Royal Marriages Act 1772

Provisions

The Act said that no descendant of George II, male or female, other than the issue of princesses who had married or might thereafter marry "into foreign families", could marry without the consent of the reigning monarch, "signified under the great seal and declared in council". That consent was to be set out in the licence and in the register of the marriage, and entered in the books of the Privy Council. Any marriage contracted without the consent of the monarch was to be null and void.

However, any member of the Royal Family over the age of 25 who had been refused the sovereign's consent could marry one year after giving notice to the Privy Council of their intention to so marry, unless both houses of Parliament expressly declared their disapproval. There is, however, no instance in which the sovereign's formal consent in Council was refused.

The Act further made it a crime to perform or participate in an illegal marriage of any member of the Royal Family. This provision was repealed by the Criminal Law Act 1967.

Rationale

The Act was proposed by George III as a direct result of the marriage of his brother, Prince Henry, Duke of Cumberland and Strathearn, who in 1771 had married the commoner Anne Horton, the daughter of Simon Luttrell and the widow of Christopher Horton. Royal Assent was given to the Act on 1 April 1772, and it was only on 13 September following that the King learned that another brother, Prince William Henry, Duke of Gloucester and Edinburgh, had in 1766 secretly married Maria, the illegitimate daughter of Sir Edward Walpole and the widow of the 2nd Earl Waldegrave. Both alliances were considered highly unsuitable by the King, who "saw himself as having been forced to marry for purely dynastic reasons".

Couples affected

Broad effects

The Act rendered void any marriage wherever contracted or solemnised in contravention of it. A member of the royal family who contracted a marriage that violated the Act did not thereby lose his or her place in the line of succession, but the offspring of such a union were made illegitimate by the voiding of the marriage and thus lost any right to succeed.

The Act applied to Catholics, even though they are ineligible to succeed to the throne. It did not apply to descendants of Sophia of Hanover who are not also descendants of George II, even though they are still eligible to succeed to the throne.

It had been claimed that the marriage of Prince Augustus had been legal in Ireland and Hanover, but the Committee of Privileges of the House of Lords ruled (in the Sussex Peerage Case, 9 July 1844) that the Act incapacitated the descendants of George II from contracting a legal marriage without the consent of the Crown, either within the British dominions or elsewhere.

The effects of the law were not always foreseen. An example is seen in the royal House of Hanover, which descends from Ernest Augustus, Duke of Cumberland, a younger son of King George III, who inherited the crown of Hanover according to its semi-Salic order of succession when the British crown went to his niece, Queen Victoria. Although his descendants lost their royal crown in 1866, and their British titles in 1918, as male-line descendants of George II they continued to seek permission for their marriages from the British monarch. Thus, on 11 January 1999, Elizabeth II issued the following Declaration in Council: "My Lords, I do hereby declare My Consent to a Contract of Matrimony between His Royal Highness Prince Ernst August Albert of Hanover, Duke of Brunswick-Lüneburg and Her Serene Highness Princess Caroline Louise Marguerite of Monaco...". Without this consent, the marriage would have been void in Britain, where the groom's family continues to own substantial property and retains the right to petition for resumption of the dukedom of Cumberland and Teviotdale, suspended since World War I. (However, as Ernst August married a Roman Catholic, he lost his place in the succession to the British throne under a different piece of legislation, the Act of Settlement 1701.)

All European monarchies, and many non-European realms, have laws or traditions requiring prior approval of the monarch for members of the reigning dynasty to marry. But Britain's was unusual because it was never modified between its original enactment and its repeal 243 years later, so that its ambit grew rather wide, affecting not only Britain's immediate Royal Family, but more distant relatives of the monarch.

Farran exemption

In the 1950s, Charles d'Olivier Farran, Lecturer in Constitutional Law at Liverpool University, theorised that the Act could no longer apply to anyone living, because all the members of the immediate royal family were descended from British princesses who had married into foreign families. The loophole is due to the Act's wording, whereby if a person is, through one line, a descendant of George II subject to the Act's restriction, but is also, separately through another line, a descendant of a British princess married into a foreign family, the exemption for the latter reads as if it trumps the former.

