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What makes a marriage? Religion, the state, and the individual in the long nineteenth century

On 12 July 2019 Professor Rebecca Probert delivered one of the keynote lectures at the British Legal History Conference at St Andrews. In it she traced the difficulties faced by the courts today in deciding what makes a marriage back to the choices made by legislators in the nineteenth century. Noting that proponents of reform have advocated looking to other jurisdictions for suitable models, she suggested that a comparative review of why and how other models were introduced and operated demonstrates a need for caution. The introduction in a number of states of mandatory civil marriage, for example, was often a result of political revolution or a deliberate signalling of state authority and national unity rather than a reflection of actual practices. In those parts of the world where entry into marriage was governed by the personal (i.e., religious) laws of the parties, questions arose as to which religious groups would be recognised and who determined what constituted a marriage. And while in the US the period saw the swift rise of a new form of self-marriage that depended solely upon the couple’s exchange of consent, by the end of the century efforts were being made to restrict this option.