about this project
- The Consistory Court of the Diocese of London
- Medieval Canon Law and Consistory Court Litigation
- Late Medieval London and its Hinterland
- Editorial and Translation Conventions
- Further Reading
- Credits and Acknowledgements
Marriage and Divorce
In the course of the Middle Ages, marriage came to be accepted as one of the sacraments of the Roman Catholic Church.1 As such, disputes about it came under the jurisdiction of canon law as administered through the church courts. But the Church's authority over marriage was not straight-forward, because although marriage was a sacrament, it was not performed by a priest but rather by the individuals who were marrying. The theology of marriage had developed in such a way that it was the exchange of consent of the two individuals that made the marriage bond, whatever parents, lords, or even priests might say about it. This exchange of consent was called a contract.
In the late Middle Ages, a canonically valid marriage contract was created by the exchange of present consent (that is, in verbs of the present tense) by the two principals: "I take you X to be my wedded wife"; "I take you Y to be my wedded husband." A valid marriage could also be made by future consent, the exchange of consent in the future tense -"I will take you…" -followed by consummation (i.e. sexual intercourse). An unconsummated marriage contract made by future consent (what we might call a betrothal or engagement) could be broken up by mutual consent or if one partner made a present-tense contract with someone else.
These words could be spoken anywhere, and as long as there were two adult witnesses, the contract was binding; if the exchange took place in the present tense it could not be dissolved even by mutual consent. Although through much of medieval Europe, the process of marriage saw a couple making a future promise of marriage (a betrothal) in a domestic setting before family and friends, and then later a present exchange of consent in a church, officiated by a priest, the practice in late medieval England was slightly different. As the depositions in the fifteenth-century London Consistory show, many, and arguably most, exchanges of vows to marry in the London area were made outside of churches, often in people's homes, or sometimes in taverns or fields, and these exchanges were often made in the present tense. In other words, these exchanges were not betrothals (which could be broken, albeit not easily), but the act of marriage itself. The testimony also shows that the couple often went on, despite the legally binding quality of that initial contract, to undertake a number of other steps in the marriage process before they actually began to live as husband and wife. Banns (announcements of impending marriage) were made in the parish churches of both bride and groom, on three successive Sundays or holy days. A solemnization of the marriage, or church wedding, followed. Much of the marriage litigation in the Consistory derived from one of the partners refusing to go through with the rest of the process after having (allegedly) made one of those binding promises of marriage in a domestic setting.2
An irony of the medieval church law of marriage was that the exchange of consent, whether in the future or the present tense, did not require a priest's attendance, although the Church, of course, thought it desirable. In practice, many couples in the diocese of London made the binding promises in the present tense outside church and without a priest's presence. Although in some medieval dioceses, making a present-tense contract outside of a church could lead to excommunication,3 there is little sign of ecclesiastical concern about this in fifteenth-century England, as long as the couple went on to ratify their contract in a church solemnization, officiated by a priest.4 A couple who failed to take this final step of solemnization before a priest committed a sin, but -- crucially -- they were still married. Witnesses were also not sacramentally necessary to create the marriage bond, but the exchange of consent could not be legally proven without them. And no marriage could be made without the consent of both principals: theoretically no-one could be forced into a marriage that he or she did not want.
There were technicalities, or impediments as the Church called them, which could prevent a couple from being able to marry and which automatically rendered an exchange of consent invalid. These included the impediments of consanguinity and affinity, or relationship by blood and by marriage respectively. Other impediments included impotence (usually defined as the man' s inability to have sexual relations) and coercion (consent not freely given because of fear). But dissolutions of marriage came up relatively rarely in suits brought before fifteenth-century English ecclesiastical courts. Unlike modern marital litigation, the great majority of medieval English cases brought to court concerned enforcement rather than dissolution of marriage contracts. The issue at stake was almost always whether or not consent had been properly exchanged and a contract made. In other words, the party bringing the suit usually wanted the court to validate the marriage, not to dissolve it. Although this litigation pattern is similar to that found in other English ecclesiastical courts, as Charles Donahue has recently shown courts in other northern European dioceses in France and the Low Countries saw some strikingly different patterns. For instance, the courts of Paris and the diocese of Cambrai saw many separation cases, which were much less common in England.5 Although all medieval ecclesiastical courts were subject to the same principles of canon law, different regions developed distinct practices in the kinds of litigation that the courts heard.
