1911 Encyclopædia Britannica/Marriage
MARRIAGE. Marriage (Fr. mariage, from marier, to marry; Lat. maritare, from mas, maris, a male), or “matrimony” (Lat. matrimonium, from mater, a mother), may be defined either (a) as the act, ceremony, or process by which the legal relationship of husband and wife is constituted; or (b) as a physical, legal and moral union between man and woman in complete community of life for the establishment of a family. It is possible to discriminate between three stages, taking marriage in the latter sense as an institution—the animal or physical stage, the proprietary or legal stage, and the personal or moral stage. In the first or physical stage the relation of the sexes was unregulated, and in many cases of brief duration. In the second or legal stage greater permanence was secured in marriage by assigning the husband a property right in his wife or wives. In the last stage the proprietary relation falls more and more into the background, and the relation of husband and wife approximates that of two individuals entirely equal before the law. Although in the history of marriage these three stages have been roughly successive, the order of their entering the conscious experience of the individual is usually the reverse of their order in the development of the race; and in the solemnization of a marriage based upon affection and choice the growth of the relation begins with the moral, advances to the legal and culminates in the physical union, each one of these deriving its meaning and its worth from the preceding. In most legal systems marriage, in the sense of a ceremony, takes the form of a contract—the mutual assent of the parties being the prominent and indispensable feature. Whether it is really a contract or not, and if so to what class of contracts it belongs, are questions which have been much discussed, but into which it is not necessary to enter. While the consent of parties is universally deemed one of the conditions of a legal marriage, all the incidents of the relationship constituted by the act are absolutely fixed by law. The jurist has to deal with marriage in so far as it creates the legal status of husband and wife. It should be added that, while marriage is generally spoken of by lawyers as a contract, its complete isolation from all other contracts is invariably recognized. Its peculiar position may be seen at once by comparing it with other contracts giving rise to continuous relationships with more or less indefinite obligations, like those of landlord and tenant, master and servant, &c. In these the parties may in general make their rights and duties what they please, the law only intervening when they are silent. In marriage every resulting right and duty is fixed by the law.
Besides true marriage, inferior forms of union have from time to time been recognized, and may be briefly noticed here. These have all but disappeared from modern society, depending as they do on matrimonial restrictions now obsolete.
The institution of slavery is a fruitful source of this kind of debased matrimony. In Roman law no slave could contract marriage whether with another slave or a free person. The union of male and female slaves (contubernium) was recognized for various purposes; a free woman entering into a union with a slave incurred under the S.C. Claudianum the forfeiture of her own liberty; but the bondwoman might be the concubine of a freeman. In the United States, where slavery was said to be regulated by the principle of the civil law, the marriage of slaves was so far recognized that on emancipation complete matrimony took effect and the children became legitimate without any new ceremony.
In Roman law no legal marriage could be contracted unless there was connubium between the parties. Originally there was no connubium between plebs and patricians, and the privilege was conceded after a long struggle by the Lex Canuleia. In later times Latini and Peregrini were excluded from connubium except where the right had been expressly conferred. The great matrimonial law of the early empire (Lex Julia et Papia Poppaea) introduced restrictions depending on the condition of the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freedwomen or women of inferior rank, and the husband of a freedwoman becoming a senator was set free from his marriage. In the canon law new restrictions were developed. Persons who bound themselves not to marry were deemed incapable of marrying. The order of the clergy were forbidden to marry. And disparity of faith was recognized by the early church as a bar to matrimony, e.g. between Christians and pagans and between orthodox and heretics (see Dictionary of Christian Antiquities, art. “Marriage”).
Concubinage, which such restrictions tended to develop, is noticed under a separate heading (q.v.). It might be described as marriage which has no consequences, or only slight and peculiar consequences, in legal status. In the left-handed or “morganatic” marriages of the German royal families we have the nearest approach ever made by concubinage to true marriage, the children being legitimate, but neither they nor the wife acquiring any right to the rank or fortune of the husband. The marriage of persons of different religions frequently requires the intervention of the law as to the faith of the children, more particularly in Europe as between Roman Catholics and Protestants. English law gives the father, except under special circumstances, the right to dictate the faith of his children (see Infant). The practice on this point varies in Europe—the question being ignored in French law, Germany following in some parts the same rule as England, in others giving effect to ante-nuptial stipulations. In Ireland mixed marriages (i.e. between Roman Catholic and Protestant) were by 19 Geo. II. c. 13 null and void if celebrated by a Roman Catholic priest. This act was repealed by 33 & 34 Vict. c. 110, which permits mixed marriages to be validly celebrated by an Episcopalian or Roman Catholic clergyman, subject to conditions set forth in § 38.
