A Voidable Marriage in History: Marrying the Sister of One’s Late Wife or the Brother of One’s Late Husband + a Giveaway

A Voidable Marriage in History: Marrying the Sister of One’s Late Wife or the Brother of One’s Late Husband + a Giveaway

A plot we readers often encounter in historical romance set in the Regency Period is when the hero takes up with his late wife’s sister. But was it possible?

“For most of the nineteenth century, the question of whether a man should be able to marry the sister of his deceased wife engaged the English public in protracted and heated debate. The Parliamentary debates, individually published pamphlets and periodical essays, and topical fiction that at times seemed to flood from this debate express a range of nineteenth-century English anxieties about the proper definition and practice of family life, anxieties that provoked serious reconsideration of the legal definitions and cultural meanings of sibling and marital relations. The figure that carried the full weight of these ideological struggles was the adult unmarried sister living in a married sister’s household; the specific issue upon which the English people focused was whether a man’s wife’s sister was, in law, the equivalent of his blood sister and therefore never to be his wife, or his metaphorical sister only and therefore an ‘indifferent person’ whom he could marry.” (Anne D. Wallace, “On the Deceased Wife’s Sister Controversy, 1835-1907″)

Before 1835, the church would annul the marriage of a man with the sister of his late wife if reported, but if no one reported the situation, then the marriage was legal. It  was a voidable marriage not a void one. The same was true for marriage with a late husband’s brother. Both situations, however, were made illegal in 1835. The one involving the sister was repealed in 1907. The brother one was repealed much later. Even before the law passed, the church opposed such unions, and there were quite a few people who did as well. Every year after 1835 some one proposed a law to repeal the law Gilbert and Sullivan referred to it as the “annual blister.”

“The doctrine that such marriages were illicit was reflected in the Table of kindred and affinity in the Anglican (Church of England) Book of Common Prayer. Prohibition of marriage between certain degrees of kindred outlawed what is known as incest; prohibition between degrees of relationship by marriage (affinity) as opposed to blood (consanguinity) seems to have reflected an analogous taboo. At least one novel, Felicia Skene’s The Inheritance of Evil; Or, the Consequences of Marrying a Deceased Wife’s Sister (1849) addressed the topic in polemic fictional form.

“Under ecclesiastical law, a marriage within the prohibited degrees was not absolutely void but it was voidable at the suit of any interested party. Matthew Boulton married his deceased wife’s sister in 1760. He advised silence, secrecy and Scotland, although they married in London; the marriage was opposed by her brother. Similarly Charles Austen, the younger brother of Jane Austen, married his deceased wife’s sister in 1820 and remained married to her until he died in 1852.” (Deceased Wife’s Sister’s Marriage Act 1907

Our own Collins Hemingway in his piece entitled “Brotherly Love?” tells us: “An even closer—and absolutely prohibited—degree of consanguinity is that of brother and sister. Sibling marriage being an incestuous taboo the world over, one would not expect such a thing ever to enter the environs of Austenia. Yet tradition brought it to Jane’s doorstep, for the law not only forbade marriage between blood siblings but also between brothers and sisters by marriage.

“Therefore, the marriage of Jane’s brother Charles to Harriet Palmer after the death of his first wife was “voidable” because Harriet was Fanny’s sister. As explained in Martha Bailey’s article in ‘The Marriage Law of Jane Austen’s World’ (Persuasions, Winter 2015), this sisterhood created a prohibition by ‘affinity’ (marriage) as strong as one by blood. The logic was: Because Fanny and Harriet were related by blood, and because husband and wife became one flesh upon consummation, then Charles would also be related to Harriet by blood. This thinking applied equally for a woman who married the brother of her dead husband.

“‘Voidable’ in Charles’ case did not necessarily mean ‘voided.’ Someone—most likely a relative seeking to grab an inheritance—would have to sue to have the marriage voided and any children declared illegitimate. Charles never had enough money for anyone to bother trying to disinherit his four children by Harriet.

