Marraige, Seperation and the Commom Law

Question 1

What does Lawrence Stone believe about marraige?

Answer 1

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

Question 2

Who has disagreed with Lawrence Stone and why?

Answer 2

R.H. Helmholz - questioned the ease at which the pre-reformation church granted annulments

Question 3

What was a key consequence of the reformation in terms of marriage?

Answer 3

Removed marriage as a sacrament and ushering in divorce as a possibility (unattainable for most people)

Question 4

What could most people do stuck in bad marriages instead of divorce?

Answer 4

Formal church court separations - difficult/expensive to obtain and difficult to enforce

Informal and illegal alternatives use as desertion or wife sale

Question 5

What in theory was the division of responsibility for the administration of marriage?

Answer 5

Church claimed sole right to determine if marriage was valid, and with help from neighbours, the seeking to ensure marital vows were being kept

Question 6

What would happen if a husband or wife failed to live up to prescribed norms?

Answer 6

Churchwardens would present them to church courts for sinful behaviour e.g. living apart or sexual infidelity

Question 7

What grounds would a ecclesiastical authority grant a ‘divorce from the bond of marriage’ and what was their rate of success?

Answer 7

Bigamy, pre-contract, impotence, incest or affinity - few applications were successful

Question 8

Were the ‘divorce from the bond of marriage’ truest divorces in the modern sense?

Answer 8

No, more like annulments as they were declarations that the marriages had never amounted to valid unions under ecclesiastical rules

Question 9

What was the best way for a couple to separate if their marriage was valid?

Answer 9

Would have to hope for a ‘separation’ (divorce from bed and board) on the grounds of cruelty or adultery

Question 10

What would happen if a ‘separation’ (divorce from bed and board) was successful?

Answer 10

Husband and wife could live apart but unable to remarry while the other remained alive

Question 11

Did the common law have any jurisdiction over the validity of marriages?

Answer 11

No - but governed most aspects of marital property

Question 12

What is coverture?

Answer 12

Common law rules affecting married women

Question 13

What were the two options the common law provided for spouses in failing marriages?

Answer 13

1. Victims of domestic violence could approach a magistrate and seek to have their spouses ‘bound over’
2. Ability to enforce the terms contained in church court separation and if broken conditional bonds (financial penalties) could be enforced

Question 14

Why were common law courts reluctant to interfere in marital disputes?

Answer 14

So not as to undermine a husbands legal authority over his wife

Question 15

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?

Answer 15

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

Question 16

What did courts which enforced the laws of equity (e.g. chancery) allow married women to do?

Answer 16

Maintain control over their property through the development and enforcement of trusts

Question 17

What did equity courts also do?

Answer 17

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

Question 18

What parties intervened in the marital proceedings of Marion and Griffin Jones?

Answer 18

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

Question 19

What does they Griffin and Marion case show?

Answer 19

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

Question 20

Name an example of someone disobeying the ecclesiastical authorities.

Answer 20

Edith Mathew initially refused to go back to live with her husband Robert in their unhappy marriage

Question 21

Give an example of how domestic violence was viewed.

Answer 21

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

Question 22

Why did many couples bypass ecclesiastical courts and where do they go instead?

Answer 22

No guarantee church courts would grant you a separation and they were expensive
Went to Court of Requests and Chancery instead

Question 23

How did the court of chancery enforce their rulings?

Answer 23

Issued injunctions or used conditional bonds supported by sureties

Question 24

What were many marital court cases about?

Answer 24

Money e.g. Anne Banestre used her husband John foTo abandoning her for four year without sustenance seeking maintenance

Question 25

Give examples of Royal officials who intervened on the separation cases Sir Edward and Dame Mary Powell and why?

Answer 25

Mary came across inheritance after being named an executor of her mother’s estate - he tried to get the money for himself
The king, lord chancellor, lord privy seal and lord treasurer

Question 26

Did magistrates have authority over marriage?

Answer 26

In theory no but in practise they had extensive influence e.g. could prosecute adulterous lovers, bound a husband to keep the peace or issues recognisances bounding husbands to maintain their wives

Question 27

What lay at the heart of almost all early modern marriage court cases?

Answer 27

The power/strength of common law - common law courts would issue conditional bonds and recognisances to enforce rulings

Question 28

Why have historians overlooked the role played by common law, non ecclesiastical courts and private settlements?

Answer 28

They were not written down (usual court procedure) as the aim of the settlements was to avoid going to court
Coverture laws ensured separated wife’s name was never documented

Question 29

What is another reason why separation upside church courts wasn’t documented?

Answer 29

Church didn’t condone them - wanted to be discrete and therefore didn’t leave a paper trail

Question 30

Why was arbitration preferred in many marriage cases as opposed to a trial?

Answer 30

Less confrontational

Arbitration within a social circle left no paper trail

Question 31

What is a historiographical reason as to why the role of non-ecclesiastical courts has been underestimated?

Answer 31

Tendency to overemphasise the authority of the church over matrimonial law and practise
Tendency to believe claims made in Puritan propaganda e.g. that the Elizabethan church granted annulments easily

Question 32

What evidence proves that church authority was not universally excepted?

Answer 32

Church courts unable to enforce alimony payments through the use of penance and excommunication

Question 33

What effect did church censorship in the 1630s have on public debate surrounding marriage?

Answer 33

Stifled debates surrounding separation, divorce and remarriage - flood of works emerged after censorship broke down in 1640s

Question 34

Why was there confusion over whether a person could remarry after divorce?

Answer 34

English church authorities continued to disallow it despite it occurring in other Protestant areas e.g. Scotland and works published e.g. by William Whatley arguing for it
Many people did so in defiance of religious doctrine

Question 35

What is a quote from the homily against whoredom and adultery (1542) that displays the church’s attitudes to divorce?

Answer 35

“Divorces be so commonly accustomed and used by men’s private authority to the great displeasure of God”

Question 36

What evidence displays the concerns about the laxity of marriage in early modern england?

Answer 36

Parliament passing a law making bigamy a felony

Question 37

What led to a loss of reputation with the common people of authorities championing the sanctity of marriage?

Answer 37

The ease with which elite couple could get divorced e.g. Frances Howard having her marriage to Robert Devereux annulled as he was impotent with her but not other women

Question 38

Name an example of the confusion over the term ‘divorce’?

Answer 38

If a marriage was annulled remarriage was allowed but if a couple were ‘separated’ the it wasn’t
The last conflated the two and as a result were confused as to many marital issues e.g. people who were separated got remarried believing they weren’t breaking the law

Question 39

Why was marriage so important?

Answer 39

Market of adulthood

Pre-requisite for political of municipal office

Question 40

What did the ability of the law of marriage to bend (make exceptions and find practical solutions) ensure?

Answer 40

The ideology of marriage didn’t break