Family Tree of Knowledge 6: Missing Marriage Records 2 (England)

In England, Lord Hardwick’s Marriage Act of 1753 was passed in order to prevent clandestine marriages, particularly those of minors, and other abuses. It legislated that valid marriages must be held in the Established Church (Church of England, Anglican Church) after the publication of banns or by special licence. Minors must obtain the consent of parents or guardians. However, the Act excepted the Royal Family, Jews and Quakers, and did not apply to Scotland or the Channel Islands. An amendment of 1836 permitted marriage before a registrar or with religious rites other than Anglican.
So, between 1753 and 1837 - unless one’s ancestors were Quakers or Jews - it would be expected to find evidence of the marriage in an Anglican parish church register. That is, where such a register would have survived, because there were also quite a few marriage registers covering that period that have unfortunately gone missing.
Even so, it would appear that in areas where there is no loss of marriage registers there can still be a large number of such unions going unrecorded. A sudden conversion to Quakerism or even to the Jewish religion would certainly not explain the lack of records, for, in most cases the children were baptised in a local parish church. So, why did so many couples fail to have their marriages performed within the Church of England, and thus legitimise their issue?
Perhaps in many cases the answer could be that – despite the passing of the 1753 Act – clandestine “Fleet marriages” persevered because of the ignorance of those getting married. There were still obviously many con-men who would pretend to be ordained priests of the Anglican Church in order to reap financial benefits, and there were always potential victims, who could easily be persuaded to part with their money as long as it appeared that they were receiving their hearts’ desires. Unfortunately for the modern researcher, an illegal “marriage” would not be recorded, and thus not leave a “paper trail”.
Yet, there is a way through which one may still be able to trace both parties of an illegal union - a common-law “husband” with his common-law “wife”. Unfortunately, this can only be achieved if it is known that either one party – or even both parties – were previously married.
Imagine, for example, records of a married woman whose husband had mysteriously changed his forename at some point during their marriage, and had then retained that latter name for the remainder of his life. How would one explain the reason for this? Possibly the most glib answer would be to say that the husband had actually preferred the latter name and decided upon taking it for himself. Such an answer would be seriously quoted as a good enough reason by several family historians, no doubt.
Now for fact: Charles Hutchins married Annie Oliver at Church Oakley in Hampshire on 13 October 1883. Five children were recorded for Charles and Ann Hutchins between 1884 and 1897, and then in 1901 Annie’s last child was born at North Oakley as the daughter of James and Ann Hutchins. It could be suggested that an error was made by both the registrar of births and deaths for the Kingsclere District, and also by the rector of Hannington, where the child was christened. An alternative theory would, of course, be that Charles had decided to change his name to James – and was also recorded on the 1901 Census under that latter name.
Actually, there was no error in the record of the father’s name, and, he definitely did not decide to change his name. The fact was that Charles Hutchins had died at Folly Farm, Ashe, on 24 September 1898. James Hutchins was his brother.
The family story mentioned that James had promised his brother on his death bed that he would take care of Annie and the children. Naturally, that story would be often repeated as it was brought down through the generations. It is a fact that James did take his late brother’s wife and brought up his nephew and four nieces as his own – furthermore, to cement the union Annie had another daughter, this time by her brother-in-law who was now her common-law “husband”. There is no record of their marriage. So, why didn’t they make it all legal?
The truth is that they couldn’t. They were prevented from doing so - and anyway it would not have really mattered, for Annie already had her second husband’s surname. The children would have therefore shared the same family name. The prime reason for marriage, anyway, is to ensure the legitimacy of the children, and here such “legitimacy”, albeit false, could be naturally assumed by others because the parents and the children had the same surname. Nobody would question the legal marital status, unless, of course, the knew the couple personally.
The above is one example of several similar cases whereby a particular widow did not and was not able to marry again. Unfortunately, this problem was not at all uncommon in those days. The plight of a widow, left with young children, would have been dire if she could not call upon assistance from her own or her late husband’s family – or, even in some cases, very generous friends or neighbours. Without such support, most likely the only option open to her was to enter into the workhouse. At least she and her children would be boarded and fed there, if nothing more. Despite the grim prospects that it presented, being workhouse inmates was far better than the family starving on the streets.
