The high Middle Ages was a time of intense development in the field of sacramental theology, particularly relating to Holy Matrimony. Though matrimony had been considered a sacrament from patristic times, there was considerable disagreement on what exactly brought a marriage into being.
On this question there was always a tension between the ideas of consummation and consent. On the one hand, the Sacred Scripture taught that a husband and wife become “one flesh” when they come together in marriage (cf. Gen. 2:24, Matt. 19:5-6, Mark 10:7-9). This had ever been understood to refer to (or at least imply) sexual union—to use biblical parlance, a man and wife become one flesh when they “know” one another in the act of consummation. This Old Testament idea was reinforced in the New with St. Paul’s teaching on intercourse within marriage as an antidote to concupiscence and the corresponding marital debt (cf. 1 Cor. 7:1-16). The physicality of such passages suggests that intercourse is integral to marriage. Hence Augustine in his tract On the Goods of Marriage argued that procreation of children is the primary good of marriage. Centuries later, commenting on the question in his Decretum, Gratian said, “Marriage is begun by betrothal and perfected by sexual union. Hence between a betrothed man and woman there is marriage, but only begun; between those who have had intercourse there is ratified marriage.” (1) It was intercourse which brought marriage into being in the truest sense. Marriage might be initiated or “begun” by consent, but sexual union completed it.
On the other hand, there was also the idea that marriage arose from the consent of the parties. This had its origin in Roman law, where marriage was a pact or agreement between the spouses and their families. It was brought about by affectio maritalis, by which was meant the continuous, living intention of the man and woman to live together as husband and wife (2). The notion of marriage by consent was strongly prevalent in the barbarian law codes, as well.
The Church was wise enough to understand that consent and consummation were both normative in marriage, but where precisely did the sacrament arise? For example, suppose a man and woman exchange vows but do not consummate the marriage. Are they truly married? In such scenarios, what was the sacramental value of the consent alone? For those who stressed consummation, the consent was a pledge of a future good (verba de futuro) to be brought into being at the moment of marital intercourse. For those who stressed consent, the words of consent were efficacious in themselves and brought about a present reality (per verba de praesenti).
This debate became especially pertinent in the 12th-13th centuries, as the Church sought to bring marriage out of the private world and regularize it under its own rites. Nowhere was the question more pressing than among the nobility. For the great landed families, marriage was an instrument of policy, a means of joining estates, sealing alliances, and securing inheritances. Such unions were frequently arranged while the parties were still children, and vows might be exchanged years before bride and groom were old enough to live together as husband and wife. A commoner who married in his twenties generally set up house with his bride soon after the wedding, so that the interval between consent and consummation was brief. Among the nobility, however, that interval could stretch for years, and much could change in the meantime: a family could fall from royal favor, a more advantageous match could present itself, or one of the parties could simply refuse to go through with the union. In such circumstances, whether an unconsummated marriage was a true marriage was a question with very high stakes, for the answer determined who could inherit an estate, whose children were legitimate, and whether a lord was free to seek a better alliance elsewhere. It is unsurprising, then, that many of the cases through which the Church clarified its teaching arose among the landed classes.
In this article we shall examine three such cases from twelfth-century England. Each case turned on the relationship between consent and consummation. Taken together they show how the Church’s teaching on marriage was worked out in the episcopal and papal courts as well as in the schools, and why the Church came to insist to strongly on consent as the essential form of the sacrament.
Christina of Markyate
The first case we shall review is Christina of Markyate. Christina was a nun and prioress of a small community of religious women at Markyate, near St. Albans in Hertfordshire. She appears to have been born around 1096 and died in 1160. The story of Christina comes down to us through a text called The Life of Christina of Markyate, which was written as a vita to promote a canonization of Christina that never subsequently occurred. The author of the Life of Christina of Markyate is unknown, but whoever it was must have been a member of the Markyate community who had access to Christina’s personal recollections, for the details of the text are remarkably intimate and could only have come from Christina’s own account.
Christina was born of well-to-do parents in Huntingdon. She was a young woman of deep piety but also remarkable physical beauty. Her Life tells us many men attempted to seduce her, including a parish priest as well as the infamous Ranulf Flambard, the notoriously corrupt and debauched Bishop of Durham. (3) Christina, however, was attracted to religious life and yearned to take vows of celibacy. Apparently—as would become extremely important later on—she made a vow of chastity as a child in the presence of a canon.
Her parents did not support her, however, and arranged a marriage to a noble youth named Burthred. Christina refused to give her assent until one day, when she was at the church, her family and those of the groom ambushed her and put considerable pressure on her to assent. Her Life describes the scene thusly:
…some time later, when they were all gathered together at the church, they made a sudden and concerted attack on her. To be brief, how it happened, I cannot tell; all I know is that, by God’s permission, with so many exerting pressure upon her from all sides, she yielded—at least in word—and at that very hour Burthred and she were married. (4)
Though she had said vows, the marriage was not yet consummated. She returned to her parents’ house until the couple were ready to set up their own household together and Burthred set to building a matrimonial residence. Christina, however, was furious at what had occurred and angrily insisted that she would never consummate the marriage. Her parents attempted all manner of subterfuges to weaken her resolve: they arranged for her to receive compliments on her appearance from nobles in hopes of tempting her vanity; they forced her to participate in public festivals in hopes of awakening her worldly interests; they even attempted to get her drunk to make her more receptive to sex with her husband.
Christina deftly avoided all these traps, and her parents finally resolved to simply let Burthred into her room at night in hopes he would have his way with her. Instead, Christina sat up all night explaining to the lad why she wished to remain unmarried and Burthred went away frustrated. Her parents were losing patience with her; they dragged her before the prior of Huntingdon, who gave her a homily on marriage. His words have been preserved:
We know that you have been married according to the Church’s custom. We know that the sacrament of marriage, which has been sanctioned by divine law, cannot be dissolved, because those whom God has joined man may not put asunder. (5)
These words signify that the prior clearly held Christina’s consent alone to be sufficient not only to effect a legal marriage, but to render it indissoluble. Christina remonstrated, however, insisting that the sacrament was forced on her, that she’d never entertained being a wife, that she had chosen chastity from her youth and even vowed as such in the presence of witnesses.
When the prior could make no headway, her parents took the case before the Bishop of Lincoln. The bishop was at first favorable to Christina’s arguments when she produced a witness to her youthful vow of chastity, but after hearing from her parents and the groom, refused to release her from her matrimonial bond. The Life suggests the bishop was bribed, and this may certainly be possible—the Church’s canonical norms in the 12th century favored an earlier vow of chastity over a later betrothal—ultimately, though, the bishop thought it safer to side with the wishes of both families and the public vows she had made in the presence of the church and thus ruled against Christina.
Christina resorted to extreme measures and ran away from her home, with the help of a local hermit who dressed her as a man. She put herself under the patronage of Thurstan, Archbishop of York. Removed, as he was, from the community at Huntingdon and with no personal stake in the matter, he took a more favorable view of Christina. The Life is frustratingly vague on how events unfolded, but it seems that Thurstan was able to secure the permission of both the Bishop of Lincoln and even the pope for Christina’s husband to marry another woman. Thurstan formally annulled the marriage in 1112 and used his influence to establish Christina in religious life, where she eventually wound up at the newly established priory of Markyate. (6) She became a talented seamstress, embroidering three mitres for Pope Adrian IV. Various miracles were reported during her life and circulated after her death in hopes of promoting her cultus, but by the 14th century her veneration seems to have died out.
While The Life of Christina of Markyate is hagiography rather than legal history, it nevertheless illustrates important precedents that were percolating in canon law during the High Middle Ages: that consent alone (without consummation) was sufficient to establish a true and proper marriage, and that vows sworn in facie ecclesie were the surest way to ensure the propriety of this consent. Christina’s marriage was annulled not because it was not consummated, but because her prior vow of chastity in the presence of a witness negated the validity of later marriage vows, even though her vow of chastity was not taken in the solemn context of a formal religious profession. It was, therefore, null due a defect of consent.
Mabel de Francheville vs. Richard of Anstey
Richard of Anstey was a squire from Essex who in the 1150s entered into an inheritance dispute with his cousin, Mabel de Francheville. Richard contrived a scheme whereby he hoped to oust Mabel from her inheritance by claiming she was illegitimate, which by the customs of the time, would have precluded her from any inheritance. This would cause the property to devolve upon Richard, as the legitimate nephew of Mabel’s father. We know the details of Richard’s suit against Mabel from the diary of his expenses in the lawsuit, as well as from a letter from John of Salisbury to Theobald, Archbishop of Canterbury at the time the case was working through the court at Rome. What follows are the sordid details behind Richard’s case against Mabel.
