Marriage, History of

Written By North Carolina History Project

Since the earliest English settlers arrived in Carolina, government officials have, to some degree, regulated marriages.  In the colony, such regulation was necessary because the process of inheritance depended on the legitimacy of children.  In addition, the church and the state had an interest in preventing bigamous marriages or marriages that fell within the prohibited degrees of consanguinity (kinship).  Under English law, which prevailed throughout the Lords Proprietors’ domain, only Church of England ministers could legally perform marriage rites.  But few ministered in the rough hinterland.  Accordingly, the Assembly in Albemarle, in its 1669-1670 session, passed An Act Concerning Marriages, which provided that, in the absence of a minister, a couple could wed in the presence of  “three or fower of their Neighbors” before the governor or a councilor.  After “declareing that they do joyne together in the holy state of Wedlock And doe accept one the other for man and wife,” they received a certificate and the marriage was registered in the Secretary’s office.

In 1715, intending to “prevent Illegal and Unlawfull Marriages,” the Lords Proprietors, with the advice and consent of the General Assembly, again acknowledged that only the established church, The Church of England, should perform marriages.  Nevertheless, the law empowered magistrates “to join persons together in Marriage in such parishes where no Minister shall be resident.”  Before marrying, the future bride and groom had to purchase a license or have the county clerk publish banns (public announcements) in the county where the bride lived.  The parallel authority of the Church of England and the magistrate to solemnize marriages continued even after North Carolina became a Crown Colony in 1729.

In 1741 the state increased its control over marriages by enacting provisions for issuing marriage licenses or publishing banns.  To “prevent clandestine and Unlawful Marriages,” the General Assembly at Edenton gave Justices of the Peace the authority to solemnize marriages in any parish that had no resident minister or in a county with a minister, with his consent.  To ensure that there was no impediment to the marriage, such as a previous spouse, too close of a kin relationship between the couple, or a lack of legal competency, ministers read banns in the future bride’s congregation for three consecutive Sundays and later certified that no one had objected to the impending marriage.  If the future bridegroom preferred to obtain a license, the clerk of the bride’s county of residence could issue the license, after securing from the bridegroom a bond for 500 pounds.  The same Act also prohibited interracial marriages.   

As the number of non-Anglicans increasingly migrated to North Carolina, they demanded to have their own ministers performing marriage ceremonies.  Although the governors and the Assembly did not mind denominational and “dissenting” ministers solemnizing marriages–as long as proper fees were paid and collected–the Church of England strongly defended its monopoly.  As late as 1771, Reverend Theodorus S. Drage reported from his parish in Salisbury that there were “Irish Dissenters” and other “motly mixture[s]” who predominated in local government and wanted to “publish [banns] and marry by their own clergy, an act directly leveled at the constitution, contrary to the original and subsequent charters.”

Successive governors wanted to ensure that proper fees were paid, regardless who married the consenting couples.   In 1771, in his message to the lower house of the Assembly, Governor William Tryon complained bitterly that county clerks used their own marriage certificates, rather than the marriage license forms issued by the Governor’s Office.  The Governor was thus “deprived of [his] equitable emoluments…,” as the Clerks put the collected fees into county coffers, or in a few cases, pocketed the money.   Tryon told the Assembly to enact laws so that “the Clerks … may be absolutely prohibited from issuing any Marriage Licenses, and any Magistrate [be prohibited] from marrying any parties” except with license forms issued by the Governor’s Secretary (and proper fees collected). Indeed, the same year, Governor Tryon transmitted to London various Acts passed by the Assembly, including “An Act to regulate the issuing of Marriage Licenses.”  The Governor called the proposed legislation “most salutary,” because it might “better secure . . . the fees due to the Governor.”

After the American Revolution, couples could choose a clergyman or a Justice of the Peace to solemnize their marriage.  The laws of 1778 provided that, in addition to the Anglican clergy, “all regular ministers of the Gospel of every Denomination,” as well as Justices of the Peace were “empowered to celebrate Matrimony…” By the 1840s, it was settled law that it was “an essential requisite of a legal marriage that it should either be celebrated by some person in a sacred office, or be entered into before someone in a public station and judicial trust.” In either event, until 1868 couples were required to publish banns in a church or post a bond to be filed with the county clerk before the marriage was solemnized.  North Carolina historian William S. Powell estimates that “two-thirds of all marriages prior to 1868 were by banns, [for] they were quicker and cheaper than licenses.” Banns recorded in the churches were not public records.  On the other hand, posted bonds were public records and thus became part of a county’s permanent records.  Unless lost due to fire or flood, such records, including Marriage Bonds, were transferred to the State Archives.

Despite all attempts by the state and by the clergy to regulate and register marriages, an untold and inestimable number reportedly ignored the letter of the law.  Ministers often solemnized marriages without licenses according to the customs of their denomination, but magistrates performed marriages on an oral assurance that banns had been read; and in rural areas, where neither minister nor magistrate was easily reached, people entered into marriages following their needs and traditions.  

Following the Civil War and the abolition of slavery, the North Carolina General Assembly passed An Act Concerning Negroes and Persons of Color or of Mixed Blood (1866) to validate the marriages of former slaves.  Marriages that had taken place before emancipation could be registered by any couple who appeared before a Justice of the Peace or Clerk of the Court and made a statement indicating when they began cohabitating as husband and wife.  An 1868 court reform act did away with marriage bonds and transferred the authority to issue marriage licenses to the Registers of Deeds. 

The license became the only official public record of marriage. The Registers of Deeds kept consistently good books, and the recording of marriages became widespread.  In addition to such records maintained in every county, since 1962, the state’s Vital Records Section has kept a statewide register of marriages. Fifteen years later, a new act validated all interracial marriages “declared void by statute or a court of competent jurisdiction prior to March 24, 1977.”

The state government has regulated the solemnization of marriages from North Carolina’s earliest days, and although the law continues to prohibit any “minister, officer, or any other person authorized to solemnize a marriage” from performing a ceremony without a license issued by the Register of Deeds, a marriage ceremony conducted without a license is nevertheless a valid marriage.  Failure to comply with statutory requirements regarding marriage licenses subjects the county officer or church minister to a misdemeanor penalty of $200.00, but the marriage remains valid and “good for every intent and purpose.”  On the other hand, marriages simply by consent of the parties, or performed by unauthorized persons, or between kin within prohibited degrees of kinship, or between persons of the same gender, are void.