Deceased Wife's Sister. By the laws of the United Kingdom, marriage with the sister of a deceased wife is prohibited as being incestuous. At one period this was the universal law of Christendom—both branches of the Christian church, the Eastern as well as the Western, having united in condemning it. The early canon law forbade marriages between relatives to the seventh degree (afterwards changed to the fourth degree by a council of Lateran), and declared that affinity must be treated in the same way as consanguinity (see CONSANGUINITY). The foundation for this was the Mosaic law respecting the intermarrying of kindred, as given in Leviticus xviii. As is well known, however, the canon law was not at all times stringently enforced by the ecclesiastical courts, and we find that papal dispensations—a fruitful source of revenue to the church—were not uncommon at certain periods of history. A noted historical instance is the case of Henry VIII. and Catharine of Aragon. The opinion of the 19th century, however, tends to run counter to the canon law on the subject, as adopted by the Reformed Churches; and the law prohibiting marriages with a brother's widow or a deceased wife's sister has been abrogated in every state on the continent of Europe, in the United States, and in most, if not all, the British colonies. Great Britain alone adheres to the old rule.
In England, though marriage with a deceased wife's sister seems to have been voidable at common law, it was first specially prohibited by the ecclesiastical courts by an act passed in the reign of Henry VIII. (25 Henry VIII. chap. 22). The force of this enactment was, however, soon afterwards somewhat weakened by another statute in the same reign declaring that 'all lawful persons may marry.' The combined effect of both statutes and common law continued to be a subject of dispute among lawyers down to the passing of Lord Lyndhurst's Act, 1835. The better opinion seems to be that down to 1835 such marriages were binding till they were annulled by decree of the ecclesiastical courts, and therefore if either of the parties died before decree was obtained, the children of the marriage were legitimate, and entitled to inherit. But Lord Lyndhurst's Act put the matter on a clear footing, for it declared all such marriages entered into after its date to be ipso facto null and of no effect. And according to the construction which this statute has received, the English courts hold every marriage entered into with a deceased wife's sister to be null, provided the parties have their domicile in England, although by the law of the locus contractus the marriage might be quite legal. It was so decided in the famous case of Brook v. Brook (1861), where two English people had gone to Altona in Germany to be married.
In Scotland, by the Act 1567, chap. 14, all connections expressly prohibited by the divine law in the 18th chapter of Leviticus are declared incestuous, and punishable by death. The declaration of the Confession of Faith follows in this matter the canon law. According to the interpretation which this Act of 1567 has received from the judges (and the Act 1567, chap. 15, as regards civil effects), it applies to marriages with a deceased wife's sister. And there are not wanting instances where the punishment of death was inflicted for such marriages. Barbara Tannahill, in the beginning of the 18th century, was executed on her own judicial confession, for having had connection with the husband of her deceased sister. (See Hume on Crimes, vol. i. 449). According to the existing law of Scotland, therefore, as expressed in these old statutes, marriage with a deceased wife's sister is prohibited as incestuous, and is null for civil effects as well as punishable criminally. In punishing the offence criminally, the Scottish law is more stringent than the English, incest not being per se a crime in England.
Organised agitation in Great Britain for the abolition of the law respecting marriage with a deceased wife's sister dates back to about the time of Lord Lyndhurst's Act. The matter was first brought before parliament in 1841, in which year leave was refused by the House of Commons for the introduction of a bill for the repeal of the law. Since then the subject has been brought before nearly every successive parliament. Its history in the House of Commons may be given briefly as follows: In the parliament of 1847 the bill was twice read a second time. In that of 1853 it was once read a second time, and once rejected on the second reading. In 1857 it was twice read a second time. In 1859 it was twice thrown out. In 1866 it was rejected once. In 1868 the second reading was carried four times; and in 1874 the second reading was negatived by a small majority. Introduced into the House of Lords first, in 1882 the bill was only thrown out by four votes, and in 1883 it was carried on the second reading by five votes, but lost by seven on the third. In 1884 the bill was dropped on the second reading in both Houses, and in 1885-86 it was lost in the House of Lords by a majority of twenty-two. Generally till 1893 the bills have been carried in the Commons by a large majority, but lost in the Lords. But in 1896 the bill was carried in the Lords. Marriages of this kind have been legalised in Australia, Canada, Barbadoes, Ceylon, Mauritius, New Zealand, South Africa, Jersey, and Natal, as well as in India. A bill legalising in Britain marriages validly contracted in the Colonies has not been carried.
In Britain the churches oppose legislation, the existing law being based upon Leviticus xviii. 18, but the interpretation of this text has given rise to diversity of opinion. The better opinion is that the prohibition refers only to marriage during the lifetime of the wife; and, in particular, this view of the text has been taken by the most learned Jewish rabbis. In the Book of Deuteronomy the Jewish law seems to have allowed and even commanded the marriage of a woman with her deceased husband's brother (Deut. xxv. 5), and it seems hardly reasonable to suppose that the one should be permitted and the other prohibited.
It should be noted that there is no distinct reference to this subject in the New Testament, it being generally admitted that the words of our Lord, 'And they twain shall be one flesh' (Matt. xix. 5), in reference to husband and wife, are used in a metaphorical sense.
The principal arguments (leaving out of view the question of scriptural authority) adduced by those in favour of repealing the law are as follows: That on grounds of social expediency such marriages are to be approved. They are desired by the poorer classes generally, amongst whom they are of frequent occurrence. When a law is out of harmony with the manners and feelings of a people it should be abolished. Secondly, it would, as a rule, be a benefit to the children of a wife who has died when they are in tender years to have their maternal aunt taking the place of mother to them, rather than a stranger. Naturally she would be least likely to act the cruel stepmother. Thirdly, the present state of the law inflicts a wrong on the offspring of such marriages, by their being thereby deprived of their rights of inheritance, and this more particularly in the case of poor parents who cannot afford to shift their domicile (an easy matter for the rich) to the Continent, or one of the colonies. Further, it may happen, in the present state of the law, that one who has been long resident and legally married in one of our colonies, and has returned to settle in Great Britain, may find his children bastardised. In regard to this, the late Lord Cairns has observed: 'If a man, being domiciled in a colony in which it is lawful to marry his deceased wife's sister, do marry her, his marriage will be good all the world over; whereas if a domiciled Englishman, merely resident in such colony, do so marry, his marriage will be bad everywhere.' Finally, experience is in favour of such marriages, for it is said that in other countries where the repeal of the law in question has taken place nothing but good has resulted.
This latter assertion is denied by the upholders of the law, who further assert that by maintaining the law in its present state the unity of conjugal life is cherished, the circle of sisterhood is enlarged, and the growth of domestic intimacy between allied families promoted, which could not be the case were such unions possible. Many, too, have affirmed their belief that by making this change in our marriage laws other changes of a more sweeping nature would be sure to follow (as in the case of Germany), and the sanctity of the marriage tie be thereby disturbed. But this, which is styled the thin-end-of-the-wedge argument, ignores the fact that prior to 1835 such marriages were in England not uncommon, and that not more than one per cent. were set aside by the ecclesiastical courts.