Abstract
Not all marriages were valid since not any couple could legally marry and this restriction changed during the period 1918 to 1960. Masculinity is explored through analysis of legally acceptable marriage and in particular the law regarding affinity, polygamy, age and mental capacity. Although sexual agency was complicated, marriage was premised on the man as the breadwinning head of household and the woman as housewife and child carer, and further that men often married for reasons of pragmatism. English masculinity was in part defined against the colonial Other as protective of women and children.
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Notes
- 1.
The Book of Common Prayer (London: Ebury, 1992), 307.
- 2.
Consent must be given without ‘duress’ and the ‘duress need not be confined to fear of bodily harm’, since ‘[t]error of the mind will be sufficient to make the contract void’. See Scott (falsely called Sebright) v Sebright (1886).
- 3.
William Van Ommeren, ‘Mental illness affecting matrimonial consent’, Canon Law Studies 415 (1961), whole vol.
- 4.
This was not discussed in parliament during the passage of the 1937 Act, and the only nullity test case was C v C [1946] 1 All ER 562, which compelled physicians to provide evidence in such a case.
- 5.
This was not discussed in parliament during the passage of the 1937 Act, and the only nullity test case was Smith v Smith [1947] 2 All ER 741, which was concerned with ‘marital intercourse’ as condonation of the marital offence of pregnancy by another man. Sex as ‘condonation’ is discussed in Chapter 5 ‘Non-Consummation’.
- 6.
Matt Cook, ‘Law’ in Palgrave advances in the modern history of sexuality ed. Matt Houlbrook and H. G. Cocks (Basingstoke: Palgrave, 2006), 70.
- 7.
Maxwell Barrett (ed.), Blackstone’s Marriage Breakdown Law Index: Case precedents, 1900–1997 (London: Blackstone, 1998); Maxwell Barrett (ed.), Blackstone’s Family Law Index: Case precedents, 1900–1997 (London: Blackstone, 1998). An alternative approach would be to examine a random sample of cases. This would possibly reveal some different cases with different characteristics, but would be difficult to achieve since very few post-1858 nullity case files exist and there are none after 1937.
- 8.
The details can be found, for example, on the Lexis database.
- 9.
This follows Pamela Haag’s historical study of consent in the US. Pamela Haag, Consent: Sexual rights and the transformation of American liberalism (Ithaca: Cornell University Press, 1999), xviii.
- 10.
The divorce rate was two and a half times higher after the Second World War compared to before it. The big increase in divorce, however, started in the 1970s. Lawrence Stone, Road to Divorce: England 1530–1987 (Oxford: Oxford University Press, 1990), 402.
- 11.
Martin Pugh, ‘We danced all night’: A social history of Britain between the wars (London: Vintage, 2008), 161–4, 197.
- 12.
Bernard Porter, The Lion’s Share: A short history of British Imperialism, 1850–1995 (Harlow: Longman, 1996), 306, 322–5.
- 13.
‘Married His Aunt’, Daily Mirror, 8 July 1930, 6.
- 14.
‘Christian Indian marriage invalid as fell within prohibited degrees of consanguinity (not withstanding dispensation from Catholic church); on retention of domicile be different generations of Britons living abroad’. Blackstone’s Marriage Breakdown, 294.
- 15.
Peal v Peal (1931) 100 LJP 69. Also ‘Peal vs. Peal’, The Times, 8 July 1930, 5.
- 16.
The Act allowed a man to marry his deceased brother’s widow thus making the law gender equal, albeit written from a male point of view. From the female perspective this Act allows a woman to marry her deceased husband’s brother.
- 17.
‘Parliament’, The Times, 5 March 1927, 7.
- 18.
‘Marriage to a Niece’, Daily Express, 5 March 1927, 2.
- 19.
‘Parliament’, The Times, 5 March 1927, 7.
- 20.
Matthew Waites, ‘The age of consent and sexual consent’ in Making Sense of Sexual Consent ed. Mark Cowling and Paul Reynolds (Aldershot: Routledge, 2004), 76–7.
- 21.
‘Parliament’, The Times, 5 March 1927, 7.
- 22.
Hansard, Parliamentary Debates, House of Lords, vol. 161 (24 March 1949), cols. 693–730.
- 23.
‘Extended Right To Remarry’, 27 January 1960, 6; ‘Let Them Wed Sisters-In-Law’, Daily Mirror, 21 January 1960, 9.
- 24.
See, for example, Noel Whiteside, Bad Times: Unemployment in British Social and Political History (London: Faber and Faber, 1991), 12–3.
