In a rare immersion into a point of family law for something I was researching last week, I stumbled across – by accident because I wasn’t researching it – the phrase “jactitation of marriage” as a potential cause of action and recall having stumbled across the phrase in the past, having looked up its meaning in the past, and (of course) subsequently forgetting what it meant every time I came across it.
I assume that perhaps only two of our SLAW readers know the meaning, being the two Simons, one of whom wrote a book on family law and the other whose knowledge is otherwise encyclopaedic.
Here then is what other SLAW readers need to know (or not):
Wikipedia defines “jactitation of marriage” as a cause of action to prevent “maliciously boasting or giving out by one party that he or she is married to the other.”
I assume such boasting may at one time have been frequent.
A 1983 Irish Law Reform Commission Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Rights cites the 1820 English case of Lord Hawke v Corri (1820), 2 Hag. Con. 280, 161 E.R. 743 where the court explained the purpose as being:
for the protection of persons against the extreme inconvenience of unjust claims and pretensions to a marriage which has no existence whatever. If a person pretends such a marriage, and proclaims it to others, the law considers it as a malicious act, subjecting the party against whom it is set up to various disadvantages of fortune and reputation, and imposing upon the public (which for many reasons is interested in knowing the real state and condition of the individuals who compose it) an untrue character; interfering in many possible consequences with the good order of society, as well as the rights of those who are entitled to its protection.
A PDF of the decision is available here, courtesy of CommonLII.
This 1820 case is in fact quite salacious reading, if you try to read between the lines. It seems as though Lord Hawke married the women in question but there was instead some question whether the marriage was a sham and that she was instead his mistress who he was calling Lady Hawke until he booted her out of the house and no longer wanted her calling herself Lady Hawke. Ultimately, Lord Hawke’s claim failed (for coming to court with “dirty hands”, so to speak).
Here are some passages from the decision (page citations omitted):
It is brought by Edward Lord Harvey Hawke against Augusta Elizabeth Corri, calling herself Lady Hawke, for jactitation of marriage. The libel states in the first article “that Lord Hawke is in no way married to or united with this lady ” (meaning, as the Court presumes, neither in fact nor in law) ;
. . .
In the months of January, February, and March, 1814, Lord Hawke, being a widower, paid his addresses to Augusta Elizabeth Corri, who was then a single woman; that he made proposals of marriage to her which were accepted; that she accompanied him several times to his proctor in Doctor’s Commons, for the purpose of procuring a special licence for their marriage, and particularly on the 19th of March, 1814, she went with him, and that she remained in the carriage while he went into the proctor’s office for the express purpose, as he declared to her, of obtaining such licence; that on his return he informed her that the licence would be sent to him in the evening of that day, and they accordingly agreed that the marriage should be solemnized on that same evening at No. 22 Park Lane, a house which Lord Hawke had purchased for their future residence ; that the marriage was accordingly solemnized pursuant to the rites and ceremonies of the Church of England by a priest or minister in holy orders of the Church of England, or by a person whom Lord Hawke introduced as such;
. . .
A responsive allegation was afterwards given by Lord Hawke, pleading the marriage of the defendant with Anthony Philip Corri; that she was at that time his lawful wife; that in 1814 she came to cohabit with him, the said Lord Harvey Hawke, and lived with him as his mistress; that he then allowed her to assume his name. It further pleaded a deed of settlement upon her, on their separation, in the name of Corri, and reciting her to be the wife of the said Anthony Philip Corri.
In objection to this allegation, Dr. Jenner and Dr. Lushington submitted that this was an abandonment of the whole case, as it set forth his own profligacy, and that as Lord Hawke had permitted her to use his name there was no ground for the suit of jactitation.
There is more history of the cause of action in the Irish Law Reform Commission Report (for those who want more detail), which recommended the abolition of the cause of action in Ireland. It has been abolished in England and, according to the Canadian Encylopedic Digest, the western Canadian provinces (e.g., see s. 3 of Manitoba’s Equality of Status Act, C.C.S.M., c. E130), but I suspect if not formally abolished in the other Canadian jurisdictions that it is not highly used since, although there is a category/link for it in the online Canadian Abridgment under Family Law – Miscellaneous Causes of Action – Jactitation of Marriage, there are no cases under that category . . . .
Now you know.