Roman law.—The three primitive modes of marriage were confarreatio, coemptio in manum, and usus, all of which had the effect of placing the woman in the “power” (manus) of her husband, and on the same footing as the children. The first was a religious ceremony before ten witnesses, in which an ox was sacrificed and a wheaten cake broken and divided between the spouses by the priest. Coemptio was a conveyance of the woman by mancipatio, and might be described as a fictitious sale per aes et libram, like that employed in emancipation and testamentary disposition and other processes. Usus was the acquisition of the wife by prescription, through her cohabiting with the husband for one year, without having been absent from his house three continuous nights. But a true marriage might be concluded without adopting any of these modes, and they all fell into desuetude and with them the subjection of the wife to the manus. Marriage without manus was contracted by the interchange of consent, without writing or formality of any kind. By some jurists it is regarded as incomplete until consummated by delivery of the woman, and is accordingly referred to the class of real contracts. The restrictions as to age, relationship by consanguinity and affinity, previous marriage, &c., were in the main those which have continued to prevail in modern Europe with one important exception. The consent of the paterfamilias to the marriage of the children under his power was essential.
Canon law.—The canon law of marriage is based partly on the Roman law, the validity of which the Church from the first recognized, partly on the Jewish law as modified by the new principles introduced by Christ and his apostles, developed by the fathers of the Church and medieval schoolmen, and regulated and defined by popes and councils. The most important of these principles was that of the indissolubility of marriage, proclaimed by Christ without qualification according to Mark x. 11, 12, and with the qualifying clause “saving for the cause of fornication” according to Matt. v. 32. This lofty view of marriage, according to which man and wife are made “one flesh” by the act of God (“What therefore God hath joined together, let no man put asunder,” Mark x. 9) was, however, modified by the idea of the consummating act of marriage as in itself something unholy, a result of the Fall. Christ himself, indeed, did not teach this; but for St Paul marriage is clearly a concession to the weakness of the flesh (1 Cor. vii.). “The time is short,” and in view of the imminent coming of the Lord the procreation of children a matter of no importance (v. 29), but “it is better to marry than to burn” (v. 9). He is, however, obviously not clear on the point, and at the end of his argument strikes a note of doubt (v. 40); elsewhere he defends marriage, against those who would have forbidden it altogether, as a gift of God (1 Tit. iv. 3-5) and even, in seeming contradiction to 1 Cor. vii. 29, commands the bearing of children (1 Tit. v. 14). Finally it is to St Paul that the idea of marriage as a sacrament is to be traced, in the mystic comparison of the relations of husband and wife to those of Christ and his Church (Eph. v. 23–32). These are the main foundations in Scripture on which the Christian law of marriage is built up, and they are obviously principles which admit of a large amount of variety of interpretation and of practice. They were developed in the early Church under the influence of the rapidly growing passion for the celibate life, partly an outcome of the same dualistic principle which produced the asceticism of the Jewish Essenes and of the Gnostics, partly perhaps a natural reaction from the appalling moral corruption of the decaying empire. Marriage, it is true, from being no more than a terminable civil contract, became a thing holy, a mystic union of souls and bodies never to be divided; valid, indeed, but not spiritually complete, without the public blessing of the Church (Tertullian, Ad uxorem, lib. ii. cap. 9); and from Augustine’s time onward it was reckoned as a sacrament. But at the same time there was a tendency to restrict its rights and its range. So far as marriage was a physical union, this had for its object solely the perpetuation of the race and the avoidance of fornication; the most that was conceded was that the intention of having offspring not only made the conjugal act blameless, but even gave to the desire that inspired it an element of good (Augustine, de nupt. et conc. 3). But the ideal married life was that attributed to Mary and Joseph. Thus Augustine cited this as an example that a true marriage may exist where there is a mutual vow of chastity (op. cit. 12), and held that the sooner this relation was established the better (de bono conjug. 22). Marriage being then an inferior state, to be discouraged rather than the reverse, the tendency was rapidly to narrow the field within which it might be contracted. Remarriage (bigamy) was only allowed after many struggles, and then only to the laity; St Paul had laid down that a “bishop” must be “the husband of one wife,” and to this day the priests of the Orthodox Eastern Church may not remarry. Clerical celibacy, at first a counsel of perfection, was soon to become the rule of the Church, though it was long before it was universally enforced in the West; in the East it still applies only to monks, nuns and bishops (see Celibacy). The marriage of the laity was hampered by the creation of a number of impediments. The few and definite prohibitions of the Roman and of the Jewish law (Lev. xviii. 6-18; xx.) in the matter of marriage between kindred, were indefinitely extended; until in 506 the council of Agde laid it down that any consanguinity or affinity whatever constituted an impediment. Moreover, man and wife being “one flesh,” the Church exaggerated relationship by affinity into equal importance with that of consanguinity as an impediment to matrimony; and, finally, to all this added the impediments created by “ affinity,” i.e. the relations established between baptizer and baptized, confirmer and confirmed, and between godparents, their godchildren and their godchildren’s relatives.