“To resolve the ambiguity about people marrying the sibling of a deceased spouse, the 1835 Marriage Act validated all previous such marriages but voided any going forward. To evade this prohibition in still another Austen situation, Jane’s niece Louisa Knight went to Denmark in 1847 to marry Lord George Hill, who had been married to Louisa’s now deceased sister Cassandra. Such dodges continued until the affinity laws were removed in 1907.”

Charles John Austen en.wikipedia.org/wiki/ Charles_Austen
Charles John Austen en.wikipedia.org/wiki/

Anyone could challenge the validity of the marriage by lodging a complaint with the Ecclesiastical Court.  That was apparent from the reams of correspondence in the Beaufort archives on this very case. All that was needed was someone, ANYONE to challenge or complain about one of these voidable marriages to the Ecclesiastical Court, and the court could declare it invalid, thereby making all offspring of the union bastards, a loss of a living, etc.  The complaint or challenge had to be made while both parties to the marriage in question were alive .

The most likely person to challenge a voidable marriage would be the man who would inherit if the marriage didn’t exist — husband’s brother or nephew or whatever.  So a man whose wife produced only daughters, then the wife died, marries her sister and has a son, but his brother wants the title/land so challenges the marriage. The second most likely to challenge would probably be the husband himself if neither wife produced an heir.  But I doubt many of these marriages existed, especially if titles and land were involved.

Men did marry their dead wife’s sister. Such marriages were not automatically void by law, but they were voidable if someone challenged them. Lord Lyndhurst’s concerns about a challenge to the 7th Duke of Beaufort’s marriage was not without substance. Wellington was strongly opposed to that marriage and quite outspoken about it.  Anyway, in 1835, Lyndhurst, concerned that the Duke of Beaufort’s heir could be stripped of his legitimacy, all his rights and his entitlements as heir to the dukedom if someone like Wellington challenged Beaufort’s marriage to his dead wife’s half sister, took the matter to Parliament in the form of a bill to legitimize the marriage. But the issue grew legs of its own.  What eventuated was the bill that decreed that all voidable marriages performed before 31 August 1835, if not already voided, would be declared fully legitimate and all marriages within the prohibited degrees performed after that date would be void, invalid from the beginning whether challenged or not.  But as this Act of Parliament included the marriage between a woman and her dead husband’s brother, an amendment was made – almost immediately- to exclude the marriage of a woman to her dead husband’s brother.

Henry Somerset, 7th Duke of Beaufort en.wikipedia.org/wiki/ Henry_Somerset_7th_Duke_of_Beaufort
Henry Somerset, 7th Duke of Beaufort en.wikipedia.org/wiki/

“Parliament had to tack that part on to get the bill to pass. In the social climate of the time it was ‘too soon’ to eliminate the taboo on in-law marriage in one fell swoop. When the more progressive bill to legalize wife’s sister marriage was finally introduced in 1842, a fight broke out that would last 65 years.

“What was the big deal? Opponents of the bill saw it as a slippery slope that would lead to the legalization of all kinds of incest. They drew arguments from the Bible: Genesis 2 states that husband and wife ‘became one flesh,’ therefore your wife’s sister was really your own sister. Leviticus prohibits a man from uncovering ‘the nakedness of thy brother’s wife,’ and so, by analogy, he shouldn’t do it to his wife’s sister either. Arguments from science included the bizarre claim that married couples become blood relations through some biological consequence of sexual intercourse, or that the idea that in-law marriage was wrong came from evolutionary instinct. People also thought it would destroy the family by encouraging husbands and their wives’ sisters to lust after each other while the wives were still alive.

