The Marriage Act 1836: Introducing Alternatives to the Anglican Rite

The Marriage Act 1836 had marked an important change in the rites required for a valid marriage. Previous legislation had required all marriages save those of Quakers and Jews to be solemnized according to Anglican rites.Footnote ³ From the early nineteenth century, however, there were objections from the Unitarians about the necessity of ‘submission’ to those rites,Footnote ⁴ and over the course of the next twenty years lawmakers sought to find a way of providing an acceptable alternative.Footnote ⁵ By 1833 the Protestant Dissenting Deputies had added their weight to the calls for reform, with ‘compulsory conformity to the Rites and Ceremonies prescribed by the Book of Common Prayer for the Celebration of Matrimony’ heading the list of their grievances.Footnote ⁶

The solution eventually adopted in the 1836 Act was to provide two new ways of getting married. The first was the option of getting married in a certified place of worship that had been registered for weddings.Footnote ⁷ The second (and even more novel) option was that of getting married in the office of one of the new superintendent registrars.Footnote ⁸

Both these options required a civil registrar to be present to register the marriage.Footnote ⁹ For a wedding in a register office a superintendent registrar had also to be present, although the role they were to play was not specified.Footnote ¹⁰ Moreover, both options allowed for a wedding to be conducted either with or without any religious content. Weddings in a registered place of worship could be conducted ‘according to such Form and Ceremony’ as the parties saw ‘fit to adopt’.Footnote ¹¹ There was no legal requirement that this must be a religious ceremony, nor that it should be led by a Dissenting minister or a Catholic priest.Footnote ¹² Conversely, there was no legal prohibition on religious content being included in a register office wedding, and contemporary evidence confirms that some were accompanied by prayers and Bible readings.Footnote ¹³ For both forms of ceremony, the only requirement was that certain prescribed words should be said.Footnote ¹⁴ While the prescribed declarations and vows were closely modelled on the Anglican marriage service, the excision of any references to a deity meant that there was nothing that would be objectionable to the parties, regardless of their religious allegiances or lack thereof.

For some, however, these unfamiliar and potentially entirely secular rites did not constitute a marriage at all. On 1 July 1837, the day that the new Act came into force, the Yorkshire Gazette inveighed against the fact that the pared-down rites required by the law contained no pledge by the parties to love and cherish each other or live together forever and argued that ‘[i]f such a contract be anything better than a gipsey marriage, which is but a mutual engagement for a brief term of years or during pleasure, it is at least proper that the parties entering into it should at the time be reminded of all its ties, duties, and responsibilities, by some explicit and impressive form of words’.Footnote ¹⁵ A couple of months later, The Times noted approvingly that the Dorsetshire Chronicle had ‘adopted a very judicious mode of distinguishing these nondescript semi-marriages from the good old marriages proper’ in its announcements columns, placing the former ‘not in the ordinary list of “MARRIED”, but in a separate paragraph, and under a more appropriate head, viz, “UNITED under the Act 6 and 7 William IV., c. 85”.’Footnote ¹⁶ Reviewing the limited take-up of the new Act the following year, the Halifax Guardian rejoiced in the absence of demand for register office ceremonies in the town, commenting that ‘the female who is united after such a form … is no more a wife than is one of the same sex in the less senseless and less licentious tribe of monkies’.Footnote ¹⁷

Some Anglican clergymen preached sermons against the new Act and in particular against the idea of being married without religious rites. As the Rev. William Bennett, then minister of Portman Chapel, asked his hearers:

More widely reported was the sermon preached by the rector of South Hackney, Henry Handley Norris. In arguing that marriage was a divine institution, Norris urged his hearers to shun the new forms that allowed ‘holy matrimony’ to be ‘superseded by a coupling together which, upon scriptural principles, can be regarded only as a legalized concubinage’.Footnote ¹⁹

While the new forms of marriage had their supporters,Footnote ²⁰ given these objections it would have been natural for some of the couples marrying under the 1836 Act to feel a few qualms about the status of their union. After all, as Norris had reminded his hearers, the previous similar ‘desecration’ of the marriage rite – the introduction of civil marriage during the Commonwealth – had lasted for only a brief period before being repealed.

