no doubt exaggerated, but in the absence of any reliable data they had an impact.
In terms of possible remedies, some suggested that the remedy lay within the community itself.
Dr Lushington thought that the Catholic clergy could solve the problem by simply refusing ‘to celebrate any marriage between Roman Catholics, unless they produced to him a certificate of the marriage having been legalized by the act of the Protestant clergyman’.21 The problem with this proposal, as Mr O’Connell pointed out, was that Catholic clergy ‘dared not oppose any impediment’ to the marriage of a Catholic couple. At the other end of the spectrum, there were occasional suggestions that Catholics could be placed on the same footing as Jews and Quakers. These, however, were never seriously pursued. All of the bills that were considered by Parliament involved at least some formalities beyond those involved in the Catholic rite itself.22 The challenge for reformers was to find a solution that would work not just for Catholics but for the far larger number of Protestant Dissenters who had no tradition of conducting their own marriages but who were similarly chafing under the necessity of marrying according to Anglican rites.23While the incidence of Catholic religious-only marriages clearly played some part in encouraging a perception that reform was needed, Catholic marriage practices had relatively little impact on the terms of the measure that was eventually adopted. It was the Protestant Dissenters who dominated the debates, and it was the sheer diversity of ideologies and organization within Protestant dissent that shaped the terms of the Marriage Act 1836.
Proposals for sectarian reform having been abandoned, and several different proposals for reform having been advanced but proving unpopular, the 1836 Act was, inevitably, something of a compromise. It enabled Catholics and other Dissenters to marry in their own places of worship, but only once that place of worship had been registered. In addition, the marriage had to take place in the presence of a registrar, and after due notice had been given to the civil authorities.24
In practice, however, while Catholics were more likely than other groups to register their places of worship for marriage and to marry there once they were registered,25 there were still instances of religious- only marriages prior to a legally recognized marriage in the Anglican church or in the office of the superintendent registrar.
There were also concern among the authorities that such religious-only marriages were still taking place. In 1855 the General Register Office wrote to the Law Officers to seek their view of the status of marriages whereReligious-Onh MaiTTiagesinEnglandand Wales 15 there had been only partial engagement with the requirements of the 1836 Act. These included cases where Catholic couples who had been living ‘in a state of concubinage’ were persuaded to go through a private ceremony of marriage before the priest in a registered place of worship but without giving notice, and cases where the couple had given notice but then married before the priest in the absence of the registrar, and ‘resting satisfied it is presumed (under the advice of the Priest) with the Catholic marriage thus performed they afterwards neglect the legal ceremony altogether’.26 While it was recognized that such ceremonies were ‘according to the law of the Roman Catholic Church... considered valid & binding before God & the Church’, the view of the Law Officers was that the marriages would be void. They also suggested that the priest would be guilty of a felony in such cases, as well as where a Catholic ceremony was performed before or after a legally binding one.
For present purposes, the significance of this exchange lies in how it illustrates the tension that existed between different conceptions of marriage. The Christian status of a marriage was clearly no guarantee of its legal recognition. Nor, indeed, was the fact that a particular religion was expressly mentioned in the Marriage Act, as the next section will show.