Many of George II's descendants in female lines have married back into the British royal family. In particular, the Queen and other members of the House of Windsor descend (through Queen Alexandra) from two daughters of George II — (Mary, Landgravine of Hesse and Louise, Queen of Denmark) — who married foreign rulers (respectively Frederick II, Landgrave of Hesse-Kassel, and King Frederick V of Denmark), and through Queen Mary from a third (Anne, Princess of Orange, consort of William IV, Prince of Orange). Moreover, The Prince of Wales, his issue, siblings, and their issue descend from yet a fourth such marriage, that of The Princess Alice, a daughter of Queen Victoria, to Louis IV, Grand Duke of Hesse.

This so-called "Farran exemption" met with wide publicity, but arguments against it were put forward by Clive Parry, Fellow of Downing College, Cambridge, and Farran's interpretation has since been ignored. Consent to marriages in the Royal Family (including the distantly related House of Hanover) continued to be sought and granted as if none of the agnatic descendants of George II were also his cognatic descendants.

Parry argued that the "Farran exemption" theory was complicated by the fact that all the Protestant descendants of the Electress Sophia of Hanover, ancestress of the United Kingdom's monarchs since 1714, had been entitled to British citizenship under the Sophia Naturalization Act 1705 (if born prior to 1949, when the act was repealed). Thus, some marriages of British princesses to continental monarchs and princes were not, in law, marriages to foreigners. For example, the 1947 marriage of Princess Elizabeth to Prince Philip, Duke of Edinburgh, by birth a Greek and Danish prince but descended from the Electress Sophia, was a marriage to a British subject even if he had not been previously naturalised in Britain. This would also mean theoretically, for example, that the present royal family of Norway is bound by the Act, for the marriage of The Princess Maud, a daughter of King Edward VII, to the future King Haakon VII of Norway, was a marriage to a "British subject", since Haakon descended from the Electress Sophia.

Exemption of the former Edward VIII

In 1936 the statute His Majesty's Declaration of Abdication Act 1936 specifically excluded Edward VIII from the provisions of this Act upon his abdication, allowing him to marry the divorcee, Wallis Simpson. The wording of the statute also excluded any issue of the marriage from being subject to the Act.

Perth Agreement

In October 2011 David Cameron wrote to the leaders of the other Commonwealth realms proposing that the act be limited to the first six people in line to the throne. The leaders approved the proposed change at the Commonwealth Heads of Government Meeting held in Perth, Western Australia.

The legislation in a number of Commonwealth realms repeals the Royal Marriages Act 1772 in its entirety. It was, in the United Kingdom, replaced by the Succession to the Crown Act 2013, which stipulates a requirement for the first six people in the line of succession to obtain the sovereign's consent before marrying in order to remain eligible. Article 3(5) of the new act also provides that, except for succession purposes, any marriage that would have been void under the original act "is to be treated as never having been void" if it did not involve any of the first six people in the line of succession at the time of the marriage; royal consent was never sought or denied; "in all the circumstances it was reasonable for the person concerned not to have been aware at the time of the marriage that the Act applied to it"; and no one has acted on the basis that the marriage is void. New Zealand's Royal Succession Act 2013 repealed the Royal Marriages Act and provided for royal consent for the first six people in the line of succession to be granted by the monarch of the United Kingdom.

Other legislation

The Regency Act 1830, which provided for a regency in the event that Queen Victoria inherited the throne before she was eighteen, made it illegal for her to marry without the regent's consent. Her spouse and anyone involved in arranging or conducting the marriage without such consent would be guilty of high treason. This was more serious than the offence created by the Act of 1772, which was equivalent to praemunire. However, the Act never came into force, as Victoria was eighteen when she became queen.

Consents for marriages under the Act

Consents under the Act were entered in the Books of the Privy Council but have not been published. In 1857 it became customary to publish them in the London Gazette and notices appear of consents given in Council at Courts held on the following dates. Not all consents, however, were noted there and gaps in the list have been filled by reference to the Warrants for Royal Marriages in the Home Office papers (series HO 124) in The National Archives: