Definition
A feudal legal concept with two related but distinct meanings:
1. (English feudal law) The lord's or guardian's right, in a tenure by knight-service (chivalry), to arrange and profit from the marriage of a ward who was an infant. When a ward held land by knight-service, the guardian had the power to offer the ward a suitable match and to collect a payment if the ward refused. If the ward married without the guardian's consent, the guardian was entitled to compensation equal to the value of the marriage the ward had spurned. A guardian in socage held a similar right over the ward's marriage, but without the same financial advantage attached to refusal.
2. (Scots law) A sum of money owed by the heir of a deceased ward vassal to the superior, payable when the heir reached marriageable age. The obligation was a feudal incident — a charge arising automatically from the tenure relationship, not from any particular transaction. It is closely related to, and sometimes equated with, the Latin term valor maritagii (value of marriage).
Both meanings reflect the same underlying feudal logic: a superior or lord held a proprietary interest in the matrimonial prospects of those holding land under him, and that interest had a calculable monetary value.
Common Confusion
The two meanings — English and Scots — are easily conflated because they share a name and a feudal rationale, but they operate differently. In English tenure law, the avail of marriage was an active right: the guardian could select a spouse for the ward and penalize refusal. In Scots law, the avail of marriage was a passive obligation: a fixed sum owed when the heir reached a certain age, regardless of whether any marriage was proposed or refused. Researchers working in Scottish records should not assume the English framework applies, and vice versa.
Why It Matters in Research
This term is a historical artifact. It has no application in modern law — feudal tenures were abolished in England by the Tenures Abolition Act 1660 and in Scotland by the Abolition of Feudal Tenure etc. (Scotland) Act 2000. Any appearance of this term in a legal source therefore signals a historical, genealogical, or property-chain document rather than a live legal dispute.
Researchers working in English medieval and early modern property records will encounter the concept in the context of wardship and livery suits — proceedings in which the Crown or a mesne lord asserted rights over a ward's estate and marriage. The Court of Wards and Liveries (1540–1646) was the principal English venue for such claims; records from that court may use avail of marriage or its Latin equivalent, valor maritagii, interchangeably.
In Scottish legal history, the term appears in discussions of ward-holding tenure, the dominant form of Scottish feudal tenure before abolition. Erskine's Institutes (Book 2, Title 5) is the standard reference in Scottish institutional writing. Researchers using Scots legal records should note that Bouvier's and Burrill's entries focus exclusively on the Scots meaning, while Black's covers both jurisdictions.
The Rapalje & Lawrence entry is notably thin — it simply glosses the term as "value of marriage" and redirects — which reflects the term's obscurity in American legal practice. It never took root in American common law because feudal tenure was not transplanted to the colonies in its English form.
A practical trap: secondary sources sometimes use avail of marriage loosely to describe any lord's interest in a tenant's marriage, blurring the English and Scots distinctions. When precision matters, anchor the analysis to the jurisdiction and the specific tenure type at issue.
Historical Dictionary Support
The historical dictionaries agree on the core English meaning and the Scots meaning, though they vary in completeness. Black's (both editions) offers the fullest treatment, citing Blackstone's Commentaries (Book 2, Chapter 5) for the English rule and Erskine's Institutes for the Scots rule. Bouvier's and Burrill's confine themselves to the Scots meaning, which may reflect the audience for American legal dictionaries — the Scots doctrine being the more likely research curiosity for American practitioners tracing chain-of-title questions in historical Scottish grants.
Burrill's is distinctive in flagging the Latin equivalent, valor maritagii, and cross-referencing Skene's De Verborum Significatione, a 16th-century Scots legal glossary. This cross-reference is genuinely useful for researchers working in early Scots records where Latin terminology predominates.
None of the historical dictionaries adequately explains the mechanism of the English version — specifically, the ward's right to refuse a proposed marriage (without losing the guardianship benefit) so long as the match was not disparaging (i.e., socially beneath the ward's station). Blackstone's own account in the Commentaries provides the clearest historical explanation and should be the first stop for researchers needing more than a glossary definition.
Jurisdictional Note
The English doctrine was abolished with feudal tenures in 1660 and is of antiquarian interest only in English law. The Scots doctrine persisted longer as a formal matter but was effectively obsolete well before the 2000 abolition of feudal tenure in Scotland. Neither doctrine has any recognized analog in American law.
Encyclopedia Cross-Reference
The Law Mind Family Law Encyclopedia entries on marriage address modern formation, recognition, and variation doctrines and do not treat the feudal concept of avail of marriage. No current encyclopedia entry is a natural match for this term.