Katie Barclay is a Senior Research Fellow in the ARC Centre for Excellence in the History of Emotions and Department of History, University of Adelaide. This essay is developed from research conducted as part of an ARC Discovery Early Career Research Award (DE140100111).
Twitter: @KatieEBarclay
Executive Summary
Marriage regulation remains central to the business of government, but current focus on ‘who’ can marry distracts from the many ways that regulations shape family life
- Marriage regulation does not end with allowing people access to the institution, but in how the law defines it and the rights and responsibilities it entails
- The history of marriage highlights that it is not a stable institution, but has evolved over the centuries to reflect competing interests between churches, states and individuals, and the needs and values of particular societies
- Marriage regulation plays a key role not only in shaping the legal boundaries of marriage, but family lives and emotional relationships
The 2017 decision in Australia, following a global trend, to permit same-sex marriage has been accompanied by significant debate not only about the nature of marriage, but also about the relationship between church, state and the public in its regulation. Who has the right to determine what marriage is, its boundaries and shape, rights and responsibilities, has thus been contested. In recent times, this is a debate that has tended to focus on ‘who’ is allowed to marry. The right for couples of the same-sex to marry has thus been located within a history of the disruptive possibilities of love, whether that was inter-racial or inter-caste couples, who overcame marriage bars based on race and class, eloping lovers who disregarded laws that required them to have parental permission, or couples of different religions who defied church law by campaigning for secular ceremonies. It can be situated against ongoing campaigns against child marriage, which seek to limit those who cannot consent from entering into contracts with significant impacts on their opportunities, health and wellbeing.
The history of who can marry is certainly an important part of the story of marriage regulation, but a focus on who has distracted attention from the question of ‘what’ marriage is and the implications of marriage for those who enter it and, indeed, do not. These questions continue to be important because far from ‘marriage’ being a settled question, it is an ever-evolving institution, and one where marriage regulation – the laws produced increasingly by the state but also by the church – plays a significant role in shaping its nature. This essay provides some historical background for marriage regulation in Western Europe, legal systems, particularly that of England and Wales, that were significant in shaping law in the Anglophone world. It begins by exploring the nature of regulation and the relationship between different institutions in shaping marriage’s boundaries. It then highlights some of implications of marriage regulation for marriage practices and people’s everyday lives, including their emotional relationships. In providing this historical background, it intends to encourage a greater critical engagement with what it means to regulate marriage and the consequences for our everyday lives.
Marriage Regulation in Western European History
The beginnings of the contemporary marriage system in the West can be dated back to the Gregorian reforms of the ninth to twelfth centuries. Before this date, the Christian church had not played a significant role in regulating marriage or sexuality. The Gregorian reformers interest in marriage primarily emerged from their desire to encourage a particular form of morality. Marriage became the institution for legitimate sexual relationships; sex outside of marriage was immoral and subject to church discipline. Sex was also regulated within marriage. Couples were encouraged only to have sex for procreation, many sexual activities were restricted (such as masturbation or anal sex), and sex was restricted on Sundays, religious festivals and fasts, during lent and advent, when pregnant or breastfeeding, and many other occasions. To encourage moral behaviour, the church made marriage a sacrament and placed restrictions on children born outside of a legitimate marriage, most notably they could not become nuns or priests. Some theologians refused illegitimate children baptism, with consequences for their salvation.
The Gregorian reformers had little interest in regulating the form of marriage. All that was required for a binding marriage was freely given consent by two people who were free to marry. They eventually provided a recommended text for wedding ceremonies, but this was a voluntary practice. The reformers also brought in some restrictions on who could marry, most notably prohibiting marriage within seven degrees of consanguinity (up to and including a sixth cousin), later reducing it to four degrees (third cousins). They required men to be fourteen and women twelve before they were able to consent to marriage, and condemned polygamy, concubinage and divorce. Children who had marriage contracted for them before this age had to confirm their consent on coming of age. And they began a conversation about the nature of the family, particularly affirming that within marriage, women became subordinate to their husbands.
