MARRIAGE. Marriage (Fr.
man age, from
marier, to marry; Lat.
maritare, from
mas,
maxis, 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.
.^ Before Jensen could do more than step into the room, Bobby was on him, wrapping his arms and legs around Jensen.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ I've lost both my wife and my father in the last two years."- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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.
.^ Jordan launched into a long discussion on his classes and teachers.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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 smooth hard taste, the musky smell, the feel of Jared shuddering under his hands made his own cock ache, tightening with each stroke of Jared's cock into his mouth.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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.
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).
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.).
.^ "They did marry, and I was legitimized, but that isn't nearly as good as being born legitimate.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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. I10, 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.
.^ It might be easier for all of them if they did.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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 undor 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. II, 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 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.
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 (i Cor. vii.).
.^ And yes, it did occur to him that he'd come a long way in a short time.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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 (I Tit. iv. 3-5) and
even, in seeming contradiction to i Cor. vii. 29, commands the
bearing of children (I 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.
.^ No one ever suggests it, like it's bad form or something, but I'm a lot more comfortable without the tie."- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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. 2
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 " spirtual 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 I
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.
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). 2
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.
.^ Later that evening, when both boys were in bed and Jared's mom was in one of the many guest rooms, Jensen finally got back to their room.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ After they'd run the gantlet of Jared's mother and both boys, Jensen finally got Jared into one of the other guestrooms.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
3
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.
.^ Despite watching Welling delete the most graphic and intimate of the photos, there were still enough of them there to condemn him -- especially if they read between the lines.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ Even from far away there was no mistaking who they were or what they were doing.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
.^ One of Jared's hands was on Jensen's face, holding his jaw tenderly, and the other slid down to Jensen's arm to pull him closer.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ Jensen wanted to explore it all; he wrapped his other arm around Jared's wide shoulders and pulled him in for another kiss.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ For another second, Jensen stared at them and they stared back at him.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
The canon law, which in this case derives from the old Germanic
law, has the same computation as regards the direct line.
.^ It shouldn't be the first thing people thought of when they saw two men together, especially when one of them was a freakin' king.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
^ Despite watching Welling delete the most graphic and intimate of the photos, there were still enough of them there to condemn him -- especially if they read between the lines.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
(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.).
2 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.
an indissoluble union. 4 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 isstill maintained that the parties to
the marriage, not the priest, are the " ministers of the sacrament
" (
ministri sacramenti). 6 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). 7
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 4 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 VitaIis (
Hist. eccles. viii. 23; ed. A. le Prevost,
Paris, 1838-855, 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."
.^ He wanted nothing more than to strip Jared bare -- except for the boots of course -- and lie down in the grass so that Jared could fuck him.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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 Johanna
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.
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.
.^ "If you don't want to marry me, you can still stay and live independently.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
fourteen for males and twelve for
females; 3 (4) relationship within the prohibited degrees.
The statute which lawyers regard as establishing the rule on 1
The later teaching of the Eastern Church is laid down in the
Orthodox
Confession of
Peter Mogilas,
patriarch
of
Kiev (2640). There are three
essentials for a Christian marriage: (1) suitable matter (An
ap, o&oc), 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
Ao'yLwv). 2 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.
this last point is the 32
Hen.
VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c. 23, in whole
by i & 2 P. and M. c. 8, but revived by I Eliz. c. i, 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
183 5.
For many years an active and ceaseless agitation was carried on
on behalf of the legalization in England of marriage with a
deceased wife's sister. In all the self-governing colonies, with
the
M arriage exception of
Newfoundland, the restriction had ceased
to
kith a exist. The first act legalizing marriage with a
deceased
Deceased wife's sister was adopted by
South
Australia. The Wife's royal assent, however, was not given till
the parliament
Sister. 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.
.^ It so wouldn't be good for Chris to see his face right then, not with it turning such a brilliant shade of red and all.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
The natural sequence of the
passing of the act of 1906 was the reintroduction in 2907 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 III 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 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).
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. Itermits marriage to be solemnized in two additional
ways - viz. (11) by certificate of the
superintendent registrar of a district
without licence, and (2) by such certificate with licence.
.^ For some reason that Jensen wasn't ready to identify, he wanted to know all the little details about Jared's life.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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.
.^ Everyone seemed to be the same rank, and no one was older than early twenties.- Matrimony With His Majesty 11 September 2009 8:19 UTC solo4.abac.com [Source type: Original source]
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. I I), 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 embass y 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 I
o 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 consenf, 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 1 oths and perhaps 1 oaths of the marriages in the
United States are contracted through some ceremony.
France
Articles 144-226 of the
Code Napoleon, 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 1goo 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 far 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 burgerlichen 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,
Realencyklopddie (3rd ed.,
Leipzig, 1898, vol. v.); Abbe Andre,
Cours
de droit canon (3rd ed.,
Wagner, Paris, 1901), art. " Mariage," " Affinite," &c.