The result of this system was hopeless confusion and uncertainty, and it was early found necessary to modify it. This was done by Pope Gregory I., who limited the impediment to the 7th degree of relationship inclusive (civil computation) which was afterwards made the law of the empire by Charlemagne. Later still Innocent III. found it necessary again to issue a decree (4th Lateran Council) permitting marriages between a husband and the relations of his wife, and vice versa, beyond the 4th degree inclusive (canonical computation). This remains the canonical rule of the Roman Catholic Church. As regards impediments due to spiritual affinity, these were limited by the Council of Trent to the relation of the baptizer and baptized; the baptizer and the parents of the baptized; the baptizer and the godfather and godmother; the godparents and the baptized and its parents: i.e. a godfather may not marry the mother of the child he has held at the font, nor the godmother the father of such child.
In the fully developed canon law impediments to marriage are of two kinds, public and private (impedimenta publica and privata), i.e. according as the objection arises out of the very nature of marriage itself or from consideration for the rights of particular persons; near relationship, for instance, is a public impediment, impotence (impotentia) and force (vis et metus) are private impediments. Impediments are further divided into separating (impedimenta dirimentia) or merely suspensive (impedimenta tantum impedientia); to the first class belongs, e.g. a previous marriage not dissolved by death, which involves the nullification of the marriage even where through ignorance the crime of bigamy is not involved; to the second belongs the case of one or both of the contracting parties being under the age of puberty. Impediments, moreover, are absolute or relative, according as they are of universal application or only affect certain persons; near relationship, for instance, is an absolute impediment, difference of religion between the parties a relative impediment. In addition to consanguinity and affinity, impuberty and existing marriage, the canon law lays down as public and absolute impediments to marriage the taking of holy orders and the vows of chastity made on entering any of the religious orders approved by the Holy See. In these impediments the canon law further distinguishes between those which are based on the law of nature (jus naturae) and those which are based on the law of the Church (jus ecclesiae). From impediments based on the law of nature, or of God, there is no power even in the pope to dispense; e.g. marriage of father and daughter, brother and sister, or remarriage of husband or wife during the lifetime of the wife or husband of another marriage, which is held to be a violation of the very nature of marriage as an indissoluble union. From impediments arising out of the law of the Church dispensations are granted, more or less readily, either by the pope or by the bishop of the diocese in virtue of powers delegated by the pope (see Dispensation). Thus dispensations may be granted for marriage between persons related by consanguinity in any beyond the 2nd degree and not in the direct line of ascent or descent; e.g. between uncle and niece (confined by the council of Trent to the case of royal marriages for reasons of state) and between cousins-german, or in the case of marriage with a heretic. In this latter case a dispensation is now (i.e. since the papal decrees ne temere of the 2nd of August 1907, which came into force at Easter 1908) only granted on condition that the parties are married by a Catholic bishop, or a priest accredited by him, that no religious ceremony shall take place except in a Catholic church, and that all the children shall be brought up in the Roman Catholic faith.
In the absence of any impediment a marriage is according to the canon law completed between baptized persons by the facts of consent and consummation; the principle is still maintained that the parties to the marriage, not the priest, are the “ministers of the sacrament” (ministri sacramenti). From the first, however, the Church, while recognizing the validity of private contracts, enjoined the addition of a public religious ceremony, so that they might be “sanctified by the word of God and prayer” (1 Tim. iv. 5). Tertullian (de pudicitia, cap. iv.) says that clandestine marriages, not professed in the Church, were reckoned among Christians as all but fornication, and he speaks of the custom of seeking permission to marry from the bishop, priests and deacons (de monogamia, cap. xi.). This latter precaution became increasingly necessary as impediments were multiplied, and Charlemagne, in a capitulary of 802, forbade the celebration of a marriage until “the bishops, priests and elders of the people” had made diligent inquiry into the question of the consanguinity of the parties. This was the origin of the publication of banns which, long customary in France, was made obligatory on the whole Church by Pope Innocent III. In the Eastern Church the primitive practice survives in the ceremonial blessing by the priest of the betrothal, as distinguished from the marriage ceremony. The ecclesiastical recognition of clandestine marriages, however, survived until the crying evil was remedied by a decree of the council of Trent (Sess. xiv. de matrim.), which laid it down that for a valid marriage it was at least necessary that consent should be declared before a priest and in the presence of three witnesses. According to the actual law of the Roman Catholic Church, then, a civil marriage is only valid when the Tridentine decree has not been published; where this has been published, or has been in practice without publication, such a marriage can only become valid if followed by a religious ceremony in the prescribed form. Where such form has not followed the ecclesiastical courts must treat the marriage as voidable through the impedimentum clandestinitatis.
Divorce, i.e. the annulment of marriage for any cause but an impediment which makes the marriage ipso facto void, is unknown to the Roman Catholic Church. Separation a vinculo matrimonii is only possible under the canon law by a judicial decree of nullity (annullatio matrimonii), which implies, not the severing of the ties of a real marriage, but the solemn declaration that such marriage has never existed. There may, however, be a “separation from bed and board” (a thoro et mensa), even perpetual, which does not however give either party the right to remarry during the lifetime of the other. But, marriage not being regarded as a sacrament until consummated, it may be dissolved, if non-consummation be proved, by one or both parties taking the religious vows, or by papal dispensation. The Church claims exclusive control over marriage, and the council of Trent anathematized the opinion held by Luther and other Reformers, that it was properly a subject for the civil courts (si quis dixerit causas matrimoniales non spectare ad judices ecclesiasticos anathema sit, Sess. xxiv. cap. 2). This attitude became of extreme political importance when even in Catholic countries the codes established civil marriage as the only legally binding form.
