Introduction: The English Law Of Nullity Of Marriage
The law lays down rules about the formalities necessary to create the status of marriage, but there are also rules about who can marry whom. All developed societies impose certain restrictions on entry into marriage—for example, English law has insisted that marriage is a union between a man and a woman, that it is monogamous, that this union is voluntary and only to be entered into between a couple who wish to be married, and so on. Lawyers classify such rules as rules of capacity: a man and a woman must have legal capacity to marry; and unless they do so no marriage ceremony can create the status of marriage between them.
Historically,1 these matters were left largely in the hands of the ecclesiastical courts; and if, for example, a purported marriage was shown to be bigamous the court would grant a decree declaring it ‘to have been and to be absolutely null and void to all intents and purposes whatsoever’.2 But the matter was not as simple as that. The readiness of the ecclesiastical courts to pronounce that a marriage had never existed (for example, because the couple were closely related) was a threat to the security of property, and this threat was all the more serious because the pre-Reformation ecclesiastical courts would annul a marriage ‘even after the death of the parties, after the death of both, or of one only’.3 The Common Law courts disliked this practice; and in the seventeenth century it became settled that they would in certain circumstances prohibit the ecclesiastical courts from impeaching the validity of marriage once either party had died. In this way, the distinction between marriagesvoid ab initio (the validity of which could be attacked by any person at any time, even after the death of one of both of the parties) and those which were merely voidable (vulnerable to attack during the parties’ joint lives, but only on the application of one of them) became established.4 It has been said5 that the effect of this was to allow:
‘certain of these spineless marriages to acquire posthumous backbones: if these associations could escape being examined by the courts while the parties to them were alive and living together in what, from the premises, were sinful unions, then the common law courts, in any case which came before them, would bury the past simultaneously with the interment of one or both of the spouses so-called, and would give to them as a parting gift at the grave the unimpeachable and retrospective reputation, valid in England and Wales at any rate, of having lived together in holy wedlock.’
In this way, the common law had an important impact on the consequences of breaking the rules defining eligibility for marriage. But when the Matrimonial Causes Act 18576 transferred the jurisdiction of the Ecclesiastical Courts in respect of nullity of marriage to the newly created Court for Divorce and Matrimonial Causes, it directed the Court to ‘proceed and act and give relief on principles and rules which … shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts have heretofore acted and given relief’.7 Accordingly the canon law of Western Christendom remained the conceptual basis for the content of the English law of nullity8 until the Nullity of Marriage Act 1971 codified the law.
Nullity, Sexual Incompatibility, And Divorce
One additional complication has to be mentioned. This stems from the fact that until 1857 English law did not provide for judicial divorce. Nullity was the only way to get legally free from a marriage which had become intolerable. In these circumstances it is not surprising that (as the matrimonial history of King Henry VIIIdemonstrates) the temptation to widen the circumstances in which a decree of nullity could be obtained (in King Henry’s case for alleged infringement of the rules about the prohibited degrees) was sometimes strong. But by the beginning of the twentieth century (albeit there was very strong pressure to change the rules to allow a widower to marry his sister-in-law) the law relating to the prohibited degrees (and the other grounds for annulment) was well understood. The law was seen primarily as prohibiting marriage, not as a way of escaping from a marriage; and there were comparatively few petitions9 alleging that a (p.40) ‘marriage’ which had in fact taken place should be annulled because the parties were related or indeed was invalid because it was bigamous, or that one of the parties was under age or had not truly consented to the marriage, or that the prescribed formalities had not been observed.
But there was one case in which the law of nullity did serve as a kind of divorce in the modern sense. This arose from the fact that the Church, whilst accepting that marriage was created simply by the consent of the parties, regarded it as implicit in the marriage contract that both parties should have the physical capacity to consummate the marriage: a capacity to perform ‘the duties of marriage’ was necessary to make the marriage valid.10 For this reason, the ecclesiastical courts were prepared to annul a marriage on the ground that either party was, at the date of the marriage, incapable of consummating it; and in this way some sexually incompatible couples were able to free themselves from the legal marriage tie. The case of the writer and art critic John Ruskin11 is a well known example.
After his marriage in 1848 Ruskin gave his wife Effie12 various reasons for his disinclination to have sex. For her part, she had ‘never been told the duties of married persons to each other and knew little or nothing about their relations in the closest union on earth’;13 but she became more and more troubled. Ruskin admitted that he had married her ‘to have a companion—not for passion’s sake’. Eventually he told her that he ‘had imagined women were quite different from what he saw [she] was’, and that he was disgusted with her person.14 Mrs Ruskin instituted proceedings in the Ecclesiastical Court,15 medical reports were obtained confirming that there were ‘no impediments on her part to a proper consummation of the marriage’ and on 15 July 1854—Ruskin having provided no evidence to refute the inference from all the facts that he was incapable of consummating the marriage—the court pronounced a sentence of annulment thus freeing Effie (after six years) from what she described as a ‘hateful and loathsome Cont[r]act’. She promptly married her husband’s friend John Everett Millais, by whom she was to have eight children.
To the lay person, it might well seem that Mrs Ruskin had divorced her husband because of his behaviour towards her16 and there certainly seems little doubt that under the ‘breakdown of marriage’ ground for divorce introduced in 1969 she would have been able to do so with little of the unpleasantness—for example, the need for medical inspections—attached to nullity suits on the (p.41) ground of sexual incapacity.17 But in theory there was a great conceptual difference between formally annulling a marriage which, by reason of some vitiating element, had never come into existence on the one hand,18 and dissolving a valid marriage because of some supervening matter (one party’s adultery, for example) on the other. The Church19 would accept annulment; but it for long refused to accept the legal termination of a valid marriage; and it was to ‘escape the onslaught of ecclesiastics’ opposed to divorce that over the years, reformers saw advantage in tucking up as much ‘divorce law reform into nullity as possible’20 and that some Christian groups were attracted to the idea of extending the use of nullity in situations of marital breakdown.21 But in fact these attempts to extend nullity as a remedy to terminate an unsuccessful relationship turned out not to be of great moment, and statistically nullity remained insignificant as a means of obtaining legal release from an unhappy marriage.22 The fact that nullity allowed a small number of people each year to get what was, so far as they were concerned and for most practical purposes, a divorce should not obscure the fact that in a much larger number of cases the rules prevented marriages taking place. The long and bitter campaign for reform of the law about marriage between relatives demonstrates that the rules were seen to have an impact on many people’s lives,23 and they remain important as effectively defining the law’s concept of marriage. The text first discusses how the rules operated to define marriage, and then discusses the extent to which legislation and case law have altered the rules in the course of the twentieth century.
