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Wednesday, 1 April 2020

Could a Regency widower marry his wife's sister?

A fashionable wedding at St George's Hanover Square in 1841 from Life In Regency and Early  Victorian Times by EB Chancellor (1926)
A fashionable wedding at St George's Hanover Square
in 1841 from Life In Regency and Early 
Victorian Times by EB Chancellor (1926)
I started investigating this question because I came across a blog post saying it was illegal for a man to marry his dead wife’s sister. Yet I knew from my research for What Regency Women Did For Us that Maria Edgeworth’s father had married his wife’s sister after his wife had died. Had the marriage been illegal or was I missing something?

The short answer

During the Regency period, the marriage between a widower and his wife’s sister, or between a widow and her husband’s brother, was valid but voidable. It was forbidden under ecclesiastical law but not illegal until the passing of the Marriage Act in 1835. It could be voided or annulled if successfully challenged by any interested party, at any time during the marriage, provided both husband and wife were still alive. 

The long answer

Forbidden Marriages

According to ecclesiastical law, a widower could not marry his wife’s sister and a widow could not marry her husband’s brother as these marriages were ‘within the prohibited degrees.’

These ‘marriages within the prohibited degrees’ were based on those marriages forbidden in the Bible and were laid out in A Table of Kindred and Affinity in The Book of Common Prayer (1662).1

A man may not marry his:
1. Grandmother
2. Grandfather’s wife
3. Wife’s grandmother
4. Father’s sister
5. Mother’s sister
6. Father’s brother’s wife
7. Mother’s brother’s wife
8. Wife’s father’s sister
9. Wife’s mother’s sister
10. Mother
11. Stepmother
12. Wife’s mother
13. Daughter
14. Wife’s daughter
15. Son’s wife
16. Sister
17. Wife’s sister
18. Brother’s wife
19. Son’s daughter
20. Daughter’s daughter
21. Son’s son’s wife
22. Daughter’s son’s wife
23. Wife’s son’s daughter
24. Wife’s daughter’s daughter
25. Brother’s daughter
26. Sister’s daughter
27. Brother’s son’s wife
28. Sister’s son’s wife
29. Wife’s brother’s daughter
30. Wife’s sister’s daughter
A woman may not marry her:
1. Grandfather
2. Grandmother’s husband
3. Husband’s grandfather
4. Father’s brother
5. Mother’s brother
6. Father’s sister’s husband
7. Mother’s sister’s husband
8. Husband’s father’s brother
9. Husband’s mother’s brother
10. Father
11. Stepfather
12. Husband’s father
13. Son
14. Husband’s son
15. Daughter’s husband
16. Brother
17. Husband’s brother
18. Sister’s husband
19. Son’s son
20. Daughter’s son
21. Son’s daughter’s husband
22. Daughter’s daughter’s husband
23. Husband’s son’s son
24. Husband’s daughter’s son
25. Brother’s son
26. Sister’s son
27. Brother’s daughter’s husband
28. Sister’s daughter’s husband
29. Husband’s brother’s son
30. Husband’s sister’s son
This is hard work to digest! Put simply, there were three groups of people a man could not marry:
1. Close blood relations: grandmother, mother, aunt, sister, daughter, niece, granddaughter.
2. The wife of the male equivalents of these relations: grandfather’s wife, father’s wife, uncle’s wife, brother’s wife, son’s wife, nephew’s wife, grandson’s wife.
3. Close blood relations (as in 1 above) of your wife.

Similarly, a woman could not marry:
1. Close blood relations: grandfather, father, uncle, brother, son, nephew, grandson.
2. The husband of the female equivalents of these relations: grandmother’s husband, mother’s husband, aunt’s husband, sister’s husband, daughter’s husband, niece’s husband, granddaughter’s husband.
3. Close blood relations (as in 1 above) of your husband.

Mourning full or opera dress  from La Belle Assemblée (1806)
Mourning full or opera dress
from La Belle Assemblée (1806)
The problem of not being able to marry your dead wife’s sister

The problem was that the sister of a deceased wife was often the most suitable person to help look after the widower’s children, but she could not live as a single woman in her brother-in-law’s house without risk of scandal and she could not marry him because ecclesiastical law forbade it.

Not everyone thought that this restriction was right. John Fry argued that marriage with a deceased wife’s sister was both fit and convenient in The Case of Marriage between Near Kindred (1756).

It was a problem that only affected the upper classes of society. In a debate on the law of marriage – prohibited degrees - in the House of Commons in 1847, Stuart Wortley stated:
As to the lower orders of society, they are quite incapable of comprehending the considerations of refined delicacy on which the law has been defended; and during an inquiry which lasted for more than two months I did not meet with one man or woman in humble life who considered marriage with a deceased wife's sister improper.2
Valid but voidable

Though forbidden by ecclesiastical law, if a marriage within the prohibited degrees took place – assuming a member of the clergy was willing to marry them – it was valid unless successfully challenged by an interested party while both marriage partners were alive.