England.—Marriage may be the subject of an ordinary contract on which an action may be brought by either party. It is not necessary that the promise should be in writing, or that any particular time should be named. Promises to marry are not within the meaning of “agreement made in consideration of marriage” in the statute of frauds, which requires such agreements to be in writing. Contracts in restraint of marriage, i.e. whose object is to prevent a person from marrying anybody whatever, are void, as are also contracts undertaking for reward to procure a marriage between two persons. These latter are termed marriage brocage contracts.
Any man and woman are capable of marrying, subject to certain disabilities, some of which are said to be canonical as having been formerly under the cognisance of the ecclesiastical courts, others civil. The effect of a canonical disability as such was to make the marriage not void but voidable. The marriage must be set aside by regular process, and sentence pronounced during the lifetime of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by the Marriage Act 1835. Civil disabilities are (1) the fact that either party is already married and has a spouse still living; (2) the fact that either person is a party of unsound mind; (3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Roman law, viz. fourteen for males and twelve for females; (4) relationship within the prohibited degrees.
The statute which lawyers regard as establishing the rule on this last point is the 32 Hen. VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c. 23, in whole by 1 & 2 P. and M. c. 8, but revived by 1 Eliz. c. 1, and so left as under the Act of Edward), which enacts that “no prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees.” The forbidden marriages, as more particularly specified in previous statutes, are those between persons in the ascending and descending line in infinitum, and those between collaterals to the third degree inclusive, according to the computation of the civil law. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage), now altered so far as a deceased wife's sister is concerned (see below). The act of 1835 enacted that “all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever.” They had previously been only voidable. The act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity) actually celebrated before the 31st of August 1835.
For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a deceased Marriage with a Deceased Wife's Sister. wife's sister. In all the self-governing colonies, with the exception of Newfoundland, the restriction had ceased to exist. The first act legalizing marriage with a deceased wife's sister was adopted by South Australia. The royal assent, however, was not given till the parliament of that state had five times passed the bill. In quick succession similar statutes followed in Victoria, Tasmania, New South Wales, Queensland, New Zealand, West Australia, Barbados, Canada, Mauritius, Natal and Cape Colony. As regards the Channel Islands, marriages of the kind in question were made legal in 1899, and in 1907 in the Isle of Man.
In England the bill to render marriage with a deceased wife's sister valid was first adopted by the House of Commons in 1850, and rejected by the House of Lords in 1851. It was subsequently brought before the legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870, 1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May, when in the House of Lords the prince of Wales and the duke of Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888, 1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most cases it passed the House of Commons but was rejected in the House of Lords. The bill of 1896, however, which was judiciously drafted to avoid the compulsory celebration by clergymen of marriages against which they had conscientious scruples, was carried in the Lords. Both the prince of Wales and the duke of York were among the “contents.” The prime minister and eighteen bishops, including the two archbishops, voted against the bill, the earl of Rosebery and Lord Kimberley for it. At the third reading the bill was carried by 142 to 104 votes. Its promoters, however, did not succeed in getting an opportunity of bringing it before the House of Commons.
From 1896 to 1901 no further direct steps were taken, but in 1898 and again in 1900 (May 28) the subject was brought forward in the House of Lords by Lord Strathcona in the form of a bill under which marriages with a deceased wife's sister contracted in any British colony should be deemed valid for all purposes within the United Kingdom. In 1898, and again in 1900, the bill was carried on the third reading without a dissentient vote. The House of Commons took no action on either occasion. An imperial bill reached a second reading in the House of Commons in 1901 and again in 1902, but it was blocked by the High Church opponents of the measure when attempts were made to get it to the committee stage (Feb. 5 and June 6). The reform was, however, finally adopted in 1906 under the title of the Colonial Marriages (Deceased Wife's Sister) Act. The effect of the act was to make such marriages legal in all respects, including the right of succession to real property and to honours and dignities within the United Kingdom. The natural sequence of the passing of the act of 1906 was the reintroduction in 1907 of the bill relating to England. Introduced by a private member, it was adopted by the government, passed the House of Commons, and finally the House of Lords (on the second reading by 111 votes to 79), and became law as the Deceased Wife's Sister Marriage Act, 1907. The act contains a proviso justifying clergymen in refusing to solemnize marriages with a deceased wife's sister, and it preserves the peculiar status of the wife's sister under the Matrimonial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.
The celebration of marriages is now regulated wholly by statutory legislation. The most important acts in force are the Marriage Acts 1823, 1836, 1886 and 1898. The former regulates marriages within the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is required to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the church of the parish in which the parties dwell; the bishop may, however, authorize the publication of banns in a public chapel. Seven days’ notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop or other authority, for the solemnization of a marriage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in the case of persons under age. The father, or lawful guardian, is the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mentally is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chapel, or without due publication of banns or proper licence, or before a person not in holy orders, the marriage is null and void to all purposes. Marriage must be celebrated within three months after banns or licence, and between the hours of eight in the morning and three in the afternoon.
