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