The Prohibition On Marriage With Relations24
The Old Testament25 contains a number of prohibitions (not easy for the modern reader to understand) against sexual relationships between people who are (p.42) ‘near in kin’. These prohibitions extend not only to blood relations (relationships of consanguinity) such as parent and child and brother and sister but also to ‘in-law’ relationships created by marriage. For the church, marriage made husband and wife one flesh; so if it is wrong to marry my sister it must equally be wrong for me to marry my wife’s sister, my sister-in-law.26 After the turmoil caused by the attempts to resolve Henry VIII’s marital problems27 the prohibitions were codified in what became known as Archbishop Parker’s Table of Kindred and Affinity.28 This table29 was given canonical authority in the Church of England,30 and the Table was customarily printed at the end of the Book of Common Prayer.*31 The Canons declared that marriages within these prohibited degrees were ‘incestuous and unlawful and consequently … void from the beginning’.
But this was one of the areas in which the common law, as explained above, modified the rigour of the ecclesiastical law. For the common lawyers, the policy of the canon law was simply to separate those who were cohabiting in a relationship prohibited by divine law and to inflict penance for this wrong-doing. After the cohabitation had been brought to an end by the death of one of the (p.43) parties no court order could ‘tend to the reformation of the parties’ and accordingly the court would no longer assume jurisdiction to declare that a marriage within the prohibited degrees had been invalid. In other words, the marriage was to be classified as void able: it could not be attacked after the death of either party, and only the parties could question it during their joint lifetimes.32
This was just as well. The rules prohibiting marriages between affines began to conflict with social need. A wife died leaving her husband with young children to bring up. Help was urgently needed. Often the wife’s sister was the only available source of care for the children. Physical propinquity led to emotional involvement. What could be more natural than marriage?33 And it was not only the working-classes who found the rigid rules a barrier to their attaining emotional fulfilment.34
In those countries which had retained their religious allegiance to Rome such cases could be dealt with by obtaining a dispensation from the application of the rules to a particular case, but this was no longer possible in post-Reformation England.35 Even so, the problem was for many years not regarded as too serious and many couples were prepared to ignore the prohibition, either relying on the reluctance of anyone undertaking the ‘invidious task of disuniting them’36 or by taking protective legal action.37
In 1835 however Lord Lyndhurst’s Act dramatically changed the position. Although it declared marriages already celebrated within the prohibited degrees of affinity to be inviolate it also provided that all marriages celebrated in the future between persons within the prohibited degrees of consanguinity or affinity should be ‘absolutely null and void to all intents and purposes whatsoever’. The legal effect of the Act was clear—and disastrous. In the words of a Home Office official writing half a century later:38
‘What had before been a somewhat loose and uncertain prohibition became part of the regular law of the land. The English law became at once the most rigid in respect of such prohibitions in force in any civilized country. At a time when many churches relaxed their rule by dispensations, and most countries had allowed wide liberty in this matter, the Canon Law of the English Church was made of binding force even over members of persuasions which tolerated these connections, or approved them.’
It seems, however, that it took some time for the impact of Lord Lyndhurst’s Act to be appreciated, and that for some years the Act failed to attain its object of preventing marriages between a man and his deceased wife’s sister or niece.39 Such people continued to go through marriage ceremonies40 in this country, always illegally and sometimes fraudulently;41 and the affluent middle and upper classes would travel abroad42 to contract the marriage in a country whose law permitted marriage with the deceased wife’s sister or niece believing that the marriage would be recognised in England.43 But in 1861 the House of Lords made it clear that this belief was not well founded.44 In Brook v. Brook45
William Leigh Brook of Melthain Hall Yorkshire was widowed in 1847 and left with two young children. In 1850 he travelled to Denmark with his wife’s sister (p.45) and there was a wedding ceremony in the Lutheran church at Wandsbeck near Altona. Mrs Brook bore him three children, but then died in a cholera outbreak only to be followed by her husband two days later. An action was brought over the administration of Mr Brook’s estate. The House of Lords held that the legal capacity of someone domiciled in England to contract a marriage remained governed by English law46 wherever the marriage took place. Accordingly, although the Danish marriage was perfectly lawful and valid in Denmark, as a matter of English law it was void. Accordingly the three children were illegitimate.
The issue became one of great public controversy.47 Pressure groups48 were established; petitions were presented to the Crown and to Parliament,49 and Bills (some more restrictive than others)50 were presented to Parliament. These Bills often got through the House of Commons, but (even when the promoters tried to buy off clerical opposition by inserting a provision that the Anglican clergy need not celebrate such marriages)51 the House of Lords could be relied on52 to ensure that no reforming Bill reached the statute book.53
At the turn of the century there seemed to be no likelihood of any imminent change in the law. No doubt the theological arguments which had once seemed so pressing were now advanced with less enthusiasm; but (in addition to a general concern about the impact of any change in the marriage laws) there remained an underlying argument based on social policy: the prohibition was (p.46) necessary to exclude disturbing sexual feelings from the family group.54 As Gladstone had put it,55 the ‘purity of sisterly love itself … was threatened to be tainted by the invasion of possible jealousies’. In this view,56 although the family was fundamental to society and natural affection was the cement of the family, sexual attraction was different. To permit sexual attractions within the intimate family circle would ‘confuse the two relationships and unsettle the whole basis of society’.
All this sounded very well; but the difficulty facing the retentionists was that other societies—Denmark and Germany to take two examples—seemed to get along perfectly well without the prohibition on marriage with a deceased wife’s sister. But the decisive fact seems to have been that when Australians who had married in Australia under local legislation57 permitting marriage with a deceased wife’s sister58 came to England they were not regarded as living in lawful wedlock and their children were considered illegitimate.59 In 1904, the Australian Prime Minister made a formal protest:60
Ί am strongly of opinion that it is unjust to Australian citizens that the full recognition accorded to their marriage … in Australia should be taken from them when they remove to another part of the Empire…. [T]he consolidation of the peoples of the various countries of the Empire who are of the same race should be made as complete as possible…. [T]he anomaly is seriously regarded in Australia, and [the Australian] Government most earnestly desires that the grave hardships and the personal degradation arising from the existing conflict between British and Colonial law in this respect should be removed by Imperial legislation.’
