Hardwicke Marriage Act

Also known as the Clandestine Marriage Bill. Act of Parliament to prevent clandestine marriages in Britain and Scotland, even though Scotland never actually passed the Bill. It was seen as a way to also prevent rich citizens from runaway marriages, which would damage their ecological and sociological reputation.

Marriages before the Act

Before the construction of the Act a married state was merely a binding by faith between a man and a women to live as husband and wife. The contemporary customs of a public ceremony in church were not fixed at that time and were, if, only a solemn repetition. It was quite normal to completely bypass the church in the marriage ceremony. Here, a distinction is made between two types of a marriage vow between the two parties:

spousalia per verba de praesenti: expressed in present tense the couple´s promises to live together turned into an immediately binding marriage, even without consummation or witnesses [source?].

spousalia per verba de futuro: the formulation in future tense only changed the fact, that the marriage would be binding after the consummation

However, these rules for marriages also meant that seductions, kidnappings, and clandestine marriages were all regular marriages.

Reasons for the Act

Even if the social circumstances and conditions were complex and multi-layered and many things played a weighting role, the following reasons can be seen as the cause of the act.

1) Even if they did not outweigh normal marriages in terms of weight, there was an increasing rise in clandestine marriages. These could be interpreted negatively, particularly for the wealthy population, especially if fraud and marriages of convenience were resorted to. The Act was undoubtedly also introduced because people wanted to get a grip on this.

2) Another reason was the desire to influence both marriages and future demographics. Marriages usually produced offspring and the assumption was that the more children were born, the richer the country would become. However, it was also believed that only children who grow up in a family that has the necessary stability are useful for the country and its development. Therefore, the Act was intended to influence demography in such a way that fewer and hopefully somewhat better-off spouses would have children.

3) As an igniting event, one has to mention the "Campbell vs. Cochran" lawsuit. In a nutshell, it was about the following: Captain Carrick Campbell married Jean Campbell in 1725, although he had already married Magdalen Cochran a year earlier. Over the next 20 years he has a relationship with both women, while Jean Campbell was his official wife, he deceived Magdalen Cochran and managed to convince her that the relationship cannot be public. Shortly after his death, Magdalen Cochran then appeared and presented herself as his real widow, which would not only make the 20 year old marriage to Jean Campbell invalid, but would also make their daughter a bastard. Several courts ruled on the matter, both Jean and Magdalen could present a lot of documents and evidence. In the end, the courts, up to the House of Lords decided against Magdalen and for Jean Campbell. This explosive case was to serve as the ignition for the enactment of the Marriage Act.

The Act

The Bill forced the people to marry in a now rather common way for our time: the spouses had to have a parental permission for minors, having witnesses, the ceremony done by an authorized clergyman and record the event in a Marriage Register. This meant that couple´s private verbal promises had no longer any force in law and any intercourse of a woman with a man without all these necessities would now make a woman a "whore" and her children "bastards" [verbatim Bannet 235]. She would also be not legally entitled to any financial support from the father for potential children without being married in a now required way.

Sources

Bannet, Eve Tavor. “The Marriage Act of 1753: ‘A Most Cruel Law for the Fair Sex.’” Eighteenth-Century Studies, vol. 30, no. 3, 1997, pp. 233–54.

Leneman, Leah. “The Scottish Case That Led to Hardwicke’s Marriage Act.” Law and History Review, vol. 17, no. 1, 1999, pp. 161–69.

Probert, Rebecca. “The Impact of the Marrige Act of 1753: Was It Really ‘A Most Cruel Law for the Fair Sex’?” Eighteenth-Century Studies, vol. 38, no. 2, 2005, pp. 247–62.