Code Napoleon and How It Might Screw Up that Elopement Scene You Are Writing

Okay, I did something similar on my own blog this month, but those who follow Every Woman Dreams are a nice mix of some of my JAFF fans and a large dose of those who are history “geeks.”

I am certain many of you reading this blog post have read an elopement scene in one of your favorite JAFF novels or a Regency era one. The couple is usually racing to reach Scotland, most notably reaching Gretna Green, though I admit if I am sending them to Scotland, I often choose the eastern shires of that great country. The roads from London to Scotland were better on the eastern side of England, and it did not matter where one was married in Scotland. There were quite a few villages along the border where two young lovers could “get hitched.”

Moreover, did you know the couple could be married on one of the Channel Islands? The Channel Islands are an archipelago in the English Channel, off the French coast of Normandy. They include two Crown Dependencies: the Bailiwick of Jersey, which is the largest of the island, and the Bailiwick of Guernsey, consisting of Guernsey, Alderney, Sark, Herm and some smaller islands. They are considered the remnants of the Duchy of Normandy. I do not know about you, but it would seem to me a couple might choose to take a ship to the Channel Islands and be married within a day, rather than to spend an average of 5 days on the road from London to the eastern side of Scotland.

There was also a time when a couple could be married in France. Like the Channel Islands, it would have been faster to reach France. There were other issues, which we will mention in a moment, but imagine all those elopements of which you have read in this new light.

Yet, it was not simply the destination which could change the story, but also when it happened—specifically the year it happened. What do you know of the Code Napoleon?

Permit me to make the waters a bit murky for some of you.

As a general rule, the English accepted all marriages as valid that were valid in the country where it was celebrated. However, there were few marriages of English persons in France during the war, except those of soldiers who had a chaplain officiating. A marriage that took place after the war was declared invalid because it was not done in accordance with local law.

There were channel islands, where some people went to be married, but usually these were people who lived in the southwest corner of the country and were accustomed to the sea.

On 20 September 1789, the age of legal majority was reduced to 21 for both men and women, confirmed in 1804, and parental permission was no longer required. But here is the catch: the Code Napoleon came into effect in the early 1800s, and it automatically repealed all previous laws, including the 1789 one mentioned above.

Back in that 1789 law, women reached their majority for the purposes of marriage at 21 and men at 26. Note, however, that under the Code Napoleon, there were different majority ages for different aspects of the law.

But given that Britain was at war during a good part of the Regency, one would either need to set one’s story AFTER the war had ended, or NOT have one’s couple elope to France. Having them elope to France during the war simply because it is supposedly easier than going north would have me instantly tossing the book aside. An author would need to convey very strong reasons for them to go to France other than it being easier than going to Scotland to have any hope of my continuing to read the book. Even having them elope to France after the war would be a big task of the reader.

BUT – there are other factors one needs to consider before pursuing this course.

In the early 19th century (and throughout the period we call the Regency) family consent was required for most marriages in France. Women who had not attained their 21st birthday, and men who had not attained their 26th birthday, required permission from a parent or guardian, though only the father’s permission was required if the parents were in disagreement.

If the parents refused consent for women aged between 22 and 25, or for men aged between 26 and 30, the couple had to make three written requests, at one-month intervals, seeking permission. If all three requests were denied, then one month after the third denial, a marriage license would be issued. For women over the age of 26 and men over the age of 30, only a single written request and denial was required. These requirements were, I guess, the state’s way of providing the couple an enforced “cooling off” period.

Both parties had to present birth certificates {which I think is odd because not everyone had a baptism for his/her child and in the Church of England, the baptismal record is the official one indicating the date of birth} (or notarised acts in the case of lost or destroyed birth certificates), AND the parents’ death certificates if other relatives were acting as guardians, AND notarised acts of consent if the parents are unable to come to the town hall to give consent in person.

Foreigners in France were subject to the same laws, but with additional restrictions, depending on marriage law within their country of origin.

The French marriage would be legitimate in France, but France did not have reciprocity agreements with its European neighbors, meaning the foreign couple could not return to their own country and expect their marriage would be considered valid. I don’t know if there were reciprocity agreements in place with England, but I very much doubt it given the Code Napoleon was introduced before the Regency era properly began. 

In any event, to avoid issues of foreigners being stuck on French welfare rolls, the French government ordered its officials to ensure that foreigners adhere to all regulations of their country of origin before any marriage service was performed in France.

Napoleonic Code, French Code Napoléon, a French civil code was enacted on March 21, 1804, and still extant, with revisions. It was the main influence on the 19th-century civil codes of most countries of continental Europe and Latin America.

