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MARRIAGE

by a decree of the council of Trent (Sess. xiv. de matrim.),[1] 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] (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;[3] (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.[4] The former regulates marriages

  1. 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).
  2. A divorce nisi does not enable the parties to marry until it is made absolute.
  3. 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.
  4. 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).