There was a man named William de Sackville who owned a lovely estate in Essex. He contracted marriage with a certain Aubrey de Tresgoz, exchanged oaths, and then sent her home until the time came to consummate the marriage. But before he and Aubrey came together, his eye fell upon the sheriff’s daughter, Alice. William wed Alice at the church door, according to Catholic rites, in the presence of many witnesses and with great fanfare. When Aubrey heard of this, she stormed into the wedding celebrations in an attempt to challenge the marriage, but was unable to do so on account of the crowds and went away dejected. William, meanwhile, founded a household with Alice and reared children, among whom was Mabel.
But when Henry I died in 1135 and Stephen of Blois became king, anarchy was unleashed upon the kingdom in the civil war between Stephen and Matilda. William’s marriage with Alice must have been unhappy, for he took the opportunity presented by Stephen’s chaotic reign to eject Alice from his house, expecting the king’s court would be too distracted to render justice. Alice was sent off and William obtained an annulment from the Archdeacon of Colchester. William’s argument was that he had been truly married to Aubrey de Tresgoz and hence unable to contract marriage with Alice.
Alice sought redress from the papal legate and obtained a hearing before Henry of Blois, the Bishop of Winchester and the king’s brother. Alice argued that William had no true marriage with Aubrey because the two had never come together as husband and wife; the oaths they took de praesenti should be considered as a promise of future marriage, not the form of the marriage itself.
Henry of Blois ended up referring the case up to the papal Curia, where it was heard by Pope Innocent II in 1140. Innocent issued a decretal firmly stating the doctrine that consent de praesenti was binding. It was the exchange of oaths, not consummation, which brought the marriage about. The details of this decretal are recorded in the aforementioned letter of John of Salisbury, who reports Pope Innocent teaching that William’s first marriage to Aubrey “was not a promise for the future, but a present arrangement with immediate effect.” (7) The second marriage to Alice was declared null, and all that came of it was invalidated.
How much Pope Innocent knew about the details of the case is questionable; it seems that William de Sackville made some manner of deathbed confession admitting he had knowingly committed fraud at the time the Archdeacon of Colchester annulled his marriage. (8) At any rate, William’s death pangs instilled a sense of penitence in him, and he desired to make a good living for Mabel, his (now) illegitimate daughter borne by Alice. He declared her his heiress, left his lavish Essex estate to her, and there she lived in peace for many years, marrying and rearing a family of her own.
But when Henry II came to the throne in 1154, Mabel’s cousin Richard of Anstey decided to try his hand in the courts to see if he could get Mabel ejected from the Essex estate. A legal nightmare ensued: King Henry remanded the case to the episcopal courts, where there were eighteen hearings, all inconclusive. The case was repeatedly postponed by Mabel’s advocates, who knew that such delays favored her as the possessor. Her lawyers argued Peter Lombard’s theory of putative marriage, that children born to a marriage which had every reasonable appearance at the time of being valid and legal might be considered legitimate.
The case eventually made it to Rome and was heard by Alexander III. Confronted with the precedent set by Innocent II, Alexander could not contravene his predecessor’s judgment. Still, Alexander seems to have hesitated, and he sent the case back to the judges delegate for one final appeal. There was simply no getting around Innocent II’s pronouncement, however, and Alexander III finally declared Mabel illegitimate. The royal court granted Richard the Essex estate five years after he first opened the case, and Mabel and her family were turned out.
The Church eventually adopted Lombard’s putative marriage theory; today, canon 1137 of the 1983 Code of Canon Law says, “The children conceived or born of a valid or putative marriage are legitimate.” The Church’s canon law now designates only a marital union itself as legitimate or illegitimate, passing no judgment on the status of children who may be born of the union. While Mabel de Francheville was certainly unfortunate in the outcome of her trial, it nevertheless gave the Church not one but two cases solidifying the precedent that consent by verba de praesenti was the basis of a valid marriage.
The Countess Agnes
A few years later Alexander III dealt with another case involving the English, this time centering on Agnes, Countess of Oxford.