“After the French Revolution, codification became not only possible but almost necessary. Powerful groups such as the manors and the guilds had been destroyed; the secular power of the church had been suppressed; and the provinces had been transformed into subdivisions of the new national state. Political unification was paired with a growing national consciousness, which, in turn, demanded a new body of law that would be uniform for the entire state. The Napoleonic Code, therefore, was founded on the premise that, for the first time in history, a purely rational law should be created, free from all past prejudices and deriving its content from “sublimated common sense”; its moral justification was to be found not in ancient custom or monarchical paternalism but in its conformity to the dictates of reason.” [Napoleonic Code]

This article on the Napoleonic Code tells us, “The law was composed of scattered laws that sometimes overlapped creating contradictions and problems. It therefore became necessary to create compilations of laws to give it coherence and avoid such contradictions. Sometimes the compilations ended up mixing all kinds of rights such as civil with criminal and administrative. Thus, were born the following compilations of laws:

  • Hammurabi code decreed by King Hammurabi.
  • The law of the twelve tables: It was the law established to eliminate the privileges of the patricians (descendants of the founders of Rome) in ancient Rome and is one of the first to group the regulations by theme. However, they did not include all the legal rules because some were over-understood.
  • Justinian’s Corpus Iuris Civilis: This approached code consideration. However, it was constituted in a compilation because it included legal norms without validity. In addition, it included philosophical elements on the source of law and quotations from classical judges. A scholarly compilation of Roman law and its sources.”

Women had more or less control of their own lives depending on the specific area covered by the Code. For example, a woman could not be forced to marry against her will or marry at all before age 21 – but then not without the permission of her parents or grandparents.

So, having one’s couple eloping to France likely was a bad idea (especially after 1804) because they would not have parental permission. All the rules of the local law had to be followed for the English courts to declare the marriage valid.

Georgette Heyer used that device in Cotillion, but I can’t remember if she brought a time frame into that book. Of course, that’s fiction! I love the impeccable story elements executed in her stories, but Heyer also allowed a man to scratch out the name of the bride on a special license and substitute another, which would absolutely not be valid. Heyer has been known to make up historical details, etc., so be careful in choosing to follow her lead on all things Regency—for example, many question whether a young lady had to have the permission of the patronesses of Almack’s before she could perform her first waltz. Heyer appears to be the first to institute this rule.

As for the Channel Islands, they were properties of the English Crown, but they had their own legislature and laws. They were not part of France, though their proximity to the French coast made travel there dangerous during the war.  According to my notes, they allowed marriage to anyone 21 or older without any residency requirements.  My notes do not, however, mention what the rules were for people younger than 21, as I was not researching that situation when I made them. If someone knows the answer, please share it with us.

France was (and still is) mainly a Catholic country–not a Church of England one. Also, the Revolution threw out the church, but then Napoleon made up with the Pope, who was all for Napoleon being crowned Emperor, so it was back to Catholic. All this means is it was unlikely for an English couple to think about running away to get married in France. (Scotland is mainly Protestant.) Plus, how did one go about finding a church in which to marry? Most parishes wanted a person to be a resident in the area for a set time before you were permitted to marry (remember Mr. Wickham and Lydia Bennet in Pride and Prejudice and that was a Church of England wedding), and most priests would want to make certain the person was a good Catholic, and they could not do that if they did not know the person.

Do not forget there were laws regarding a Catholic and a Protestant marrying. A Catholic priest faced fines and other sanctions for marrying a Protestant to a Catholic unless they had already been married by a Protestant. [See my piece on Catholic-Protestant Marriage in the Late Georgian Era for more information on this issue.]

What was an option for a time was the Isle of Man and the Isle of Wight – Check out Rachel Knowles’s article HERE:

Unless the lovers had relatives in France, it is highly unlikely they could marry there. War conditions really make it impossible for any Englishman to be in France from 1793 until 1814 . . . one would have only the brief peace in 1803.

Religion is also a barrier for elopements to Spain, Italy, or any other country that is primarily Catholic, unless one of the couple is also Catholic with relatives in that country, and then the residency issue still comes into play.

Of course, history tells us Mary Godwin and Percy Bysshe Shelley eloped to France in 1814, but they were in no way respectable, and he was still married to Harriet at the time, so I doubt that is best replicated.

I guess what I am saying is know your history before you write that elopement scene. I once had Darcy use his yacht to take Elizabeth to Scotland to marry. For those of you who do not recall that one, it was Mr. Darcy’s Bride(s). He marries her multiple times, which is the reason for the “s” on the end. Faster than 5 days on the road, though the road to true love is far from easy for our dear couple. LOL!

2 responses to “Code Napoleon and How It Might Screw Up that Elopement Scene You Are Writing”

  1. Alice McVeigh Avatar
    Alice McVeigh

    Very cogent article.

  2. cindie snyder Avatar
    cindie snyder

    Good article. Love the book cover!

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