The Government did legislate to remove the particular grievance of people domiciled in parts of the Empire where such marriages were valid;61 but this made it all the more difficult to resist legislation applying to people domiciled in this country. Whatever the Government might say, the 1906 Act was easily represented as sanctioning the belief that marriage with a deceased wife’s sister was harmless or even desirable.62
In 1907 the respected Liberal landowner MP Sir Brampton Gurdon63 presented yet another Bill, and on this occasion the Liberal government gave way. The ‘last ditch’ objections were mostly of the ‘floodgates’ variety familiar in almost all law reform debates:64 society may accept marriage with a deceased wife’s sister, but where will the process stop?65 If society tolerates marriage with the wife’s sister, why not marriage with her daughter?66 But the Government (p.48) eventually took over the Bill67 and made success certain. The Deceased Wife’s Sister’s Marriage Act 1907 provided68 that no marriage69 between a man and his deceased wife’s sister should be void or void able ‘as a civil contract’70 by reason only of such affinity. The long fought battle seemed, at last, to have been won.71
But it soon became clear that the Act had not resolved all the problems. As a Home Office official had presciently observed in 1888:72
‘There is no reason why, if a man marry his wife’s sister, he should not marry his father’s mother’s wife and his mother’s brother’s wife; nor his wife’s aunt, nor his nephew’s wife, nor his niece by affinity. None of these marriages are now allowed. A man should also be allowed to marry his deceased brother’s wife …’
The 1907 Act only dealt with the single case of the deceased wife’s sister; and the fact that a woman was not allowed to marry her deceased husband’s brother was not only an example of the sexual discrimination which increasingly irritated the burgeoning feminist movement73 but caused hardship on a significant (p.49) scale when women widowed in the first World War found themselves debarred from marrying the man of their choice.74 The Deceased Brother’s Widow’s Marriage Act 1921 passed through Parliament in the wave of equal treatment legislation which followed World War I75 but other anomalies remained. For example, the 1907 Act allowed a man to marry his wife’s sister, but it did not allow him to marry the sister’s daughter:
A constable in the Kent Constabulary was left with three young children on his wife’s death. The wife’s sister moved in with her husband to help care for the children, but the arrangement was not a success. A friendship developed between the constable and the sister’s daughter; and the Chief Constable (having, he said, consulted a Priest of the Church of England) gave the man permission to marry. Everyone was deeply embarrassed when it became apparent that such a marriage would be illegal.
Once again, Bills were introduced to remove such anomalies; once again they died because of opposition.76 But it was difficult to find any principle to justify resistance and doctrinal opposition from within the Church of England seemed to be crumbling.77 In 1931 the Marriage (Prohibited Degrees of Relationship) Act 1931 allowing men and women to marry a nephew or niece by marriage78 was neither opposed nor actively supported by the Church of England or by the Government. The Church of England eventually followed: in 1936 the four Houses of Convocation each urged revision of the Parker Table; and in 1937 Archbishop Cosmo Gordon Lang set up a Commission to carry out an Inquiry. The Commission’s Report79 was undogmatic: and in 1946 the Church of(p.50) England amended its canons to remove from the Table of Prohibited Degrees those marriages which the 1907, 1921 and 1931 Acts had permitted ‘as civil contracts’.
But the issue of who should be allowed to marry whom was still far from finally settled. Suppose, for example, that the ‘in-law’ relationship had been created by a marriage which ended, not by death, but by divorce:
A soldier divorces the wife who has committed adultery whilst he was serving King and Country. The child is left in the care of the wife’s sister. The soldier meets her for the first time on a visit to see the child. A relationship develops and the couple wish to marry.80
The law, quite deliberately, did not allow such marriages.81 The arguments about the risks of doing so were easy to state82 whilst the possibility that a man might be tempted to set out to seduce his wife’s sister if he thought he could eventually marry her prompted particularly strong feeling.83 But all this was essentially speculation. The reality was that there was pressure from men and women who wanted to marry: Registrars got as many as 200 enquiries every year about the possibility of marriage in cases where the marriage creating the ‘in-law’ relationship had ended in divorce.
Ministerial response to Parliamentary questions did not hold out even the remotest prospect of change.84 But in 1947 RAW Stevenson decided not to accept the situation. He sought to introduce a Personal Bill to enable him to(p.51) marry his divorced brother’s wife during the brother’s lifetime: he argued that the marriage would promote the welfare of the 11 year old daughter of the divorced couple; and relied on the fact that the policy of the 1857 Divorce Act had been that after divorce it should be lawful for the parties to marry again ‘as if the prior marriage had been dissolved by death’.85 The Personal Bills Committee accepted the Home Secretary’s view86that the circumstances of the case were not so exceptional as to justify giving one individual the right to contract a marriage which would still be forbidden to other citizens;87 and at one level, therefore, Stevenson had failed. But the case had attracted attention; and in January 1949 the Conservative Peer Lord Mancroft88 introduced a Private Member’s Bill which would have permitted a man89 to marry his former wife’s sister unless he had been found in the divorce proceedings to have committed adultery with her. The Government declined to co-operate,90 but the debate had demonstrated that times had changed and so had opinions. As the former Lord Chancellor Simon pointed91 out, the strongly felt arguments about the potentially disastrous impact of reform were exactly those used in 1907 against permitting marriage with a deceased wife’s sister and experience suggested they had been unfounded.
The idea of reform did not seem as shocking as would once have been the case; and it was eventually decided to include a specific mention of the prohibited degrees of marriage in the terms of Reference of the 1956 Royal Commission on Marriage and Divorce.92 Surprisingly in view of the Commission’s generally intensely conservative stance the Commission concluded93 that the time had come to remove prohibitions arising solely from the fact that a marriage had been ended by divorce rather than death.94 In 1965 Lord (p.52) Mancroft again introduced a Bill95 and the Government did not oppose it.96 The Marriage (Enabling) Act 1960 provided that no marriage between a man97 and the sister, aunt or niece of a former wife of his ‘whether living or not’ should thenceforth be held void able as being within the prohibited degrees.
Yet once again, the change did not adequately meet changing social and demographic circumstances: the 1956 Royal Commission acknowledged suggestions made by ‘a few witnesses’ for the abolition of all prohibitions on marriage with relations by marriage. The Commission noted that this would mean that a woman would be free to marry her step-son, or her father- or son-in-law; and did not see any reason to recommend such a change.98 And no doubt the possibility that a man might be allowed to marry his step-daughter would at first sight seem abhorrent to many. If the traditional argument about the need to exclude incestuous courtship from the family circle means anything it is surely particularly relevant to the parent-child relationship. A man should not be allowed to look on a young girl as the object of his sexual attentions even as a potential bride when his true social role is that of a father concerned to protect the child against damaging sexual involvement.99
Once again, demographic changes seemed to suggest a rather different perspective.100 The 1970s saw a dramatic increase in divorce and remarriage: (p.53) whereas in 1961 15% of marriages in Great Britain were remarriages for one (or both) partners, 20 years later the proportion had more than doubled and more than one third of all marriages were remarriages.101 This put in question the validity of the stereotype step-father step-daughter relationship as necessarily involving a paternal or any other familial relationship. Each marriage creates its own family, and each remarriage means—as a Review established by the Archbishop of Canterbury102 put it in 1984103—that a
‘new set of affines is acquired. Step-relationships increase; children acquire step-parents and may acquire step-grandparents; and parents of remarried spouses may acquire step-grandchildren. The marrying partners acquire parents-in-law where their spouse’s parents are living …’
These ‘reconstituted’ families may well be completely independent of the others and sometimes unaware even that the other exists. Suppose that a man had married a divorced woman (or for that matter a widow) whose own daughter was an adult, perhaps living on the other side of the world. Suppose that the wife died, and that thereafter the man met his step-daughter for the first time. Should he necessarily be debarred from marrying her? Was it right that if he lived with the woman he loved but could not marry their children should be illegitimate?104
In 1979 the debate was fuelled by the sociologist Lady Wootton of Abinger.105 She introduced Bills into the House of Lords intended to remove all prohibitions based on affinity. But the parliamentary debates106 again demonstrated the strength of feeling that it would be wrong to do anything which could introduce (p.54)disturbing sexual overtones and a further element of uncertainty into the difficult relationship between step-parent and step-child. Once again no one could show for a certainty that relaxing the law would have any of these consequences; whilst it was easy to demonstrate the reality of the hardship caused by denying the right to contract a marriage. For example:
In 1943 Edward married a 36 year old widow who had borne four children by her first husband. The eldest of those children (a daughter, Doris) had herself married shortly before her mother’s marriage to Edward, worked as an auxiliary nurse in the British Army, and had never lived in the same household as her mother and Edward. Doris’s husband was killed in an accident after a 22 year marriage; and her mother died in 1977. Doris (aged 58) and Edward (aged 62) then formed the wish to marry; but they were advised that, being in law stepfather and step-daughter, they could not do so. They lived apart, and did not wish to live as man and wife unless they were permitted to be, and were, married to each other.