The case of Agnes begins with Aubrey de Vere (1115-1194), the first Earl of Oxford. De Vere had married twice but had produced no heirs. As the earl reached his forties, he was getting desperate to produce an heir. The De Vere family at this time had in their keeping a young girl named Agnes, daughter of Henry of Essex, who had been betrothed to De Vere’s younger brother and was given as hostage for the arrangement. Agnes’ father Henry was the constable of King Henry II and was head of one of the most renowned families in England. De Vere saw in Agnes the chance to not only produce an heir but also join his bloodline to one of the most prominent dynasties. Therefore in 1162, when Agnes was around 12 years old, De Vere took her from his brother and wed himself to her by verba de praesenti. This being accomplished, all that was necessary was to wait a few years for Agnes to be old enough to consummate the union.
The following year, however, Agnes’ father, Henry of Essex, fell into disgrace and retired from public life to take up the monastic cowl in penance. All his lands were forfeit, his offices stripped, and his family name degraded. Agnes’ market value as a wife evaporated and Aubrey de Vere now sought to get rid of Agnes as quickly as possible. As the girl was only 12 and the marriage had not been consummated, De Vere believed it would not be difficult.
Agnes, however, demonstrated remarkable tenacity for such a young girl. She was well aware of what had become of her family’s name and knew that preserving the marriage to De Vere was, perhaps, the last chance her family had to keep itself relevant. Agnes somehow got the case heard in the episcopal court of London, which forced the De Veres to make a case that the vows made in 1162 were invalid.
The case was not heard till 1166, by Gilbert Foliot, the great opponent of St. Thomas Becket, who thus had the esteem of King Henry. Foliot was hesitant to get entangled in the matrimonial squabbles of the great lords and waffled on a decision. The case was appealed to Rome, but nothing happened for five or six years. During this time Aubrey de Vere locked Agnes up in a tower in hopes of breaking her spirit, but Agnes—now approaching 20 years old—was determined and insisted on the validity of her marriage to De Vere.
Alexander III finally heard the case in 1172 in the aftermath of the Becket affair. He was moved by the plight of the young girl. Aubrey de Vere had argued that he had not truly married Agnes since he had never consummated the union; his words of consent should be constured as a pledge of future marriage (verba de futuro), not of present union (de praesenti). Alexander, however, followed precedent and insisted that the marriage was made by consent: the vows exchanged in 1162 made a proper and binding marriage, even if it had yet to be consummated. The pope ordered Aubrey de Vere to take her back, to share with her his bed and board, and to do so within twenty days of receipt of the papal mandate or else face excommunication and interdict on his lands. The earl complied, and the marriage of Aubrey and Agnes was consummated, he being about sixty years old and she being not much older than twenty. They would have five children, from whom descended the later De Veres, who would be one of England’s great noble houses into the 18th century. The historian Macaulay described the De Veres as “the longest and most illustrious line of nobles that England has seen.” (9)
Conclusion
Taken together, the cases of Christina of Markyate, Mabel de Francheville, and the Countess Agnes span roughly sixty years of the twelfth century, and in that span we can watch the consensual theory of marriage develop from an assumption held by a provincial prior in Huntingdon to a principle defended by successive popes. The prior who lectured Christina already took it for granted that her words at the church door had bound her, however unwillingly they were spoken. By 1140 Innocent II had given that assumption the force of a papal judgment, and by 1172 Alexander III was prepared to threaten one of the great magnates of England with excommunication and interdict in order to uphold a marriage per de verba praesenti. By the time of Gregory IX, we will see the principle enshrined in the Decretals; the first Chapter in Title I of Book IV on marriage and divorce begins with the heading, “Marriage is contracted by consent alone” and goes on to provide several canonical case studies to that effect. (10) The words of consent brought a real marriage into existence the moment they were spoken.
These decades coincided with the great debate among the schoolmen on sacramental form and matter. Gratian, working at Bologna around 1140, taught that marriage was initiated by consent and perfected by consummation, while Peter Lombard and the Parisian masters held that the exchange of present consent was itself the sacrament. Alexander III’s rulings eventually settled the matter along lines that leaned more towards Lombard: words of present consent (verba de praesenti) made a marriage, while words of future consent (verba de futuro), such as those exchanged at an engagement, created a betrothal that ripened into marriage upon intercourse. The cases reviewed here show that this synthesis was hammered out in the papal and episcopal courts as much as in the schools.