When a man was widowed with young children then he was left in much a similar situation. As the wage-earner he still had to work, and most men worked long hours in those days. Thus, he had to rely upon his own or his late wife’s relatives, or even friends or neighbours, to care for his offspring while he was away from home. In most cases, of course, he did not even known how to cope with them.
In the cases where the wife’s family helped it would quite often be the case of a spinster sister-in-law coming to live with the widower and his children, initially, it can be suggested, as the housekeeper, cook and nursemaid. In time, the couple might even have set up home together and had more children.
Civil registration has actually revealed such unions. There have been several recorded cases of widowers marrying their late wife’s sisters, as in the matter, for example, of George Baggs of Ibworth, Hampshire. He married Hannah Woodhouse in Hannington church in 1846. She died in 1863, and in 1867 he married her sister Harriet Woodhouse in Lady Huntingdon’s chapel in Basingstoke.
Another interesting case in my recollection had actually involved a widower marrying his mother-in-law after his wife’s death. The couple were living in Gloucestershire, and had to travel a considerable distance out of the county in order to marry by banns, after having claimed residential qualifications for three weeks. Some time later they were able to return to their native parish in Gloucestershire as husband and wife.
Both marriages illustrated above were illegal at those times. Nevertheless, the events were registered, which, to all intents and purposes, casts a kind of legal blanket over them – although, the legality of each could easily be disputed in a court of law. The discriminating laws of the Anglican Church is the reason why, in the first case, one couple had to marry in a nonconformist chapel, and, in the second case, had to travel a considerable distance, in order not be identified, so that they could marry in a church according to the rites of the Church of England. The first example – a marriage that was wholly illegal in the eyes of the Establish Church, yet performed in a dissenting chapel other than a Quaker meeting-house - could only have taken place after 1837, when marriages in such establishments were permitted, provided that a registrar was present to record it. In the second case, it appears that such a marriage would still be illegal now.
Until the legal reforms of the middle of the 19th century, laws concerning matrimony came under the jurisdiction of the Church. Among the most important of these – and equally important to genealogists – is the law that forbade the marriage of close relatives, that is, the law against consanguinity (prohibited degrees), which had been in force for several centuries. This was the same law that Henry VIII had invoked in his attempt to divorce from his first wife, Catharine of Aragon. A major revision did not occur until around the middle of the 20th century. Since The Marriage (Enabling) Act, 1960, a man may now marry a sister, aunt or niece of a former wife (living or dead), and, alternatively, a woman may marry a brother, uncle or nephew of a former husband. Prior to that legislation each of these acts was unlawful.
According to the Church and also the laws of the land, when a man married then his wife’s family technically became his own. Her mother became his mother (in-law), her sister his sister (in-law), and so on. Thus, it became recognised that, as his wife’s sister was regarded as his sister (albeit, “in-law”), then they were of the same blood since the marriage, and closely related. They were of the prohibited degrees that barred them from marrying each other after the wife’s death.
The prohibited degrees of consanguinity extended over the following of the late wife’s relatives, thus preventing the grieving husband to marry :-
Her grandmother, mother, aunt, sister, daughter, niece, granddaughter.
And over the late husband’s relatives, thus preventing his widow to marry :-
His grandfather, father, uncle, brother, son, nephew, grandson.
Cousins did not come within this sphere of forbidden unions.
Hence, when Thomas Smallbone’s wife died in 1826, and he took “to wife” her niece Ann Benham by 1828 (when their son was born), the couple could not get married legally because Ann was within the prohibited degree of relationship to Thomas’ late wife. Thus, although it took some detective work to find out the name of Thomas’ second wife, it had helped that he had been widowed.
If the reader cannot find the maiden name of an ancestor’s wife, yet knows that the husband had been previously married, then, before looking anywhere else, investigate the family of the first wife – for it is more likely than not that you will find her there. Naturally, census records of the 19th century will facilitate your search for clues.
If you cannot find a marriage record then look at the possibility of the husband being previously married. Particularly, if you find a short-lived marriage where the wife had died soon afterwards. There could be the possibility of a union of prohibited degrees that would have prevented a legal marriage from taking place.
See previous Missing Marriage Records (England) before 1753
12 March 2007.

[The author is a professional genealogist and historical researcher of 35 years' experience, dealing with all types of sources in England, but now specialising in medieval, manorial and legal work. For more information visit http://www.thechangingseasons.com/index.php?main_page=page&id=22&chapter=40 ]