Was my ancestor a bigamist?
Q In July 1840, my great great aunt, Elizabeth Wilmer, married Nathan Burchell in Billingshurst, Sussex. Elizabeth died in September that year. On 20 September 1841, Nathan married Elizabeth’s sister Sarah. This marriage was illegal, as Sarah was Nathan’s deceased wife’s sister. I think the couple were aware of this as they didn’t marry in their local church.
Between 1861 and 1871, the marriage fell apart. On 1 July 1871, Nathan married Francis Bridges in Funtington parish church. He called himself a widower. I think it highly unlikely that he did not know Sarah was still alive. Was he a bigamist?
Susan Martin
A The short, if somewhat surprising, answer is that Nathan’s third marriage was valid and legal!
A person could only commit bigamy if they were already validly married. In this case, it was Nathan’s second marriage (to Sarah) that was void, although not ‘illegal’ in the sense of exposing him to punishment.
Since Sarah was the sister of his deceased wife, she was within the ‘prohibited degrees’ for the purpose of marriage. In other words, Nathan was never validly married to Sarah. This means that he was free to marry Frances without fear of being prosecuted for bigamy.
Nathan was possibly aware of this. Marriage to a deceased wife’s sister was a matter of frequent national debate, and there was a high-profile case in 1848 involving exactly the same scenario: James Chadwick, who married his late wife’s sister, went on to marry another woman, but was acquitted of bigamy.
The timing of Nathan’s three marriages is important. Before 31 August 1835, marriages within the prohibited degrees had been voidable rather than void: in essence, they were accepted as valid unless annulled by a court. The 1835 Marriage Act then came into effect and made any such future marriages void; however, it also retrospectively validated all such existing ones. This means that if Nathan’s first and second marriages had taken place 10 years earlier, then his second marriage would have been valid, and his third one would have been void and (depending on whether he was able to establish any other defence to the charge) bigamous.
The sequence of his marriages is equally important. In 1872, a man was convicted of bigamy where it was his third wife who was related to his late first wife. If you were validly married, it was no defence to a charge of bigamy to try to argue that your subsequent marriage would have been void because you were related to the bride!
Rebecca Probert