Folia Theologica et Canonica, Supplementum (2016)
Hanns Engelhardt, Marriage and Divorce In Anglican Canon Law
62 HANNS ENGELHARDT a woman and vice versa - and nowadays even that appears to be no longer unthinkable. In 1534 a certain Sir Ralph Sadler married a lady called Elene Barr née Mitchell. She had been married to one Matthew Barr. He had left her and disappeared. After some time and many inquiries she had obtained an official declaration of death. After she had married again Barr reappeared. What could be done to save the second marriage? In 1546 Sadler obtained an Act of Parliament41 determining that after a decree of divorce or separation between the Barrs Elene should be considered as an unmarried woman and capable to marry again. Barr obtained from the Ecclesiastical Court a decree of “divorce” a mensa et thoro on the ground of his wife’s adultery with Sadler and Elene became the lawful wife of Sadler.42 This Act became the precedent for a considerable number of later Acts, especially in the more notorious cases of the Marquess of Northampton43 in the 16lh and Lord Ross44 in the 17th century. Winnett gives the number of those cases as follows: Before 1715 .............. 5 1715-1775 ................ 60 1775-1800 ................ 74 1800-1830 ................ 90 1830-1837 ................ 88 “The growing frequency of applications for divorce Acts and the anomalous state of the law,” Sir William Holdsworth writes in his History of English Law, “aroused discussion in 1800 and 1830.”45 He described this anomaly quoting from a judgment of Moule J. given in 1845 to a man convicted of bigamy: Prisoner at the bar, you have been convicted of the offence of bigamy, that is to say, of marrying a woman while you have a wife still alive, though it is true that she has deserted you, and is still living in adultery with another man. You have, therefore, committed a crime against the laws of your country, and you have also acted under a very serious misapprehension of the course which you ought to have pursued. You should have gone to the ecclesiastical court and there obtained against your wife a decree a mensa et thoro. You should then have brought an action in the courts of common law and recovered, as no doubt you would have recovered, damages against your wife’s paramour. Armed with these decrees you should have approached the 41 37 Henry VIII, c. 30. 42 Winnett, A. R., Divorce and Remarriage in Anglicanism, London-New York 1958. 40. 43 Winnett, A. R., Divorce and Remarriage in Anglicanism, 40. 44 Winnett, A. R., Divorce and Remarriage in Anglicanism, 109-117. 45 Holdsworth, W„ A History’ of English Law, XIII. London 1952. 268.