Nonetheless, marriages did not last forever and in some cases the courts could help bring about their demise. A marriage could end in three legally recognized ways. The first and most common was the death of one of the spouses; the surviving widow or widower could and often did marry again. Two other sorts of marriage dissolution were also available in the Middle Ages, both called divorce. We should not, however, confuse medieval divorce with the modern use of the term, as it did not refer to dissolution of a valid marriage leaving both spouses free to remarry, as it does today. Divorce in the modern sense -- breaking of a valid contract of marriage so that both parties may marry again -- did not exist in late medieval Europe.
Divorce a mensa et thoro (literally "from table and bed") resulted in what we would call a separation. The marriage still existed, and thus neither party could remarry, but the spouses were no longer required to live or sleep together. By medieval canon law and theology, married people owed the "conjugal debt" or "marital debt" to one another: that is, wives or husbands could not refuse to have sexual intercourse with their spouses when asked. A divorce a mensa et thoro ended this obligation and the obligation to live together. This sort of suit was fairly rare; several were brought to the London Consistory on the grounds of cruelty (see, for instance, Ann Styward c. Richard Styward; or William Newport c. Isabel Newport. Similarly, although rare, divorce a mensa et thoro suits were sometimes sought on the grounds of adultery.6
Divorce a vinculo ("from the bond") corresponds to what we would now call an annulment: this was granted in cases where the marital contract was invalid from the beginning and thus never really existed. The most common basis for a divorce a vinculo was prior contract: X was already married to Y when he made a contract with Z, and thus X's marriage to Z never existed, as X could not be married to two people at once. Even so, most suits alleging bigamy were pursued by the original spouse trying to restore the first marriage contract rather than by the second spouse attempting to dissolve the subsequent union (see, for instance, Robert Warde c. Joan Qualley or Whalley; in some of these cases, however, it is possible that the first marriage was invented as a pretext to dissolve the unwanted "second" marriage.7 The impediment of coercion was sometimes cited, as in Thomas Lak c. Ann Munden, where a woman claimed she had been kidnapped and forced to marry. p>
Other impediments that were raised in other ecclesiastical courts rarely or never came to the attention of the London Consistory court according to surviving records. For instance, the court at York dealt fairly frequently with the impediment of nonage, or marriage below the age of consent (usually twelve for girls, fourteen for boys).8 In London, by contrast, this impediment was never raised, and other evidence indicates that in general the age of first marriage was rather higher (between about twenty-two and twenty-eight for both men and women) than in northern England, making nonage much less relevant. Marriages could also be impeded by consanguinity or affinity, or relationships by blood or marriage that were deemed too close. In the late Middle Ages, blood relationships were considered too close if they were within the fourth degree, that is third cousin and closer; relatives by marriage were also deemed too close within the fourth degree, so that the spouses of third cousins were also forbidden. Although some scholars have viewed the impediments of consanguinity or affinity as a common and easy escape for those who wanted to rid themselves of a wife or husband (oops, I just remembered she's my third cousin), few cases were brought on these grounds in the late medieval English church courts. There are none at all among the hundreds of cases recorded in the fifteenth-century London Consistory deposition books.9
Why were so many people anxious to maintain contracts of marriage rather than break them up? This question occurs naturally to us because in the modern day, matrimonial litigation overwhelmingly concerns divorce, and so we find it odd that medieval English people used the church courts differently. Those different patterns of litigation may trace their origins ultimately to attitudes towards marriage, but a more direct reason for the divergence in the types of suits seen in modern and medieval courts is the contrast in medieval and modern courts' jurisdictions and their governing legal frameworks. In other words, courts provide remedies for some kinds of problems, but not for all, and one can only use litigation for problems that a particular court can resolve. The modern legal system in England, for instance, does not entertain suits related to broken engagements, for instance, except in relation to property issues that arise from the break-up (for instance, the return of an engagement ring).10 Even if a woman seriously wrongs a man by promising to marry him and then abandoning him in a highly embarrassing manner on the very day of the wedding, he cannot sue her to force her to observe her promise to marry him. Were that remedy available, no doubt many jilted brides or grooms would sue, but in modern England no one has a legal obligation to keep a promise to marry.
