Types of Cause: Matrimonial – enforcement of marriage contract

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).