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2 - The misunderstood contract per verba de praesenti

Published online by Cambridge University Press:  10 February 2010

Rebecca Probert
Rebecca Probert
Affiliation:
University of Warwick
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Summary

The prevailing view that the 1753 Act marked a radical shift in the regulation of marriage is based in large part on the hypothesis that prior to 1754 all that was required to create a marriage was the exchange of consent by the individuals concerned, and that as a consequence couples had no need or desire to marry in church. This chapter, by contrast, will show that an exchange of consent was not a full alternative to regular marriage – in that it did not carry the same legal rights as one celebrated before an Anglican minister – and that it was not regarded by contemporaries in the same way as such a marriage. As a result, couples had no option but to observe the rites and rules demanded by the law.

But if this was the case, then why has such a different view been advanced by other commentators? As with many myths, there is an underlying substratum of facts that are not in dispute. Lawyers today may point to the fact that it is still (technically) possible to enter into a marriage by a simple exchange of consent in certain limited circumstances as evidence that this was possible prior to the 1753 Act. But reading history backwards is a dangerous matter.

Type
Chapter
Information
Marriage Law and Practice in the Long Eighteenth Century
A Reassessment
 , pp. 21 - 67
Publisher: Cambridge University Press
Print publication year: 2009

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