In the debate in the House of Commons in 1847, it was recorded:
It was well known that, before the Act of 1835, marriages within the prohibited degrees, and among them marriages of men with sisters of their deceased wives, were not actually void, but merely voidable.3
Before the 1835 Marriage Act, marriages within the prohibited degrees were constantly at risk of being voided. This was obviously a big deal where children were concerned as if the marriage were voided, it made them illegitimate and could rob them of their inheritance. The only time limit on such a challenge seemed to be that both parties were still alive. 

Examples of voidable marriages that were valid

Richard Lovell Edgeworth, author (1744-1817)

Richard Lovell Edgeworth  from Memoirs of Richard Lovell Edgeworth (1821)
Richard Lovell Edgeworth
from Memoirs of Richard Lovell Edgeworth (1821)
The author, Maria Edgeworth, had three stepmothers and two of them were sisters. Her own mother died in 1773 when Maria was five and her father remarried, in the same year, to Honora Sneyd. When Honora died in 1780, Richard Lovell Edgeworth very promptly married Honora’s sister Elizabeth. The marriage took place after banns and went unchallenged. Elizabeth died in 1797 and Maria’s father promptly took a fourth wife, Frances Beaufort (who was younger than Maria).

Matthew Boulton, manufacturer and entrepreneur (1728-1809)

Matthew Boulton from The Making of Birmingham by RK Dent (1894)
Matthew Boulton from The Making of
Birmingham
by RK Dent (1894)
Birmingham manufacturer Matthew Boulton married Mary Robinson, a distant cousin, around 1756. Mary died, childless, within a few years of their marriage. About ten years later, Matthew married Mary’s younger sister Anne, although Anne’s brother was against the match.

Rear Admiral Charles Austen (1779-1852)

Jane Austen’s brother Charles married Frances Palmer in 1807. He married Frances’s sister Harriet in 1820, after Frances’s death.

The 1835 Marriage Act

The 1835 Marriage Act sought to remove the uncertainty over whether a voidable marriage would at some point become void. I was fascinated to read that the original intention of the Bill had simply been just that – to set a time limit on challenging a marriage within the prohibited degrees so that the children did not live in fear of their parents’ marriage being overturned.

What was proposed was that all existing marriages of people within the prohibited degrees should be questioned within six months of the Act and new marriages within two years of the date of the marriage.4

At some point during the debate, the terms were changed making all the existing marriages legal and all subsequent marriages void.

Marriage abroad

After the 1835 Act had been passed, the only legal way for a widower to marry his wife’s sister was to go abroad. It was generally believed this would be valid, although such marriages were still frowned upon by many.
The law of this country recognised a marriage as valid if solemnized according to the law of the place where it occurred; and, consequently, unless the Statute of 1835 constituted a personal incapacity-—as some contended, but as, he thought, it did not —a marriage solemnized abroad might effectually evade the law.5
A long battle for a change in the law

The Marriage to a Deceased Wife’s Sister Bill was first introduced in 1842 and was repeatedly raised in Parliament during the Victorian period, but it was not until 1907 that a man could marry his deceased wife’s sister. It was not until 1921 that the female equivalent was allowed, in the Deceased Brother’s Widow’s Marriage Act.

Notes
1. The list appears on the last page of John Baskerville’s 1762 reprint of the 1662 Book of Common Prayer.
2. Law of marriage – prohibited degrees Hansard 13 May 1847 Commons Sitting
3. Ibid.
4. Ibid.
5. Ibid.

Sources used include:
Bailey, Martha, The Marriage Law of Jane Austen’s World, JASNA Volume 36, 1 Winter 2015
Book of Common Prayer (1662) republished 1762
Family Search website, Staffordshire Church Records
Knowles, Rachel, What Regency Women Did For Us (2017)
Tann, Jennifer, Boulton, Matthew (1728-1809) Oxford Dictionary of National Biography (Oxford University Press, 2004; online edn May 2007, accessed 5 Oct 2012)

6 comments:

  1. A little later than the Regency, but one of Jane Austen's nieces (Edward Austen Knight's daughter Louisa) also married her late sister (Cassandra)'s widower husband, Lord George Hill. Embarassingly, the details of the marriage had been discussed in the House of Lords, especially as to the legitimacy of her children.

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    Replies
    1. How embarrassing. Hard to imagine such as discussion in the House of Lords now!

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  2. The apparently interminable attempts to allow Marriage to a Deceased Wife’s Sister is mentioned in Gilbert and Sullivan's opera Iolanthe.

    Amongst the impossible things Strephon will do when he takes magical control of parliament is;

    'He shall prick that annual blister,
    Marriage with deceased wife’s sister:'

    ReplyDelete
    Replies
    1. Yes, I'd read that. G&S had a habit of making culturally relevant comments in their operas. Not familiar with the line as I've never sung Iolanthe - I know Pirates of Penzance and HMS Pinafore better.

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  3. In Jewish law, the brother of a man who died without children was encouraged to marry the widow, to honour his late brother and to keep the family name going. However, if either of the parties refused this second marriage, both were required to go through a specific ceremony.

    The Jewish law encouraging such a marriage was of course not followed in Victorian England where, as you showed, it was forbidden.

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    Replies
    1. Yes, I was aware of that. I don't know whether it caused conflict for Jews living in Victorian Britain.

      Delete