Considerations to be borne in mind when establishing the validity of
a marriage
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The information on this page is based on the excellent and comprehensive
advice presented by Professor Rebecca Probert in her book 'Marriage Law For Genealogists' which
should be consulted for detailed advice, suggestions for further reading, and sample cases.
Most Lovelock marriages that have been researched and documented are or were, so far as can be determined at several years remove, perfectly valid. However, as Professor Probert makes clear, the changes in the law with respect to marriage since the early 17th Century have been many, and often complex. So if any researcher has doubts about the validity of a particular Lovelock marriage the following, based on Professor Probert's detailed investigations and research, should be taken into account:
- One needs to be aware that marriage law distinguishes between mandatory requirements, that are essential to validity, and directory requirements, that are not.
- In English law it has always been for anyone challenging a marriage to prove that it was invalid, rather than for one of the persons involved to prove its validity.
- A marriage of persons within the prohibited degrees of canon (church) law could only be challenged whilst both parties were still alive.
- Marriages between cousins have never been invalid in English law.
- Marrying in a parish other
than the one(s) in which the parties were resident did not
make the marriage invalid.
- It has never been possible to enter into a 'common-law' marriage in either England or Wales.
- Any marriage which failed to
comply with one or more of the requirements of canon law was
considered to be 'Clandestine'.
- Before 1857 divorce was only achievable through an Act of Parliament.
- Until 1937 the only ground for divorce was adultery.
- Since 1857 Anglican clergy
have been able to refuse to solemnise the marriage of a
divorced person.
- After 28 Aug 1907 a marriage
of a man to his late wife's sister was valid, even if it had
taken place before that date.* However, a marriage of a woman
to her late husband's brother was not made valid until 1921.
- Before 31 July 1971 any marriage involving anyone who lacked the mental capacity to understand what they were doing was void.
- If a person disappeared and was not heard of for seven years it could be presumed that they had died.
- In English law failure to register a marriage has never made it invalid.
- The Marriage Act 1823 introduced the provision that only 'knowingly and wilfully' failing to comply with the law could invalidate a marriage.
- On 10 May 1929 the minimum age for either party to a marriage was set at 16 years. Before that it was 12 for girls and 14 for boys.
- If an ancestor married below the age of majority the marriage is presumed to be valid unless a court declared it to be void.
- In all cases unless a court
declared a marriage to be void it should be assumed to be
valid, even if at the time it did not comply with the
mandatory aspects of the law.
* There are a small number of examples in our records of a man marrying his dead wife's sister before 1907. One example appears in the Bray-USA Tree: James Thomas Halsey married Alice Lovelock on 13 June 1847 at St John the Baptist, Hoxton, Middlesex. Alice died in the Apr-Jun quarter of 1848, possibly in or as a consequence of childbirth, and James then married her sister Margaret on 22 June 1851 at Holy Trinity, Newington, Surrey. Both James and Margaret were dead by 1907, but as Professor Probert makes clear their marriage is considered to be a valid one. Just as well as they had 5 children! Another example, with similarly tragic elements, comes from the Farnham Tree. James Brockwell married Mary Ann Lovelock on 23 December 1838 at St Andrew, Ham in Kingston on Thames, Surrey. Mary Ann died, probably in August 1841, and was buried at Kingston on the 22nd of August. She had given birth to a daughter Ellen in July and so her death may have been due to postpartum complications. Ellen was privately baptised in Ham on 1 August, but a note in the Baptism Register reads 'The Registration of this Baptism was delayed in expectation of the child being received into the church; but the child died before this could be done.'. James eventually married Mary Ann's sister Caroline on 4 March 1848 in St Leonard, Shoreditch, Middlesex, and they went on to have 6 sons who all lived into adulthood.
Whilst the UK's lawmakers had by 1921 decided that it was perfectly reasonable for a man to marry his dead wife's sister or for a woman to marry her dead husband's brother, it was not until 1960 that it became legal for a man to marry his divorced wife's sister or a woman to marry her divorced husband's brother.