Meghan Markle is one step closer to becoming a member of the Royal Family after the Queen formally consented to her marriage to Prince Harry. In this post, I’ll look at why Prince Harry needs Her Majesty’s consent to marry, and I’ll explore the historical background to this rather arcane subset of British marriage law.
Section 3(1) of the Succession to the Crown Act 2013 declares that the first six individuals in line for the throne must obtain the Sovereign’s consent before they marry, and those who fail to do so are automatically removed from the line of succession. Furthermore, the Act also requires the Sovereign’s consent to be signified in three different forms:
- a verbal declaration in the presence of the Privy Council;
- an instrument sealed with the Great Seal; and
- a record in the Books of the Privy Council.
The process set out in the Succession to the Crown Act is essentially a reenactment of the Royal Marriages Act 1772, with a few exceptions. Under the earlier Act, all descendants of George II were obliged to obtain the Sovereign’s consent before marrying, unless they happened to descend from a princess who had married into a foreign family. The consequences for failing to obtain the Monarch’s consent were also harsher since marriages which contravened the Act would be null and void, and celebrating the marriage, or even just attending it, were criminal offenses.
Interestingly, the Act allowed members of the Royal Family to circumvent the Sovereign. If the Monarch withheld their consent, the royal in question could notify the Privy Council of their intent to marry. They would then be free to wed after twelve months, provided that the Lords and Commons hadn’t passed resolutions disapproving of the marriage. This provision is highly unusual, as formal mechanisms to override an act of the Sovereign are very rare.
The Royal Marriages Act was the brainchild of George III. His brother, the Duke of Cumberland and Strathearn, had married a commoner against his wishes, and the King wanted to prevent this from happening again (after the Act received Royal Assent, George discovered, much to his chagrin, that another of his brothers, the Duke of Gloucester and Edinburgh, had married the illegitimate daughter of Sir Edward Walpole several years earlier).
Despite the King’s wishes, the Act failed to stop members of his family from entering into ‘unsuitable’ marriages. In 1785, the Prince of Wales secretly married a divorced Catholic named Maria Fitzherbert. This marriage was doubly illicit, for not only did it violate the Royal Marriages Act, but it also violated the Act of Settlement 1701, which barred individuals with Catholic spouses from ascending the throne. However, their marriage never became public knowledge, and the Prince later married Princess Caroline of Brunswick in 1795 (since the Royal Marriages Act invalidated his marriage to Fitzherbert, he wasn’t actually committing bigamy).
Other members of the Royal Family continued to marry in defiance of the Act. In 1794, another royal child, Prince Augustus, married Lady Augusta Murray without obtaining his father’s consent. Initially, the couple had been married by an Anglican clergyman in Rome, but after moving to England, the couple learned that, aside from the provisions of the Royal Marriages Act, the fact that they had married in Rome could prove legally problematic. They attempted to rectify the matter by marrying a second time. This marriage wasn’t legal, either, but the curate who performed the ceremony had no idea who they were since they were careful to avoid using their titles.
When George III discovered their marriage, he sought to have it invalidated. The King’s Proctor (i.e., the Crown’s lawyer in the ecclesiastical courts) sought a declaration of nullity from the ecclesiastical courts, and the Arches Court of Canterbury subsequently ruled that the marriage was “absolutely null and void,” and their son was declared illegitimate. Prince Augustus proceeded to ignore the ruling and continued living with Lady Augusta before eventually separating from her several years later. In 1831, the Prince (now Duke of Sussex) contracted another marriage in defiance of the Royal Marriages Act. But by now, his marital exploits were greeted with a shrug, and while his new wife was never recognized as Duchess of Sussex, she received the title of Duchess of Inverness from Queen Victoria in 1840.
The Royal Marriages Act is a prime example of the dangers of legislating in haste. The fact that it applied to most descendants of George II meant that, as time passed, more and more people were subject to its provisions. This included people who weren’t even British. Due to the Royal Family’s German connections, there were a number of descendants of George II in that country. For example, George III’s fifth son, the Duke of Cumberland, became King of Hanover when the accession of Queen Victoria ended the personal union of the British and Hanoverian crowns. His family, though settled in Germany, continued to seek the British Monarch’s consent for their marriages. This caused some awkwardness when one of his descendants, Prince Ernest Augustus, Duke of Brunswick, asked George VI to consent to the marriage of his son. However, since the United Kingdom was still technically at war with Germany, the Foreign Office advised the King to withhold his consent.
While many people welcomed the fact that the Succession to the Crown Act only required the first six people in line for the throne to seek the Sovereign’s consent, some have questioned whether this provision should exist at all. Writing in The Independent, Labour MP Chris Bryant called the proposal “a tawdry feudal leftover” and questioned whether the Monarch should be allowed to effectively exclude people from the succession when that has historically been Parliament’s prerogative.
Bryant’s fears of royal caprice are probably unfounded—since Britain is a constitutional monarchy, the decision to grant or withhold consent would be founded on ministerial advice rather than the Sovereign’s personal wishes—but it’s fair to ask whether requiring the Monarch’s consent actually serves a purpose in the twenty-first century. Given contemporary mores, it’s hard to imagine a situation where a government would advise the Monarch to refuse consent to a marriage. On what grounds could ministers realistically object? It might be justified if a royal wanted to marry someone cartoonishly evil such as a neo-Nazi, but that seems like a remote possibility. And honestly, any royal who sought to marry someone like that would probably have damaged their reputation to the point that they would have to be removed from the line of succession anyway, rendering the issue of royal consent to their marriage moot.
 To successfully block the marriage, both Houses of Parliament would have to voice their disapproval.
 Compare this to the process of giving Royal Assent to legislation where there is no mechanism to override a royal veto. Generally, Britain has preferred to limit the Monarch’s power through conventions rather than statutory mechanisms. This is also true for most of the Sovereign’s other constitutional functions.
 At this time, the ecclesiastical courts had exclusive jurisdiction over matrimonial cases.
 The case, Heseltine v. Lady Augusta Murray, does not appear to have been reported in the usual manner. However, a summary of it can be found as a footnote in the report of Nokes v. Milward in Jesse Adams, Report of Cases Argued and Determined in the Ecclesiastical Courts at Doctor’s Commons and the High Court of Delegates, vol. 2 (London: S. Sweet, 1825) 400-401.
 After Prince Augustus’s death, his son attempted to succeed his father as Duke of Sussex. Queen Victoria referred his claim to the House of Lords’ Committee for Privileges, which agreed that the Prince’s marriage was invalid and dismissed the claim. The full report of the case can be found at John E. P. Wallis, ed., Reports of State Trials: New Series, vol. 6 (London: Eyre and Spottiswoode for Her Majesty’s Stationery Office, 1894) 80-116.
 Hanoverian law did not allow a woman to rule.
 The relevant documentation from the National Archives can be found at François Velde, “LCO 2/3371A,” Heraldica.org, accessed March 15, 2018, http://www.heraldica.org/topics/britain/TNA/LCO_2_3371A.htm.