Such qualms led some couples who had married in a register office or a non-Anglican registered place of worship to go through a second ceremony of marriage in an Anglican church. As early as 1842, Burn's Ecclesiastical Law noted that ‘[s]ince the passing of the Registration Acts, it has frequently happened that parties, united according to their provisions, have subsequently desired to be married according to the rites of the church’, and set out the form of affidavit that had been adopted by the office of the Master of the Faculties to deal with this contingency. In this affidavit the husband swore that he had, in accordance with the Marriage Act 1836, ‘contract[ed] and solemnize[d] marriage in a certain registered building … in the presence of the … registrar’ but that ‘to obviate all doubts which may arise touching the validity of such marriage, and for the greater facility of proof thereof, [they] are desirous of being re-married in the parish church’.Footnote ²¹ It hardly needs to be pointed out that this phrasing would have done little to reassure Dissenters that the Church of England respected their weddings.

When a Rite might become a Wrong

It is therefore somewhat surprising that it was only in the 1850s that any attempt was made to check this practice. A clue as to why remarriages became an issue at this point may lie in the fact that one of the clergymen involved, William Bennett, had become controversial for other reasons. As the incumbent of the church of St Barnabas in the parish of St Paul's, Knightsbridge, his adoption of certain high church rituals had generated controversy,Footnote ²² leading to riots, and he had been asked to resign.Footnote ²³ His subsequent appointment as vicar of Frome St John had even prompted a lengthy debate in parliament.Footnote ²⁴

In 1853, Bennett conducted an Anglican ceremony for William and Caroline Burton, who had previously married at Badcox Meeting House, a Baptist chapel in Frome.Footnote ²⁵ The following year, a second couple, William and Elizabeth Dimmock, were also remarried at Frome St John, having previously married at Frome's Zion Chapel. The ceremony in this case was conducted by Bennett's curate. It was this latter remarriage that seems to have attracted public attention and criticism, with allegations being made that the couple in question had been pressurized into it.Footnote ²⁶ A public meeting of Protestants ‘of all denominations’ was held,Footnote ²⁷ at which it was resolved that ‘the remarriage of persons already united in matrimony is a violation, or, at least, an evasion of the law of the land’, and further that ‘it forms part of a system designed to set up ecclesiastical arrogance against civil authority’.Footnote ²⁸ Other commentators similarly made an explicit link between such remarriages and Bennett's propensity for the Oxford Movement, with the Western Times claiming that ‘[t]he Tractarians want to teach the people that marriage is a sacrament of the church, and that no marriage can be valid unless it be solemnized by a priest’.Footnote ²⁹

That, however, somewhat misrepresented Bennett's views. In his sermons he ‘commends the freedom given in the case of those external to the Church, but points out that marriage has always been a religious matter, and speaks powerfully against members of the Church being married without her blessing’.Footnote ³⁰ While there is scope for debate as to who counts as a ‘member’ of the Church of England,Footnote ³¹ it is worth noting that both the Burtons and Dimmocks went on to have their children baptized according to Anglican rites.Footnote ³² Indeed, at least five of the Dimmocks’ children were baptized by Bennett himself, including their eldest daughter, Mary Jane, whose baptism took place just a few weeks after her parents’ remarriage.

Nonetheless, the issue of the Dimmocks’ remarriage was raised in parliament.Footnote ³³ In the opinion of the ecclesiastical judge Dr Addams, however, Bennett had done nothing wrong and was indeed under a duty to conduct the marriage ceremony for any of his parishioners who, ‘having scruples about the validity of their union before the registrar’, applied to him ‘to solemnize their marriage facie ecclesiae’.Footnote ³⁴ There was, after all, nothing in the Marriage Act 1836 precluding the Church of England rite's being performed after a valid wedding in a registered place of worship or register office. Nor was there any scope for a prosecution to be brought in relation to the way in which the ceremony had been conducted, since all the regulations governing Church of England weddings had been punctiliously observed in both cases. Banns had been called in both cases, with the wife being given her married name rather than her maiden name.Footnote ³⁵ The ‘remarriages’ had also been recorded in the parish register, and again, in each case, the wife had been recorded with her married name. Moreover, under the heading ‘condition’ the previous legal wedding had been noted, although here there was a small but telling difference between the two cases. While the Burtons were recorded as having been ‘previously married at Badcox Meeting House’,Footnote ³⁶ the Dimmocks were described as ‘previously united at Zion Meeting House’.Footnote ³⁷ The use of the word ‘united’ sidestepped the question of whether this constituted a marriage and may explain why the Dimmocks’ case had generated a more hostile reaction than that of the Burtons. Nonetheless, it provided no ground for a prosecution.