For the relief of the great body of Dissenters the act of 1836 was passed. It permits marriage to be solemnized in two additional ways—viz. (1) by certificate of the superintendent registrar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage-notice book, open to public inspection at all reasonable times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar’s office. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways: (1) in a certified place of religious worship, registered for the solemnization of marriage; in that case a registrar of the district with two witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar’s office, with the same declaration, but with no religious service; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been specified in the notice and certificate.
In the second case, when it is desired to proceed by licence, notice must be given to the registrar of the district in which one of the persons resides, together with a declaration that he or she has resided for fifteen days therein, that there is no impediment, and that the necessary consents if any have been obtained. The notice is not exhibited in the registrar’s office, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence. No registrar’s licence can be granted for a marriage in church or according to the forms of the Church of England—the ecclesiastical authorities retaining their jurisdiction in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void.
The various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invalidating a marriage actually solemnized.
The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke’s Act, which forbids the solemnization of marriage without banns or licence, also enacts that “in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration in facie ecclesiae, by reason of any contract of matrimony whatsoever whether per verba de presenti or per verba de futuro.” Blackstone observes that previous to this act “any contract made per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae.”
Royal marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. 11), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that “no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and successors, signified under the Great Seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months’ notice to the privy council, may contract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto.”
In 1886 an act was passed in the British parliament to remove doubts which had been entertained as to the validity of certain marriages solemnized in England when one of the parties was resident in Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled a wife whose husband is convicted of an assault on her, or who has been deserted by him, or been obliged owing to his cruelty to live apart from him, to apply to the justices, who are empowered by the act to make an order for separation and for payment by the husband to his wife of such weekly sum, not exceeding two pounds, as they may consider reasonable. The Marriage Act 1898 authorized the celebration of marriages in places of worship duly registered for the solemnization of marriages under the Marriage Act of 1836 without the presence of the registrar, on condition of their being solemnized in the presence of a person duly authorized by the governing body of the place of worship in question. It also made further provision for the due recording of all marriages in the general registers. The Marriages Validity Act of 1899 removed doubts as to the validity of marriages in England on Irish banns and in Ireland on English banns. Lastly, the Marriage with Foreigners Act 1906 enabled a British subject desirous of marrying a foreigner in a foreign country to comply with the foreign law by obtaining from a registrar a certificate that no legal impediment to the marriage has been shown. Similar certificates, by arrangement between His Majesty and foreign countries, are issued in the case of a foreigner desirous of marrying a British subject in the United Kingdom.
The Foreign Marriage Act 1892 has consolidated the English law relating to marriages celebrated abroad, and brings it into harmony with the current tendencies of marriage law reform generally. Under it a marriage between British subjects abroad is as valid as a marriage duly solemnized in England (as heretofore), if celebrated in accordance with the local law or in the presence of diplomatic or consular agents who are appointed to act as “marriage officers.” The old fiction of assimilation of a British embassy to British soil can no longer be relied upon to uphold a marriage at a British embassy solemnized by an ordained clergyman. An order in council of the 28th of October 1892, moreover, provides that in the case of any marriage under the act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be recognized by the law of the foreign country to which the alien belongs.
A marriage may be solemnized on board one of His Majesty’s ships at a foreign station, provided a warrant of a secretary of state has authorized the commanding officer to be a marriage officer. At sea, marriages on British public or private ships seem still valid at common law, if performed by an episcopally ordained minister. The Merchant Shipping Act 1894 (sect. 240) provides that the master of a ship for which an official log is required shall enter in it every marriage taking place on board, with the names and ages of the parties.
Again, under the Foreign Marriage Act all marriages solemnized within the British lines by a chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid in law as if they had been solemnized within the United Kingdom subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in the United Kingdom, the publication of banns and the issue of certificates on board His Majesty’s ships in certain cases, or when one of the parties to a marriage intended to be solemnized in the United Kingdom is an officer, seaman or marine, borne on the books of one of His Majesty’s ships at sea.
The principle of the English law of marriage, that a marriage contracted abroad is valid if it has been solemnized according to the lex loci, may be now taken to apply just as much to a marriage in a heathen as in a Christian country. Whether the marriage has or has not been celebrated according to Christian laws has no bearing upon the question, providing it is a monogamous marriage—a marriage which prevents the man who enters into it from marrying any other woman while his wife continues alive.