There was a happy ending for Edward and Doris. Their solicitor107 happened to be one of the small number of solicitors practising as a parliamentary agent and he was thus aware of the Personal Bill procedure. The barrister Lord Lloyd of Kilgerran introduced the Edward Berry and Doris Eileen Ward (Marriage Enabling) Bill which provided that the couple’s relationship should not constitute a bar to their marrying. The Bill passed through Parliament without opposition to the particular marriage108 and received the Royal Assent.
The success of the Berry Bill gave publicity to the problem (already highlighted by the Wootton Bills) and there were fears that the Private Bill procedure would be invoked in a large number of cases.109 Something simpler ought to be available to deal with such cases.110 Although the Bishops had opposed the Wootton Bills the Church of England accepted that there was a problem and that it needed to be solved. Archbishop Runcie invited a Group111 to review the (p.55) working of the law,112 to consider ‘whether any general modifications were called for and/or whether exceptions should be allowed in particular cases and, if so, according to what criteria and by what procedure these should be authorized’.
The Group was unanimous in considering the law (and especially the procedure for obtaining dispensation by means of a Private Act of Parliament) to be unsatisfactory; but disagreed about how extensive the relaxation of the law should be.113 In 1986, the barrister Lord Meston114 introduced what he described115 as a ‘short and simple Bill’ to give effect to the recommendations on which the Group had agreed: the prohibition on marriage between a man and step-daughter116 was to be removed provided both parties were 18117 or older and the younger had not during minority been a ‘child of the family’118 in relation to the other party.119 During the course of the Bill’s passage through the (p.56) House of Lords120 the prohibition on marriage with a parent- or child-in law was—contrary to the views of the minority of the Archbishop’s Group—relaxed;121 and whatever else this relaxation may have achieved it certainly greatly complicated and lengthened the Bill. However, there appears to be, at the turn of the century, no evidence that the change in the law has encouraged men more frequently to look on their mothers-in-law with lustful eyes.122 Nor is there any evidence of pressure to follow the example set by Australia and abolish all legal restrictions on marriage between ‘in-laws’.123
Adoption And The Prohibited Degrees
If marriage created legal relationships where none had previously existed, what should be the effect of legal adoption, introduced into English law in 1926? As will be seen elsewhere in this book, the 1926 Act (based on the Report of a Committee chaired by Tomlin J) took a robust line.124 The ‘blood tie cannot be severed’ and accordingly the adopted child should remain debarred from marriage to his birth parents and other relatives. But the Committee considered that it would be ‘repugnant to common sense’ to allow ‘a purely artificial relationship’ to operate as a bar to marriage;125 and the 1926 Act made no provision at all about the effect of adoption on the prohibited degrees. Not until 1949 did legislation debar an adopted child from marrying his or her adoptive parent;126 and neither that Act nor any subsequent legislation has imposed a bar on marriage between an adopted child and his or her adoptive brother or sister.127 Although justification for prohibitions of marriage with relatives (other than blood relatives) (p.57) has increasingly been based on the feeling that it is wrong to give any encouragement to the development of erotic feelings within the nuclear family the law has not gone so far as to seek to extend control to people who are in fact living in a relationship.128 No one has, for example, suggested that a genetically unrelated boy and girl brought up by foster-parents in the same household should be debarred from marrying.
The Minimum Age For Marriage
Should the age of the parties affect the validity of a marriage? There are three separate, if related, issues. First, marriage is a relationship created by the consent of the parties and youth or old age129 may well affect the intellectual capacity of a man or a woman to give that consent. Secondly, it is implicit in the contract of marriage that the parties should be capable of consummating the union;130 and a relationship in which one or both parties had not reached the age of puberty may for that reason be vulnerable. Finally, most legal systems allow parents to forbid the marriage of their children (usually subject to a power in the courts or other state agencies to override a refusal);131 and English law follows this pattern. Lord Hardwicke’s Act fixed the age for ‘free marriage’—the age at which marriage could be contracted without any parental or other third party consent132—at 21;133 and so it remained until the Family Law Reform Act 1969 reduced the age to 18.
At the beginning of the twentieth century no statute laid down any minimum age for marriage. It seems that the Common Law applied a presumption that a boy under 14 and a girl under 12 were not capable of marriage; but the rule was (p.58) not absolute. In particular, if a couple married below this ‘age of discretion’ the marriage134would be treated as valid if the couple had in fact remained together thereafter. (It is possible that this was because the original marriage was void able rather than void; but the better view is that in such a case the couple would be deemed to have ratified the union.135)
Whatever the strict legal position may have been, there is little evidence136 that at the beginning of the twentieth century young teenagers were taking advantage of the freedom to contract marriages. It is true that the 1868 Chelmsford Royal Commission on the Laws of Marriage137 had been pressed with testimony (drawing on the 1861 Census Returns) that youthful marriage was particularly common in the cotton districts of Lancashire;138 but in the first years of the twentieth century only very rarely is any marriage involving a person under 16 recorded. (The year 1903 is exceptional in that two such marriages were recorded.139) There were fewer than ten marriages each year involving a 16-year-old, and some 60 or 70 in which one or both parties was 17. Only at age 18 did marriage become numerically at all significant: at the beginning of the century there were some 600 marriages involving an 18-year-old. But that was a tiny proportion (0.2%) of all marriages. Only one in 20 men marrying were under 21 (although the proportion of ‘infant’ brides was more than three times as great).140
The 1868 Royal Commission rejected suggestions that the minimum age for marriage should be raised. The Commission accepted that the law (apparently based on the principle that marriage between people capable of becoming parents should not be made legally impossible) permitted marriage much earlier than was prudent or desirable, but concluded that to raise the minimum age without giving the young people concerned any effective guardianship or oversight would ‘hardly be conducive to their moral improvement’. And the figures (p.59)given above might be thought to vindicate the Commission’s judgment: the problem of the ‘child’ marriage in this country seemed to have solved itself. So why did Parliament act in 1929, passing the Age of Marriage Act which rendered any ‘marriage’ to which either party was under 16 void?