What made a marriage, its rights and responsibilities, and implications was otherwise left remarkably open, a space that was largely filled through secular legislation by local rulers across Europe, as well as popular culture and local custom. Secular leaders interest in marriage was initially in its role in producing alliances and family networks, connections reinforced through the inheritance of property. Early legislation might require people to receive the consent of their feudal lord before marrying; it also generally codified rules for the transmission of property across generations, and within marriage, providing guidelines for the use and division of property brought by different parties to marriage. Depending on location, this law typically drew on Roman law, customary local laws, and canon law. As many secular leaders were Christians, they were often happy to adopt the church’s marriage regulations, although in the early centuries, this could be slow and contested. ‘Concubinage’, which inhered rights upon the ‘illegitimate’ heirs of such relationships, and divorce was often hard to discourage, because of its advantages to European rulers.
During the early modern period, the development of nation states, as well as the Reformation, which produced multiple churches that competed for authority, clarified marriage and inheritance law. The Council of Trent (1545-1563), an ecumenical meeting of the Catholic Church, brought greater definition to the marriage ceremony, requiring it to take place before a minister and two witnesses. It also decided that parental consent was not required in religion, ending a long-lasting theological debate. Many other churches followed in producing similar rules for the formation of marriage, although for some, like the Church of Scotland, the form of marriage was less significant than monitoring sexual morality, allowing for considerable tolerance for ‘irregular’ marriage ceremonies. Many Protestant sects also rejected marriage as a sacrament. It was a period accompanied by greater emphasis on the production of the ‘Holy Household’ in both Catholic and Protestant Europe, defining the roles of husbands, wives, children, servants and others within the family. These prescriptions promoted an ideal form of family life that emphasised husbands as patriarchs and providers, whose authority over the home was restrained by their love, and wives as obedient household managers. Children and servants owed their parents/employers respect and obedience, to the extent that disagreement with parental authority was a source of longstanding anxiety.
Some of these moral prescriptions made their way into law, both because in many jurisdictions church courts became increasingly responsible for the management of everyday law and order, and because of an effort during the period to consolidate and rationalise legal systems. The law was now accompanied by legal commentaries that explained how it should be interpreted and these often drew on contemporary moral values and frameworks for human action. Thus, for example in Scotland, law came to define the duties of marriage, which included a requirement of love between spouses and parents and children. These frameworks for marital behaviour were not just aspirational, but were used in courtrooms during disputes over whether a marriage was ‘lawful’, whether a spouse’s behaviour was unreasonable enough for a separation, or whether an action could be legally understood as cruelty.
This Christian framework for marriage remained key to its interpretation, even as law became increasingly secular from the end of the eighteenth century. The French perhaps most spectacularly removed the church from family life with their Revolution of 1789, creating civil marriage registrations and transforming inheritance law to be more equitable towards all children. Yet, these changes were both short-lived and drew on Christian assumptions about who could marry, what marriage was, and its duties and responsibilities. Civil marriage became more widely available in Europe over the course of the nineteenth century, as the distance between church and state expanded, as toleration of competing religions required for multiple churches to be able to offer marriage, and as the state wished to have more regular registration of births, deaths and marriage for the purpose of population management.
During this period, many jurisdictions started to reduce the legal role of the national churches. Everyday law and order generally moved into the secular domain, and a church’s oversight over moral crime became a voluntary relationship between parishioners and their ministers. This happened at different speeds in different countries, but by the end of the nineteenth century, law generally was a secular domain. Divorce had been available in many Protestant states since the Reformation, but the nineteenth and early twentieth centuries saw a relaxation of attitudes that led to the easier dissolution of marriage. A growing feminist movement brought increased rights for women in marriage, particularly in relation to property ownership and child custody. The removal of obedience from religious marriage vows across Europe at the end of the nineteenth and early twentieth centuries reflected the impact of such thinking upon theologians and within the church more broadly. As had always been the case, countries adapted marriage law to the needs, concerns and prejudices of their eras. Thus bars on married women working emerged and disappeared; bars on inter-racial marriage came and went; the age of consent increased; complex tax laws and benefits systems for married couples were developed and repeatedly revised; and so forth.
