prohibited marriages and legitimacy of subsequent children in England in 1700s

Question

I'm trying to find some definitive sources as to the legitimacy of children born to a couple whose marriage was prohibited. The law in England prohibited the marriage of a man to his wife's niece. My ancestors Wallis-2422 and Pettitt-347 married in 1750, in London, miles away from the parishes where they lived in Cambridgeshire and probably in secret. Henry's wife had died 9 years earlier in 1741. Subsequent children were baptised as if their parents were not married. Traditionally illegitimate children were given the mother's surname, so I will enter the children with mother's surname as LNAB, 

going by http://www.genetic-genealogy.co.uk/Toc115570145.html#_ftn17 it wasn't until the 1931 Marriage act that it became legal to marry your niece-in-law, so would the 1750 marriage have been void?

 

Any thoughts and sources appreciated

Comments

I'll just advise anyone wanting to comment to first read the Bishop's Transcripts of the second batch of children otherwise you'll be adding little (as I nearly did).

It's a fascinating case with many questions. Why did they get married in London when it clearly wasn't accepted in Duxford? Or did they not tell anyone in Duxford? It's clear their connection was known from the comments to Kezia's baptism. Why was Susanna's baptism treated differently?

It's a mistake to think of people in the past as less intelligent as today. Of course they had far less knowledge at their disposal but they were perfectly able to reason about morality. The prohibition against marriage when there was no blood relationship doubtless seemed absurd to many.

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Thanks Matthew - the only reason I can think that Susanna's baptism was recorded differently is that maybe at the time of Susanna's birth, the parish overseers, (or whoever dealt with illegitimate births that may become a burden to the parish) were not at that time aware of the relationship between Henry and Alice and did not know who the father was. It was probably only after the birth of Susanna that the relationship came to light.

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Or possibly they did know and were making a point? Presumably Henry and Alice married in London because they could not get married in Duxford, but they may have asked, and been told no first. It's a great story, it would be fascinating to see if there was an church court case (and who brought it, if so).

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As is often the case this question sent me off to try to find more. Apparently, as Matthew suggests there was a great deal of controversy about the prohibitions in the table of affinity. After the 1835 act (to which Deborah refers) these marriages were void rather than voidable. (If I'm understanding correctly)

  There were numerous  reform bills brought to parliament in an endeavour to change the law but they were all rejected by the lords.Marrying a deceased wives sister was the prime example.  The controversy was so well known it was referred to in a Gilbert and Sullivan song. This describes one such case http://latrobejournal.slv.vic.gov.au/latrobejournal/issue/latrobe-71/t1-g-t11.html

Answer 1

I found this in Hansard: "Before the Act of 1835, marriages within the prohibited degrees of affinity were void, but could only be declared void by sentence of the Ecclesiastical Court, which could only be obtained during the lifetime of both of the parties. After their death, the marriage could not be voided, and the children were legitimate. The children were thus in a most precarious situation. It was common to have a friendly suit carried on during the whole time of the joint lives of the parents, so as to prevent any person who might be entitled to the succession from taking steps to invalidate the marriage, which might have been done where that device was not resorted to. It might also happen that the married parties themselves, from some caprice or some feeling against each other, should annul the marriage." https://api.parliament.uk/historic-hansard/commons/1855/jun/20/marriage-law-amendment-bill

If that's right then, although the Duxford clergyman clearly knew the marriage was void and regarded the children as illegitimate, they may not have been. Kezia may never have been called Kezia Pettit.

 

Comments

Thanks Deborah - that is really useful and throws a spanner in the works. It is a conundrum whether to have last name at birth as Wallis or Pettit. The children would have clearly been legitimised unless I can find evidence of the marriage being declared void by the Ecclesiastical Court. However does being legitimised define the last name at birth? Or does it just mean that the children would have had a legal right to any land/property of the father on his death?

 

 

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In general, illegitimate children commonly used either name, or both.  It's a common cause of aliases (and "missing" birth certificates / baptisms).

But obviously if everybody was trying to ignore the irregularity of the marriage they'd use the father's name.