There seems to have been no extensive prior campaigning, speech-making or article writing to prepare the way; and there was certainly no evidence that the problem had become in numerical terms significant.141 The fact that this Act got onto the statute book when it did seems almost entirely attributable to the crusading zeal and determination of the former Liberal Lord Chancellor, Lord Buckmaster.142 He relied on three main arguments. First, he claimed that the ‘age of maturity’143 was much higher than it had been in the Middle Ages when the rules permitting marriage at so young an age had been formulated.144 Secondly, he argued that a low age for marriage facilitated the work of traffickers in young women (the so-called white slave trade): young girls were persuaded to leave home, country and parents by the promise of marriage.145 Finally, he claimed that the law enabled the policy of the Criminal Law Amendment Act 1885 to be defeated. That Act146 (passed after an emotional campaign against child brothels and trafficking in young girls)147 made it a criminal offence for a man to have intercourse with a female under 16, and it was immaterial that she had consented. Buckmaster148claimed that it was absurd to (p.60) make a 15-year-old legally incapable of consenting to a single act of sexual intercourse whilst at the same time allowing her, by agreeing to marry, to submit to intercourse in perpetuity. He also claimed that the marriage law was being used to enable men to escape prosecution under the 1885 Act for defiling a girl of 13, 14, or 15: a man would induce the ‘little creature against whom he had perpetrated this unforgivable wrong’ to marry him and thereby disqualify herself from giving evidence against him.149
The Second Reading Debate went well for Buckmaster, and the Government announced that it would not oppose the Bill.150 But in the Committee stage all went disastrously wrong: influential voices argued that it would be wrong to make an important change to the marriage law without much fuller consideration. Buckmaster must have realised that a Bill opposed by the Archbishop of Canterbury,151 a leading Roman Catholic peer,152 a Privy Councillor who had been the senior puisne judge of the King’s Bench Division,153 the Master of the Rolls,154 and a former Director of Public Prosecutions155 was not going to get any further156 unless something could be done to placate the opponents and the hesitant.
But Buckmaster would not accept defeat. He agreed to the Bill being committed to a Select Committee chaired by Lord Ernie.157 The Committee interviewed witnesses from the Mothers’ Union and a number of representatives of the Women’s Movement, all of whom favoured the Buckmaster Bill. The Home Office representative158 told the Committee the Government considered the existing law indefensible.159 Even better, the Committee managed to high (p.61) light160 an issue which suggested that the existing law damaged British interests. The League of Nations was seeking to increase the effectiveness of child protection measures, and was in particular concerned to eradicate arranged child marriage from India and a number of other Asian countries; and the Ernie Committee found that the state of English law impaired the influence of the United Kingdom in these discussions. In this way, what had appeared to be the obsession of an eccentric back-bench peer became a contribution to national prestige.161 The Committee therefore agreed that the minimum age for marriage should be raised to 16;162 and that a marriage under that age should be void (as distinct from merely void able).163 The Leader of the House of Lords164 warned that any further discussion would be fatal to the Bill’s prospects. The Bill passed the Lords accordingly and went through all its stages in the House of Commons on a single day without a word of debate.165 It is impossible to assess the impact (if any) of the Age of Marriage Act in achieving its promoters’ objectives.
The issue of the age of marriage was revisited between 1965 and 1970 by three166 official inquiries. Although there was some support in the 1960s for raising167 the minimum age for marriage168 none of the inquiries recommended any (p.62) change in the law169 and no change was made. The reality is that the ‘problem’ of youthful marriage had solved itself: whereas as recently as 1966 nearly a third of all brides married when they were still teenagers, by 1991 the proportion had fallen to less than one in twelve170 and at the turn of the century only 3% of brides were under 21.171 The problem which became one of increasing concern was not so much that young people were marrying but rather that they were (notwithstanding the provisions of the criminal law)172 having sex and conceiving and bearing children. It has been estimated that more than a quarter of boys and nearly a fifth of girls under 16 are sexually active; and in 1999 405 girls under the age of 14, 1,866 14-year-olds, and 5,673 15-year-old girls conceived. (Slightly more than half those pregnancies were terminated legally under the provisions of the Abortion Act 1967.173) Confident statements made by official bodies in the late 1960s—for example, that the trend then observed to earlier marriage would continue, and that because boys and girls become sexually mature at an earlier age than their parents it followed, not only that they would feel ‘sexual desire and be sexually at risk at an earlier age’ but also that because of this ‘more of them are likely to decide to get married’174—have been completely falsified by events. All that can be said with confidence is that the extent to which the law influences sexual behaviour is a controversial matter.175
(p.63) The Age For Free Marriage: Consent Of Parents Or The Court176
Before 1735 English law did not require either party to a marriage to obtain parental consent; but Lord Hardwicke’s Act effectively177 required that parental consent be given to the marriage of any ‘infant’ (that is, a person under the age178 of 21).179 The parent could enforce this right by making the child a ward of court.180A ward was automatically debarred from marrying without the leave of the court; and the court would and could make specific orders (breach of which might be punished by imprisonment)181 forbidding contact between the ward and a named person.
(p.64) The court could of course override the parents’ refusal to consent; and when considering the suitability of a particular marriage it would normally be concerned that there should be a ‘fair equality of rank and fortune’ between the couple and that a proper settlement of the girl’s property was to be made.182 Property was generally the first consideration, and this was perhaps reasonable so long as the effect of marriage was to give the husband substantial entitlements to the property of the woman he married. For example:
In Bolton v. Bolton183 the 19-year-old Evelina Mary Bolton was entitled under her grandfather’s will to a considerable fortune expectant on the death of her father. The will was being administered by the court and Miss Bolton thus became a ward.184 In 1889 Miss Bolton became engaged to a Mr Frank Russell, a commercial traveller in a good position earning some £300 a year (possibly £18,000 in year 2000 values). Mr Russell swore an affidavit in which he formally undertook that, if the court saw fit to permit him to visit and pay his addresses to Miss Bolton he would do so as became a gentlemen and an honourable man and to abide by the directions of the court. Miss Bolton decided that she would like to help her husband financially by providing capital to help him set up his own business. She was advised by solicitors to wait until her 21st birthday, since otherwise the court would insist on all her property being put into a settlement which would prevent her from assisting her husband. The couple decided to marry six days after her birthday; but her father apparently did not like what was happening. Two days before the date set for the marriage the court made an order185 restraining the couple from marrying.
