Marriage. Marriage as understood in Christendom is the voluntary union for life of one man and one woman, to the exclusion of all others, Hyde v. Hyde, 1866 LR 1 P&D 130. Where a marriage in a foreign country complies with these requirements it is immaterial that under the local law dissolution can be obtained by mutual consent or at the will of either party with merely formal conditions of official registration, and it constitutes a valid marriage according to English law, Nachimson v. Nachimson, 1930, P. 217. Previous to 1753 the validity of marriage was regulated by ecclesiastical law, not touched by any statutory nullity but modified by the Common law Courts, which sometimes interfered with the Ecclesiastical Courts, by prohibition, sometimes themselves decide on the validity of a marriage, presuming a marriage in fact as opposed to lawful marriage. A religious ceremony by an ordained clergyman was essential to a lawful marriage, at all events for dower and heirship; but if in an irregular marriage the Ecclesiastical Court could discern a valid promise to marry, it would order the parties to solemnize marriage 'in facie ecclesi'', Baxter v. Buckley, (1752) 1 Lee 42, and declare any subsequent intermediate marriage by either party invalid. But whether or not a mere contract 'per verba de pr'senti' ever constituted by itself a valid marriage in England as regards dower, heirship, and bigamy, is so doubtful that in 1843 the House of Lords and the Court appealed from were equally divided on the point in Reg. v. Millis, (1844) 10 Cl&F 534, so that the rule semper pr'sumitur pro negante applied, and 'judgment was given for the defendant in error.' In 1753 Lord Hardwicke's Act (26 Geo. 2, c. 33), passed to prevent clandestine marriages, required, under pain of nullity, that banns should be published according to the rubric, or a license obtained, and in either case that the marriage should be solemnised in church; and as to minors, that the father, mother, or guardian shall previously consent to the marriage if by license (see Banns). The Act further abolished the suits in the Ecclesiastical Court to compel marriage 'in facie ecclesi',' which abolition made more common the action of breach of promise of marriage, which is of comparatively modern date. The strictness of Lord Hardwicke's Act led to marriages being annulled through misnomers in the banns by the fault of one party in putting them up. And the requiring of consent not infrequently worked great evil and injustice; e.g., a marriage was dissolved after twenty-two-years' cohabitation and numerous issue by the husband proving that he was a minor at the time of his marriage, though he then swore he was 21. Afterward 3 Geo. 4, c. 75, validated all such marriages by license without consent where the parties had subsequently lived together until the passing of the Act.
Present Law.--The general purport of the existing law is to require a public ceremony by a clergyman of the Church of England, or by a dissenting minister, or a Roman Catholic priest, in a building registered for marriages, and in the presence of the registrar, or by the registrar in his office, solemnized within the hours of 8 A.M. and 6 P.M. [Marriage (Extension of Hours) Act, 1934], and preceded by and within three months after banns, license, or certificate have been published or obtained.
Church of England marriages are regulated by the (English) Marriage Act, 1823 (4 Geo. 4, c. 76), which requires publication of banns on three successive Sundays before marriage in the church of the parish wherein the parties dwell, or in the churches of the parishes wherein each of the dwells, if they dwell in different parishes, but by the Marriage Measure, 1930 (20 & 21 Geo. 5, No. 3), banns may also be published in a church which is the usual place of worship of either party. In case of license, the Act of 1823 requires fifteen days' residence, Tuckniss v. Alexander, 32 LJ Ch 794. It is only if both parties have concurred in falsifying the names in the banns that the marriage can be annulled. As to licenses, neither misnomer, even by concurrence of both parties, nor fraud or perjury in obtaining the license, will effect the validity of the subsequent marriage, Bevan v. Macmahon, (1861) 30 LJ P&M 61. As to consent of parents to the marriage of a minor, by license, one of the parties must swear before the surrogate that consent has been obtained. But if this is false, and one or both parties are minors, the marriage will still be good, R. v. Birmingham, (1828) 8 B&C 29, though the guilty party may be punished by being deprived of all property accruing through the marriage; but if the marriage of the minor is by banns the parents must openly dissent in church at time of publication, and if so publication will be void. The marriage must take place according to the rubric; if after banns, in one of the churches where the banns were published; if by license, then in the church specified in the license, in the presence of two witnesses. After the ceremony the clergyman must enter the particulars of the marriage in the register according to the form laid down in the Births and Deaths Registration Act, 1836 (6 & 7 Wm. 4, c. 86), the entry to be signed by the clergyman, the parties, and the two witnesses. It may be noted that a clergyman cannot marry himself, Beamish v. Beamish, (1859-61) 9 HLC 274.
Special licenses are granted by the Archbishop of Canterbury on special grounds, as a matter of discretion or to persons of high rank. No period of residence is necessary, and they may authorise marriage at any hour or in any place, whether consecrated or not, see Doe Dem. Egremont v. Grazebrook, (1843) 4 QB 406.
Marriage of Nonconformists.--The marriage of dissenters in general, according to their own rites, was first provided for by the (English) Marriage Act, 1836 (6 & 7 Wm. 4, c. 85), amended by the (English) Marriage and Registration Act, 1856 (19 & 20 Vict. c. 119), all, whether Roman Catholics, Presbyterians, or others, being treated on the same footing, and is now mainly regulated by the (English) Marriage Act, 1898 (61 & 62 Vict. c. 58). This Act dispenses with the presence of a registrar, formerly required in all cases except for Jews and Quakers, and allows the marriages to be solemnised in any building registered for religious worship, in the presence of an 'authorized person' certified as such by the trustees or other governing body of the building. Notice must be given by the parties to the superintendent registrar of particulars according to the form in Sched. A to 19 & 20 Vict. c. 119, after which, in either two or twenty-one days, the registrar will issue a license or a certificate to marry (see Scheds. B and C). The marriage can then, at anytime within three months after, take place at the registered chapel specified in the license or certificate, without the presence of the registrar unless the parties require it, according to any ceremony. But in some part of it each of the parties must declare, 'I do solemnly declare, that I know not of any lawful impediment why I, A.B., may not be joined in matrimony to C.D.,' and each any to the other, 'I call upon these persons here present to witness that I, A.B., do take there, C.D., to be my lawful wedded wife (or husband).' After the ceremony the marriage must be entered in the register according to the (English) Births and Deaths Registration Act, 1836 (6 & 7 Wm. 4, c. 86), above referred to. Marriage can also be solemnized, if the parties so prefer, by the registrar alone, after notice and certificate of license, at the registrar's office, according to the form of words quoted.
Statutory nullities are imposed by s. 22 of the (English) Marriage Act, 1823 (4 Geo. 4, c. 76), for church marriages, and s. 42 of the (English) Marriage Act, 1836 (6 & 7 Wm. 4, c. 85), for dissenters' marriages, declaring the marriage null and void if the parties 'knowingly wilfully intermarry in any other place than a church or chapel where banns may be lawfully published,' or 'in any other place than the church, chapel, registered building, or office specified in the notice and certificate,' or 'without due publication of banns or license from a person having authority to grant the same first obtained,' or 'without due notice to the superintendent registrar, or without certificate of notice duly issued, or without license . . . or without the presence of a registrar or superintendent registrar where the presence of the registrar or superintendent registrar is necessary under the Act, or knowingly and wilfully consent to or acquiesce in the person not in holy orders.' As to marriage by a pretended clergyman, Sir William Scott, afterwards Lord Stowell, in Hawke v. Corri, (1820) 2 Hagg Cons 288, says: 'It seems to be a generally accredited opinions that, if a marriage is had by the ministration of a person in the church, who is ostensibly in holy orders and is not known or suspected to be otherwise, such marriage shall be supported,' and the wording of the s. quoted supports Lord Stowell's views; but see the (English) Marriages Validation Act, 1888 (51 & 52 Vict. c. 28), validating marriages by G.F.W. Ellis, a sham parson who held a living. As to publication of banns or misnomers in surrogate's license, see above. In a notice to a registrar it would appear that accuracy is not essential, Holmes v. Simmons, (1868) LR 1 P&D 523. As to the interpretation of the words 'knowingly and wilfully' in the ss. quoted, see the report of the Marriage Laws Commission, 1868, where it is further laid down that a marriage would be void 'if it were solemnized (however ignorantly) without any publication of banns at all, or any common or special license, or registrar's certificate or license; or if it were solemnised in a church or other place where no banns had been published; or (if the marriage was not b banns) which was manifestly unauthorised by the terms of the license or certificate as actually granted.' But the courts are wont to presume in favour of marriage that all was done rightly; e.g., that the chapel was registered for marriages, and that the registrar was present at the ceremony. 'By the law of England . . . where a man was woman have long lived together as man and wife, and have been so treated by their friends and neighbours, there is a prima facie presumption that they really are and have been what they profess to be' [The Bredalbane Case, (1867) LR 1 HL Sc P 199, per Lord Cranworth]. The presumption of marriage is indeed much stronger than the presumption in regard to other facts, De Thoren v. A.G., (1876) 1 App Cas 686, per Lord Cairns, L.C. Further, it has become a constitutional practice of the legislature to pass from time to time, as required, special validating acts to confirm, ex abundanti coutela, marriages where some general defect of form or a slip might throw doubt on them; e.g., where the church or chapel in which the marrige took place was not consecrated, or registered or licensed for marriages. See 44 Geo. 3, c. 77, and other Acts in pari materia, collected in Appendix VII. to the Chronological Table of Statutes; (English) also the Marriages Legalization Act, 1901 (1 Edw. 7, c. 23), legalizing marriages theretofore performed in sixteen churches or places, one being 'the Parish Room of Cadney, in the parish of Cadney-cum-Howsham,' between 1st January, 1895, and 17th August, 1901, and the Provisional order (Marriages) Act, 1905 [amended by the Marriage Validity (Provisional Orders) Act, 1924], by which a Secretary of State may make a Provisional Order, requiring confirmation by an Act, to remove invalidity or doubt 'in the case of marriages solemnized in England which appear to him to be invalid or of doubtful validity.'
