Diffusion and Confusion: Marriage Law in Colonial New South Wales, 1788–1861

This article considers the fragmented and contested law and practice of marriage in colonial NSW. The first part first addresses marriage law, both in a positivist sense, and in the sense of what people believed the law was. Countering recent revisionist work, it argues that many people in New South Wales believed, however wrongly, that English statute law applied in the colony. It also considers the implications of R v Millis in New South Wales. The next part then traces a popular shift away from early ambivalence towards official marriage. It suggests that judicial dampening of coverture and targeted emigration schemes to rectify the sex imbalance helped generate a mid-nineteenth century shift in favour of the Victorian marital ideal, with a corresponding increase in rates of marriage.