Scotland.—The chief point of distinction, as compared with English law, is the recognition of irregular marriages. (1) “A public or regular marriage,” says Fraser, “is one celebrated, after due proclamation of banns, by a minister of religion; and it may be celebrated either in a church or in a private house, and on any day of the week at any hour of the day.” The ministers of the National Church at first alone could perform the ceremony; but the privilege was extended to Episcopalians by 10 Anne c. 7 (1711), and to other ministers by 4 and 5 Will. IV. c. 28 (1834). (2) A marriage may also “be constituted by declarations made by the man and the woman that they presently do take each other for husband and wife.” These declarations “may be emitted on any day at any time and without the presence of witnesses,” and either by writing or orally or by signs, and in any form which is clearly expressive of intention. Such a marriage is as effectual to all intents and purposes as a public marriage. The children of it would be legitimate; and the parties to it would have all the rights in the property of each other, given by the law of Scotland to husband and wife. (3) A promise followed by copula does not constitute marriage, unless followed either by solemnization in facie ecclesiae or declarator. Lord Moncreiff’s opinion in the case of Brown v. Burns is admitted to be good law, viz. that declarator is essential to the constitution of a marriage of this kind, so that, if no such declarator be brought in the lifetime of both parties, the marriage can never be established afterwards. The copula is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.
By the Marriage (Scotland) Act 1856 it is enacted that no irregular marriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time.
“Habit and repute” has sometimes been spoken of as constituting marriage in the law of Scotland, but it is more correctly described as evidence from which marriage may be inferred. The repute must be the general, constant, and unvarying belief of friends and neighbours, not merely the controverted opinion of a section of them. The cohabitation must be in Scotland, but in one case proof of cohabitation in another country was allowed, as tending to throw light on the nature of the cohabitation in Scotland.
The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void.
United States.—The absence of ecclesiastical courts has suggested difficulties as to the extent to which the law of England on this subject continued to prevail after the revolution. Bishop holds it to be the universal fact running through all the cases that everywhere in the country the English decisions on marriage and divorce are referred to with the same apparent deference which is shown on other subjects to the decisions of the English common law and equity tribunals. The same author observes that “all our marriage and divorce laws, and of course all our statutes on the subject, in so far as they pertain to localities embraced within the limits of particular states, are state laws and state statutes, the national power with us not having legislative or judicial cognisance of the matter within those localities.” Some of the states have extended the ages below which marriage cannot take place. The common law of the states is assumed to be that “a contract per verba de presenti, or per verba de futuro cum copula, constitutes a complete marriage.” Conditions, however, may be imposed by the various state legislatures, and as to these the rule has established itself in American jurisprudence that “a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.” Thus in Pennsylvania, where a statute provided that all marriages “should be solemnized before twelve witnesses,” marriages not so celebrated were nevertheless held to be good. In New Hampshire justices and ministers of the gospel are authorized to solemnize marriage, and all other persons are forbidden to do so under penalties; yet a marriage by consent, as at common law, without justice or minister, has been held valid. On the other hand, under a very similar statute in Massachusetts, it was held that “parties could not solemnize their own marriage,” and that a marriage by mutual agreement, not in accordance with the statute, was void. Bishop regards this as an isolated exception to the general course of the decisions. So when state legislation requires any particular form to be used the want thereof only invalidates the act if the statute expressly so enacts. Many of the state codes inflict penalties on ministers or justices for celebrating the marriage of minors without the consent of the parents or guardians. The original law as to prohibited degrees has been considerably modified in the states. The prohibition of marriage with a deceased wife’s sister has been abolished in the United States. But New Hampshire, Ohio, Indiana, Kansas, Arkansas, Nevada, Washington, the Dakotas and Montana have for long forbidden marriages between first cousins by blood, and Louisiana, Oregon, Pennsylvania, Michigan, Nebraska, Utah and Wisconsin have since adopted the same principle. Virginia prohibits the marriage of a woman with the husband of her brother’s or sister’s daughter.
Attention is also being paid to the question of marriage from a physical point of view. New Jersey prohibits the marriage of any person who has been confined in any public asylum as an epileptic, insane or feeble-minded patient, without a medical certificate from two physicians of complete recovery, and that there is no probability of the transmission of such defects. This prohibits the granting of a marriage licence where either party is an habitual drunkard, epileptic, imbecile or insane, or where the applicant at the time of making application is under the influence of any intoxicant or narcotic drug. In Michigan, Minnesota, Kansas and Oregon, marriage is prohibited to epileptics, &c., except when the woman is over forty-five. In Michigan, also, marriage is forbidden to anyone who has suffered from a venereal disease and has not been cured. The equality of property rights between husband and wife is fully established in America. Indeed, in many states the movement has gone so far as to give the wife in matters of property and in reference to divorce greater privileges than the husband. Thus a husband is often liable for a wife’s debts where a wife would not be, mutatis mutandis, for a husband’s; and a wife may usually obtain a decree of divorce for any ground on which one may be awarded to the husband, and, in addition, for neglect to provide sustenance or support. Emphasis on the personal or moral relation of the parties in marriage tends to throw into the background the legal aspects and requirements; and it tends also to minimize, so far as the state is concerned, the religious and sacramental aspect of marriage. Marriage tends to become a relation established by parties between themselves, and one in which the consent of the parties becomes the only constitutive element. In the theory of American law no ceremony is essential to create the marriage relation. But this position has never been endorsed by any considerable proportion of the community, and in fact probably 9ths and perhaps 99ths of the marriages in the United States are contracted through some ceremony.
