Sister-in-Law Marriage in the Empire: Religious Politics and Legislative Reform in the Australian Colonies 1850–1900

Abstract

In 1835, a statute was passed in the parliament of the United Kingdom making it illegal for a widowed man to marry his sister-in-law. 1 Marriage to a sister-in-law after a wife's death was common practice in nineteenth-century England and colonial Australia and aunts often took on the responsibility of raising children after a sibling's death. In the 1840s, a protracted parliamentary and social debate began over whether a widowed man's marriage to his sister-in-law should be made legal and this debate lasted over seven decades. In the Australian colonies, where English law had been inherited, 2 a similar debate occurred in the 1870s. The marriage was legalised in most of Australia in the 1870s while it remained illegal in England until the turn of the century. The parallel debates in each country provide a window into the comparative effect of religious culture on the development of marriage law. One of the primary reasons for the protracted nature of the struggle for marriage reform in England was its significance for the relationship between church and state. This article explores the implications of the relationship between church and state in Britain and the colonies for marriage legislation.

Notes

Lord Lyndhurst's Act (1835) 5 & 6 Will VI c. 54.

Those Australian colonies settled prior to the passing of Lord Lyndhurst's Act inherited the English position regarding deceased wife's sister marriage at the time, that such unions were voidable in the ecclesiastical courts during the lifetime of the parties, and in those colonies established afterwards, the 1835 statute applied and deceased wife's sister unions were illegal. In both cases colonial parliaments attempted to pass legislation to clarify the law.

Missions rather than denominations feature in major studies of dominion and imperialism. See Carey, ‘Religion and Identity’, 190; Etherington, Missions and Empire; Porter, Religion versus Empire. For the purpose of this paper ‘secular’ refers to neutrality in matters of religion.

See Border, Church and State in Australia; Breward, Australia; Breward, A History of Australian Churches; Breward, History of the Churches in Australasia; Hogan, Sectarian Strand; Meaney, ‘Church of England’.

See the special issue of Journal of Legal History volume 21 issue 2 (2000) titled ‘English Matrimonial Law on the Eve of Reform (1828–57), which explores the ecclesiastical courts' handling of matrimonial matters, and Waddams, Law, Politics and the Church of England. See also Lord, ‘Husband and Wife’. More specifically, see Bennett, ‘Banister v Thompson and Afterwards’, which explores the implications of the deceased wife's sister controversy for the negotiation of church and state authority.

O'Farrell and Michael Hogan have argued that it was sectarian conflict rather than secularism which led to religious tolerance in the colonies. O'Farrell ‘Double Jeopardy’, ch. 2, and The Catholic Church in Australia; Hogan, Sectarian Strand, 101.

For the purpose of this paper an attitude of tolerance to sister-in-law marriage refers to an attitude of non-judgement, neutrality and acceptance of individual choice with regard to the marriage.

For the purpose of this paper references to liberal attitudes, a culture of liberalism in the colonies or liberalism as an ideal refer to an individualistic vision of man (and woman) both economically and spiritually.

Archbishop of Canterbury's Group, Putting Asunder, 83.

Lord, ‘Husband and Wife’, 16; McGregor, Divorce in England, 12.

Lord, ‘Husband and Wife’, 17.

Ibid., 20.

Bennett, ‘Banister v Thompson and Afterwards’, 668.

Henry Philpotts, Bishop of Exeter to the Bishop of Litchfield, 1860, in The Deceased Wife's Sister Bill, considered in its social and religious aspects by Rev H. N. Oxenham, M.A. (London: Spottiswoode, 1885), Ecclesiastical Law Pamphlets 1860–1888, British Library (hereafter BL), 5155g 27, 15.

Bennett, ‘Banister v Thompson and Afterwards’, 669.

Marriage Law Reform Association, Marriage to a Deceased Wife's Sister, 8–9.

The Advocate, 6.

United Kingdom, Parliamentary Debates, vol. 92, col. 1197, 24 April 1901.

For the bishop's response, see Mr C. Haig to Rev. G. R. Bullock-Webster, Manchester Guardian, March–April 1891, British Library.

Ibid., 6.

Anderson, ‘Marriage with a Deceased Wife's Sister Bill Controversy’, 68–69; Kuper, Incest and Influence, 72, fn. 102.

Reverend George King v the Right Reverend the Lord Bishop of Sydney (1861).

Ibid, 1313.

Ibid, 1314. See Border, Church and State in Australia, 263.

This point refers to religious organisations' subservience to the law and legal processes in that the church, or churches, did not control legislative activity from within the colonial parliaments, but rather influenced legal processes from an external position, equally with other influential lobby groups and the press.

An Act to promote the building of Churches and Chapels and to provide for the maintenance of Ministers of Religion in New South Wales, 29 July 1836.

Church Act (7 William IV No. 3), 1836.

O'Farrell ‘Double Jeopardy’, ch. 2.

Bush, ‘Debating Marriage’, 67.

Meaney, ‘Church of England’, 154.

Breward, History of the Churches in Australasia, 126.

United Kingdom, Parliamentary Debates, vol. 92, col. 1240, 24 April 1901. http://hansard.millbanksystems.com/

Breward, History of Australian Churches, 80.

For another member of the committee's speech rejecting the arguments of the Rev. Nish, see A. R. Boyd and A. N. McCay, ‘Critique's of Mr Nish's Interpretation of the Divine Law of Incest’ with the speeches delivered before the General Assembly of the Presbyterian Church of Victoria, 1873. Mitchell Library, State Library, Sydney Australia.

