Definition
A restraint of marriage is a contractual condition, covenant, bond, or testamentary provision that limits or prohibits a person's freedom to marry. The doctrine holds that agreements or conditions operating as a general restraint of marriage — those that prevent a person from marrying anyone at all — are void as against public policy. Partial restraints, which restrict marriage only in limited respects (by religion, nationality, or to a particular person), occupy more contested ground and have historically been treated with greater tolerance by courts.
The doctrine arises in two primary contexts:
1. Contractual restraints: An agreement between parties under which one promises not to marry, or not to marry except a specific person, is unenforceable. The restraint is the operative vice; the agreement fails regardless of any consideration offered.
2. Testamentary and gift conditions: A condition attached to a bequest or gift — providing that the beneficiary will receive property only if they do not marry, or will forfeit it upon marriage — is void when it operates as a general restraint. The established rule is that the gift or bequest stands and the offending condition is severed. Where the restraint is partial (e.g., a condition against marrying outside a particular religion, or a gift over to a third party if the beneficiary marries a named person), courts have more often enforced it, particularly where the purpose is to preserve property within a family or community rather than to suppress marriage altogether.
Common Confusion
General versus partial restraint is the central distinction in this area, and it is frequently misapplied. A condition that looks partial in form — "do not marry a Roman Catholic" — may still be treated as a general restraint if it effectively forecloses a realistic range of marriage options. Conversely, a gift over to a third party upon any marriage is not automatically void; courts have sometimes upheld such provisions when the evident purpose is to provide for a widow or widower only during widowhood, not to punish marriage itself. Researchers should not assume that any marriage-related condition fails automatically; the scope and evident purpose of the restraint control the analysis.
Why It Matters in Research
This doctrine is older than most researchers expect and shows up heavily in equity and probate records from the eighteenth and nineteenth centuries, where testators routinely attached marriage conditions to bequests to daughters, widows, and legatees. The dividing line between void general restraints and enforceable partial restraints was never cleanly resolved, and historical sources reflect active disagreement about where that line falls.
Several research traps apply. First, the rule that "the gift stands and the condition fails" is not universal across jurisdictions or time periods; some earlier English authorities treated the entire disposition as void rather than severing the condition, and American courts did not uniformly adopt the severance rule. Second, the doctrine as it appears in nineteenth-century American cases is often entangled with broader public policy arguments about the sanctity of marriage as a social institution — arguments that carry different weight after the twentieth-century constitutional developments around the right to marry. Third, Bouvier and Rapalje both note the exception for partial restraints but do not fully resolve what makes a restraint partial versus general; Black's entry, fragmentary in the source material here, points in the same direction. Researchers working in modern family law should be alert to the fact that constitutional dimensions (the right to marry as a fundamental right) may now overlay what was historically a pure common-law doctrine, potentially voiding restraints that earlier courts would have enforced as merely partial.
The corpus connections worth pursuing include testamentary conditions in equity records, marriage settlements, and ante-nuptial agreements, as well as the intersection with dower and curtesy doctrine where marriage conditions determined property rights.
Historical Dictionary Support
The three historical sources consulted are in close agreement on the foundational rule: general restraints of marriage are void as contrary to public policy, because marriage is an institution the state has an interest in promoting. Rapalje & Lawrence states the rule plainly and cites Lowe v. Peers, 4 Burr. 2225, for the proposition that an agreement to marry no one except a specific person is equally void — an important extension, since such an agreement appears to encourage marriage to one person while in fact operating as a restraint against all others.
Bouvier's is the most practically detailed of the sources here, distinguishing the testamentary context from the contractual one and identifying the severance remedy (the gift is good, the condition fails). Bouvier also flags the partial restraint exception — conditions against marrying a Roman Catholic, a particular person, or without consent — as potentially enforceable, though the entry is incomplete in the available excerpt. This is the most useful historical signal for researchers: the void/enforceable line was drawn not at the existence of a marriage condition but at whether the condition operated to suppress the freedom to marry broadly.
What the historical sources do not address is the modern constitutional frame. None of them contemplated a fundamental right to marry enforceable against private parties or capable of overriding testamentary intent. Researchers should treat these entries as accurate for the common-law baseline while recognizing that twentieth-century constitutional doctrine has shifted the landscape.
Jurisdictional Note
American jurisdictions generally follow the English common-law baseline distinguishing general from partial restraints, but the treatment of partial restraints varies. Some states have taken a more skeptical view of any marriage condition in a will, particularly where the effect is to penalize remarriage by a surviving spouse. Statutory rules governing testamentary conditions in a handful of states may also affect the analysis independently of the common-law doctrine.
Encyclopedia Cross-Reference
The Law Mind Family Law Encyclopedia: Marriage — Recognition of Foreign and Interstate Marriages (family_10); Marriage — Proxy Marriage and Marriage by Estoppel (family_12)