Without any means of proceeding against Bennett, those who wished to emphasize the legitimacy of marriages conducted under the 1836 Act had to look elsewhere. It was against this backdrop that the actions of Benson attracted attention. Benson was a far less well known (and certainly less controversial) figure than Bennett.Footnote ³⁸ At the time of the events in question he was in his early thirties, having been ordained in 1849 and appointed as vicar of Cowley in 1850. The ceremony that was to lead to his prosecution had taken place on 3 May 1855. As noted in the introduction, Richard and Sarah Carey had been married at the Oxford register office some three years earlier. The reason for this relatively belated remarriage was that Sarah had asked to be churched after the birth of her children. Benson, according to the subsequent court case, had ‘objected to perform the ceremony on the ground that the way in which she had been married was not right in the sight of God, and not in accordance with the religion of the Church of England’.Footnote ³⁹ As Sarah herself later told the court, Benson had told her that the register office wedding ‘was perfectly legal, but that it was a right and proper thing to have the blessing of the church upon our union, and that that was the object of reading the service in church’.Footnote ⁴⁰

It was understandable that Benson might take the view that there was no need to call banns or for the parties to obtain a licence if the Anglican rite was being performed purely for religious purposes. It was equally clear that the Registrar-General, George Graham, was keen to make an example in order to dispel any doubts anyone might have about the status of ceremonies conducted under the 1836 Act. In a letter of 10 January 1856, he stated that he had received many complaints that Anglican clergy were in the habit of informing couples who had married in a register office that their marriage was not binding. Noting that since the passage of the 1836 Act nearly six hundred thousand persons would have been married according to its terms, he added: ‘It appears to me very reprehensible that clergymen, because the marriages have not been solemnized in Parish Churches according to the rites of the Established Church to which they belong, should be so bigoted as to consider it right thus to disturb the minds of parties so married, inducing them to doubt whether they have not been living in fornication and whether their issue be illegitimate.’Footnote ⁴¹ To address this, he suggested that Benson should be prosecuted under the 1823 Act, which continued to govern the conduct of Church of England weddings. This Act had provided that if any person solemnized a marriage ‘without due publication of banns’ or the grant of a licence, ‘every Person knowingly and willfully so offending, and being lawfully convicted thereof, shall be deemed and adjudged guilty of Felony, and shall be transported for the Space of Fourteen Years.’Footnote ⁴²

The Protestant Dissenting Deputies were also on the look-out for a possible case to prosecute, specifically one in which an Anglican ceremony had taken place after a ceremony in a registered place of worship. On 7 February 1856, at their annual meeting in London, it was reported that ‘[t]here had been several instances of clergymen re-marrying parties who had been married under the new act – one at Frome, one in Wiltshire, one in Oxfordshire, and one in the north of England.’ Having sought legal advice as to the case in Wiltshire, the committee had been advised that it was ‘an indictable offence entailing the penalty of fourteen years transportation’.Footnote ⁴³

It seems likely that the case they had in mind was that of the Rev. Alfred Lush.Footnote ⁴⁴ Lush was the curate of St Mary's Church in Greywell, a small chapelry annexed to the living of Odiham (Hampshire), with a population of around three hundred. In 1855, he had conducted a ceremony of marriage for Francis Freeman and Sarah Rogers, who had married in the Independent chapel in the district the year before. His explanation (and excuse) was that the couple had asked to be remarried in church following doubts expressed by neighbours about the validity of their marriage.Footnote ⁴⁵ He also pointed out that they were both regular communicants and had only married in the Independent chapel to escape the notice of nineteen-year-old Sarah's parents. Nonetheless, as with Bennett, his actions seem to have occasioned some ill-feeling locally, and in December it was reported that Dissenters in Greywell had ‘got up a public meeting to censure the conduct of the Rev. Mr. Lush’.Footnote ⁴⁶

The legal case against Lush was slightly different from that against Benson. While Benson had conducted a ceremony without first calling banns, Lush had called the banns for the remarriage of Francis and Sarah Freeman. The issue was that they had been called in the maiden name of the wife rather than her married name. For Dissenters, this was tantamount to ignoring the existence of the first marriage and, as the Berkshire Chronicle reported, they had ‘expressed their grievances in very audible terms’.Footnote ⁴⁷ Legally, the key point was that it could be argued that there had not been ‘due’ publication of banns if they had not been called in the wife's true name. As a result, Lush was charged with the same offence as Benson and faced the same potential penalty. The second charge against him also related to the names that had been used, in that the marriage had been registered in the wife's maiden name and the parties had been described as ‘bachelor’ and ‘spinster’.Footnote ⁴⁸ He was therefore charged also with making a false entry in the marriage register, potentially an even more serious offence, carrying the penalty of transportation for life.Footnote ⁴⁹

The Legal Outcomes

Preliminary steps were taken against both Lush and Benson in the early months of 1856. Lush appeared at the petty sessions in Odiham in February, where the charges against him were read and he was committed for trial.Footnote ⁵⁰ A true bill was returned against him at the Hampshire Spring Assizes but the trial was removed to the Queen's Bench by a writ of certiorari.Footnote ⁵¹ Benson, meanwhile, was committed for trial at the Oxford Assizes.Footnote ⁵²

However, Lush's case never came to trial. As the Berkshire Chronicle subsequently reported, the case against him had been withdrawn by the prosecution upon his making a full apology for his actions, the terms of which it reprinted for the benefit of its readers:

Ten days later, Benson's trial at the Oxford Assizes took place. Yet despite the confident assertion of counsel for the prosecution that this was a matter of considerable public importance, it was difficult for him to identify any convincing reasons as to why it was problematic that the preliminaries had not been observed in this case. While he urged the importance of the banns being properly published to enable parents or guardians to prevent ‘improper’ marriages, this had no application to a couple who were already married. Even more tenuous was his argument that the certificate of the later marriage might be used in a court of law as evidence that the children born after the first ceremony but before the second were in fact illegitimate and ‘so might lose the property which would otherwise be secured to them’. His argument that matters of property might also be at stake if it were to turn out that the first marriage was in fact invalid for some reason could be seen as an argument for remarriages rather than against them.Footnote ⁵⁴

In Benson's defence, it was simply argued that the case was not within the ‘mischief’ of the statute, for the simple reason that it referred to a marriage being ‘solemnized’, and a marriage could not be solemnized between parties who were already married to each other.Footnote ⁵⁵

The sympathies of the presiding judge, Baron Alderson, were clear from the outset. Indeed, he appears to have treated the case as something of a joke. The account of the trial in The Times is punctuated by notes of the laughter in court in response to his wisecracks. Upon the superintendent registrar giving evidence that the notice of the original register office marriage had been displayed in his office for twenty-one days, Alderson sarcastically commented ‘[a]nd the office is shut all the time’, and later suggested that it would be no bad thing if the registrar was to be transported for fourteen days. He accepted the argument of the defence that Benson had not actually ‘solemnized’ a marriage within the terms of the 1823 Act:

As he joked, if Benson ‘had read Chevy Chase over to them, it would have had the same legal effect, though the effect upon their consciences would have been different’. Yet at the same time he also made it clear that he did not endorse Benson's conduct, noting tartly that ‘[i]f Mr. Benson had consulted his wisdom he would have applied to his bishop’ and in so doing would have ‘received a strong remonstrance against his unwiseness’.Footnote ⁵⁷

The Legal Legacy

If Benson was acquitted, and Lush was never prosecuted, did that mean that there was nothing wrong in conducting an Anglican ceremony of marriage for a couple who were already validly married under the Marriage Act 1836? Here matters get a little more complicated.

At the same time that the charges against Lush and Benson had been made, parliament had been considering a bill to reform the law of marriage and address various grievances identified by the Protestant Dissenting Deputies.Footnote ⁵⁸ There was nothing about remarriages of this kind in the original drafts of any of the bills that led up to the 1856 Act. On the third reading of the 1856 bill, however, a clause was added that seemed to have the cases of Lush and Benson in mind.

The third reading of the bill took place in the early hours of the morning of 1 July 1856. This can be ascertained because the time was recorded in the Journals of the House of Commons.Footnote ⁵⁹ Ascertaining what was said is more of a challenge. No report of the debate appeared in the newspapers, and no debate was recorded in Hansard. Nonetheless, in the version of the bill that was sent to the House of Lords later that day there was a new clause. It provided that the parties ‘to any Marriage contracted before the Registrar’ could, if they so wished, have a religious ceremony afterwards but that ‘nothing in the Reading or Celebration of such Service shall be held to supersede or invalidate any Marriages previously contracted’.Footnote ⁶⁰

The reference to weddings ‘before the Registrar’ covered those in registered places of worship as well as those in the register office. While the clause was couched in permissive terms, it was clearly intended (and seen) as a rebuke to individuals such as Bennett, Benson and Lush. This can be seen from the reaction in the Liberal Bradford Observer, which exulted that it put ‘an effectual stop … to the re-marriages by which the Tractarian clergy have striven to cast a slur upon the civil contract and upon marriages lawfully solemnized in registered buildings’.Footnote ⁶¹ The message was that clergy should not cast any doubt on the validity of marriages that had been duly solemnized under the Marriage Act 1836.