France.—Articles 144–226 of the Code Napoléon, as amended by an act of 1907, prescribe the qualifications and conditions of marriage. The man must be eighteen and the woman fifteen years of age. A son and daughter under twenty-one cannot marry without consent of the father and mother, or of the father only if they disagree, or of the survivor if one be dead. If both are dead grandfather and grandmother take their place. Between the ages of twenty-one and thirty the parties must still obtain the consent of their parents, but if this be refused it can be regulated by means of a “respectful and formal act” before a notary. If the consent is not given within thirty days the marriage may take place without it. If neither parents nor grandparents be alive, parties under twenty-one require the consent of the family council. These rules apply to natural children when affiliated; those not affiliated require the consent of a specially appointed guardian. Marriage is prohibited between all ascendants and descendants in the direct line, and between persons related by marriage in the same line, between brother and sister, between uncle and niece, and brother-in-law and sister-in-law.
Before the solemnization of marriage banns are required to be published for a period of ten days, which must include two Sundays, containing the names, occupations, and domiciles of the parties and their parents. There must be an interval of three days before the marriage can take place, and if a year is allowed to elapse fresh banns must be put up. On the day appointed by the parties, and in the parish to which one of them belongs, the marriage is celebrated by the civil officer or registrar reading over to them the various necessary documents, with the chapter of the code relating to husband and wife, receiving from each a declaration that they take each other for husband and wife, and drawing up the act of marriage. All this has to be done in the presence of four witnesses.
Marriages contracted abroad between French subjects or between French subjects and foreigners are valid in France if celebrated according to the forms of the foreign law, provided the French conditions as to consent of parents have been observed. (See also Marriage with Foreigners Act, supra.)
Germany.—The code of 1900 lays down rules applicable to the celebration of all marriages within the German Empire. Civil marriage alone is recognized by the code. It is effected by the declaration of the parties before a registrar in the presence of each other of their intention to be married. Two witnesses of full age must be present. The registrar asks each of the parties whether he or she will marry the other, and on their answer in the affirmative declares them duly married and enters the marriage in the register. The marriage must be preceded by a public notice. Marriages are void between descendants and ascendants; relatives by marriage in the ascending or descending line; brother and sister of the whole or half blood.
Other Countries.—In the great majority of the other European countries civil marriage is obligatory. In Roman Catholic countries the parties usually supplement the obligatory civil marriage by a religious ceremony, more especially since the papal decree Ne temere of the 2nd of August 1907 (which came into force at Easter 1908), which requires marriages between Roman Catholics, or between Roman Catholics and those not professing that faith, to be celebrated before a bishop or priest duly authorized for the celebration thereof.
Authorities.—Eversley, The Law of Domestic Relations (3rd ed., London, 1906); Lush, The Law of Husband and Wife (London, 1909); Crawley, The Law of Husband and Wife (London, 1892); Geary, Marriage and Family Relations (London, 1892); Griffiths, Married Women’s Property Acts (London, 1891); Vaizley, Law of Settlements of Property made on Marriage (London, 1887); Bishop, (America) Marriage, Divorce and Separation (Chicago, 1892); David Murray, (Scotland) The Law relating to the Property of Married Persons (Glasgow, 1892); E. A. Westermarck, History of Human Marriage (3rd ed., 1901), with other works cited in the article Family. M. Neustadt, Kritische Studien zum Familienrecht des bürgerlichen Gesetzbuchs (Berlin, 1907); O. D. Watkins, Holy Matrimony (London, 1895), a comprehensive study of the history and theory of Christian marriage, from the High Anglican point of view, with special reference to missions dealing with heathen converts; J. Wickham Legg, “Notes on the Marriage Service in the Book of Common Prayer of 1549,” in Ecclesiological Essays (London, 1905), a valuable comparative study of Christian marriage rites, with numerous references; the articles “Ehe, Christliche,” by Gottschick, and “Eherecht” (many references), by Sehling, in Herzog-Hauck, Realencyklopädie (3rd ed., Leipzig, 1898, vol. v.); Abbé André, Cours de droit canon (3rd ed., Wagner, Paris, 1901), art. “Mariage,” “Affinité,” &c.
- It is doubtless true, as anthropologists have pointed out, that in the history of the race “marriage is rooted in the family rather than the family in marriage” (Westermarck: History of Human Marriage, p. 22); but in that conscious experience of the individual with which law and ethics are especially concerned, this relationship is reversed, and the family originates in marriage (see Family, and allied headings).
- The restrictions are enumerated in the following lines:—
Error, Conditio, Votum, Cognatio, Crimen,
Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas,
Aetas, Affinis, si Clandestinus et Impos,
Raptave sit mulier nec parti reddita tutae.
