Marriage and the Law 1754–1927: The State Retreats?

Abstract

This chapter deals with the period between Lord Hardwicke’s Act 1753 and the demise of the ‘unmarried wife’ in employment insurance legislation in 1927. The most important statutory change was the Civil Marriage Act 1836 and the chapter is mainly concerned with that Act. I omit discussion of some legislation on marriage entry, although one should note in passing that Hardwicke’s Act itself was repealed and re-enacted in the Marriage Act 1823. The thrust of the 1823 Act was to make the validity of marriages in breach of statutory requirements depend on the parties’ knowledge and intention so that mistakes in the formalities did not render the marriage void. I also omit discussion of major changes in what is now called ‘family law’. The introduction of judicial divorce in 1857 and separate property rights for married women in 1870–82 were major changes in the consequences of formal marriage. They have been fully dealt with from feminist perspectives (Holcombe, 1983; Stetson, 1982) and the focus of this book is specifically on marriage entry. Overall the period is one of a gradual retreat by the State. The reasons for the retreat, and the terms on which it took place, show the relationship between legal and social practice in altering the boundaries of marriage.