Marriage continued to change in the twentieth century, as the national churches moved into the role of powerful social critics and their direct control of marital law and regulation was reduced. Marital property, child custody, divorce, and similar laws evolved to reflect the changing nature of the economy, child-rearing practices, and social attitudes. A gay rights movement refocused attention from the ‘moral sin’ of sodomy to the same-sex relationships and families that had been a persistent feature of European societies, tolerated to different degrees in different periods. Marriage regulation is now based on decisions made not by a church hierarchy but by parliamentarians, the judiciary and those who apply policy, people who (ideally) reflect the beliefs, values and needs of the communities they represent. Yet, that these decisions are produced by church, state and people in conversation is not new, but reflects the long history of competing interests in marriage and its long evolution over the centuries.
Regulating Feelings within the Family
Marriage regulations shape family life in important ways. Most straightforwardly, they define who is part of the family, including spouses, their children, and wider kin. This places significant boundaries on who the state accepts as part of a ‘family’ and who is not. The family produced through marriage is then inhered with particular rights and responsibilities towards each other. Couples and their children receive a claim on each other’s property, within certain limits. Spouses are usually expected to financially support each other, even when they have kept their finances separately; this responsibility can extend after the dissolution of marriage. The marital union is often assessed together for taxation, welfare benefits, or child credits.
The family imagined in law can determine inheritance. In most legal jurisdictions, the obligation to provide for your family can restrict your rights over your property. In some cases, the law defines who must be provided for and to what extent; in others, this obligation is given to the testator, but wills and testaments can be contested if they disinherit close family. Recognising this obligation, the law often provides tax relief on inheritances bequeathed to close family, but not to those situated beyond its legal boundaries. The law also defines the line of inheritance for individuals who do not leave wills, focusing first on the spouse and children.
The blurring of the boundaries of the individual’s rights to self and property can also be seen in cases where a person is incapacitated. The next of kin, in law typically a spouse unless otherwise predetermined, gains rights to make decisions about healthcare, life and death, financial management, property, and even freedom (such as when sectioned for mental ill-health). The expectation that couples share information, as well as a social investment in the value of marriage stability, can in some legal jurisdictions restrict individuals from testifying against a spouse in a lawsuit. Importantly, such legislation not only restricts or determines particular actions, but creates important social norms and values that shape married life.
Marriage regulation can situate the boundaries of behaviour within marriage. Regulations requiring couples to be assessed together for taxation operate on an assumption, and thus require, that couples share financial information with each other; those that expect spouses to financially support each other are based on normative beliefs about the duties that inhere with marriage and enforce them in practice. Inheritance laws, particularly for those dying intestate, are developed based on an idealised set of emotional relationships, where spouses prioritise their partners and children, before moving outwards to parents and siblings, and then wider kin. Inheritance law should thus reflect the emotional life of the ‘ordinary’ family, and also produces it on their behalf after death.
These normative expectations for married life are accompanied by legislation that places limits on behaviours are acceptable between couples. Most countries now restrict violence within marriage and prohibit rape, the boundaries and acceptability of both was an ongoing topic of debate in courtrooms until recently. The legal definition of abuse is also expanding in many countries to include emotional abuse and economic violence, such as restricting access to basic provisions or employment. Both through their ‘positive’ imaginings of marriage – a place where couples share information, trust each other to make decisions, provide for each other and share resources, prioritise each other ahead of other relationships – and its ‘negative’ delineation of what should not happen, marriage regulations extend beyond conveying rights and responsibilities to determining the nature of ideal family life.
This can include expectations on the nature of emotional life. Not only is inheritance law developed on the basis that we love our spouse and children more than others, but trust, support and provision can be interpreted as emotional, as well as practical, dimensions of married life. A prohibition of emotional abuse is similarly suggestive of the importance of care as a dimension of family life. Historically, the use of marriage contracts, which decided the use of marital property in advance of the relationship, and entails and strict settlements, that determined inheritance of property before the birth of children, were similarly designed to reduce friction within marriage by ensuring that such contentious issues were not a topic of discussion for couples. Such legal activities were not just pragmatically managing financial assets, but imagining married life as a place where conflict should be avoided. Marriage regulation therefore was and is designed to promote a particular type of marital relationship, including regulating our feelings.