- Canon lxi. Aut qui ex propria consanguinitate aliquam, aut quam consanguineus habuit . . . duceret uxorem . . . incestos esse non dubitamus (Mansi Conc. viii. p. 336). According to the canon law “affinity” is the relation between two persons of whom one has had commerce, licit or illicit, with a relation of the other.
- The civil law counts, in the direct line, as many degrees as there are generations between the parties; e.g. the son is in regard to his father in the 1st degree, the grandson in the 2nd, and vice versa. In the collateral line it computes degrees by generations, i.e. from one of the relations to the common ancestor, without including him or her, and from him or her back to the other relation; e.g. two brothers are in the 2nd degree of relationship to one another, uncle and nephew in the 3rd, cousins-german in the 4th. The canon law, which in this case derives from the old Germanic law, has the same computation as regards the direct line. In the case of collateral relations, however, it differs, having two rules: (1) In the case of equal line—i.e. when the collaterals are equally removed from the common progenitor, it reckons the same number of degrees between the collaterals as between one of them and the progenitor; e.g. brothers are related in the 1st degree, while cousins-german are related in the 2nd degree because they are two generations from the common grandfather. (2) In the case of unequal line—i.e. when the collaterals are unequally removed from the common ancestor, the degree of their relationship is that of the most remote from the common progenitor; e.g. uncle and niece are related in the 2nd degree—i.e. that of the niece to the grandfather. The civil computation was furiously attacked by canonists as tending to laxity (see Peter Damianus, “De parentelae gradibus,” in Migne, Patrol. Lat. cxlv. 191, &c.).
- Innocent III. also decided that the husband’s relations were not related to those of the wife, and vice versa, thus establishing the rule that “affinity does not breed affinity” (affinitas non parit affinitatem).
- This is fixed by the canon law at 14 for a male, 12 for a female. If, however, owing to the precocious physical development of a girl, the marriage has been consummated before she has reached this age, it cannot be nullified.
- It is maintained that no pope has ever given a dispensation for such a marriage. Such a case seems, however, to be narrated by Ordericus Vitalis (Hist. eccles. viii. 23; ed. A. le Prevost, Paris, 1838–1855, t. iii. p. 408; ed. A. Duchesne, 1619, 704 B). Robert Mowbray, earl of Northumberland, had only been married to Maud de Laigle three months when he was condemned to perpetual imprisonment for rebellion against King William Rufus. After describing her forlorn state Orderic continues: “Nec ipsa eo vivente, secundum legem Dei, alteri nubere legitime valebat. Tandum, permissu Paschalis Papae (II.), cui res, a curiosis enucleata, patuit, post multos dies Nigellus de Albineo ipsam uxorem accepit.” This may mean no more, of course, than that the curiosi “untied the knot” by discovering an impediment—the usual expedient in such cases. In any case the fact that Nigel de Albini, in his turn, soon afterwards obtained a “divorce” from her on the ground that her first husband was his relative by consanguinity, hardly points to a strict view of the sanctity of the marriage tie.
- The customary rule for more than three centuries after the Council of Trent was that male children followed the religion of the father, female children that of the mother. On the general subject of the attitude of the Church towards mixed marriages see O. D. Watkins, Holy Matrimony, pp. 468 et seq. For the Roman Catholic view see “An Instruction on Mixed Marriages” in Bishop Ullathorne’s Eccl. Discourses (London, 1876).
- Among the “errors” denounced by Pope Pius IX. in the Syllabus of 1864 is lxvi.: Matrimonii sacramentum non est, nisi quid contractui accessorium ab eoque separabile, ipsumque sacramentum in una tantum nuptiali benedictione situm est.” This condemns the attempts of certain canonists (e.g. Melchior Cano) to distinguish between the contractus naturalis and sacramentalis. This view, which was first advanced by the jurist and theologian Johann Gropper (1502–1559) at the council of Cologne (1536), and gained support especially in France, makes the “matter” of the sacrament the consent of the parties, the “form” the prayers and benedictions, the “minister” the priests (see e.g. “Du sacrament de mariage” in vol. v. of the Dissertationes selectae of Petrus de Marca, d. 1662, archbishop of Paris, Bamberg, 1789, p. 148).
- See the list of quotations from the early fathers given by Watkins, Holy Matrimony, p. 93.
- The later teaching of the Eastern Church is laid down in the Orthodox Confession of Peter Mogilas, patriarch of Kiev (1640). There are three essentials for a Christian marriage: (1) suitable matter (ὔλη ἁρμόδιος), i.e. a man and woman whose union no impediment bars, (2) a duly ordained bishop or priest, (3) the invocation of the Holy Ghost, and the solemnity of the formularies (τὸ εἷδος τῶν λογίων).
- A divorce nisi does not enable the parties to marry until it is made absolute.
- A marriage in which either of the parties is below the age of consent is, however, said to be not absolutely void; if the parties agree to continue together at the age of consent no new marriage is necessary, but either of them may disagree and avoid the marriage.
- A complete list of the acts regulating the solemnization of marriage or confirming marriages, which through some defect might be void, will be found in Phillimore's Ecclesiastical Law (2nd ed. 1895).