Marriage to a deceased wife's sister in Australia and England 1835-1907

Is marriage a natural institution? Is it a political institution? Does marriage have essential attributes? Is marriage adaptable? This thesis examines these questions, and the nature of marriage through the comparative case study of the law against marriage to a deceased wife’s sister in nineteenth century England and the Australian colonies. The study reveals marriage to be a political, legal and social institution with no essential attributes; an institution entirely created by the state, capable of enforcing a wide variety of norms and fulfilling a wide variety of chosen purposes. A man’s marriage to a sister-in-law after a wife’s death may seem like an obscure subject of research, a legislative relic with narrow ramifications. The sister-in-law marriage debate has nothing to do with marriage or incest in their contemporary form, or the economic or social context of the twenty-first century in England or Australia. However, the marriage debate and other marriage reform debates in history, remind us that the most fundamental marriage rules - even the rules of incest - are not natural but social, revised by each culture to match its sense of justice and purpose.1 This thesis is about the fluidity of the marriage institution and provides one example of how marriage evolved to reflect changing social mores. It illustrates how comparative religious culture shaped nineteenth century marriage law in England and the Australian colonies; how political prerogative reinforced or removed legal marriage prohibition; and how distinctive colonial social, economic and religious culture led to divergences from the marriage legislation inherited from England. This case study is ideal for answering the questions posed in this thesis because of the protracted nature of the debates, spanning seventy-five years of the nineteenth century; the wide ranging political, social, economic and religious issues that shaped marriage in the respective societies; and the colonial abolition of the prohibition almost thirty years prior to England. These characteristics enable an in-depth comparative analysis of the social and legal construction of marriage’s parameters in the nineteenth century.