A Voidable Marriage in History: Marrying the Sister of One’s Late Wife or the Brother of One’s Late Husband

A plot we readers often encounter in historical romance set in the Regency Period is when the hero takes up with his late wife’s sister. But was it possible?

“For most of the nineteenth century, the question of whether a man should be able to marry the sister of his deceased wife engaged the English public in protracted and heated debate. The Parliamentary debates, individually published pamphlets and periodical essays, and topical fiction that at times seemed to flood from this debate express a range of nineteenth-century English anxieties about the proper definition and practice of family life, anxieties that provoked serious reconsideration of the legal definitions and cultural meanings of sibling and marital relations. The figure that carried the full weight of these ideological struggles was the adult unmarried sister living in a married sister’s household; the specific issue upon which the English people focused was whether a man’s wife’s sister was, in law, the equivalent of his blood sister and therefore never to be his wife, or his metaphorical sister only and therefore an ‘indifferent person’ whom he could marry.” (Anne D. Wallace, “On the Deceased Wife’s Sister Controversy, 1835-1907″)

Before 1835, the church would annul the marriage of a man with the sister of his late wife if reported, but if no one reported the situation, then the marriage was legal. It  was a voidable marriage not a void one. The same was true for marriage with a late husband’s brother. Both situations, however, were made illegal in 1835. The one involving the sister was repealed in 1907. The brother one was repealed much later. Even before the law passed, the church opposed such unions, and there were quite a few people who did as well. Every year after 1835 some one proposed a law to repeal the law Gilbert and Sullivan referred to it as the “annual blister.”

“The doctrine that such marriages were illicit was reflected in the Table of kindred and affinity in the Anglican (Church of England) Book of Common Prayer. Prohibition of marriage between certain degrees of kindred outlawed what is known as incest; prohibition between degrees of relationship by marriage (affinity) as opposed to blood (consanguinity) seems to have reflected an analogous taboo. At least one novel, Felicia Skene’s The Inheritance of Evil; Or, the Consequences of Marrying a Deceased Wife’s Sister (1849) addressed the topic in polemic fictional form.

“Under ecclesiastical law, a marriage within the prohibited degrees was not absolutely void but it was voidable at the suit of any interested party. Matthew Boulton married his deceased wife’s sister in 1760. He advised silence, secrecy and Scotland, although they married in London; the marriage was opposed by her brother. Similarly Charles Austen, the younger brother of Jane Austen, married his deceased wife’s sister in 1820 and remained married to her until he died in 1852.” (Deceased Wife’s Sister’s Marriage Act 1907

Charles John Austen en.wikipedia.org/wiki/ Charles_Austen

Charles John Austen en.wikipedia.org/wiki/
Charles_Austen

Anyone could challenge the validity of the marriage by lodging a complaint with the Ecclesiastical Court.  That was apparent from the reams of correspondence in the Beaufort archives on this very case. All that was needed was someone, ANYONE to challenge or complain about one of these voidable marriages to the Ecclesiastical Court, and the court could declare it invalid, thereby making all offspring of the union bastards, a loss of a living, etc.  The complaint or challenge had to be made while both parties to the marriage in question were alive .

The most likely person to challenge a voidable marriage would be the man who would inherit if the marriage didn’t exist — husband’s brother or nephew or whatever.  So a man whose wife produced only daughters, then the wife died, marries her sister and has a son, but his brother wants the title/land so challenges the marriage. The second most likely to challenge would probably be the husband himself if neither wife produced an heir.  But I doubt many of these marriages existed, especially if titles and land were involved.

Men did marry their dead wife’s sister. Such marriages were not automatically void by law, but they were voidable if someone challenged them. Lord Lyndhurst’s concerns about a challenge to the 7th Duke of Beaufort’s marriage was not without substance. Wellington was strongly opposed to that marriage and quite outspoken about it.  Anyway, in 1835, Lyndhurst, concerned that the Duke of Beaufort’s heir could be stripped of his legitimacy, all his rights and his entitlements as heir to the dukedom if someone like Wellington challenged Beaufort’s marriage to his dead wife’s half sister, took the matter to Parliament in the form of a bill to legitimize the marriage. But the issue grew legs of its own.  What eventuated was the bill that decreed that all voidable marriages performed before 31 August 1835, if not already voided, would be declared fully legitimate and all marriages within the prohibited degrees performed after that date would be void, invalid from the beginning whether challenged or not.  But as this Act of Parliament included the marriage between a woman and her dead husband’s brother, an amendment was made – almost immediately- to exclude the marriage of a woman to her dead husband’s brother.

Henry Somerset, 7th Duke of Beaufort en.wikipedia.org/wiki/ Henry_Somerset_7th_Duke_of_Beaufort

Henry Somerset, 7th Duke of Beaufort en.wikipedia.org/wiki/
Henry_Somerset_7th_Duke_of_Beaufort

“Parliament had to tack that part on to get the bill to pass. In the social climate of the time it was ‘too soon’ to eliminate the taboo on in-law marriage in one fell swoop. When the more progressive bill to legalize wife’s sister marriage was finally introduced in 1842, a fight broke out that would last 65 years.

“What was the big deal? Opponents of the bill saw it as a slippery slope that would lead to the legalization of all kinds of incest. They drew arguments from the Bible: Genesis 2 states that husband and wife ‘became one flesh,’ therefore your wife’s sister was really your own sister. Leviticus prohibits a man from uncovering ‘the nakedness of thy brother’s wife,’ and so, by analogy, he shouldn’t do it to his wife’s sister either. Arguments from science included the bizarre claim that married couples become blood relations through some biological consequence of sexual intercourse, or that the idea that in-law marriage was wrong came from evolutionary instinct. People also thought it would destroy the family by encouraging husbands and their wives’ sisters to lust after each other while the wives were still alive.