The difficulties highlighted by these cases would occupy the Church for centuries. A marriage made by consent alone could be made anywhere, by anyone, with or without witnesses, and the tangle surrounding William de Sackville’s two marriages shows how easily such unions could be disputed, concealed, or fabricated outright. This is precisely why the Fourth Lateran Council required the publication of banns and forbade clandestine marriages (though, importantly, it did not declare them invalid). (11) Only with the decree Tametsi of the Council of Trent in 1563 did the Church require, for validity, that marriage be contracted before a priest and two witnesses. (12) The problem of coerced consent that was at the heart of Christina of Markyate’s case was likewise addressed in time with canons invalidating any marriage entered into through force or grave fear from which a person has no escape but to choose marriage. (13)
Even so, the heart of the twelfth-century settlement endures to this day. Canon 1057 of the 1983 Code of Canon Law states that marriage is brought about by the consent of the parties, lawfully manifested between persons capable of it, and that no human power can supply that consent. From that moment the bond is indissoluble, in that the spouses themselves can never undo it. Consummation, however, makes that indissolubility absolute: a sacramental marriage that has been consummated cannot be dissolved by any human power, while one that remains unconsummated may still be dissolved by the Roman Pontiff for a just cause. (14) In this final settlement the Church has incorporated both sides of the old debate, holding with Lombard that consent creates the marriage and with Gratian that consummation perfects it. But the essential principle, that the free exchange of vows is what makes husband and wife, was established in the twelfth century through these three English cases.
I am indebted to the late Christopher Brooke for his discussion of this issue in his 1989 book The Medieval Idea of Marriage, which made me aware of these case studies.
(1) Decretum, C.27 q.2 d.p.c.34
(2) See Christopher Brooke, The Medieval Idea of Marriage (Clarendon: Oxford, 1989), 40, and Ionuţ Ciutacu, “The Evolution of the Legal Institution of Marriage in Roman Law,” Scientia Moralitas Conference Proceedings, Feb. 19–20, 2023, pp. 63–67. DOI:10.5281/zenodo.7756315
(3) Ranulf Flambard at one point administered sixteen bishoprics and abbeys. Orderic Vitalis described him as “addicted to feasts and carousals and lusts; cruel and ambitious, prodigal to his own adherents, but rapacious in seizing the goods of other men”; no less than St. Anselm of Canterbury called him “a rent collector of the worst possible reputation.” (see Ralph Turner, “Changing Perceptions of the New Administrative Class in Anglo-Norman and Angevin England: The Curiales and Their Conservative Critics” in Journal of British Studies. 29 (2), April 1990, p. 107; and Sally Vaughn, Anselm of Bec and Robert of Meulan: The Innocence of the Dove and the Wisdom of the Serpent. Berkeley, CA: University of California Press, 1987, p. 239)
(4) The Life of Christina of Markyate, trans. by C.H. Talbot (Oxford University Press: Oxford, 1959), 44-47
(5) Ibid., 58-61
(6) Markyate Priory went into decline in the mid-13th century and by the 15th century was considered impoverished, barely able to support a dozen sisters. It was suppressed in 1537 by Henry VIII. A manor house called Markyate Cell was later built on the site of the priory.
(7) John of Salisbury, Letters, i:228-9: ‘Non enim futurum promittebatur, sed praesens firmabatur.’
(8) Ibid., 233
(9) Macaulay, Baron Thomas Babington (1857). The History of England. Vol. 2. p. 126.
(10) Decretals of Gregory IX, Lib. IV., Tit. 1, Cap. 1
(11) Fourth Lateran Council, Canon 51.
(12) Council of Trent, Session XXIV (1563), Decretum de reformatione matrimonii, ch. 1 (Tametsi): “Those who shall attempt to contract marriage otherwise than in the presence of the parish priest, or of some other priest by permission of the said parish priest, or of the Ordinary, and in the presence of two or three witnesses; the holy Synod renders such wholly incapable of thus contracting and declares such contracts invalid and null, as by the present decree It invalidates and annuls them.”
(13) Canon 1103 of the 1983 Code of Canon Law and canon 1087 of the 1917 Code.
(14) CIC 1057 §1, 1141–1142 (1983).
Phillip Campbell, “Marriage by Consent or Consummation? Three Medieval Cases.” Unam Sanctam Catholicam, Sept. 27, 2026. Available online at https://unamsanctamcatholicam.com/2026/09/marriage-by-consent-or-consummation-three-medieval-cases