“Were there really so many brothers- and sisters-in-law who wanted to get married? Not really, but it was more common than it is now. Women often died in childbirth, and their unmarried sisters, who had few other options to support themselves besides marriage, would step in to care for the family. For convenience, and sometimes developing love, remarriage seemed like the thing to do. Supporters of the act argued that prohibiting these marriages was unfair to the poor, who could not afford to hire help and could not travel out of the country to get married, as the upper class often did to get around the law.” (The 65 Year Battle Over the Deceased Sister’s Marriage Act)

The lengthy nature of the campaign was referred to in the Gilbert and Sullivan opera Iolanthe, in which the Queen of the Fairies sings “He shall prick that annual blister, marriage with deceased wife’s sister.”

“The Marriage Act 1835, however, hardened the law into an absolute prohibition (whilst, however, authorising any such marriages which had already taken place), so that such marriages could no longer take place in the United Kingdom and colonies at all (in Scotland they were prohibited by a Scottish Marriage Act of 1567). Such marriages from that date had to take place abroad: see, for example, William Holman Hunt and John Collier, both painters, who married the sisters of their deceased wives in Switzerland and in Norway respectively. However, this was only possible for those who could afford it.” (Deceased Wife’s Sister’s Marriage Act 1907)

“The Deceased Wife’s Sister’s Marriage Act 1907 removed the prohibition (although it allowed individual clergy, if they chose, to refuse to conduct marriages which would previously have been prohibited). The Act did exactly what it said and no more; so, for example, it was not until 1921 that the Deceased Brother’s Widow’s Marriage Act 1921 was passed. The Marriage (Prohibited Degrees) Relationship Act 1931 extended the operation of the 1907 Act to allow the marriages of nieces and nephews by marriage as well. The Deceased Brother’s Widow’s Marriage Act (Northern Ireland) 1924 was passed to remove doubts as to the application of the Deceased Brother’s Widow’s Marriage Act, 1921, to Northern Ireland.” (Deceased Wife’s Sister’s Marriage Act 1907)

UnknownThe Annual Blister: A Sidelight on Victorian Social and Parliamentary History
Cynthia Fansler Behrman
Victorian Studies
Vol. 11, No. 4 (Jun., 1968), pp. 483-502
Published by: Indiana University Press
Stable URL: http://www.jstor.org/stable/3825227
Page Count: 20


Now for the Giveaway!!! I have one last copy of Janet Taylor’s fabulous 2018 “Besotted” Calendar available. I know it is the end of February, but there are still ten months of romantic moments to share. Comment below to be part of the mix. (Let me know if you already own a copy of the 2018 Calendar and do not want to be included in the drawing.) The giveaway will end at midnight EST on Thursday, March 1, 2018. 

32 Responses to A Voidable Marriage in History: Marrying the Sister of One’s Late Wife or the Brother of One’s Late Husband + a Giveaway

  1. Complicated! I am glad that we live is a somewhat more enlightened age. Mind boggling as possibly one of those “claiming ignorance of the law” does not excuse the crime! Thanks for sharing.

  2. This is a fascinating subject to ponder and think about. I didn’t know that they have this ridiculous marriage laws between brother-in-law and sister-in-law put in place but yet first cousins are allowed to marry. Fortunately times have change.

  3. Thank you for this informative post. I knew about the prohibition of marrying your wife’s sister or brother’s wife but not the reasons against it.
    Poor besotted Henry VIII certainly made the brother’s wife condition known – to the unfortunate Catherine of Aragon’s dismay and great discomfort.
    However if your deceased spouse’s sibling is too closely related to you for you to marry, why doesn’t that same restriction apply to brothers marrying sisters? James Austen’s deceased wife Mary Lloyd would have been seen as his brother Francis’s sister, so why wasn’t Mary’s sister Martha Lloyd also a sister to Francis and therefore Francis’ marriage to Martha taboo? Jane Austen considered both women her sisters upon their marriages to her brothers..

    • I understand your questions and hold sympathy with your thoughts. For others who may not know the connection between Jane Austen and the Lloyd family, I am going to include an excerpt from a Jane Austen World piece on Martha Lloyd, which will likely help others to know more of Austen’s friendships.

