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From: Reedpcgen< >
Subject: Re: The hitherto unknown marriages of Llywelyn of North Wales
Date: 20 Oct 1999 23:50:05 GMT


[PART 3:]

The technicalities of what constituted a legal marriage was still somewhat
ambiguous at the period Llywelyn was negotiating to marry the daughter of the
King of Man. It may be helpful to cite a few passages which put the motivation
of testimony given by various parties into historical perspective.

Maitland [2:367] cites the case of Richard de Anesty's lawsuit which resulted
in a divorce pronounced about 1143: "a marriage solemnly celebrated in church,
a marriage of which a child had been born, was set aside as null in favor of an
earlier marriage constituted by a mere exchange of consenting word."

Yet, "According to the doctrine that prevailed for a while, there was no
marriage until man and woman had become one flesh. In strictness of law all
that was essential was this physical union accompanied by the intent to be
thenceforth husband and wife. All that preceded this could be no more than an
espousal (desponsatio) and the relationship was dissoluble; in particular it
was dissolved if either of them contracted a perfected marriage with a third
person." [Maitland 2:368]

"However, in the course of the twelfth century, when the classical canon law
was taking shape, a new distinction came to the front. Espousals were of two
kinds: sponsalia per verba de futuro, which take place if man and woman promise
each other that they will hereafter become husband and wife; sponsalia per
verba de praesenti, which take place if they declare that they take each other
as husband and wife now, at this very moment. It is thenceforth the
established doctrine that a transaction of the latter kind (sponsalia per verba
de praesenti) creates a bond which is hardly to be dissolved; in particular, it
is not dissolved though one of the spouses goes through the ceremony of
marriage and is physically united with another person." [Maitland 2:368]

"The espousal 'by words of the present tense' constitutes a marriage
(matrimonium), at all events an initiate marriage; the spouses are coniuges;
the relationship between them is almost as indisseverable as if it had already
become a consummate marriage." [Unless a spouse free themselves from an
unconsummated marriage by entering religion or getting papal dispensation.]

"...a marriage that is not yet 'consummated' should ... be no marriage at all.
As to sponsalia per verba de futuro, the doctrine of the canonists was that
sexual intercourse if preceded by such espousals was a marriage; a presumption
of law explained the carnalis copula by the foregoing promise to marry."
[Maitland 2:368]

What of children born to a union later dissolved? Would they be declared
legitimate or illegitimate? "'If a woman in good faith marries a man who is
already married, believing him to be unmarried, and has children by him, such
children will be adjudged legitimate and capable of inheriting...." [A
contemporary of Bracton says,] "'If a woman is divorced for kinship, or
fornication, or blasphemy ... she can not claim dower, but her children can
inherit both from their father and from their mother according to the law of
the realm. But if the wife is separated from her husband on the ground that he
previously contracted marriage with some other woman by words of present time,
then her children can not be legitimate, nor can they succeed to their father,
nor to their mother....'" [Maitland 2:376-7]

But the actual practice seems to be that if a couple married and joined
physically in good faith, any children born to the union were declared
legitimate. If parties were not married in good faith [if they had knowledge
of impediments before the fact], the children were not legitimate. And any
child born before the act of marriage could not be temporally legitimized after
the fact ["our temporal courts would not allow to marriage any retroactive
power; the bastard remained incapable of inheriting land even though his
parents had become husband and wife ...." Maitland 2:277].

[end of part 3]

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