English Marriage Law

(England Twitter)-Marriage Act 1753, full title "An Act for the Better Preventing of Clandestine Marriage", popularly known as Lord Hardwicke's Marriage Act (citation 26 Geo. II. c. 33), was the first statutory legislation in England and Wales to require a formal ceremony of marriage. It came into force on 25 March 1754. The Act was precipitated by a dispute about the validity of a Scottish marriage,although pressure to address the problem of clandestine marriage had been growing for some time.

Before the Act, the legal requirements for a valid marriage in England and Wales had been governed by the canon law of the Church of England. This had stipulated that banns should be called or a marriage licence obtained before a marriage could take place and that the marriage should be celebrated in the parish where at least one of the parties was resident. However, these requirements were directory rather than mandatory and the absence of banns or a licence – or even the fact that the marriage was not celebrated in a church – did not render the marriage void. The only indispensable requirement was that the marriage be celebrated by an Anglican clergyman. The common but mistaken assumption that a simple exchange of consent would suffice is based on later, erroneous readings of ecclesiastical case law: such an exchange created a binding contract to marry rather than a legal marriage.

The Act tightened the existing ecclesiastical rules regarding marriage, providing that for a marriage to be valid it had to be performed in a church and after the publication of banns or the obtaining of a licence. Jews and Quakers were exempted from its provisions, although the Act did not go so far as to declare such marriages valid and it was many years before their legal standing was assured. Nor did the Act apply to members of the British Royal Family. Indeed, members of the Royal Family have been consistently exempted from all general legislation relating to marriage since this date, which is why doubts were expressed in 2005 about the ability of Prince Charles to marry Camilla Parker-Bowles in a civil ceremony, civil marriage being the creation of statute law. It was also provided that the 1753 Act had no application to marriages celebrated overseas or in Scotland.
Modern misinterpretation

Modern commentators, after the work of historians such as Lawrence Stone and Stephen Parker, have often misconstrued both the requirements of the Act and the canon-law requirements which directly preceded it. It has been widely but wrongly asserted, for example, that the Act rendered invalid any marriage involving minors, i.e. those under 21, unless parental consent had been given. In fact, this was true only for the minority of marriages celebrated by licence. While the parent of a minor could forbid the banns and so prevent a marriage from going ahead, a marriage by banns that took place without active parental dissent was valid. This gave rise to the practice whereby underage couples would resort to a parish where they were not resident to have the banns called without their parents' knowledge. Since the Act specifically prohibited the courts from inquiring into the parties' place of residence after the marriage had been celebrated, such evasive marriages were still valid. The only way in which an aggrieved parent could challenge such a marriage was if there had been a mistake amounting to fraud in the calling of the banns.