- 25.
Katherine Holden, The Shadow of Marriage: Singleness in England, 1914–60 (Manchester: Manchester University Press, 2007), 167.
- 26.
Hansard, Parliamentary Debates, House of Lords, vol. 220 (26 January 1960), cols. 652–95.
- 27.
Ibid.
- 28.
Hansard, Parliamentary Debates, House of Lords, vol. 161 (24 March 1949), cols. 693–730.
- 29.
Quoted in Adam Kuper, ‘Incest, cousin marriage, and the origin of the human sciences in nineteenth-century England’, Past and Present 174 (February, 2002), 164.
- 30.
This chapter focuses narrowly on nullity test cases that resulted in a marriage law change in order to show changes in who could or could not validly marry. Langhamer discusses bigamy criminal cases and shows that there was a ‘century high of 986 cases in 1943’, tailing off to 240 for the period 1950–1954, Claire Langhamer, The English in Love: The intimate history of an emotional revolution (Oxford: Oxford University Press, 2013), 203.
- 31.
In a sixth case, the judgement in Sowa v Sowa [1960] 3 WLR 733 was overturned in 1961.
- 32.
For example, Adrian Bingham, Gender, Modernity, and the Popular Press in Inter-War Britain (Oxford: Oxford University Press, 2004), 236; Alison Light, Forever England: Femininity, Literature and Conservatism between the Wars (London: Routledge, 1991), 8; Marcus Collins, Modern Love: An intimate history of men and women in twentieth-century Britain (London: Atlantic, 2003), passim.
- 33.
Mrinalini Sinha, ‘Giving Masculinity a History: Some contribution from the historiography of Colonial India’, Gender and History 11, No. 3 (November 1999), 447.
- 34.
Sean Brady, Masculinity and Male Homosexuality in Britain, 1861–1913 (Basingstoke: Palgrave, 2005), 23.
- 35.
Lionel Caplan, ‘Bravest of the Brave’, Modern Asian Studies 25, No. 3 (1991), 582.
- 36.
‘“Indian Sandhurst” Committee’, The Times, 23 December 1925, 11.
- 37.
Sinha, ‘Giving masculinity a history’, 454.
- 38.
‘Potentially polygamous Hindu marriage recognised so second marriage bigamous’, Blackstone’s Marriage Breakdown, 185.
- 39.
All citations taken from Baindail (otherwise Lawson) v Baindail [1945] 2 All ER 374 as reported in The Times, 31 January, 1946, 6.
- 40.
‘Monogamous marriage entered into by person whose religion allowed to marry polygamously was a valid marriage; no intent to marry meant marriage null’, Blackstone’s Marriage Breakdown, 280.
- 41.
All citations taken from Mehta (otherwise Kohn) v Mehta [1945] 2 All ER 690.
- 42.
‘Second marriage of man already party to polygamous marriage in India a nullity’, Blackstone’s Marriage Breakdown, 328.
- 43.
All citations taken from Srini Vasan (otherwise Clayton) v Srini Vasan [1945] 2 All ER 21 as reported in The Times, 18 May 1945, 8.
- 44.
‘Court cannot make nullity adjudication in respect of polygamous marriage’, Blackstone’s Marriage Breakdown, 310.
- 45.
‘High Courts of Justice’, The Times, 28 October 1950, 4.
- 46.
Risk (otherwise Yerburgh) v Risk [1950] 2 All 973.
- 47.
The precise timing of a nullity case is difficult to determine. As it was instigated by a plaintiff, an annulment is a case that can be initiated at any time after a marital impediment has been found. There would also be a time lag before the case was heard in court, especially a precedent-setting case that could make its way up to the High Court. It is interesting that the Indian polygamy cases here were all heard in 1945. This could be a coincidence (three couples independently wanted their marriage annulled at roughly the same time) or it could be that these cases are simply part of the post-war ‘spike’ in nullity and divorce cases. See Figs. 6.1 and 6.2.
- 48.
Negotiations for Indian independence began in 1945. See for example ‘Chronology’ in The Oxford History of the British Empire: Volume IV – The Twentieth Century ed. Judith M. Brown and Wm. Roger Louis (Oxford: Oxford University Press, 1999), 727; After 1947, the British presence in the Middle East became increasingly unstable, and eventually there were ‘violent demonstrations and riots in Egypt against the British garrisons’ in the early 1950s, leading to British withdrawal in 1954, Porter, The Lion’s Share, 333.
- 49.
‘Bride of 15 is Freed’, Daily Express, 14 January 1936, 5.
