MARRIAGE LAWS OF KINDRED AND AFFINITY
James’ marriage to his first wife’s niece raises the interesting legal question as to whether his second marriage was valid.
The list of forbidden marriages based on genealogical affinity had been drawn up by the Church of England in 1560 and remained unchanged until the 20th Century. In this original list Rule 29 stated that a man may not marry his Wife’s Brother’s Daughter.
During this period there was little if any distinction between civil and ecclesiastical law on marriage and marriage matters were dealt with in church courts, even for non-Anglicans.
It would therefore seem at first sight that James’ second marriage was not legal, both in the eyes of the church and the state. The fact that the wedding took place in Bermuda would not be relevant as the law would be applied on the basis of the nationality of the participants.
However fortunately for the legitimacy of the descendants of James the legal situation was slightly more complicated. Over the years marriages between the more distant consanguinities on the list were not ‘void’, but ‘voidable’ which in practice meant that the union was acceptable unless steps were taken in a church court for an annulment. The Marriage Act 1835 reversed this situation and all marriages between those categories listed would have been invalid.
We may therefore sum up by saying that James’ second marriage was valid, but if he had married seven years later, it would not have been.
As matters turned out this was a happy conclusion. The marriage appears to have been a very successful one. James and Frances had a son and a daughter. The son died in Bermuda in the 1840s while James was serving as surgeon in the prison hulk The daughter, after a very brief marriage to a naval officer who died in the West Indies, married an army officer and appears frequently, as Aunt Fanny Gilbard, in the diaries of George King Hall when he served in Lord Warden in Malta in the early 1870s. As a widow after 1869, Frances was supported by William and when she died in 1885 was living near to him and his second wife in Nottinghamshire.