The Misunderstood Contract Per Verba De Praesenti

Abstract

For almost two hundred years it has been accepted that an exchange of vows in words of the present tense – per verba de praesenti – constituted a marriage that was valid for all purposes in England and Wales before the Clandestine Marriages Act of 1753. This chapter shows that this was not the case, and that the mistaken belief in the validity of a contract per verba de praesenti can be traced to a nineteenth-century misunderstanding, following the decision of the Supreme Court of New York court in Fenton v Reed. This argument is substantiated and proven by examining contemporary cases, legal commentaries, Parliamentary debates and fiction.

Keywords: common law marriage, ecclesiastical law, clandestine marriages