A Concise History of Marriage Regulations

Faith and commitment have been replaced by rules and regulations.

Readership: Christians
Theme: A Mini-Series on Church Policy and Sacramental Marriage
Length: 3,000 words
Reading Time: 15 minutes

Introduction

While I was writing Are Common-Law Marriages the most Biblical? (2023/6/3), I was intrigued by Pastor Ahlgrim’s historical account of church officiated marriage, and I wanted to know what was going on at that time in history that might have influenced those changes in 1563 and 1753, respectively.  Here’s a shocking little summary of what I found.

The Medieval Concept of Marriage

Before the passage of the 1753 bill (described in greater detail below), all of society including courts of law held the common view that the essential elements of marriage involved (1) “that FAITH by which the Man and Woman bind themselves to each other to live as Man and Wife”, (2) an exchange of binding promises (which alone were respected in courts of law), and (3) sexual union — NOT clerical intervention, NOT parental consent, NOT public announcements, and NOT even the presence of witnesses, as marriage is typically regarded today.  [Bannet, Lasch]

Thus, it was perfectly acceptable in all classes of society (except the ruling nobility) for a couple to exchange promises, bed down, and start a family long before ever going to church.  In many cases, the church ceremony was skipped altogether.  The public ceremony in a church or before witnesses was only viewed as a public repetition and solemnization of that primary promissory and implicitly contractual / covenantal act of faith. [Bannet]

Furthermore, clandestine marriages (discussed in the following section), seductions, as well as abductions and most situations in which couples willingly engaged in sexual relations, were for all intents and purposes, regarded as real marriages by both public opinion and law.  Church Courts and Justices of the Peace would uphold the claim of a pregnant woman that she had been debauched under the promise of marriage, and if necessary the man in question could be compelled to perform his promise.

The outstanding problem within this social order was that many unscrupulous characters gamed the laxities of the system and took advantage of the public’s trust.  For example…

• Marital abandoment was a chronic malady, resulting in many single mothers.* For example, a wife who had joined herself to an abusive or alcoholic man, or a man who had taken a frigid or contentious wife, could escape their “irksome cohabitation” by moving to a distant town.
• Those who took the above route could pretend to be single or widowed and start over with a new spouse and family. Spousal death followed by remarriage was common, allowing such stories to be easily believed.
• There were no public records (except for the nobility), so there was no way of knowing about someone’s past except through the testimony of witnesses. Witnesses were difficult to locate, and if identified they could easily lie or reframe the context to protect friends and loved ones.
• Persons known as “Celebrators” (often priests who had been excommunicated for their heretical views), got rich by posing as ordained clergy or someone having the authority to officiate a marriage.  Such masqueraders were often preferred over clergy as they did not ask awkward questions or pry into private matters and they were willing to forge names and falsify dates in order to please their eager-to-marry customers. [Leneman]

In response to this situation, and in light of the social pressures exerted by the Catholic canonical law which was enacted by the Council of Trent in 1563 (described in greater detail below), and especially the strong widespread preference for marriage over celibacy, which was a view worthy of excommunication as stipulated in the Council of Trent, both Catholic and Protestant critics proposed, in effect, a whole new conception of marriage, one that stressed love and companionship rather than carnal union — “the relief of man’s loneliness rather than the relief of concupiscence.” [Lasch]

What is a “Clandestine Marriage”?

When I began this study, the term “Clandestine Marriage” appeared prominently.  It was clear that this had been a problem long before 1563, perhaps even continuing from before such things were recorded.  This problem was one of the main reasons why The Council of Trent was called to order in 1563, and The Clandestine Marriages Act was passed in 1753.  (I’ll get to these later.)

To the casual 21^st century reader, it is not very clear exactly what is meant by “Clandestine Marriage”.  When I first saw this term, the contextual use of the word clandestine gave me the idea that this was referring to secret marriages (possibly polygamous) or short term marriages that ended as a result of abandonment.  I also thought this might mean common-law marriages, contractual marriages, short term marriages of convenience (e.g. to obtain social recognition or legal rights granted only to those properly married), fly-by-nights, or a bowdlerized euphemism for fornication in general. 

But upon further reading, I learned that it was all of these and much more, but the nuances behind the term “clandestine marriage” cannot be fully appreciated without a familiarity with the social context of that time.  I had to read several papers before I was able to figure this out.  Here’s what I’ve gathered from my readings.

In general, a “Clandestine Marriage” is defined as “a marriage conducted in secret” [Francis].  However, the government, law, Catholics, and Protestants all had widely contrasting concepts of what a “Clandestine Marriage” specifically entailed, thereby adding to the confusion. Comprehensively, and to be more precise, a “Clandestine Marriage” was (1) any marriage that occurred outside the jurisdiction of the officiating authority named, or (2) any marriage which did not have the approval of said jurisdiction.

In general, to each of the respective sensibilities, a “clandestine marriage” was defined as one that fit one of the following descriptions.

Signing the Marriage Registrar, by Edmund Blair Leighton.

To government and law officials:

• A marriage in the absence of the free consent of one or both persons.
• Common-law marriages.
• Unofficiated marriages.
• Marriages conducted without a public announcement.
• Marriages not properly licensed / registered with the state.
• Marriages among multiple persons, or with someone already married (usually in the form of serial monogamy).
• Marriages of persons under legal age (12 for girls, 14 for boys).

To the Catholic church:

• Marriages not condoned by the church.
• Common-law marriages.
• Unofficiated marriages.
• Catholics marrying Protestants in a Protestant church.
• Catholics marrying Anglicans in an Anglican church.
• Marriages among non-Catholics.
• Marriages conducted without banns (notices given to the church as a public announcement of a proposed marriage).
• One or both of the couple was a minor who had not obtained permission from his or her parents or guardians.
• If the wedding ceremony did not occur between 8:00 a.m. and 12:00 noon.

Protestants were more concerned about the compatibility between husband and wife than about ecclesiastic regulations, and so they fought against Catholic canon law by forbidding (1) enforced marriages which were arranged by parents against their children’s wishes, and also at the other extreme, (2) impulsive marriages entered into without parental consent [Lasch].  The former was considered clandestine when parents married off their children against their wills and without the church’s knowledge, and the latter when sexually mature children eloped.

Harmony before Matrimony, published by Hannah Humphrey on 25th October 1805. A young woman plays a harp, singing a duet with a man holding the music book, Duets de L’Amour. Ovid’s Art of Love is on the table. (Photo by Historica Graphica Collection/Heritage Images/Getty Images)

In earlier times, the term “irregular marriage” was used to refer to such unions.  But apparently, the “clandestine” label was implemented as a PR spin intended to (1) cast shame on those who failed to register their marriage with the respective church and/or state authorities, and (2) to set the standard place and tone of marriage as being identified with the church and/or state.

Clandestine Marriages Could Not be Prevented — Regulations made it Worse!

During this time in history and just as it is today, many young people engaged in sexual relations soon after adolescence and before the age of adult accountability under the law [Schellekens].

Where there’s a will, by Edmund Blair Leighton (1895).

Because of the heavy familial, financial, social, and ecclesiastical pressures surrounding sex and marriage, it was not uncommon for young couples in forbidden love to run away to a distant town, change their names, and present themselves to the locals as a married couple.  If they were not accepted in one locale, they would skip to the next town, and the next, until they found a place where they were accepted into the community and could continue on with a normal life.  It was also not uncommon for breakups to occur as a result of these challenges and uncertainties, sometimes with infants involved.

In view of this situation, the 1753 Act gave parents absolute control over the church endorsed marriages of their minor children [Probert].  It is evident that this pushed sexual relationships even further underground and encouraged more secret liaisons and elopements among late adolescent minors, thereby exacerbating the main problem that the 1753 Act was purported to resolve.

In fact, illegitimate fertility in England skyrocketed between 1750 and 1810.  Schellekens modeled the incidence of formal marriage vs. illegitimate fertility during the second half of the 18^th century and concluded that about 30% of the increase in formally recognized marriages, and 45% of the rise in illegitimate* births during this period were caused by the Clandestine Marriage Act.  Shellekens also concluded that the increase in formal marriage also contributed 35% to the rise in illegitimate births.*  For comparison, the decline in real wages during this same time period only explains 9% of the rise in illegitimate births.*

* Before 1753, “illegitimacy” meant that a child had no legal or real claim to his/her father’s inheritance, whereas after 1753, illegitimacy took on the modern meaning of being born outside of an officially sanctioned, church ordained marriage.  Thus, the passage of the Clandestine Marriages Act rendered many children “illegitimate” by the new definition.  Currently, with the breakdown in sexual mores and the rise of Political Correctness, the word “illegitimate” has become archaic and has thus lost this meaning.

Image adapted from Schellekens (1995).

1563 — The Council of Trent

The prevalence of clandestine marriages and the church’s exasperation in dealing with the irregular nature of these marriages posed doctrinal dilemmas leading to intense disagreements among church leaders. The government also found the issue to be confounding and could offer no assistance to the church. The resulting complications in resolving church policy regarding marriage and an inability to maintain a coherent ecclesiastical administration in the face of these challenges was at the heart of the Protestant Reformation. In response to this schism, The Council of Trent (1545-1563) was a meeting of Catholic clerics convened by Pope Paul III (served 1534-1549) as a desperate attempt to establish order within the church. 

Pope Paul III, convener of the Council of Trent.

As described earlier, no particular “form” of marriage (how and before whom it should take place) was required for Catholics until 1563, when the Council of Trent ruled that a marriage must take place before one’s pastor or bishop to be valid.

Furthermore, in a brutal grab for power to counter the Reformation, The Council of Trent issued 12 “canons” regarding public opinions on marriage.  In this decree, a person was excommunicated, NOT for violating the Biblical institution of marriage, but for disagreeing with the Catholic church about how marriage is to be instituted!  Every resolution takes the basic form of, “If anyone disagrees with the Catholic church in this or that area regarding marriage, let him be anathema.*”

Including [paraphrased]…

• Anyone who says marriage is not a sacrament is damned.
• Anyone who says marriage is preferable to virginity or celibacy is damned.
• Anyone who says divorce should be an option in the case of abandonment, adultery,** domestic violence, or sexual denial is damned.
• Anyone who says the church cannot separate married couples for any reason is damned.

Wow!  These requirements were even stiffer than what Jesus described in Matthew 5:27-32 and Matthew 19:3-12!  Jesus said, “Don’t look!” to avoid temptation, but these pontificators were saying, “Don’t talk!” to avoid damnation!  Talk about tying up heavy burdens on men’s backs!  This is the kind of stuff that motivated the Protestant Reformation!

To the legalistic perps who make such stern moral demands, Jesus said…

“Woe to you lawyers as well!  For you load people with burdens that are hard to bear, while you yourselves will not even touch the burdens with one of your fingers.”

Luke 11:46 (NASB) c.f. Matthew 23:4

While Catholics upheld the supernatural character of marriage as a sacrament, Protestants viewed marriage as a fundamental building block of society, and therefore prioritized the domestic peace and the sanctity of marriage. Protestants admitted divorce in extreme circumstances as a practical concession, thereby earning their damnation according to the Catholic church.

Thus, The Council of Trent sparked widespread fervor and popular support for the Protestant Reformation, thereby accelerating this monumental ecclesiastical schism which led to…

• Capitalism
• Philosophical skepticism, which yielded the scientific revolution.
• A societal life regulated by the bureaucratic dictates of the church and state, ultimately culminating in a multitude of revolutions followed by modern democracy.
• The Enlightenment, which produced civil rights, collectivism, individualism (e.g. the Pendulum Effect), and eventually feminism.

In short, this marked the end of the Medieval period and ushered in the beginning of the Modern Era.

* Anathema = Excommunicated or Damned.
** This goes against what Jesus said in Matthew 5:32 and Matthew 19:9.

1753 — The Clandestine Marriages Act

The Clandestine Marriage Act of 1753 required religious non-conformists and Catholics to be married in Anglican churches.  It was a further attempt to channel marriage into a set form that could be recorded and regulated.

Lemmings reported that the 1753 bill was promoted by Lord Hardwicke as a response to desperate confusion and frustration among lawyers about the law of marriage regarding private contractual marriages (including those officiated by non-Anglican churches, i.e. the Catholic church), and pushed its passage against mounted public criticism.  Leneman gives a detailed account of the social ills and legal quandaries that led to the passage of the bill, and points out that lawyers and politicians lied about the details in order to gain enough acceptance for the bill to pass.

The barely prevailing narrative presented to the public was that the Clandestine Marriages Act would reduce the prevalence of clandestine marriage and pose a measure of quality control that would encourage marriages of intentional love and commitment.  In practice however, the Marriage Act meant, in effect, that a couples’ private verbal promises to live together as man and wife no longer had any force in the eyes of the law.  Once the Marriage Act became law, couples who had already exchanged promises of undying fidelity and devotion and had long been married with children were no longer recognized as married under the law.  A man who debauched a woman under pretense or promise of marriage could no longer be compelled to perform his promise.  A woman who yielded to her lover and was with child no longer had any legal recourse if the man left her. [Bannet]

Probert and Brown studied 95 marriages occurring between 1758 and 1795. They concluded that the overall impact of the Clandestine Marriages Act was that it attached importance not only to religious conscience but also to having a legally binding marriage. The former was satisfied by having the Catholic ceremony first, and the latter by the Anglican ceremony. They noted that many couples would travel long distances (up to 34 km. among those studied) in order to be officially married in both the Catholic church and the Anglican church.

As you might imagine, all these changes were immensely unpopular at the time.  People complained that the Government had changed the meaning of marriage by making the existence of a marriage depend entirely on a couple’s public observance of some purely ceremonial and procedural forms. [Bannet]

Ultimately, the Clandestine Marriages Act spelled an end to patriarchal and propertied interests and gave birth to egalitarian marriage and the preeminent value of “marrying for love” as opposed to a faith commitment. The Clandestine Marriage Act is thus regarded to have achieved its aim of channeling marriages into an ecumenical set form.

Conclusions

Historically, the Catholic Church has been rather cozy with civil laws concerning marriage, and this is exactly what we see in this brief survey.  The social upheaval arising from this alliance is exactly why the founders of the U.S.A. stipulated the “separation of the church and the state” in the constitution (1789).

Looking at this history through a Red Pill lens, we might speculate that hypergamy played a dominant role in the widespread marital fraud occurring throughout the 15^th to 18^th centuries*, just as it does today.  This view would be supported by (1) the large number of abandoned children / orphans and (2) the large number of upper class men who fathered multiple “illegitimate”** children over the past several hundred years.*

To summarize, in 1563 the Catholic church cracked down hard on coercing society to conform to its ecclesiastical definition of marriage, and this created such immense societal upheaval (i.e. the Protestant Reformation) that in 1753 the state attempted to create order by basically making it illegal (and shameful) to not have a marriage registered with the state via the Anglican church.  The result was that marriage was no longer regarded as authentic unless it was recognized by both the church and state.  Thus, the popular concept of marriage shifted from one of commitment, faith, and sexual union to one of jumping through multiple hoops of rigorous formal regulations.

Personal conviction was hijacked to serve the state, instead of God.

Because of some technicalities in church law which were stymied by all the conflict surrounding the definition of marriage and the church’s role in officiating and regulating marriages (which continues to the present day), Trent’s regulations did not apply to much of the world, including large areas of the U.S.A., until the early 20^th century.  The current canonical form of marriage didn’t come about until 1983, in which women were no longer required to wear head coverings during mass.

These reforms set the stage for the modern church marriage as a show of pomp and circumstance — a gynocentric fantasy parade with no practical usefulness to marriage itself.  Only recently have we come to find that what looks good on paper and on stage has nothing to do with the daily reality of marital sanctification (or the lack thereof).

Lest we think that all of this is merely a horror story from the history books, the bad news is that clandestine marriage has transmogrified into something much worse — the C0ck Carousel, Marriage 2.0, the modern hollow cosplay of marriage, Duluth, frivorce, custody battles, and so on.  Likewise, the church’s and state’s hegemonic vying for power and control (under the guise of correcting social and marital ills) continues to the present day, although in different forms and functions.

For example, Joe2 wrote,

“Cohabitation Agreements or Domestic Partnerships must also legally operate under community property law in California, Nevada and Washington. Those three states recognize that you are not married, but nevertheless will subject you to community property law.”

IOW, the state is saying, “You were smart enough not to play our game, but we’re still going to win anyway.”  This pulls the rug out from under those who think that the church and government are NOT trying to “control” marriage.  As we’ve seen in this synopsis, they’ve ALWAYS been trying to control marriage and it has only made everything worse.

* Probably occurring much earlier if it had been documented.
** See footnote above regarding illegitimacy.

References

There have been a large number of research papers written about the details, nature, and social impact of the Clandestine Marriage Act of 1753.  These are only a sampling.

1. Bannet, E. T. (1997). The Marriage Act of 1753:” A most cruel law for the fair sex”. Eighteenth-Century Studies, 30(3), 233-254. [PDF]
2. Francis, K. A. (2003). Canon Law Meets Unintended Consequences: The Church of England and the Clandestine Marriage Act of 1753. Anglican and Episcopal History, 72(4), 451-487. [PDF]
3. Lasch, C. (1974). The suppression of clandestine marriage in England: The Marriage Act of 1753. Salmagundi, (26), 90-109. [PDF]
4. Lemmings, D. (1996). Marriage and the law in the eighteenth century: Hardwicke’s Marriage Act of 1753. The Historical Journal, 39(2), 339-360.  [PDF]
5. Leneman, L., & Mitchison, R. (1993). Clandestine marriage in the Scottish cities 1660-1780. Journal of Social History, 845-861. [PDF]
6. Leneman, L. (1999). The Scottish case that led to Hardwicke’s Marriage Act. Law and History Review, 17(1), 161-169. [PDF]
7. Probert, R., & Brown, L. D. (2008). Catholics and the Clandestine Marriages Act of 1753. Local Population Studies, 80, 78-82.  [PDF]
8. Probert, R. (2009). Control over marriage in England and Wales, 1753–1823: The Clandestine Marriages Act of 1753 in context. Law and History Review, 27(2), 413-450. [PDF]
9. Schellekens, J. (1995). Courtship, the clandestine marriage act, and illegitimate fertility in England. The Journal of Interdisciplinary History, 25(3), 433-444. [PDF]

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