Untitled

Indissolubility 113
the seventeenth centuries, such suits were comparatively infrequent: cases
concerning the formation of marriage, not marital breakdown, normally
constituted the bulk of matrimonial litigation in the English ecclesiastical
courts.
Pedersen (studying the fourteenth-century consistory court of
York): ‘Perhaps most surprising, however . . . is the fact that according
to the cause papers no marriages were annulled because of
consanguinity.’
Three other scholars may be cited to show that the English situation
was not exceptional—that annulments on grounds of consanguinity
were rare on the Continent too:
Weigand:
‘Consanguinity’ and ‘Anity’. When one considers the extent of these impediments
in the Middle Ages, even after the reduction in 1215 to the
fourth degree according to the canonical and thus also the Germanic computation,
one might presume that these impediments played a very great
role. Indeed, occasionally one finds it written in the scholarly literature
that these and other impediments would have been able to provide the
interested parties with a rationale for dissolving the marriages which they
could subsequently use pretty well whenever they wanted. In reality, however,
they played only a subordinate role; furthermore, the annulment of
a marriage occurred only on the basis of genuine proofs, and certainly not
on the basis of mere assertion by the parties involved.
M. Ingram, ‘Spousals Litigation in the English Ecclesiastical Courts c.1350–
c.1640’, in R. B. Outhwaite (ed.), Marriage and Society: Studies in the Social History
of Marriage (London, 1981), 35–57 at 35–6.
F. Pedersen, Marriage Disputes in Medieval England (London etc., 2000), 137.
R. Weigand, ‘Zur mittelalterlichen kirchlichen Ehegerichtsbarkeit: Rechtsvergleichende
Untersuchung’ (1981), repr. in id., Liebe und Ehe im Mittelalter (Bibliotheca
Eruditorum, 7; Goldbach, 1993), new pagination at foot pp. 307*–341*,
at 325*–326* (my translation). Weigand goes on to summarize the findings for individual
church courts where records have survived. He notes among other things
an interesting finding in a study of northern French dioceses. On the one hand,
consanguinity cases were quite common. On the other, they seem not to have aimed
at a dissolution of the marriage. Instead, the data show couples being instructed
to obtain dispensations that would put their marriage right. There is reason to
think that the papal Penitentiary dealt with such dispensations quite eciently:
for this aspect of its work see L. Schmugge, P. Hersperger, and B. Wiggenhauser,
Die Supplikenregister der p•apstlichen P•onitentiarie aus der Zeit Pius’ II. (1458–1464)
(T •ubingen, 1996), 72–3, 80–8, and K. Salonen, The Penitentiary as a Well of Grace in
the Late Middle Ages: The Example of the Province of Uppsala 1448–1527 (Annales
Academiae Scientiarum Fennicae, 313; Helsinki, 2001), 109–19.