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By Martha Bailey. Martha Bailey : baileym queensu. She has published extensively on current and historical aspects of family and marriage law. But marriage in Regency England was a very different institution from what it is here and now, in large part because of changes in the law relating to marriage. More importantly, the books give us a richer appreciation of how marriage laws structured the lives of men and women.
Austen conveys the lived reality of those subject to early nineteenth-century laws relating to the economic arrangements of marriage, pre-marital sex, the marriage of relatives, clandestine and underage marriage, divorce, and adulterine bastardy. The economics of marriage among the nobility and the gentry are not only much discussed in the books but also form the crucial context of the marriage plot. Many Austen characters are challenged by inadequate fortunes, and marriage is, for some, a solution to their financial difficulties.
Within the normative order of the novels, marriage for money alone is wrong, but marriage without a fortune on at least one side is imprudent. To some extent, the relative poverty of women was the result of legal rules favoring men, in particular eldest sons. If the owner of a family estate—the family house and lands and income generated by the land—died intestate, the rule of primogeniture applied: the eldest son inherited the family estate.
In the absence of children, or of male children, collateral relatives, usually males, in order of seniority, inherited the estate. Primogeniture was the rule applied in cases where a landowner died intestate. But in most cases family estates devolved, not by the rules of intestacy but according to wills or settlements. An outright owner of property did not have to favor his eldest son or other male relations in a will but often did so.
The purpose of favoring the eldest son, either by application of the law of primogeniture or by wills or settlements, was to keep family estates intact and free of heavy obligations to support other family members. Austen shows how the tradition of keeping family property together by bequeathing it to the eldest son, rather than breaking up the property to provide for all, left women in particular at the mercy of the charity of their male relatives. In Sense and Sensibility , Mr. Henry Dashwood is prevented from protecting his widow and daughters because he is bequeathed only a life interest in the family estate.
Settlements of property, often made on the occasion of a marriage, typically gave the husband a life interest in the estate, and the property would be entailed on the eldest son or other male descendant Cecil But the law did not require that settlements follow the rule of primogeniture, and there were exceptions. Lady Catherine is fortunate. In her portrayal of the Bennet family, Austen reveals the hardship imposed by the usual practice of settling the family estate on the eldest male relative. The settlement of the family property prevents Mr. Bennet from providing for his wife and daughters after his death.
If a son had been born to the Bennets, the son, rather than Mr. Collins, would have been entitled to the family property on Mr. And a son, on attaining the age of majority, could have entered into an agreement with Mr. Bennet that would have cut off the entail and provided for the rest of the family.
Younger sons as well as daughters suffered under the general preference for eldest sons. Their relatively small income and poor prospects made it more difficult for them to marry. But younger sons could at least enter a profession. Women had no such opportunities. Educational and employment opportunities for women were extremely limited. Marriage was almost a necessity. On marriage, a husband became legally responsible for the support of the wife. If she were forced to leave his house from ill-treatment, the husband would be ordered to provide for her in accordance with his means Ewers v Hutton.
But the cost of obtaining protection from want through marriage was that the wife lost her legal personality. At common law, husband and wife are one person, and that person is the man. As Blackstone wrote in By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover , she performs every thing; and is therefore called in our law-French a feme-covert.
Women of the class that Austen wrote about generally had marriage settlements, under which property was settled on the wife in trust for her separate use. Pin-money was for the dress and the pocket-money of the wife. As well, marriage settlements often provided that a wife would give up her dower rights, a life interest in one-third of all land owned by the husband during the marriage, and receive instead a ture, a specified sum for her separate use that would be her support if she survived her husband see generally Howard v Digby.
Pre-marital sex was a risky activity for women in Regency England. The reputation of women, though not of men, was lost among respectable society if their sexual activity outside of marriage became known. Yet some women, tempted by love or lust, or in hopes of marriage, took the chance. Austen brings home the precarious position of women who engaged in pre-marital sex in her portrayals of unmarried cohabitation.
Darcy PP MP Maria is further punished by having to live out her days with Mrs. Norris as her sole companion. Today, not only has unmarried cohabitation been de-stigmatized, but also many of the rights and obligations of marriage have been extended to those who cohabit outside of marriage, at least in many Western countries Bailey Sexual encounters, whether as part of long-term relationships or more casual encounters, created the risk of pregnancy for women.
Even if she were able to trace Willoughby, Eliza would have no direct legal claim against him but would have to rely on his generosity to obtain any assistance from him for herself or her child. But Willoughby could be forced to support the child by the public authorities. Those who were destitute were supported by the parish in accordance with the Poor Laws. But under these same laws, the overseers of the parish could obtain court orders against the father if he could be identified and found and the mother to support the child or face imprisonment.
The payments made by the parents were to indemnify the parish against the costs of supporting the bastard child, but in practice they were often given to the mother. There were also concerns that unscrupulous women were using the threat of the Poor Law to coerce men into payments or marriage. If the father was too poor to pay for the support of the bastard, the parish had to bear the obligation.
The Poor Laws had no application to bastards such as Harriet Smith who were privately supported. But for her rescue from distress by Colonel Brandon, Eliza might have been forced to turn to the parish for support of her child. If that were the case, and if she named Willoughby as the father, the parish could have used the Poor Law to force him to provide support for the child. Marriages within the prohibited degrees of consanguinity blood relation were void for incest. Although first cousin marriage is today banned by many states and by the canon law of the Catholic Church Ottenheimer ; Code of Canon Law, art , first cousin marriage has been permitted in England for hundreds of years, since the rule of Henry VIII and his break from Rome.
The list of relations that one could not marry was laid down in the Marriage Act of and remained in place during the time of Austen. Under this law, cousins, even first cousins, were not prohibited from marrying indeed, King George IV and Queen Caroline were first cousins. In the end, Sir Thomas is well satisfied to have Fanny Price as a daughter-in-law. It is not a great match that would unite two splendid fortunes, as is that planned by Lady Catherine De Bourgh for her daughter and nephew.
Marriages between brothers and sisters of course were prohibited by the Marriage Act. Such marriages were within the prohibited degrees of affinity relation by marriage and voidable. The distinction between void and voidable marriages was important. Void marriages were never good, and any children born to parties in a void marriage were bastards. Voidable marriages, on the other hand, were valid subsisting marriages unless and until the marriage was annulled. If a voidable marriage were annulled, any children born to the couple would then become bastards and unable to inherit as legitimate heirs.
A voidable marriage could not be impugned after the death of one of the spouses Elliott v Gurr Therefore, a greedy relative hoping to grab an inheritance could not attack the marriage after the death of one or both spouses with the hope of elbowing out the surviving spouse or children.
But while the spouses lived, their marriage could be annulled, and their children would then be bastards. In order to address the uncertain status of children born to parties in a voidable marriage, the Marriage Act of validated marriages within the prohibited degrees of affinity that had taken place to and had not been annulled, but it deemed any such marriages that took place after passage of the Act to be void.
In an attempt to avoid this result, Knight and Hill went to Denmark to be married Hillan In , the House of Lords handed down a landmark ruling on the validity of marriages within the prohibited degrees affinity that were celebrated abroad Brook v Brook. The couple lived in England, but, like Knight and Hill, had traveled to Denmark to marry in order to evade British marriage law. The House of Lords ruled that the Marriage Act of applied to all British subjects, even those temporarily abroad to celebrate their marriage.
Therefore, the marriage of Brook and Armitage was void as, presumably, was that of Knight and Hill. If John Knightley were to be widowed, he could not enter into a valid marriage with Emma, who is in law his sister. Nor could George Knightley validly marry Isabella, were she to survive her husband. But though Emma and Mr. Knightley have a common sister, Isabella, and a common brother, John Knightley, they are not themselves brother and sister.
Emma says to Mr. They are in a sense kin, but not legally brother and sister and not within the prohibited degrees. Knightley in the role of brother. This error s for her slowness in recognizing him as a lover. Because many clergymen were willing to conduct private marriages for a fee, clandestine marriages and irregular marriages bigamous, incestuous, or involving minors were a problem Outhwaite ; Stone, Uncertain Bigamous and incestuous marriages were invalid but caused tremendous harm to women in particular.
A woman who entered into such a sham marriage might surrender her body and property to her apparent husband and then be left unmarried and compromised, perhaps even pregnant with a bastard child. Marriages involving minors were valid, provided the parties had reached the common law age of consent for marriage, which was just fourteen for boys and twelve for girls Priestly v Hughes The problem with such marriages was that they took place over the often well-founded objections of the family.
Legislators sought to prevent all such problematic marriages by imposing rules against private ceremonies. The Act also provided that parties under the age of twenty-one the age of majority who were married by special needed parental consent in order for the marriage to be valid. In the absence of such consent, there were two possible ways of proceeding. The first would be for the couple to take up residency in a new parish, where interfering relations could not find them, and have the banns read on three successive Sundays in the absence of objecting guardians.
Because couples could evade the formal rules by marrying outside of England, many went to Gretna Green in Scotland, just across the English border for this purpose. Heiresses, such as Georgiana, could still be seduced away from their families and married by fortune-hunters. Austen also shows how the continuing possibility of clandestine marriage permitted unscrupulous men to seduce young women, even when the men had no intention to carry through with the promised wedding. It certainly was slower than going to Gretna Green, but, as Mr. Gardiner suggests, perhaps a cheaper method of marrying a minor without parental consent.
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