      Martha Lloyd was born in 1765. Her mother, Martha Craven, had been the daughter of the Royal governor of South Carolina. Martha Craven , although coming from a wealthy background, married an obscure country vicar called the Reverend Nowis Lloyd who was the rector of Little Hinton, Wiltshire and who also, in 1771, became the vicar of Enborne near Newbury in Berkshire. After the Reverend Nowis died Martha and her two sisters, Mary and Eliza were left with their cruel and some say insane mother. They escaped by going to live with an aunt who lived in Newbury. They also have a brother but he died in a smallpox epidemic. Martha and Mary were both left scarred for life by the same epidemic. The younger sister, Eliza, is supposed to have escaped the epidemic unscathed. She married

      It is not known how exactly the Lloyd family and the Austen family met but they had many acquaintances in common. The two families became very close after the Reverend Nowis died in 1789. The Reverend Austen gave the widow and her three daughters his unused parsonage at Deane a mile from Steventon. So Jane and Cassandra lived very close to the Lloyd sisters and they saw a lot of each other. There were not many chances to form close acquaintances in the countryside and the daughters of both families all became close friends, especially Martha Lloyd and Jane Austen. Jane was ten years younger than Martha but they obviously got on very well. Martha became like a second sister to Jane.

      When James Austen married in 1792 he took over the parish at Deane and so required the parsonage there. The Lloyd family had to move out and went to Ibthorpe, a small hamlet near Hurstbourne Tarrant in Hampshire, fifteen miles further away. This must have been hard for Jane and Martha. They had no independent transport to visit each other.

      Mary Lloyd, the younger of the two sisters, married James Austen as his second wife, after his first wife died.

      The Reverend George Austen died on January 21st 1805 in Bath. Martha’s mother died soon after. Mrs Austen, Cassandra, Jane, and Martha decided to pool their resources and live together. They first moved to Southampton together to live with Jane’s brother Frank’s wife Mary, in Castle Square. Frank and Mary had only just got married and Frank had to go away to sea. The arrangement was beneficial to all concerned. Apparently they all got on well together.

      • The rest of the tale is that brother Frank’s wife Mary (the former Mary Gibson) died in 1823 after giving him at least ten children (accounts vary, ranging from ten to 12 children). In 1828 he then married Jane’s great friend Martha Lloyd, then sixty-two. But Jane Austen did not live to know this, having passed away in 1817 at age 41.

  4. Good Lord my head is spinning after all that!! So many in-laws and out-laws and goodness knows what else! Great post.

  5. What generally happened to the female who was party to the voided marriage? There may not be many examples. Seems like she might have suffered some social ostracism.

  6. It’s amazing to me how differently we see in-law relationships now. I actually find it touching that in-laws could be considered as flesh and blood, rather than as siblings by law only. I would love to be accepted into my husband’s family that way. I suppose science and divorce have a lot yo do with how differently we treat in-laws now.

    • I understand your sentiments regarding your in-laws. As an only child, the more the merrier.
      The fact that first cousins could marry, but a voidable marriage would occur when marrying someone not of blood relation is disheartening. Because husband and wife became one flesh upon consummation, then the husband, for example, would also be related to his late wife’s sister by blood. This thinking applied equally for a woman who married the brother of her dead husband. If it was permissible for first cousins to marry, why punish those not truly of the same blood lines?

  7. Too much for me… I think that the man and the sister of his deceased wife are not related by blood so what’s seems to be the problem? Weird.

  8. We became acquainted, Regina, when I wrote to thank you for the calendar I won. Although I was happy for the calendar, your continuing friendship was the real prize for me, seconded by your books and articles. I know you’ve realized you are my go-to resource for all things Regency.

    • I am blessed to count you among my friends, Betty.
      In truth, I wish I knew these little bits of information when I first started writing. I got more than a few things wrong then.

