England Church Courts, Marriage Disputes, and Nonconformity Issues (National Institute)

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The original content for this article was contributed by The National Institute for Genealogical Studies in June 2012. It is an excerpt from their course English: Court Records-Criminal, Civil and Ecclesiastical  by Dr. Penelope Christensen. The Institute offers over 200 comprehensive genealogy courses for a fee ($).

Matrimonial Causes

All kinds of marriage disputes were dealt with primarily by archdeacons’ courts and appeals went through the higher levels as for probate, except where common or equity law had been broached, until 1857. Neighbours, friends and servants were interrogated to substantiate accusations of immorality and some of the details are decidedly sordid, leaving nothing to the imagination! The courts settled disputes between a husband and wife, dealt with claims for restitution of conjugal rights, and iactitation (falsely boasting of marriage).

Annulment

Obtaining an annulment of a marriage on the grounds of lunacy, frigidity, impotence, consanguinity or affinity was possible. Annulment of a marriage by minors under age 12 (girls) and 14 (boys), often contracted in order to preserve family estates, could take place when they came of age.

Blackburn, Lancashire in Consistory Court of Chester 1562
Peter Haworth contra Margerie Haworth alias Haddock in a divorce suit, both parties were minors, Peter was - and Margerie not yet 12 years of age at the time of the marriage.
FHL Film 1999544

Separation and Divorce

A divorce in cases of cruelty or adultery was only a separation from bed and board (a mensa et toro), not a divorce in the modern sense as it did not allow either party to remarry in their former partner’s lifetime. The family historian will find many couples living together without having had a marriage ceremony, simply because one (or both) were legally only separated from a previous spouse.

Colne, Lancashire in Consistory Court of Chester 1562
Laurence Shottilworth contra Elizabeth Shottilworth in a divorce suit arising from her adultery. FHL Film 1999544
Colne, Cheshire in Consistory Court of Chester 1562
Jane Downes contra Reginald Downes in a divorce suit arising from his adultery.FHL Film 1999544

A full divorce from the bands of matrimony (a vinculo matrimonii) could only be obtained by private act of parliament from 1670 following a separation granted in a church court, and was obviously only possible for the wealthy (Wood).

Validity of Marriage

Prior to 1754 (Hardwicke’s Marriage Act) there were so many marriages contracted informally that the archdeaconry and diocesan courts were kept busy deciding who was validly married. This was especially the case before about 1600 when parish registers were starting to be well kept. Snetzler (Of Chirche-reves, and of Testaments—The Church, Sex and Slander in Elizabethan North Devon. Devon Family History Society. [See her article with examples from the book in Devon Family Historian Vol 82 page 9-12.]) published a fascinating book about North Devon cases.

Chester, Cheshire in Consistory Court of Chester 1629
Clandestine marriage between Richard Cookson and Margaret Fletcher by Richard Witharley at Rossets Green Chapel.
FHL Film 1999544

Legitimacy of Children

Ecclesiastical courts also arbitrated on the legitimacy of children but not on dower.

The Matrimonial Causes Act came into effect in 1858 and removed jurisdiction for matrimonial affairs from the ecclesiastical courts.

Nonconformity and Heresy

There was a wide variety of presentable causes including failure to attend divine service or to receive holy communion, and failure to baptize children.

Walton, [Cheshire or Lancashire?] in Consistory Court of Chester 1640. Office contra Lawrence Breres for non-attendance at church and not communicating since 1636, and has not had his children baptized and has left his wife.FHL Film 1999544

Sabbath Breaking

Breaking the Sabbath by working, trading, or indulging in prohibited games and other activities on Sundays and holy days was a common offence. Brinckworth (Shakespeare and the Bawdy Court of Stratford. Phillimore, Chichester, Sussex. Reviewed by Emmison in Genealogists’ Magazine Vol 17 #6, page 300-301) details the excesses in Shakespeare’s birthplace, Stratford-upon-Avon, Warwickshire which outnumbered cases for sexual offences there.

Harston, Cambridgeshire. Ely Diocesan Records
Thomas Tucke 1590
- Notatur for that he was at the foteball in the tyme of eveninge prayer upon sondaye last. FHL Film 1999544
Ashton under Lyne, Lancashire in Consistory Court of Chester 1640
Nicholas Walker contra John Hamon saying that he spit upon his dog in Ashton church. FHL Film 1999544

Recusants, Schismatics and Nonconformists

From the 1670s the numbers of communicants, recusants (Roman Catholics) and dissenters in the parish were regularly reported in the churchwardens’ presentments and specific charges laid. Schismatics, those who promoted divisions within the church, were also brought to court.

Little Chart, Kent 12 Oct 1722 [Film 1751812]
A Bill of Presentment
These are to certify[to] w[ho]m if may concern yt I Thomas Pearson rector do present Richard Ashbey of this Parish for forsaking his Parish Church entering into a private Mass-house, for being clandestinely married to Dorothy Man by a Popish Priest in Queen Street, London, as this enclos’d certificate testifies.
We have no other Presentmts.
Tho: Pearson Rr

Heresy

Defined as the holding of religious views contrary to the orthodox doctrine of the Christian Church. Prior to the Reformation Protestants were regarded as heretics, and afterwards some Roman Catholics, Anabaptists (Unitarians) and other dissenters. Witchcraft was treated as heresy from 1258 until the 16th century. Accusations of heresy were rarely made against laymen who neither preached nor published, but clerics were hanged and burned. Owing to their seriousness, most heresy causes were tried by an archbishop in an audience court.

In the 14th and 15th centuries charges of political intrigue, Lollardy, heresy and treason were common, and frequently witchcraft and necromancy were added for good measure. The latter could often secure a conviction where the prosecution for other charges failed!

Excommunication was given to lay people as an alternative to the hanging and burning offered clerics. Excommunicated heretics were then passed on to the temporal courts which could pronounce the death penalty. The last heretic executed by burning was an Anabaptist, William Wightman, in 1612.


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Information in this Wiki page is excerpted from the online course English: Court Records-Criminal, Civil and Ecclesiastical offered by The National Institute for Genealogical Studies. To learn more about this course or other courses available from the Institute, see our website. We can be contacted at wiki@genealogicalstudies.com

We welcome updates and additions to this Wiki page.