Voidable marriage?

[cati]

I've come across a marriage in 1891 where the bride was aged 20 and married under the name of her foster-parents. In the report of a subsequent court case, she alleged that she was not legally married as (a) she was a minor and parental consent was not given (b) the surname she was married under was not her legal name - and that this made the children of the marriage illegitimate.

As far as I can recall, this would have rendered the marriage voidable, but not void and that therefore the marriage was legal and valid until such time as a decree of nullity was issued, and that the children were therefore legitimate.  (The report of the case seems to bear this out, as an order for judicial separation was made).

Can anyone confirm whether I'm right?

Cati

[stanmapstone]

If the marriage was by banns and no objection was made then the marriage was valid. Marriages of minors, i.e. under 21, without consent after banns were valid, unless the banns had been forbidden by parents or guardians openly and publicly in church at the time of publication.

A void marriage is regarded by law as never having existed. It is void from the start without any formal annulment by a court. However the presumption of the law is that a marriage is valid, and so the onus is on the person challenging the marriage to show that it is void. From "Marriage Law for Genealogists" by Rebecca Probert.

Stan

[stanmapstone]

According to  "Marriage Law for Genealogists" by Rebecca Probert, if a false name was given for a marriage by banns then the marriage would be void, but not if it was a civil ceremony.
Was she commonly  known by the name of her foster-parents?
Stan

[cati]

Thanks, Stan - you're a star!

I'm not convinced that the name she gave was "false", as it was the name of her foster-parents, and she may have been known by it (she's recorded under their name on the 1881 census, but by 1891 she'd married). 

Cati

[stanmapstone]

The instructions to the clergy were/are that if either of the parties has adopted or is commonly known by a christian name or surname other than his or her true name, or surname, both names or surnames should be recorded in the register book with the word "otherwise"  between them.

Stan

[cati]

I'm eagerly awaiting the marriage certificate: the GRO reference has no entry under her parents' name.

This whole sorry story was - according to the newspaper reports - recounted at some length and considerable volume during a row when he turned up unexpectedly at her door.  Mind you, as his mother had told the wife some months previously that the errant husband had died, I can quite understand why the young woman lost her temper!

Cati

[cati]

Marriage certificate now received: Emily's age is stated as 20.  No mention of "otherwise Melton": her father's name is given as George Heaken (he was in fact her foster-father).  The marriage was in Islington Parish Church, by Licence.  I'm hypothesising that George Heaken may have given his consent:  she emphasised that the consent of her parents was not given.

It now transpires that an order for judicial separation was granted, so clearly the Court viewed the marriage as legal.

Cati

[stanmapstone]

I  assume that George Heaken was her legal guardian.

 If the marriage was by common licence an affidavit as to residence, absence of lawful impediment, and consent of the parent (if either party was a minor), or guardian, was required to be made when the licence was applied for.
Halsbury's Laws of England, Vol. 16, pub 1911
Where a person, not being a widower or widow, is under the age of twenty-one years, the father, if living, or, if he is dead, the guardian or guardians, or one of them, or if there is no guardian lawfully appointed, the mother, if she has not remarried, has authority to consent to his or her marriage; and such consent is required except where there is no person having authority to give it.

Stan

[cati]

That's what I'd thought, Stan. 

Many thanks for your help on sorting this one out.  Would you believe that, after all these shenannigans, she went back to him??

Cati