Mr David Buchanan was a Scottish Presbyterian radical who was outspoken against state aid to religion and strongly advocated secular education. In 1860, he published The Sinfulness and Barbarism of State Churches, attacking state aid to religion and ‘the bloody State Church of England’. He was also opposed to papal authority and few members of the assembly lashed out against the Papists as provocatively as Buchanan, but, since sectarian outbursts were a recognised part of colonial politics, members usually ignored them. Buchanan is famous for having introduced several divorce bills and amendments introducing simple equal adultery and attempting to introduce desertion as a basis for divorce. See Australian Dictionary of Biography entry.

Mr Buchanan, NSW. Parliamentary Debates, 28 Nov. 1873, 5. Sydney Morning Herald, 29 Nov. 1873, 5.

John Campbell was a Sydney-born, English-educated Anglican benefactor, merchant and politician. He was a great supporter of the Church of England in the colony, contributing 10,000 pounds to found the Diocese of Riverina, and contributed to the endowments of the bishopric of Goulbourn and the See of Grafton and Armidale. He also enabled the founding of the Bishopric of Fiji. See Australian Dictionary of Biography entry.

Mr Campbell, C. NSW, Parliamentary Debate, 4 March,1874, Sydney Morning Herald, 5 March 1874, 2.

Mr Foster, Mr Brown and Mr Fitzpatrick respectively, NSW, Parliamentary Debates, Legislative Assembly, 28 Nov. 1873, Sydney Morning Herald, 29 Nov. 1873, 5.

Mr Campbell, J. New South Wales, Parliamentary Debate, 6 May 1875, Legislative Council, Sydney Morning Herald, 7 May 1875, 2–3.

Charles Campbell was John Campbell's brother, also an Anglican, and a pastoralist who obtained permission from the Colonial Bishops Committee in England in 1854 for a new See of Goulbourn and a new bishop and provided endowment from his father‘s estate (left to him and his brothers). He became chancellor of the diocese and won the bishop's eulogies for his accurate and detailed knowledge of the laws and customs of the Church of England. See Australian Dictionary of Bibliography entry.

Mr Campbell, C. New South Wales, Parliamentary Debate, 6 May 1875, Legislative Council, Sydney Morning Herald, 7 May 1875, 2–3.

A Literary Vagabond, ‘Home Senator v Mr Drummond’, Sydney Morning Herald, 26 Feb. 1857, 5. Emphasis in original.

New South Wales, Hansard Parliamentary Debate, Legislative Council, 16 Feb. 1876. Mitchell Library, State Library, Sydney Australia.

South Australia, Hansard Parliamentary Debate, Legislative Assembly, 20 May 1857, col. 133. Mitchell Library, State Library, Sydney Australia.

Ibid.

Mr Robert Ramsay was a Scottish Presbyterian and a member of Chalmer's Presbyterian Church. He had a firm belief in national education and the separation of church and state. In 1876 he insisted on a special Victorian edition of the Nelson series of school readers which omitted any reference to the name of Christ. Ramsay's father Andrew Ramsay was a Presbyterian minister who was asked in 1847 to form a congregation in Melbourne unconnected with the state. He formed the Synod of the Presbyterian Church of Victoria in 1850. See Australian Dictionary of Biography entry.

Victoria, Hansard Parliamentary Debate, Legislative Assembly, 31 Oct. 1872, col. 1968.

Ibid., col. 1969.

Ibid., col. 1968.

There was no established church in South Australia, but they were regarded as dissenters in England and by those who still appealed to the authority of the English established church.

Meaney, ‘Church of England’, 155.

Hogan, Sectarian Strand, 96.

Breward, Australia, 32; see also Phillips, Defending ‘A Christian Country’.

Breward, Australia, 33.

Hogan, Sectarian Strand, 96.

Inter-denominational groups emerged in this period, such as the Society for the Promotion of Morality in the 1870s and the Evangelical Association in the 1870s.

Gregory, Church and State; Breward, History of the Churches in Australasia, 139.

Kippen, ‘The Church, Conscience and the Colonies’, 1.

Sydney Morning Herald, 10 March 1858, 5.

Robertson, ‘Forbearance the Divinely-Ordained Mode of Preserving Unity in the Church’, Substance of a Speech in the Presbyterian Assembly on the Marriage Question, Melbourne, 1873. Mitchell Library, State Library, Sydney Australia.

Ibid., 6.

Ibid., 7.

Ibid., 8.

Ibid., 10.

Ibid., 4.

Cooper, ‘Our Standards and Their Teachings’, 14.

Ibid.

Ibid, 3.

Ibid, 12.

J. Nish, ‘Is Marriage with a Deceased Wife's Sister Forbidden in Scripture’ being the substance of a speech delivered before the General Assembly of the Presbyterian Church of Victoria, Melbourne, 1873, 65. Mitchell Library, State Library, Sydney Australia.

Ibid., 65–66.

Ibid, Appendix 1.

Adam Cairns was a Scottish Presbyterian who was commissioned to found a Melbourne congregation, set up a theological training institute, promote colonial education and work for the union of Victoria's divided Presbyterian churches. He grew the colonial Presbyterian congregation exponentially in a short period of time and was well-respected. See Australian Dictionary of Biography entry.

Cairns, ‘A Sermon’ in Presbyterianism in Victoria, Pamphlets vol. VIII, 1872 State Library Victoria (SLV), 204 T34E V.58, 39.

Hogan, Sectarian Strand, 97.

A. Cameron, Minister at St Kilda. ‘The Scripture Law of Marriage with Special Reference to Marriage with a Deceased Wife's Sister’. Presbyterianism in Victoria, Pamphlets vol. VIII, 1872, SLV, 204 T34E V.58, 62.

Cairns, ‘A Sermon’, 39.

Presbyterianism in Victoria, 41.

Ibid., 52.

Grocott, Convicts, Clergyman and Churches, 218.

Breward, A History of Australian Churches, 83.