At the beginning of the twentieth century there were still cases in which parents invoked the wardship jurisdiction in an attempt to discipline their children;186 and even in the second half of the century, imprisonment was still sometimes used as a sanction. For example, in 1958:
The parents of Miss Tessa Kennedy disapproved of her relationship with Mr Dominic Elwes and instituted wardship proceedings. On 3 December 1957 Roxburgh J made an order restraining him from associating with her, and a week later on evidence that he was still seeing her ordered his committal to prison. Elwes was not apprehended, however, and three months later in New York he married Miss Kennedy. He then, having notified the authorities, returned to this country and was duly conveyed to Brixton prison. The Judge accepted that he loved his wife, but commented that every parent knew that love was not readily convertible into bread and butter for the support of a wife and (p.65) family.187 The judge described the case as an especially serious one, but ordered Elwes’ release on the basis that his fortnight in prison was sufficiently long to deter like-minded youths from imitating his foolish escapade. However, he ordered that Mrs Elwes—who had been a willing collaborator—remain a ward, observing that her runaway marriage made the court’s supervision all the more important.
Wardship was until the 1960s188 still largely the preserve of the propertied classes but statute189 provided a remedy for the offspring of the less affluent. If a parent190 refused to agree to a marriage the court could, on application by one of the parties, consent to the marriage and such consent would have the same effect as if it had been given by the parent. By the second half of the twentieth century the number of applications to the court (usually191 the magistrates’ court) to overrule a parental refusal of consent had risen substantially; and between 1958 and 1965 there were as many as 500 to 600 applications to the magistrates’ courts each year, of which perhaps half were granted.192 In practice the magistrates’ courts were concerned with far more cases than were dealt with in wardship, but almost nothing is known about how such cases were handled.193 No doubt in the period of rapid social change which followed World War II the whole idea of a young person having to apply to the court—whether the magistrates’ or the wardship court—for permission to marry increasingly seemed rather outdated, even by some of those administering the law.194 But there is no evidence of any particular sense of outrage about the law or that it caused many problems.
The Latey Report on the Age of Majority, 1967
In contrast, there was a great deal of evidence that the inability of ‘infants’ to make legally binding contracts caused difficulties for young people seeking (p.66) tenancies and effectively prevented even those who could afford the deposit necessary for house purchase from obtaining a mortgage; and it was complaints to Members of Parliament about these problems195 which in 1965 prompted the newly elected Labour Government to set up a Committee on the Age of Majority chaired by a Judge of the Probate Divorce and Admiralty Division, Sir William Latey,196 with wide terms of reference197 about the impact of the private law on young persons.
The majority of the Committee198 (believing that the historical causes for setting the age of majority at 21 were not relevant to contemporary society and that young people in 1967 matured earlier than in the past and were ready for the rights and responsibilities of adult life) concluded199 that in the areas within their terms of reference the age of full legal capacity should be lowered to 18;200 and that the age of free marriage should be reduced accordingly. The Committee took a pessimistic view of the influence of the legal rules on family relationships: ‘in this field at least the law is useless as a strengthener of family ties, and indeed by the friction it causes between the generations may well help to wear them through.’201 But the Committee did not agree with those who (p.67) thought the requirement of parental consent should be wholly removed:202 nobody (the Committee claimed) considered that many young people were ‘mature’ at age 16, and the requirement of parental consent for 16 and 17-year-olds often corresponded with the factual reality in which children were still dependent on their parents materially and psychologically.203 The Committee did not seem to attach much weight204 to the fact that the Attitude Survey they commissioned indicated that a substantial majority205 of young people thought that 21 was the right age for ‘free marriage’.
The Decision To Legislate: The Family Law Reform Act 1969 And Its Impact
The Government did not immediately express any view about the Latey Report’s recommendations, but made time available for debates in both Houses of Parliament206 on the issues to which it gave rise. Although these debates confirmed the widespread feeling that there had been no widespread pressure for change on issues such as the age for free marriage207 the Government concluded that the Report and the publicity and discussion which it had prompted had brought about a consensus that change was desirable.208 The Family Law Act 1969209 was therefore introduced as a government Bill. It provided that a person becomes of full age on attaining the age of 18 rather than 21210 and also (p.68) reduced the age for ‘free marriage’ to 18.211 The Act retained the power of the courts to override the refusal of a parent or guardian to consent to the marriage of 16 or 17-year-olds; but in fact applications for such consent became rare.212
Effect of the Family Law Reform Act 1969
It is impossible to assess the effect of the 1969 Act. The Latey Report accepted that ‘people today are marrying younger’;213 but at almost the same time as the Committee was submitting its Report the trend went into reverse: as already pointed out, since the mid-1960s the mean age for marriage has been rising,214 and the number of marriages involving a teenager has fallen.215 It would be difficult to find a clearer illustration of the dangers of assuming that demographic trends are likely to continue unaltered.
Marriage: The Union Of A Man And A Woman
In 1967, a prominent Queen’s Counsel and distinguished scholar wrote:
‘The requirement, if one may so state it, that the two persons should be two persons of different sexes would appear to be axiomatic. If two persons of the same sex contrive to go through a ceremony of marriage, the ceremony is not matrimonial at all …’216
It is certainly true that judicial statements about marriage (not least the oft repeated description217 by Lord Penzance in the 1866 English divorce case of (p.69) Hyde v. Hyde218 of marriage as ‘the voluntary union for life of one man to one woman to the exclusion of all others’) have been couched in terms of a relationship between a man and a woman. It is also true that the words of the Book of Common Prayer seem from beginning219 to end to contemplate only such a relationship. The various statutory formulae used in civil weddings and in marriages in registered buildings are in this respect no different.220 It is true that some historians have suggested the Church had in the past developed rituals recognising relationships between people of the same sex, and even that such unions ‘most likely signified a marriage in the eyes of most ordinary Christians’.221 But there is no evidence that in this country222 in the twentieth century either Church or State recognised such relationships as constituting ‘marriage’.223 Sexual relationships between persons of the same sex were, until 1967, severely penalised by the criminal law;224 and there is no reported case in which anyone in this country tried to persuade a court that a relationship between persons of the same sex was capable of constituting a ‘marriage’.225
(p.70) Whether or not same sex unions were recognised in earlier times seems to be irrelevant to the modern law; and in the circumstances, it might (to cite the words of Mr. Joseph Jackson again) be thought otiose to multiply authority for the simple proposition stated at the outset. However, increases in medical knowledge, and in particular, recognition of the phenomenon of transsexualism (a condition in which people apparently belonging to one sex feel that they belong to the other) and the use of gender reassignment therapy (hormone treatment and surgery intended to bring the physical characteristics into harmony with the patient’s psychological nature) in such cases sometimes made the matter more complex.