- 50.
It is impossible to say how many ‘happy’ underage marriages there were in this period.
- 51.
‘Marriage void as one of the parties thereto had only been fifteen when marriage celebrated’, Blackstone’s Marriage Breakdown, 203.
- 52.
Carr (otherwise Fowler) v Carr (1936) 80 SJ 57 HC PDAD; also The Times, 14 January 1936, 5.
- 53.
See also Arnold v Earle (1758) 2 Lee 529, 161 ER 428, William Latey and D. Rees, Latey in Divorce (London, 1945), 166.
- 54.
Phillimore’s Ecclesiastical Law (abridged by Philip Jones) (2nd edn 1895) (Cardiff: Greenfach, 2004), 69.
- 55.
Joanna Bourke, Rape: A history from 1860 to the present day (London: Virago, 2007), 83.
- 56.
John Gillis, Youth and history: Tradition and change in European Age Relations, 1770-present (London: Academic Press, 1981), 181, 188, 193.
- 57.
Eileen Yeo, ‘“The boy is the father of the man”: Moral panic over working-class youth, 1850 to the present’, Labour History Review 69, No. 2 (August 2004), 187.
- 58.
Matt Houlbrook, Queer London: Perils and pleasure in the sexual metropolis, 1918–1957 (London: University of Chicago Press, 2005), 234.
- 59.
Matthew Waites, The age of consent: Young people, sexuality and citizenship (Basingstoke: Palgrave, 2005), 69.
- 60.
Age of Marriage Act. 1929, Section 1.1.
- 61.
‘Bar on Marriage under 16’, Daily Express, 20 February 1929, 2.
- 62.
Houlbrook, Queer London, 234.
- 63.
Hansard, Parliamentary Debates, House of Lords, vol. 72 (19 February 1929), cols. 961–70.
- 64.
‘Parliament’, The Times, 20 February 1929, 7.
- 65.
Hansard, Parliamentary Debates, House of Lords, vol. 72 (28 February 1929), cols. 1203–19.
- 66.
Hansard, Parliamentary Debates, House of Lords, vol. 72 (19 February 1929), cols. 961–70.
- 67.
Hansard, Parliamentary Debates, House of Lords, vol. 72 (28 February 1929), cols. 1203–19.
- 68.
Ibid.; The Bishop of Southwark also pointed out that sixty-five per-cent of ‘marriages of girls at 15’ were because ‘a child was expected’, ‘Age of marriage’ The Times, 26 March, 1929, 9.
- 69.
Hansard, Parliamentary Debates, House of Lords, vol. 73 (12 March 1929), cols. 397–425.
- 70.
Hansard, Parliamentary Debates, House of Lords, vol. 72 (19 February 1929), cols. 961–70; ‘Bar on Marriage under 16’, Daily Express, 20 February 1929, 2.
- 71.
‘16 the Minimum Age of Marriage’, Daily Mirror, 26 April 1929, 26.
- 72.
‘Age of marriage’ The Times, 26 March, 1929, 9.
- 73.
Waites, ‘The age of consent and sexual consent’, 76.
- 74.
Bodkin did not give any evidence for this claim, nor can any be found.
- 75.
‘Age of Marriage’, The Times, 22 March, 1929, 13.
- 76.
Hansard, Parliamentary Debates, House of Lords, vol. 74 (30 April 1929), cols. 258–63.
- 77.
‘The marriage age’, The Times, 9 November 1927, 11.
- 78.
Advisory Commission for the Protection and Welfare of Children and Young People (League of Nations), The age of marriage and the age of consent (Geneva: League of Nations, 1927), 3, 5, 22.
- 79.
‘House of Commons’ The Times, 31 March 1927, 8.
- 80.
‘Age of marriage in India’ The Times, 25 October 1928, 15.
- 81.
‘Parliament’, The Times, 20 February 1929, 7; ‘Bar on Marriage under 16’, Daily Express, 20 February 1929, 2; ‘Parliament’, The Times, 13 March 1929, 8; ‘No Marriages under 16’, Daily Express, 26 March 1929, 3.
- 82.
Pugh v Pugh [1951] 2 All ER 680; reported as Pugh (otherwise Eperjesy) v Pugh 1951 in The Times, 13 July, 1951. ‘Marriage validity tested by reference to husband’s domicile (here English) so marriage with under-sixteen year old invalid; Age of Marriage Act 1929, s. 1(1) has extra-territorial effect; applies to Britons wherever married’, Blackstone’s Marriage Breakdown, 300.
- 83.
