The marrying kind? Marriage, freedom and the state in modern Britain

Julia Moses | 15 October 2014

In 2013, UK authorities documented 1,302 cases of forced marriage. The majority involved young women from Pakistani families. In June 2014, a new regulation set a steep penalty for forcing others to marry: up to seven years in prison. Circular 01/2014, New Forced Marriage Offences, was heralded by some, including the Home Secretary Theresa May, as a powerful means to protect one’s ‘freedom to choose’ whether and whom to marry.

This particular ‘freedom’ of choice came fresh on the heels of a related move in UK family law: the enactment of the Marriage (Same-Sex Couples) Act of 2013 for England and Wales, and its Scottish counterpart from the winter of 2014. On 29 March, the UK witnessed its first same-sex marriage ceremonies. Same-sex couples were now entitled to most legal privileges of marriage, which had been circumscribed under earlier rules on civil partnerships. The new laws suggested that anyone was ‘the marrying kind’, as long as she or he had the freedom to choose marriage. These policies seemed to mark a watershed in the history of marriage – revolutionising a traditional and stalwart institution.

In the UK in 2014, love can bloom in myriad forms, whether through cohabitation or marriage, or even polyamory (consensual relationships with multiple lovers) – though bigamy and bestiality (zoophilia) remain illegal. But is this espousal of freedom a proclamation of tolerance? Is freedom for one, freedom for all? Recent debate about the ruling on forced marriage and on the teachings of Shariah law on the family in Birmingham schools suggests a more complicated picture. And the history of marriage in modern Britain, as in much of Western Europe, points to a rather complex relationship between individual freedoms and the regulation of the family, showing that the state has tinkered with marriage in various ways for centuries.

By establishing a set of rules on the family, regulation embodies specific cultural norms. In the case of same-sex marriage, the norms governing ‘man and wife’ – heterosexual couples – had been applied to gay and lesbian pairs. In criminalising ‘forced marriage’, the current government has embraced Christian understandings of marriage as a sacrament, governed directly by God and agreed by the conjugal couple alone (and not arranged by their parents or a matchmaker). The ‘freedom to choose’ is the obligation to take up a specific ideology of the family that draws upon Christian theology and practice.

From this perspective, recent British policy interventions on the family are not especially novel. The family, with marriage as its symbolic and contractual origin, has stood at the core of conflict over state power and cultural (and national) identity in Britain at least since the Reformation, evidenced notoriously by the dissolution of Henry VIII’s multiple marriages. Henry’s insistence on the freedom to dissolve his marriages through divorce (and beheading) echoed, to a certain extent, early church doctrine. It argued that marriage was a contract between two consenting individuals: freedom of choice stood at the core of marriage in Christianity. This notion continued to resound in British understandings of marriage, as elsewhere on the continent.

Yet, freedom of choice was insufficient in the eyes of the state in Britain: marriage needed to be seen as valid by the community. As shown by historian Lawrence Stone, legal scholar Rebecca Probert and others, medieval and early modern rules on marriage that prioritised the will of the couple – over and above the wishes, for example, of their parents – could result in so-called clandestine marriages, arrangements that were technically legal but, in practice, extraordinarily confusing because they could be conducted in various ways and kept secret. By 1753, simply consenting to marry was not enough. ‘Clandestine marriage’, that is, marriage without the public posting of banns (to allow for objections) and other measures to ensure legimate matrimony, was outlawed in England, Wales and Ireland. For those mavericks who desired to follow their hearts in secret, hopping over the Scottish border to Gretna Green became an alluring option.

By the nineteenth century, free choice saw a new interpretation, as nonconformists and Catholics in Britain were allowed to marry in accordance with their own confessional practices. Quakers and Jews had been allowed the same freedom already in the previous century. Moreover, in colonial India, the growing emphasis on liberalism and individual freedoms found expression in rules that allowed for the use of ‘personal law’ in marital arrangements. According to this practice, as Nandini Chatterjee has shown, individuals from different ‘ethnic’ groups and religions (as defined by colonial authorities) could follow their own patterns of family life – including marriage and separation. Freedom of choice had become the British mode of marriage, and regulating this ‘freedom’ was central to maintaining specific cultural norms at home, and in the Empire.

However, this freedom was not uniquely British. It was part of a general European trend. The Revolution of 1789 ushered in a new marital regime in France, removing marriage from the aegis of the Church and making it a civil matter – a legal contract between two consenting individuals. Numerous countries, including Germany and Italy, followed suit with civil marriage laws. After registering their marriages with the state, individuals could choose to marry in church or at a synagogue. Increasingly, they were permitted to divorce. Marriage was now an act of civil law: it was a communal, civic good governed by the state and defined according to presumed communal – often phrased at the time as ‘cultural’ or ‘national’ – norms.

Contemporary debates in Britain about marriage stem from this long and complex history. The family in Britain, as in much of Western Europe, has been the key battle in various ‘culture wars’, as conflict between church and state was often characterised in the nineteenth century. This battle has divided faiths, empires and colonial subjects, and rallied new nation states against old ‘international’ forces such as the Catholic Church. What it means, who constitutes a family, and who has the power to determine its status, are questions that will not be resolved in 2014. History shows that family law in modern Britain has not been the result of increasing tolerance, characterised by the freedom to choose one’s lifestyle (and the banning of alternative practices). It has been an issue of identity – a conflict of individuals and communities, of ‘national culture’ and religion.

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About the author

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Julia Moses is a Lecturer in Modern History at the University of Sheffield. With AHRC support, she is writing a book on marriage and the state in Imperial Germany that investigates conflict related to cultural, ethnic and religious difference. The project builds on her forthcoming first book, on social policy, conceptions of risk and national identity, The First Modern Risk: Workplace Accidents and the Making of European Welfare States. j.moses@sheffield.ac.uk