The legal significance of transsexualism for the law of marriage was first considered by the English courts in 1969:
In Corbett v. Corbett226 April Ashley had undergone what was then described as a sex change operation, had lived as a woman, and worked successfully as a female model. She had also been recognised as a woman for national insurance and passport purposes. But the trial judge held that for the purpose of capacity to marry the question depended on April Ashley’s biological sex: marriage was about sex, not gender. And a person born with male genitalia and a male chromosomal structure remained a ‘man’ for the purpose of the marriage laws, notwithstanding the fact that the patient had, after the reassignment therapy, lived and been accepted as a woman, possessed the external attributes of a woman and in most ways had become philosophically, psychologically and socially a woman.
At the time of the Corbett decision, consideration was being given227 to the codification of the largely case law based law of nullity, and in 1971 the Nullity of Marriage Act228 declared that a marriage taking place after the commencement of the Act should be void on certain specified grounds only. A clause was inserted that one of those grounds should be that ‘the parties are not respectively male and female’. That express provision makes it clear beyond any doubt—as (p.71) the courts have recognised—that English law will not recognise a same sex relationship as a marriage.229
But what of the situation where there is some uncertainty or ambivalence about whether one or both parties is ‘male’ or ‘female’? The courts came under pressure over the years to modify the Corbett doctrine that a person’s sex is fixed for all time at birth,230 and that the only relevant criteria are biological; but these were uniformly unsuccessful.231
It has been officially estimated that there are between 1,300 and 2,000 male to female and 250 female to male transsexual people in the United Kingdom; and the hardship which the law causes for them is considerable.232At the start of the millennium an official Working Party233 recommended some change in the law, but no Government action followed.234 Further attempts will no doubt be made (p.72) to remedy injustice to transsexuals; but there seemed no reason to suppose that English law would abandon its insistence that marriage235 involved a relationship between one party who can be classified as a ‘man’ and another party who can be classified as a ‘woman’. In that respect the underlying principle of the law remains the same at the close of the twentieth century as it was at the beginning.
Marriage Monogamous: The Union Of One Man And One Woman
English law has consistently held to the principle that marriage is monogamous. The Nullity of Marriage Act 1971,236 providing that a ‘marriage’ is void if either party was at the time lawfully married, gives effect to this fundamental principle. For example:
In Whiston v. Whiston237 Mr Whiston married a woman from the Phillipines. Sixteen years later the couple (who had had two children) separated, and divorce proceedings were started. The fact that the ‘marriage’ was bigamous came to light and the court granted a decree of nullity.
So insistent was the law that at the beginning of the twentieth century it asserted its support of monogamy by refusing to allow a party to a marriage which was even potentially polygamous238 any redress in the English divorce court:
In Hyde v. Hyde239 an English Mormon married a Mormon woman in Utah. After three years together the man renounced his beliefs and returned to England where he became the Minister of a nonconformist chapel. Mrs Hyde (by whom he had had children) married another man by Mormon rites in Utah and Mr Hyde sued her for divorce. The court refused to adjudicate: the matrimonial laws of England (said Lord Penzance)240 are adapted to Christian marriage and are inapplicable to polygamy. Accordingly the parties to a marriage actually or potentially polygamous were ‘not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England’.
But large scale immigration into this country from countries where Islam or other systems permitting polygamy governed marriage meant that such a rule (p.73) caused severe hardship, and involved considerable cost to the taxpayer (since a wife left destitute could not claim maintenance from her husband, and would often become correspondingly dependent on welfare benefits). Over the years, statute241 and case law242 transformed the situation. It is true that any valid243 wedding in this country creates a monogamous marriage, wherever the parties are domiciled, but the law will now generally recognise a polygamous marriage contracted overseas and make orders in respect of such marriages. The subject is a complex one but it can fairly be said that the ‘balance of definition has tipped from defining those instances where, exceptionally, such a marriage will be recognised to defining those few instances where it may not’.244
Most cases where bigamy245 is an issue lack any of the exotic associations traditionally associated with polygamy. In the days before divorce became readily available (and, perhaps, women were less ready to cohabit outside marriage) men might take a chance and not disclose their marital history; and some such cases ended with the man being imprisoned for the criminal offence of bigamy.246 Difficulties could arise because it was known that a party to a marriage had been previously married, but there was no evidence as to whether the wife or husband was alive at the date of the later ceremony. The law applied a presumption of death if there was no evidence that throughout a continuous period of seven years he was alive;247 but if this presumption turned out to be incorrect any later marriage would be void. In 1937 statute created a procedure whereby the court could, if satisfied that there were reasonable grounds to presume death, grant a decree of presumption of death and dissolution of marriage. Such a decree would terminate the marriage even if the other party were still alive, and made it possible for the applicant to remarry safe from any fear about the validity of the remarriage.
(p.74) Capacity For Marriage: Mental And Physical
Understanding The Marriage Contract248
Marriage was (and is) a consensual relationship, as we have seen; and if it can be shown that either party was mentally incapable, at the time of the wedding, of understanding the nature of the contract and of the duties and responsibilities which it creates there can, whatever the magnificence of the outward show, be no marriage. At the beginning of the century this was a matter of some practical importance:
In Cannon v. Smalley (otherwise Cannon)249 the wife suffered from melancholia (or depression). Within days of the wedding she tried to commit suicide, and she became violent, suffered delusions, and was admitted to an asylum. The prospect of recovery was small. But the court held that the husband had failed to establish that, at the time of the wedding, she was incapable of understanding the nature of marriage and its incidents. Accordingly, the husband remained for the rest of his natural life married to a woman confined, without any prospect of cure, in a lunatic asylum.
It was exceedingly difficult to establish that a person, however troubled,250 lacked sufficient understanding. The principle to be applied was that:
‘the contract of marriage is a very simple one which it does not require a high degree of intelligence to comprehend. It is an engagement between a man and woman to live together, and love one another as husband and wife, to the exclusion of all others. This is expanded in the promises of the marriage ceremony by words having reference to the natural relations which spring from that engagement…. [A] mere comprehension of the words of the promises exchanged is not sufficient. The mind of one of the parties may be capable of understanding the language used, but may yet be affected by such delusions, or other symptoms of insanity, as may satisfy the tribunal that there was not a real appreciation of the engagement apparently entered into. ‘251
(p.75) The difficulty of making out a case of lack of mental capacity is exemplified by a case decided midway through the twentieth century:
In Park v. Park252 a lonely 79-year-old widower went through a ceremony of marriage with the cashier at his club. Immediately after the wedding he made a Will in which he left his wife only a comparatively small part of his estate. She subsequently claimed that he lacked the necessary mental capacity to make the Will, and the evidence showed that the arterio-sclerosis from which he suffered affected his mental faculties—it was claimed that he would, for example, walk about his flat with his trousers down to his ankles, start to go out when dressed only in his underclothes, and sit down to breakfast with shaving lather on his face. A jury agreed that he had not been ‘of sufficiently sound mind memory and understanding’ to make that will; and the wife no doubt expected to receive a substantial sum on his intestacy. But Mr Park’s relatives then claimed that if he was not sane enough to make a Will he equally lacked capacity to marry, and that accordingly they were entitled under an earlier Will. The Court of Appeal—applying the ‘marriage is in essence simple’ doctrine253—upheld the trial judge’s finding in favour of the validity of the marriage.