That the law might encourage us to a more harmonious form of marriage might be construed positively, especially for those who understand marital stability (a low divorce rate) as a social good. Yet, marriage regulation is a form of emotional management that is remarkably underdiscussed in marriage policy and in debates around what marriage should be. The campaign for same-sex marriage argued that it would be a victory for love, suggestive of a model where love precedes and leads to marriage. For earlier generations however, love was not the motivation for marriage but followed it, enabled by regulations and contracts designed to promote a particular affective family unit. Thus the love of the same-sex relationship, through marriage and its regulation, comes to take a familiar form to the opposite-sex model.
There are implications here for those who wish to imagine a more expansive model of family life, whether that is to redefine roles and responsibilities within it, its boundaries, or the nature of its affective ties. Changing marriage not only requires opening up access to the institution, but a systematic programme of rethinking the ways that the law applied to family imagine that relationship. This is a much more ambitious programme that defining the terms of entry to marriage, something that may comfort marriage law conservatives. Importantly, it is a programme of effort that is ongoing as laws relating to property, benefits, employment, violence, legal evidence, and more, are constantly renegotiated. It is thus imperative for policymakers to consider the implications of the law that applies to married couples and families for the types of family relationships they wish to see in the nation. It is also important for campaigners looking to redefine family life to pay attention to these legal details, as much as the important constitutional issues.
Conclusion
Marriage regulation has a long history in Western Europe, marked by negotiation between individuals, various churches and the developing state. Far from being a stable institution, marriage, its form, and associated rights and responsibilities, has constantly evolved to reflect not only competing moral values, but the pragmatic economic, social and even emotional needs of the population at particular times and places. This is not surprising for a relationship that has for centuries been situated as a core unit through which to maintain social order. Marriage’s shape, function and even the affective relationships within it have been managed to fulfil the needs of societies and economies. Thus marriage regulation is designed to encourage families to take particular forms and not others. This regulation is extensive, not only referring to the ritual of the marriage ceremony and defining who is free to marry who, but the innumerable laws and regulations that are designed around a particular imagining of what the family is or should be. How we imagine marriage shapes many areas of law, with implications for those domains (e.g. taxation), but it equally reverberates to produce that imagining of marriage as a normative model. Couples and families can contest and negotiate whether to accept such normative values, but evidence suggests that such expectations quickly become unexceptionable – they shape what we think the family is and how we feel about each other.
Further Reading
Sara Butler, ‘The Law as a Weapon in Marital Disputes: Evidence from the Late Medieval
Court of Chancery, 1424-1529’, Journal of British Studies, 43, (2004), pp. 291-316.
Sara MacDougall, Bigamy and Christian Identity in Late Medieval Champagne
(Philadelphia: University of Pennsylvania Press, 2012)
David D’Avray, Medieval Marriage: Symbolism and Society (Oxford: Oxford University
Press, 2007)
Maria Ågren and Amy Erickson, eds., The Marital Economy in Scandanavia and Britain
1400-1900 (Aldershot: Ashgate, 2005)
Lyndal Roper, The Holy Household: Women and Morals in Reformation Augsburg (Oxford:
Oxford University Press, 1991)
Jeffrey Roger Watts, The Making of Modern Marriage: Matrimonial Control and the Rise of
Sentiment in Neuchâtel, 1550-1800 (Ithaca: Cornell University Press, 1992)
Katie Barclay, ‘‘Natural Affection, the Patriarchal Family and the ‘Strict Settlement’ Debate:
a Response from the History of Emotions’, Eighteenth Century Theory and Interpretation, 58(3) (2017), 309-20
Katie Barclay, ‘Natural Affection, Children and Family Inheritance Practices in the Long-
Eighteenth-Century’, in Elizabeth Ewan and Janey Nugent (eds), Children and Youth in Medieval and Early Modern Scotland (Boydell and Brewer), 136-59
Bruce Bennett, ‘The Church of England and the Law of Divorce since 1857: Marriage
Discipline, Ecclesiastical Law and the Establishment’, Journal of Ecclesiastical
History, 54(4) (1994), 625-41.
Julia Moses, ed., Marriage, Law and Modernity: Global Histories (London: Bloomsbury,
2018)