Marraige, Seperation and the Commom Law Flashcards
What does Lawrence Stone believe about marraige?
That from the Reformation (narrowing of the grounds for annulment) to just before the restoration (when private separation become possible) was the most difficult period to end a marriage in English history
Who has disagreed with Lawrence Stone and why?
R.H. Helmholz - questioned the ease at which the pre-reformation church granted annulments
What was a key consequence of the reformation in terms of marriage?
Removed marriage as a sacrament and ushering in divorce as a possibility (unattainable for most people)
What could most people do stuck in bad marriages instead of divorce?
Formal church court separations - difficult/expensive to obtain and difficult to enforce
Informal and illegal alternatives use as desertion or wife sale
What in theory was the division of responsibility for the administration of marriage?
Church claimed sole right to determine if marriage was valid, and with help from neighbours, the seeking to ensure marital vows were being kept
What would happen if a husband or wife failed to live up to prescribed norms?
Churchwardens would present them to church courts for sinful behaviour e.g. living apart or sexual infidelity
What grounds would a ecclesiastical authority grant a ‘divorce from the bond of marriage’ and what was their rate of success?
Bigamy, pre-contract, impotence, incest or affinity - few applications were successful
Were the ‘divorce from the bond of marriage’ truest divorces in the modern sense?
No, more like annulments as they were declarations that the marriages had never amounted to valid unions under ecclesiastical rules
What was the best way for a couple to separate if their marriage was valid?
Would have to hope for a ‘separation’ (divorce from bed and board) on the grounds of cruelty or adultery
What would happen if a ‘separation’ (divorce from bed and board) was successful?
Husband and wife could live apart but unable to remarry while the other remained alive
Did the common law have any jurisdiction over the validity of marriages?
No - but governed most aspects of marital property
What is coverture?
Common law rules affecting married women
What were the two options the common law provided for spouses in failing marriages?
- Victims of domestic violence could approach a magistrate and seek to have their spouses ‘bound over’
- Ability to enforce the terms contained in church court separation and if broken conditional bonds (financial penalties) could be enforced
Why were common law courts reluctant to interfere in marital disputes?
So not as to undermine a husbands legal authority over his wife
If a married woman gained separation from her husband in the eyes of church courts, would common law courts agree and what would this mean?
No, they would still see the marriage as valid - coverture laws would then apply and all the wages and gifts the wife earned the husband could claim as his own - also wife couldn’t enter bond to ensure her ex husband gave her alimony
What did courts which enforced the laws of equity (e.g. chancery) allow married women to do?
Maintain control over their property through the development and enforcement of trusts
What did equity courts also do?
Ignore coverture and hear cases fought between couples who had gained separation in church courts e.g. of a husband is trying to claim the wife’s wages
What parties intervened in the marital proceedings of Marion and Griffin Jones?
Neighbours and friends e.g. Ralph Crewe did ‘take pains to make’ them friends
Local magistrate - where Marion took the peace against him
Lord Mayor of London - who referred the case to the minister of the parish
Parish minister - who options were all rejected by Marion
Clothworkers guild
What does they Griffin and Marion case show?
How far practise could diverge from legal theory e.g. they lived apart without parish officials never presenting them and then Griffin sought to claim money from her that technically under the laws of coverture was already his
Name an example of someone disobeying the ecclesiastical authorities.
Edith Mathew initially refused to go back to live with her husband Robert in their unhappy marriage
Give an example of how domestic violence was viewed.
Clothworkers company heard a case of Joan Bowre (wife of one of their beadles) who claimed he beat her - after her wounds were confirmed the company’s court warned John that if he done it again he would be dismissed and loose his house
Why did many couples bypass ecclesiastical courts and where do they go instead?
No guarantee church courts would grant you a separation and they were expensive
Went to Court of Requests and Chancery instead
How did the court of chancery enforce their rulings?
Issued injunctions or used conditional bonds supported by sureties
What were many marital court cases about?
Money e.g. Anne Banestre used her husband John foTo abandoning her for four year without sustenance seeking maintenance
