A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
Lord Lyndhurst's act was especially designed to put an end to
marriage with a deceased wife's sister.[288] Such unions, clearly
unlawful, appear to have become very common since the age of the
Stuarts.[289] For where no property or other interests were at
stake a man's marriage with his sister-in-law was likely to go
unchallenged until the death of husband or wife made it perfectly
valid. Doubtless in such cases, through delay in "collusive suits,"
greedy relatives may sometimes have been prevented from securing
estates which by natural justice, if not by law, belonged to
the children or other heirs; for "no fresh proceedings could be
initiated so long as any suit of a similar kind was pending."[290]
But the avowed purpose of the act is its best justification, if
the times were not ripe for a more liberal remedy. If this class
of marriages could not be legalized in harmony with the practice
of most other civilized peoples, it was perhaps well in this way
to make an attempt to relieve their innocent offspring from the
uncertainty which "hung over them sometimes for years like a sword
of Damocles."[291] The attempt, however, did not prove successful.
"In 1847 a Royal Commission was appointed to inquire into the state
and operation of the law of marriage as relating to the prohibited
degrees of affinity. In their report the commissioners state
that of marriages within the prohibited degrees by far the most
frequent class was that of marriage of a widower with a sister of
his deceased wife, so that in fact it formed the most important
consideration in the whole subject; and that as these so-called
marriages will take place, especially among the middle and poorer
classes, when a concurrence of circumstances gives rise to mutual
attachment, the commissioners were of opinion" that Lord Lyndhurst's
act "had failed to attain its object." They furthermore declare,
even at this early date, that such unions are permitted, "by
dispensation or otherwise, in nearly all the continental states of
Europe," as well as in most of the states of the American Union.[292]
[Footnote 288: Marriage with a deceased wife's sister or a
husband's brother is included in the table of forbidden degrees
approved by Archbishop Parker in 1563. It purports to be based on
the Levitical code; and it was accepted as the law of the English
church by the ninety-ninth canon of 1603: HAMMICK, _op. cit._, 32
ff., 350; _Tracts Issued by the Mar. Law Defence Union_, I, 51
ff.]
[Footnote 289: JEAFFRESON, _op. cit._, II, 258-66. These
marriages were called "Altona marriages" (from Altona in Denmark,
where they were sometimes solemnized), and are the counterpart
of the "Gretna marriages," except that the latter were valid and
the former were not: _ibid._, II, 259, 260. The case of Brook
_v._ Brook (House of Lords, March, 1861) grew out of a marriage
celebrated near Altona, June, 1850: _Tracts Issued by the Mar.
Law Defence Union_, II, 313 ff.]
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