In late medieval England, however, a contract to marry, if made using binding words, was unbreakable and indissoluble. As the records of the London Consistory show, many people in the late medieval diocese of London made binding contracts of marriage even before the church wedding, at the point in many other medieval cultures where betrothals (somewhat less binding promises) were made. Breaking such a contract, refusing to go ahead with the marriage, was contrary to the law -- and thus a jilted partner could sue, and if the evidence was clear enough, could use the court to force the recalcitrant spouse to recognize the marriage. The injured party would not necessarily have sued simply out of revenge, pique, or obsessive love for the jilter; the rejected spouse could not legally, or morally, enter into another marriage contract if there was some lack of clarity about whether or not that other marriage had occurred.
Modern divorce laws in England and other Western countries do allow legally contracted marriages to be dissolved, and so a modern English person can sue to end a marriage. This possibility was not, however, available to a medieval English person, since by medieval law marriages, properly made, were indissoluble. One simply could not bring a suit to a church court in order to end a marriage, unless there was something fundamentally improper about the making of the marriage in the first place (as in the impediments discussed above). Some medieval church courts, such as in the Franco-Belgian region, saw a good deal of litigation for separation (which would not actually end the marriage, but would permit the partners to live apart),11 but even that was fairly rare in the diocese of London. Although medieval and modern people used and use the courts to their individual advantage, their use of the courts was and is limited by those courts' powers and jurisdiction.
Factors external to the court system were also important. First, due to high mortality rates, most medieval marriages had a relatively short span -- the average fifteenth-century marriage might have lasted only fifteen to twenty years before death parted one spouse from the other. Some marriages did, of course, last forty years and even more, but disease, childbirth, and violence claimed many medieval people while they were still relatively young. Second, medieval people probably often practiced self-divorce: unworkable marriages could be dissolved fairly easily, albeit illegally, by simple desertion.12 Unhappy husbands and wives could move to another part of the country where they and their marital history were unknown and they could marry again in their new place of residence. The records of the ecclesiastical courts show this happened with some frequency, although not always with success, as the London Commissary court (a lower-level ecclesiastical court) prosecuted a number of such cases.13 But many undoubtedly succeeded and were never detected.
1 Regarding the canon law of marriage and its administration in the ecclesiastical courts, the best starting points are Helmholz, Canon Law, ch. 10, and Donahue, Law, Marriage, and Society. The text in this section is adapted from Shannon McSheffrey, Love and Marriage in Late Medieval London (Kalamazoo, Michigan: Medieval Institute Publications, 1995), 4-8.
2 further discussion of this, see McSheffrey, Marriage, Sex, and Civic Culture, 17-47.
3 Donahue, Law, Marriage, and Society, 362-63, 376, 431-32.
4 McSheffrey, Marriage, Sex, and Civic Culture, 27-32.
5 Donahue, Law, Marriage, and Society, ch. 10.
6 McSheffrey, Marriage, Sex, and Civic Culture, 166-70.
7 See for the discussion of such a case, Shannon McSheffrey, "Detective Fiction in the Archives: Court Records and the Uses of Law in Late Medieval England," History Workshop Journal 65 (Spring 2008), 65-78.
8 See Donahue, Law, Marriage, and Society, 99-101
9 On consanguinity and affinity, see Donahue, Law, Marriage, and Society, ch. 11.
10 Law Reform (Miscellaneous Provisions) Act 1970 (c. 33), esp. section 1.1; http://www.opsi. gov.uk/RevisedStatutes/Acts/ukpga/1970/cukpga_19700033_en_1.
11 Donahue, Law, Marriage, and Society, 307-11, 521-61.
12 R. H. Helmholz, Marriage Litigation in Medieval England (London: Cambridge University Press, 1974), 100-101; James A. Brundage, Law, Sex, and Christian Society in Medieval Europe. (Chicago: University of Chicago Press, 1987), 453-54, 514.
13 McSheffrey, Marriage, Sex, and Civic Culture, 37-38.