The will overborne
If Mental Incapacity Attributable To ‘Natural Weakness Of The Intellect’254 sufficed to found a nullity decree, should the result be different if the petitioner’s ‘consent’ had been extracted by force or fear—the classic case being that of the so-called shot-gun marriage where if there had not been a wedding there would have been a funeral?255 The courts held there was no difference in principle between the two cases: if either party was ‘actually in a state of mental incompetence to resist pressure improperly brought to bear’ there was no consent, and the courts would annul the marriage. For example:
In Scott v. Sebright256 a 22-year-old heiress fell into the clutches of a man who (amongst a ‘long series of misdeeds perpetrated against a defenceless girl’)257 induced her to accept Bills of Exchange to the value (in year 2000 values) of some £50,000. The holders of the Bills wrote (as she put it) ‘such rude letters’ to her and issued writs to enforce their rights. The man told her that she would be made bankrupt if she did not marry him, and she, reduced to a state of ‘bodily and mental prostration’ and also no doubt influenced by his threat to shoot her if she declined, went through a marriage ceremony in the South Audley Street register office. The marriage was never consummated, and the couple separated immediately after the ceremony. The court, accepting her plea that she had been induced to go through with the ceremony not of her own free will but through fear and terror of the respondent, granted her a decree of nullity.
(p.76) But (as the judge remarked in Scott v. Sebright) public policy required that marriages should not be lightly set aside;258 and it was difficult to apply the general principle to the facts of particular cases.259 There were few petitions (although at the height of the Cold War the courts did sometimes annul on this ground marriages contracted to facilitate emigration from totalitatian countries260 and in recent years the courts have been readier than in the past to accept that young women from ethnic minority communities may be totally dominated by their parents so as to make an apparent consent to a forced marriage ineffective).261 One thing was clear: misrepresentation fraud or deceit was not a basis on which a marriage could be avoided.
The application of this principle caused hardship:
In June 1896 a young woman pressed the petitioner (a groom to whom she had been engaged for a year or so) to fix a date for their marriage. Immediately after the wedding on 29 September the petitioner began to suspect that the woman he had married was pregnant. The couple separated and a child was born on 17 October. Several witnesses stated that they had no reason to suspect that she was pregnant at the time of the marriage, and the President accepted that the groom did not know of her condition and that he had no grounds for making any inquiry as to her character. But the fact that she was pregnant by someone else, and that she had deceived the husband about her condition, were not grounds on which the marriage could be annulled, and the couple remained bound to one another until death terminated the marriage.262
The Church regarded it as implicit in the marriage contract that both parties should have the physical capacity to consummate the marriage and the ecclesiastical courts would annul a marriage on the ground that either party was, at the (p.77) date of the marriage, incapable of consummating it.263 The provisions in the Matrimonial Causes Act 1857 directing the Divorce Court to ‘proceed and act and give relief on principles and rules which … shall be as nearly as may be conformable to the principles on which the Ecclesiastical Courts have heretofore acted and given relief’264 meant that the courts continued265 to apply doctrines about the sexual implications of marriage developed in the nineteenth century and earlier.
The principle was that (at least in the case of young persons) marriage presupposed ‘the power, present or to come, of sexual intercourse’; for ‘without that power neither of two principal ends of matrimony can be attained, namely, a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident design of Divine Providence’. But applying this general principle in contested cases (and even, given the court’s inquisitorial role,266 in undefended cases) could be much more difficult. What, for example, does the term ‘sexual intercourse’ actually mean? Dr Lushington (the most prominent ecclesiastical lawyer of his time) provided a definition: sexual intercourse was:
Ordinary and complete intercourse … not partial and imperfect intercourse: yet, I cannot go the length of saying that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with; but if so imperfect as scarcely to be natural, I should not hesitate to say that, legally speaking, it is no intercourse at all. I can never think that the true interest of society would be advanced by retaining within the marriage bonds parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided.’267
It came to be accepted that what was required was the ability for the man to have an erection and for the female organ to be apt to be penetrated for a reasonable length of time.268 The fact that the wife had no uterus, or that for any other reason there was no possibility that children would be born was irrelevant. But even if the criteria to be applied were clear, the judges still had to make the ‘most disgusting and painful’ enquiries often causing great distress to the people concerned. For example:
(p.78) In D-e v. A-g (falsely calling herself D-e)269 a man complained that ‘the parts of generation and sexual or seminal organs of the said Maria A. otherwise D. were and are not such or in the same state as are the same parts and organs in women capable of having connexion with or of being carnally known by a man, but were and are naturally in a different state, and that by reason of such the natural malconformation thereof, and her other natural bodily defects, she the said Maria A. otherwise D. was and is incapable of having connexion with or of being carnally known by man’. In fact Maria had no uterus; but the fact that she was therefore incapable of having children did not mean that she was incapable of intercourse.270
Developments over the years in gynaecological knowledge and techniques meant that what might at one time have been regarded as an incurable impediment could be remedied; but even in the second half of the twentieth century this did not always make things easier for a couple convinced of their incompatibility:
In 1962, after 16 years of frequent but unsuccessful attempts at intercourse, a husband petitioned for the annulment of his marriage on the ground of the wife’s incapacity. Six days before the hearing of the petition she underwent surgery; and the Court of Appeal held271 that the case should have been adjourned for further evidence to be tendered about the effects of the operation. To some this seemed reminiscent of the old ecclesiastical courts’ practice of requiring the parties to make further attempts before the court would reach a decision.
It was, of course, for the petitioner to prove the case.272 At one time the issues were left to the judgment of a ‘jury of matrons’, but by the twentieth century the parties were required to submit to medical examination; and the doctors’ report would state whether or not the parties were physically capable and if not whether the incapacity was incurable. But the courts also depended on the evidence of the parties: statute273 required the petitioner to file an affidavit in support of the petition and to attend to be examined or cross examined.274 This was often a profoundly distressing experience: one leading divorce barrister275 testified that the cases were:
‘most revolting in their details. The abortive attempts of sexual intercourse are horrible in their details and are most distressing to hear, because the people who give evidence are greatly distressed at having to give evidence of these horrible things, which go to the most secret events of their lives.’276
It is true that the ecclesiastical courts had been prepared to accept that incapacity was not confined to cases of physical malformation;277 and the courts did grant annulments on the basis that impotence could often have a psychological (rather than a physiological) cause.278 In one late Victorian case,279 for example, the wife’s account was that: