The formation of a legal marriage relied upon a valid contract and consummation of the union. By the sixteenth century it was also necessary to show that the marriage had been solemnised ‘in the face of the church’. If a valid marriage was proved then neither party was free to marry again while both of them were alive. If one party had been deserted by a spouse to whom they had been lawfully married for some time they could bring a suit for restitution of conjugal rights.

Source:

R. H. Helmholz, Marriage Litigation in Medieval England, (Cambridge, 1974), pp. 67-69

Divorce as we know it today was not permitted in the sixteenth century, but there were some situations in which one of the parties could be granted a separation a mensa et thoro (from bed and board – literally from table and bed). This was sometimes called ‘divorce’, but did not give the parties the right to remarry, only the right to live apart, and the woman could sometimes then claim a form of maintenance. However, if the sentence ended the right of the partners to all conjugal duties, presumably this entailed the loss of all financial maintenance to the wife.

Divorce as we know it today was not permitted in the sixteenth century, but there were some situations in which one of the parties could be granted a separation a mensa et thoro (from bed and board – literally from table and bed). This was sometimes called ‘divorce’, but did not give the parties the right to remarry, only the right to live apart, and the woman could sometimes then claim a form of maintenance.

The Medieval canon laws of matrimony, largely fixed in the twelfth century, had changed very little by the sixteenth century and the church courts continued to exercise a virtual monopoly of matrimonial litigation.

For the avoidance of doubt, the ecclesiastical authorities might have preferred that marriages were solemnised by a clergyman at the church door in front of witnesses after the banns had been called for three weeks and some couples did opt for this arrangement.

However, the legal position remained that unless there was any impediment to bar the marriage, and that it was undertaken with mutual consent, a couple could contract a lawful marriage by an exchange of words, which could be done in private. There were two valid forms of words. A contract per verba de presenti (by words of present consent) was immediately binding. A contract per verba de futuro (by words of future consent) could be overturned in several ways, such as by mutual consent of both parties, but once confirmed by sexual intercourse between them, it became binding.

A marriage contracted in either of these ways was known as a ‘clandestine’ marriage, and this anomalous situation inevitably led to subsequent disputes. The church courts had the authority to decide whether or not a legal marriage had, in fact, taken place and, if it had taken place in private, might order that the union was solemnised ‘in the face of the church’.

Sources:

R. H. Helmholz, Marriage Litigation in Medieval England, (1974).

Martin Ingram, ‘Spousals Litigation in the English Ecclesiastical Courts, c. 1350-1640’ in R. B. Outhwaite (ed.), Marriage and Society – Studies in the Social History of Marriage, (1981).

R. B. Outhwaite, Clandestine Marriage in England 1500-1850, (1995).

The formation of a marriage at this time could be legally complex.

It was possible for children over the age of seven to contact a lawful future marriage per verba de futuro (by words of future intent). This was conditional upon consummation once the couple reached puberty, deemed to be fourteen for boys and twelve for girls. Much younger children were also promised in marriage, sometimes before they could talk.

However, if either party did not later wish to continue with the marriage it could be annulled before consummation. Annulment could be arranged informally before witnesses, but formal confirmation by the court precluded any uncertainty. Non-consummation might have to be proved through physical examination, as in the case of Ellen Knottisford (5/1/1).

As proof of age might be difficult to obtain, it was often additionally claimed that one party had been compelled to the marriage by parents or friends, so that it was invalid through ‘force or fear’.

At this time, the church courts had sole legal authority in matrimonial matters.

Sources:

R. H. Helmholz, Marriage Litigation in Medieval England, (Cambridge, 1974), pp. 98-99

R. B. Outhwaite, Clandestine Marriage in England 1500-1850, (London and Rio Grande, 1995), Chapter 1

It is not possible to establish the nature of the alleged defamation in some causes, for example where the Deposition Books and Act Books for the relevant period are no longer extant.

Suits for sexual slander became increasingly common in ecclesiastical courts during the sixteenth century, and Chester was no exception.

Sources:

Christopher Haigh, ‘Slander and the church courts in the sixteenth century’, Lancashire and Cheshire Antiquarian Society, vol 78 (1975)

J. A. Sharpe, Defamation and sexual slander in early modern England : the church courts at York, Borthwick Papers no. 58

By the late fifteenth century it was becoming accepted practice in cases of defamation where the underlying accusation represented a wholly spiritual offence for the suit to be heard in the church courts, whereas accusations of a temporal nature were heard in the secular courts. However, where the alleged defamatory words involved both types of accusation either court might have jurisdiction.

Sources:

R. H. Helmholz, ‘Select Cases on Defamation to 1600’, Selden Society, vol. 101 (1985)