  9. This is a thought provoking topic which I have read about and was relevant during the Biblical times. Thanks for this informative feature and lovely giveaway.

  10. In this day and age I don”t think a marriage like that would be possible but in Jane Austen s time it probably was possible.

  11. Thanks for all the interesting information, Regina! I had no idea that marrying one’s brother or sister by marriage could be voided. In my opinion, it shouldn’t have been an issue. After all, the marriage vows do say “til death do us part”. I think the survivor is then free to marry where they wish.

    Thanks for the giveaway!

  12. This is a fascinating topic on several levels.

    For one, it was a time when cousins could marry. That seems biologically worse to me than woman marrying her dead sister’s husband.

    Also, I agree, it was likely the result of proximity. Especially in the somewhat restrictive Regency era, women didn’t have the opportunity to become close with many men who weren’t their blood relations. How many male friends would a woman have? I can see such friendships leading to marrying your dead relations widow or widower.

    Interestingly, the Biblical interpretation has renewed weight, due to fetomaternal microchimerism. Fetomaternal microchimerism is a term used to refer to the absorption of genetic material from the fetus that often occurs when a woman carries a child. The child’s DNA, and therefore the father’s, actually enters and takes up residence in the woman’s body. A woman is minutely changed by each pregnancy. It’s a fascinating topic, but the long and short is that you could make a claim that the mother and father of a child are becoming more closely genetically related. So, they are more ‘one flesh’ than before children were born. Of course, that would only apply to women marrying their dead husband’s brothers, not men marrying their dead wives sisters.

  13. There are biological reasons for two people who are closely related to avoid having children. Apparently, siblings have a tendency not to be attracted to each other* which suggests there is an evolutionary advantage to avoiding brother/sister marriages.

    When society decrees that certain people become brother and sister, people carried the idea further than necessary.

    Somehow, that seems a relatively innocuous incident of carrying a good idea further than necessary.

    • Totally agreed that the intention was good, but the delivery was less than desired.

      As to what attracts us to others, try this idea on. Researchers discovered an olfactory nerve they believe is the route through which pheromones are processed. Nerve “O,” (Nerve Zero) as it is called, slipped under the radar for many years because it is so tiny. However, once discovered in a whale, scientists surmised this little nerve might be found in humans as well. And it was! So what is the role of Nerve “O”? Nerve “O” has endings in the nasal cavity, but the fibers go directly to the sexual regions of the brain. Indeed, these endings entirely bypass the olfactory cortex! Hence we know the role of Nerve “O” is not consciously smell, but to identify sexual cues from our potential partners. [This was part of my research for a contemporary book I released some years back.]

  14. It amazes me how people used to think. As stated, it would often be the wife’s sister who would look after the children and their father if the mother died so why shouldn’t they be able to marry?
    I suppose the quotes from the bible do reinforce the idea that when a couple marry their respective brothers and sisters become immediate family so I suppose that’s where the idea came from in the first place.
    I wonder if those rules would have prevented a widowed wife from marrying her husband’s widowed sister’s husband?
    Hmmm even I don’t understand the question ???

    • You are messing with my brain so early this morning. I’ve not yet had my cup of tea. LOL! Just think first cousins could marry. Lady Catherine wishes Darcy and Anne to marry.

    • I’m sorry I didn’t see your question, Glynis, before I posted my comment. The rules did allow brothers to marry sisters from another family, as Jane Austen’s brothers James and Francis Austen did in marrying the Lloyd sisters, although Martha Lloyd would have been counted as a sister to Francis and James at the time of her marriage. (James’ wife Mary had died long before Francis married Martha.) So a widow marrying the husband of her widowed sister-in-law would have been fine.

      • As we all know the law made no sense. If it did, a new law would not have been passed in 1835 to “grandfather” marriages that once would have been considered voidable. Jane’s friendship with the Lloyd sisters does not make the same connections under the law as did an actual marriage.

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