“Were there really so many brothers- and sisters-in-law who wanted to get married? Not really, but it was more common than it is now. Women often died in childbirth, and their unmarried sisters, who had few other options to support themselves besides marriage, would step in to care for the family. For convenience, and sometimes developing love, remarriage seemed like the thing to do. Supporters of the act argued that prohibiting these marriages was unfair to the poor, who could not afford to hire help and could not travel out of the country to get married, as the upper class often did to get around the law.” (The 65 Year Battle Over the Deceased Sister’s Marriage Act)

The lengthy nature of the campaign was referred to in the Gilbert and Sullivan opera Iolanthe, in which the Queen of the Fairies sings “He shall prick that annual blister, marriage with deceased wife’s sister.”

“The Marriage Act 1835, however, hardened the law into an absolute prohibition (whilst, however, authorising any such marriages which had already taken place), so that such marriages could no longer take place in the United Kingdom and colonies at all (in Scotland they were prohibited by a Scottish Marriage Act of 1567). Such marriages from that date had to take place abroad: see, for example, William Holman Hunt and John Collier, both painters, who married the sisters of their deceased wives in Switzerland and in Norway respectively. However, this was only possible for those who could afford it.” (Deceased Wife’s Sister’s Marriage Act 1907)

“The Deceased Wife’s Sister’s Marriage Act 1907 removed the prohibition (although it allowed individual clergy, if they chose, to refuse to conduct marriages which would previously have been prohibited). The Act did exactly what it said and no more; so, for example, it was not until 1921 that the Deceased Brother’s Widow’s Marriage Act 1921 was passed. The Marriage (Prohibited Degrees) Relationship Act 1931 extended the operation of the 1907 Act to allow the marriages of nieces and nephews by marriage as well. The Deceased Brother’s Widow’s Marriage Act (Northern Ireland) 1924 was passed to remove doubts as to the application of the Deceased Brother’s Widow’s Marriage Act, 1921, to Northern Ireland.” (Deceased Wife’s Sister’s Marriage Act 1907)

UnknownThe Annual Blister: A Sidelight on Victorian Social and Parliamentary History
Cynthia Fansler Behrman
Victorian Studies
Vol. 11, No. 4 (Jun., 1968), pp. 483-502
Published by: Indiana University Press
Stable URL: http://www.jstor.org/stable/3825227
Page Count: 20

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About reginajeffers

Regina Jeffers is the award-winning author of Austenesque, Regency and contemporary novels.
This entry was posted in Act of Parliament, British history, Great Britain, Living in the Regency, marriage, real life tales, Regency era, Victorian era and tagged , , , , , , . Bookmark the permalink.

14 Responses to A Voidable Marriage in History: Marrying the Sister of One’s Late Wife or the Brother of One’s Late Husband

  1. I had no idea – thank you for educating me 🙂

    • I shouldn’t be surprising that the Church of England at the time considered marrying one’s in-laws as incest. I have read multiple books where this is the plot line, and they make no reference to the possibility of the marriage being voided.

  2. juliaergane says:

    I’ve always thought that this was contra-biblical. In the Torah a brother is actually beholden to marry his brother’s widow if he is able. Personally, I was always shocked by the close consanguinity which was allowed (1st cousins for example). This is not good for the gene pool and I believe it is also verboten in the Torah. The horrible things that happened to mediaeval ruling families because of all the consanguinity would make your hair turn white. Nicki’s hemophilia was nothing compared to the deformities, mental incapacities, etc. that plagued those families.

    • I have a post coming up in early January on the children of Victoria and Albert. In creating the post it was interesting to see how the hemophilia followed through several royal families.

  3. Lisette says:

    My husband grandmother died after catching pneumonia, her sister, who was engaged to someone else at the time, broke off her her engagement and married her brother-in-law. Otherwise the children would have been send away to homes, as it was presumed that a single father wouldn’t be able to raise this children alone. This was in the 1950’s in a rural environment. They became very happy together.

  4. Joan says:

    Jane Austen’s niece Louisa Knight married the surviving husband (Lord George Hill) of her late sister Cassandra Knight in 1847. They had to marry abroad to get around the legal changes – that marriage was later discussed in the British House of Lords much to the mortification of Louisa . The whole business is detailed in the wonderful book by Sophia Hillan “May, Lou and Cass, Jane Austen’s nieces in Ireland” which covers the three Knight sisters who all ended up in living and being buried in Ireland. It is a fascinating read. gives a great deal of detailed insight into the Knight family from the time of Jane Austen right through to the late 19th century.

    • Thank you for the book recommendation, Joan. That is one I’ve not read. I’ll add it to my wish list.
      I am currently writing a book set upon the American continent in the late 1700s. Women were scare upon the frontier, and this practice would not have raised an eyebrow.

  5. Pingback: Annulments, Divorces, Criminal Conversation, Oh My! | ReginaJeffers's Blog

  6. Aliyah Boyle says:

    Do you know if it would have been just as frowned upon or even illegal if a woman married her deceased fiance’s brother? Would it be viewed on the same level as if she were marrying her late husband’s brother?

    • A levirate marriage would be possible (I used it as a plot point in my novel, A Touch of Mercy), but it would depend upon the situation. Some neighbors would look upon this as incestuous, much as they would the situation of marrying one’s late husband’s brother. Even marrying the brother of one’s late husband was legal if no one complained. That was a sidewise connection. If someone complained then the marriage was void, and any children as a result of the marriage would be “bastards.” If heirs are required by the man, then his children could not inherit.

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