The permissibility of marriage with a deceased wife's sister was a debate that raged in the United Kingdom during the Victorian era. This prohibition had derived from a doctrine of canon law whereby those who were connected by marriage were regarded as being related to each other in a way which made marriage between them improper.
Legal background
Prohibited degree of kinship for marriage included relatives by blood (consanguinity) to prevent incest, and extended to relatives by marriage (affinity) apparently reflecting an analogous taboo, or the idea that a married couple were "one flesh". Originally, marriage was a matter of canon law in the United Kingdom and its predecessor kingdoms of England, Scotland, and Ireland. Before the Reformation, the affinity rules of Catholic canon law applied, which since the Council of Elvira had regarded a deceased wife's sister as within the prohibited degrees, which could be exempted only by matrimonial dispensation from the pope. The Reformation saw all three kingdoms replace the Catholic prohibitions with ones based on the incest prohibitions of Leviticus 18: in England by the Marriage Act 1540 (32 Hen. 8. c. 38) and Matthew Parker's 1563 "Table of Kindred and Affinity", both later adopted in Ireland, and in Scotland by the Marriage Act 1567, the Scots Confession 1560 and the Westminster Confession of Faith 1646.
In the Church of England and Church of Ireland, a marriage within the prohibited degrees was not absolutely void ab initio but it was voidable at the suit in ecclesiastical court of any interested party. Matthew Boulton married his deceased wife's sister in 1760. He advised silence, secrecy and Scotland, although they married in London; the marriage was opposed by her brother. Similarly Charles Austen, the younger brother of Jane Austen, married his deceased wife's sister in 1820 and remained married to her until he died in 1852.
1830s changes
As long as both spouses of a voidable marriage lived, their children had the uncertain prospect of being made bastards by the voiding of the marriage. This prompted John Copley, 1st Baron Lyndhurst to introduce "Lord Lyndhurst's Act", later the Marriage Act 1835 (5 & 6 Will. 4. c. 54), which hardened the English and Irish law into an absolute prohibition, so that from then on such marriages could no longer take place in the United Kingdom of Great Britain and Ireland and colonies at all. However, such marriages which had already taken place were validated.
After 1835, a marriage between a widower and his late wife's sister was still recognised in the United Kingdom if it took place abroad where it was lawful. For example, the painters William Holman Hunt and John Collier married the sisters of their deceased wives in, respectively, Switzerland and Norway. However, this was only possible for those who could afford to travel abroad; moreover, in 1861 the House of Lords ruled in Brook v Brook that one spouse had to be domiciled in the jurisdiction of the wedding. While the Marriage Act 1836 allowed for civil marriage in a register office, the prohibitions of affinity remained unaffected.
An 1848 parliamentary inquiry concluded that the Marriage Act 1835 had not appreciably diminished the number of putative marriages within the prohibited degrees. Its survey of part of England found 1364 such marriages since 1835 – more than 90% with a deceased wife's sister – compared with only 88 planned marriages prevented by the act, of whom 32 couples remained in "open cohabitation".
Campaigns
In 1842, a Marriage to a Deceased Wife's Sister Bill was introduced, and defeated by strong opposition. "Although seemingly a minor skirmish, [it] had far-ranging implications and was fought on the political scene almost annually for most of the Victorian period". while Dinah Craik's Hannah (1871) and William Clark Russell's The Deceased Wife's Sister (1874, published anonymously) supported change. Craik had accompanied Edith Waugh to her Swiss wedding with her sister Fanny's widower William Holman Hunt.
Widowers' desires to marry their sisters-in-law became the subject of particular agitation from the 1860s onward, and strong feelings were roused on both sides. However, it was to be nearly 50 years before the campaign for a change in the law was successful, despite the introduction of draft legislation in Parliament on many occasions. The lengthy nature of the campaign was referred to in the Gilbert and Sullivan opera Iolanthe (1882), in which the Queen of the Fairies sings "He shall prick that annual blister, marriage with deceased wife's sister".
Near the end of Thomas Hardy's novel Tess of the d'Urbervilles (1891), Tess suggests that after her death, her husband Angel should marry her younger sister Liza-Lu; at the time the novel was set and published, such a marriage would have been illegal in England.
In 1855, a year after resigning as Lieutenant-Governor of Victoria, Charles La Trobe married his deceased Swiss wife's sister in Neuchâtel. This ended his prospects of further public office, although he was made Companion of the Order of the Bath in 1858. After Stella Duckworth's 1897 death, her husband John Hills courted her half-sister Vanessa Stephen , but Stella's brother George Herbert Duckworth pressed them to break up, given that the 1835 Act prohibited their marrying.
Edward Marjoribanks, 2nd Baron Tweedmouth, told the House of Lords in 1907:
Colonies
Although the 1835 Act applied throughout the British Empire, it was among the class of laws which the Colonial Laws Validity Act 1865 allowed colonies with responsible government to amend. Deceased Wife's Sister's Marriage Acts were passed by the Australian colonies in the 1870s, and by the Dominion of Canada in 1882. Although British law recognised foreign marriages, British colonies were not considered foreign, and it was unclear, until the passage of the Colonial Marriages (Deceased Wife's Sister) Act 1906, whether such colonial marriages would be recognised within the United Kingdom.