‘And now, because she was then 15, their marriage ends in London’, Daily Express, 13 July 1951, 5.
- 84.
Pugh v Pugh.
- 85.
British Nationality and Status of Aliens Act. 1914, s. 10 (1).
- 86.
‘Plan to prevent marriage of the mentally unfit’, Daily Express, 21 February 1929, 1.
- 87.
David Perk, ‘Insanity and divorce: Some medical considerations’, British Medical Journal 2, No. 4003 (September 25, 1937), 198.
- 88.
John Welshman, Underclass: A history of the excluded since 1880 (London: Bloomsbury, 2013. First published 2006), 57–8, 77.
- 89.
Clare Hanson, Eugenics, literature and culture in Post-War Britain (Abingdon: Routledge, 2013), 3, 40, 46, 49.
- 90.
Ezra Hasson, ‘Capacity to marry: Law, medicine and conceptions of insanity’, Social History of Medicine 23, No. 1 (2010), 16.
- 91.
Elaine Showalter, The female malady: Women, madness, and english culture, 1830–1980 (London: Virago, 1987), 127, 199–201.
- 92.
Joan Busfield, Men, women and madness: Understanding gender and mental disorder (Basingstoke: Palgrave, 1996), 155, 158.
- 93.
Hasson, ‘Capacity to marry’, 1, 7, 10–11.
- 94.
‘High Court of Justice’, The Times, 14 June 1923, 5.
- 95.
‘High Court of Justice’, The Times, 17 July 1923, 5.
- 96.
Royal Commission on Divorce and Matrimonial Causes, Minutes of evidence taken before the Royal Commission on Divorce and Matrimonial Causes, Vol.3 (London: HMSO, 1912), 71, 103–4, 106, 396, 398.
- 97.
William Latey and D. Rees, Latey on divorce (London: Street and Maxwell, 1943), 177–8.
- 98.
Hansard, Parliamentary Debates, House of Lords, vol. 106 (7 July 1937), cols. 69–190.
- 99.
Matrimonial Causes Act. 1937, s. 7 (i).
- 100.
‘Marriage Bill Changes’, The Times, 8 July 1937, 8.
- 101.
‘High Court of Justice’, The Times, 15 May 1953, 11.
- 102.
‘High Court of Justice’, The Times, 20 May 1953, 3.
- 103.
‘High Court of Justice’, The Times, 13 June 1953, 9.
- 104.
Quotation not reported in The Times, see In the estate of Park; Park v Park [1953] 2 All ER 1411.
- 105.
‘Person of unsound mind can consent to marriage if at time entered marriage contract could understand its nature absent delusions’, Blackstone’s Family Law, 523.
- 106.
‘High Court of Justice’, The Times, 13 June 1953, 9.
- 107.
Quotation not reported in The Times, see In the estate of Park; Park v Park.
- 108.
Ezra Hasson, ‘“I Can’t”: Capacity to marry and the question of sex’, Liverpool Law Review 31 (2010), 103.
- 109.
The landmark test case was R v R [1991] 3 WLR 767.
- 110.
Latey and Rees, Latey on divorce, 176.
- 111.
William McCurdy, ‘Insanity as a Ground for Annulment or Divorce in English and American Law’, Virginia Law Review 29, No. 6 (April, 1943), 786, 801.
- 112.
Sander Gilman, ‘Madness as disability’, History of Psychiatry 25, No. 4 (2014), 444–5.
- 113.
Royal Commission on Marriage and Divorce, Royal Commission on Marriage and Divorce, Report 1951–1955 (London: HMSO, 1956), 80–1.
- 114.
‘Marriage and Divorce: Report of the Royal Commission’, British Medical Journal 1, No. 4969 (March 31, 1956), 743.
References
Advisory Commission for the Protection and Welfare of Children and Young People (League of Nations). 1927. The age of marriage and the age of consent. Geneva: League of Nations.
Age of Marriage Act. 1929.
Anon (abridged by Jones, Philip). 2004. Phillimore’s Ecclesiastical Law (2nd edn 1895). Cardiff: Greenfach.
Anon. 1992. The Book of Common Prayer. London: Ebury.
Barrett, Maxwell (ed.). 1998. Blackstone’s family law index: Case precedents, 1900-1997. London: Blackstone.
Barrett, Maxwell (ed.). 1998. Blackstone’s marriage breakdown law index: Case precedents, 1900-1997. London: Blackstone.
Bingham, Adrian. 2004. Gender, modernity, and the popular press in inter-war Britain. Oxford: Oxford University Press.
Bourke, Joanna. 2007. Rape: A history from 1860 to the present day. London: Virago.
Brady, Sean. 2005. Masculinity and male homosexuality in Britain, 1861–1913. Basingstoke: Palgrave.
British Medical Journal.
British Nationality and Status of Aliens Act. 1914, s. 10 (1).
Brown, Judith M. and Wm. Roger Louis. 1999. The Oxford history of the British Empire: Volume IV – The twentieth century. Oxford: Oxford University Press.
Busfield, Joan. 1996. Men, women and madness: Understanding gender and mental disorder. Basingstoke: Palgrave.
Caplan, Lionel. 1991. Bravest of the brave. Modern Asian Studies 25(3):204–23.
Collins, Marcus. 2003. Modern love: An intimate history of men and women in twentieth-century Britain. London: Atlantic.
Cook, Matt. 2006. Law. In Palgrave advances in the modern history of sexuality, ed. Matt Houlbrook and H. G. Cocks, 64–86. Basingstoke: Palgrave.
Daily Express.
Daily Mirror.
Gillis, John. 1981. Youth and history: Tradition and change in European age relations, 1770-Present. London: Academic Press.
Gilman, Sander. 2014. Madness as disability. History of Psychiatry 25(4):441–9.
Haag, Pamela. 1999. Consent: Sexual rights and the transformation of American liberalism. Ithaca: Cornell University Press.
Hansard.
Hanson, Clare. 2013. Eugenics, literature and culture in post-war Britain. Abingdon: Routledge.
Hasson, Ezra. 2010. “I can’t”: Capacity to marry and the question of sex. Liverpool Law Review 31:1‒16.
Hasson, Ezra. 2010. Capacity to marry: Law, medicine and conceptions of insanity. Social History of Medicine 23(1):1‒20.
Holden, Katherine. 2007. The shadow of marriage: Singleness in England, 1914‒1960. Manchester: Manchester University Press.
Houlbrook, Matt. 2005. Queer London: Perils and pleasure in the sexual metropolis, 1918-1957. London: University of Chicago Press.
Kuper, Adam. 2002. Incest, cousin marriage, and the origin of the human sciences in nineteenth-century England. Past and Present 174:158–83.
Langhamer, Claire. 2013. The English in love: The intimate history of an emotional revolution. Oxford: Oxford University Press.
Latey, William and D. Rees. 1943. Latey on divorce. London: Street and Maxwell.
Lexis database.
Light, Alison. 1991. Forever England: Femininity, literature and conservatism between the wars. London: Routledge.
McCurdy, William. 1943. Insanity as a ground for annulment or divorce in English and American law. Virginia Law Review 29(6):771‒810.
Porter, Bernard. 1996. The lion’s share: A short history of British imperialism, 1850-1995. Harlow: Longman.
Pugh, Martin. 2008. ‘We danced all night’: A social history of Britain between the wars. London: Vintage.
Royal Commission on Marriage and Divorce. 1956. Royal Commission on Marriage and Divorce, report 1951-1955. London: HMSO.
Royal Commission on Divorce and Matrimonial Causes. 1912. Minutes of cvidence taken before the Royal Commission on Divorce and Matrimonial Causes, Vol.3. London: HMSO.
Showalter, Elaine. 1987. The female malady: Women, madness, and English culture, 1830‒1980. London: Virago.
Sinha, Mrinalini. 1999. Giving masculinity a history: Some contribution from the historiography of colonial India. Gender and History 11(3):445–60.
Stone, Lawrence. 1990. Road to divorce: England 1530‒1987. Oxford: Oxford University Press.
The Times.
Van Ommeren, William. 1961. Mental illness affecting matrimonial consent. Canon Law Studies 415:whole vol.
Waites, Matthew. 2004. The age of consent and sexual consent. In Making Sense of Sexual Consent ed. Mark Cowling and Paul Reynolds, 73‒92. Aldershot: Routledge.
Waites, Matthew. 2005. The age of consent: Young people, sexuality and citizenship. Basingstoke: Palgrave.
Welshman, John. 2013. First published 2006. Underclass: A history of the excluded since 1880. London: Bloomsbury.
Whiteside, Noel. 1991. Bad Times: Unemployment in British social and political history. London: Faber and Faber.
Yeo, Eileen. 2004. “The boy is the father of the man”: Moral panic over working-class youth, 1850 to the present. Labour History Review 69(2):185‒99.
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Penlington, N. (2023). Consent and Capacity. In: Men Getting Married in England, 1918–60. Genders and Sexualities in History. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-031-27405-3_2
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