A Brief History of Marriage
By Samantha Callan - Care for the Family
What were the historical "bare necessities" for marriage
Pope Nicholas I AD 866 said "let the simple consent of those whose wedding is in question be sufficient; if the consent be lacking in a marriage, all other celebrations, even should the union be consummated, are rendered void." Eight hundred years later Henry Swinburne, Judge of the Consistory Court in York wrote, in his Treatise of Spousals "Albeit there be no witnesses of the contract, yet the parties having verily (though secretly) contracted matrimony, they are very man and wife before God. Neither can either of them with safe conscience marry elsewhere so long as the other party liveth." These two quotes sum up the essence of marriage in this country, it was effected through the freely given consent of both parties and it was indissoluble. Such an approach did however leave society vulnerable to what the Reverend Haw called the "perils of clandestinity" and this was the prime mover behind the Hardwicke Act of 1753.
Rewinding the clock back further, in the 6th century AD the Christian model of marriage was thrown into the pan-European cultural pot with late Roman and "barbarian" approaches to marriage. The Christian model outlived and superceded them all and was fairly standard in the West until the Reformation and beyond. Simply put, Christian influences added the dimension of marriage as being a "mystery" and stressed its indissoluble status. By the pre-medieval era marriage was generally accepted to be of a religious nature and therefore subject to ecclesiastical control. However power and privilege were frequently brought to bear on the medieval religious hierarchy to get around the principle of indissolubility. A wealthy and influential man could become "unmarried" ie. have his nuptials annulled on the grounds of close affinity for example. Elaborate tables were drawn up of degrees of relationships within which people could not marry. The religious scholars were the sole interpreters of such tables and had the power to make possible important political alliances or render them null and void.
However the forces which shaped the Reformation were to sweep away the clerical monopoly on valid marriage. The increase in learning, anticlerical attitudes and a heightened sense of national independence all contributed to British receptivity to Reformation ideals. Henry's desire to dissolve his marriage to Katherine of Aragon so that he could marry Anne Boleyn and thus secure a male heir acted as a catalyst to the establishment of the protestant worldview. Luther and Calvin were scathing on the subject of the abuses perpetrated by the church on the marriage systems of the continent. They argued that secular power was the proper authority to adjudicate in matrimonial affairs. Civil rulers had to legislate for all their subjects regardless of their spiritual allegiance. They argued that marriage was a natural condition subject to natural law. Christian principles of marriage applied only to those individuals whose consciences directed them to live this way. This has a high degree of relevance today. We cannot expect people to get married because it is the "right thing to do", we have to appeal to natural law, principles which hold true because of our human condition and not because of any moral imperative. The close identification of marriage with organised religion is disadvantageous - people resent the church having any control over their lives when they do not adhere to any of its defining principles.
There was another side to this however. Over a period of 187 years after the Reformation, 300 marriages were dissolved by private acts of parliament which were financially very costly for the party seeking a divorce. The first took place in 1551 and this marked the point from which the law did not hold marriage to be indissoluble. Only the authority of the king, which was implicit in an Act of Parliament, could override the rule of the church. There was an inevitability about this - when the medieval and corrupt system of allowing marriages to be nullified by identifying impediments was swept away, a safety valve or escape route was removed. The ecclesiastical and civil systems were logically opposed from 1551 in that a private act of parliament could not be sought until the would-be divorcee had obtained an official separation from the church. The terms for this official separation which was called "divorce a mensa et thoro" included an assurance that there would be no remarriage whilst the original partner was still alive. Once that official separation had been obtained the litigant would then go to parliament for the legal right to do the very thing he had pledged not to do.