It is unlikely to be a coincidence that it was on that very same day, 1 July, that Lush penned his apology for his actions. By 1856, lines of communication were well established and swift: a letter bearing word of the new clause, posted in London on the morning of 1 July, would have reached Greywell by the afternoon; alternatively, though more costly, a telegram could have been sent via Odiham Post Office. It was subsequently reported that the case against Lush had been withdrawn.

It also seems unlikely that it was a coincidence that it was on 11 July that the Select Committee appointed to consider the bill met. The date was that of Benson's trial; the time, an hour earlier. As a result, there was no risk that the outcome of one could influence the other. Again, no report of any debate appears to exist, so the story has to be followed through the Minutes of the House of Lords and the various drafts of the bill. The committee revised the new clause so that it referred only to the possibility of having a religious ceremony after a wedding in the register office, rather than after any wedding before a registrar.Footnote ⁶² This suggests that they were aware of Lush's apology and felt that there was no longer any need for the clause to include marriages in registered places of worship within its scope.

Had this provision in the 1856 Bill merely been intended to allow clergy to conduct a religious ceremony after a wedding in the register office, the outcome in Benson's case would have shown that it was unnecessary: he was, after all, acquitted of wrongdoing in exactly such an instance. But once it is understood as conferring permission to conduct a subsequent religious ceremony only in certain defined circumstances, and as an implied rebuke to any who might deny the validity of the earlier wedding, it still had a role to play. A further amendment clarified that any subsequent religious ceremony should not be entered in the marriage register.Footnote ⁶³

The final version of the Marriage and Registration Act 1856 provided that it was perfectly legitimate for any clergyman or minister of any persuasion to conduct a religious ceremony for a couple who had married in a register office as long as it was clear that it was the register office wedding that constituted the legal marriage. As it set out:

All this was clear enough, so far as it went. But the fact that the relevant section of the Act only said that those who had married in a register office could have a further religious ceremony raised the question of whether it was also permitted to conduct a further religious ceremony for a couple who had already had a religious ceremony in a registered place of worship. The ongoing discussion of Lush's case meant that this question was swiftly answered.

In January 1857, the newspapers reported that Lush's case had been discussed at the Annual Meeting of Protestant Dissenters, noting that the prosecution had been withdrawn on him making a full and public apology and paying the costs.Footnote ⁶⁵ The necessity for the apology, or the formal withdrawal of the prosecution, baffled one reader, who wrote to the Justice of the Peace to ask: ‘Now, Sir, how can this be? Has the judgment of Mr. Baron Alderson in Reg. v. Benson, Clerk, been overruled, or is it to be supposed that the attorney-general and also Mr. Lush's counsel were ignorant of that judgment?’Footnote ⁶⁶ One obvious answer to this might be that Lush had made his apology before Benson's case, even if the formal withdrawal of the prosecution had happened afterwards. But the answer given in the Justice of the Peace was that the 1856 Act had altered the law. The reasoning was that the express permission to perform a subsequent religious ceremony where the marriage had been conducted at the register office ‘tends to show that the performance of it in any other case would be unlawful’.Footnote ⁶⁷

This might seem to be a somewhat tenuous inference to draw. However, a further piece of evidence suggests that the redrafting of the clause on 11 July was indeed intended to exclude the option of conducting a second religious ceremony after a religious wedding in a registered place of worship. A subsequent addition to section 12 stipulated that ‘at no Marriage solemnized at the Register Office of any District shall any Religious Service be used’. Again, there is no report of any debate on this change, but its addition to that specific section only makes sense if the drafters were assuming that having two religious ceremonies was not an option. The option of marrying in a religious ceremony in a register office needed, logically, to be done away with, so that a distinct line could be drawn so far as the lawfulness of any subsequent religious ceremony was concerned. Had this option not been removed, there would have been the oddity of a subsequent religious ceremony being barred where the legal wedding had taken place in a registered place of worship but not where the couple had married in a register office with religious rites.

With a single stroke this recast marriage in the register office as a purely secular rite. No longer was it possible for a wedding to be celebrated in the register office with prayers or readings from Scripture, or even, in the account of one vicar, with a ‘God bless you’ from the registrar.Footnote ⁶⁸ Given that many chapels remained unregistered, there would also have been many Dissenters who were unable to marry in their own place of worship but were opposed to the idea of marrying in a Church of England church. The effect of the new prohibition on religious content was to prevent them from having a wedding in the register office that reflected their beliefs, removing much of the flexibility that the 1836 Act had originally offered.Footnote ⁶⁹ It was a hugely significant change.