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Indissolubility 105
The change in the consanguinity laws dovetailed with another
measure designed to prevent annulments by precluding invalid
marriages. This was Canon 51, on clandestine marriages. It laid
down that banns must be read in advance of a marriage, to give time
for any impediments to come to light. This gave neighbours who
heard the banns time to bring up a problem if there was one, and
gave the priests time to investigate whether there was any impediment.
Note that this decree did not require marriage in church or by
a priest, as some good historians have assumed. It was not about
sacralizing the ritual of entry into marriage, which varied from one
part of Europe to another: in parts of Italy a purely secular marriage
contract was quite acceptable in the eyes of the Church. Marriage
was a sacrament whether or not a priest was present. The decree
was part of a determined e·ort to block the twelfth-century nobles’
favourite escape route from marriage. The smaller the circle of
possible impediments, the easier it would be to discover them; furthermore,
there would be time to discover them and a public request
for anyone who knew of one to make it known before the marriage.
The Fourth Lateran Council did not go so far as to declare marriage
invalid if the banns had not been read. Perhaps there was
uncertainty about the limits of the Church’s power to add a condition
of validity to a sacrament; or more probably there was fear that
marriage practices were too varied and ingrained and that such a
rule would create many invalid marriages; or perhaps the problems
were not thought through. At any rate plenty of people did get
married clandestinely, without having the banns read, as we shall
see. Nevertheless, it is clear that Innocent and the Council were in
earnest in their e·ort to make annulment much harder.
Tighter rules about proof
In addition to redrawing the limits of consanguinity and generalizing
the system of banns, Innocent III, or rather the Fourth Lateran
Council, made it harder to prove in court, tightening up the evidence
requirements. Hearsay evidence had been allowed before
Conciliorum oecumenicorum decreta, ed. J. Alberigo et al., 3rd edn. (Bologna,
1973), 258.
See D. L. d’Avray, ‘Marriage Ceremonies and the Church in Italy after 1215’,
in T. Dean and K. J. P. Lowe (eds.), Marriage in Italy 1300–1650 (Cambridge,
1998), 107–15 at 107–9, for historians’ views.
The best starting point on this topic is R. H. Helmholz, Marriage Litigation in
Medieval England (Cambridge, 1974), 81–2.