Essentials of Contract.--The age for marriage had been fixed from the earliest times at 14 for males, 12 for females. But since the (English) Age of Marriage Act, 1929 (19 & 20 Geo. 5, c. 36), if either of the parties to an intended marriage is under the age of 16, the marriage is void. Each party must go through the ceremony, consenting as a free agent without fraud or duress, see Scott v. Sebright, (1886) 12 PD 20. They must be unmarried. If a husband or wife is absent for seven years without being heard of, the other party marrying again cannot be prosecuted or convicted for bigamy. But proof that the absent husband or wife was alive at the time of the second marriage will invalidate it. Persons who are divorced may marry again after the decree is made absolute. as to this, and as to how far the English law recognizes foreign divorces, see DIVORCE.
Lunacy existing at the time of marriage avoids the marriage. See Lord Durham's case, (1885) 10 PD 80, and 51 Geo. 3, c. 37.
Prohibited Degrees.--Down to 1835, marriages within the prohibited degrees of consanguinity or affinity (see 32 Hen. 8, s. 38, printed 1 Rev. Stat. N.S. 370, as referring to 28 Hen. 8, c. 7, s. 7, and 28 Hen. 8, c. 16, s. 2), i.e., the degrees as setout in the Book of Common Prayer, were merely voidable by suit in the Ecclesiastical Court during the life of the parties. Children resulting from such marriages were not illegitimate unless and until the marriage had been declared void by the Ecclesiastical Courts, which declaration made the marriage void ab initio. But the (English) Marriage Act, 1835 (5 & 6 Wm. 4, c. 54), while validating all previous marriages within the degrees of affinity, made all future marriages within the prohibited degrees of consanguinity or affinity null and void, thus invalidating marriage with a deceased wife's sister, although contracted in a country, e.g., Denmark, where such a marriage is valid, Brook v. Brook, (1858) 3 Sm 3 Gif 481, aff. In (1861) 9 HLC 193.
The law prohibiting marriage with a brother's widow or a deceased wife's sister remained long in force in England, inspite of many attempts to follow the example of every state in Europe, the U.S.A., and most, if not all, the British colonies, in abolishing the prohibition. In 1907 the (English) Deceased Wife's Sister's Marriage Act (7 Edw. 7, c. 47) became law. Marriage with a deceased wife's sister is not to be deemed void as a civil contract, whether it took place before or after the passing of the Act, unless annulled before 28th August, 1907, or unless either party to such a marriage shall have lawfully married another person before that date during the lifetime of the other party. Neither of these cases the marriage is to be deemed to have become void on the day it was annulled or on the day that the subsequent marriage took place. As to the history of this Act, see the note thereto in Chitty's Statutes. The (English) Deceased Brother's Widow's Marriage Act, 1921 (11 & 12 Geo. 5, c. 24), and the (English) Marriage (Prohibited Degrees of Relationship) Act, 1931 (21 & 22 Geo. 5, c. 31), amended and extended the Act of 1907 to cover marriages with as well a deceased brother's widow as a niece on his deceased wife's side, the widow of his father's deceased brother, his deceased wife's father's sister, his deceased wife's mother's sister, and the widow of his own nephew. The Act of 1931 ives the short collective title of the (English) Marriage (Prohibited Degrees of Relationship) Acts, 1907-1931 to the three Acts. The Acts include within their provisions sisters and brothers of the half blood.
Impotence.--Impotence, as a reason for annulling marriage, must exist at the time of marriage, and be incurable; it makes the marriage only voidable by a suit by one of the parties during their joint lives, A. v. B., (1868) LR 1 P&D 559, and the suit cannot be brought by the impotent person.
Concealed Pregnancy by Another Man.--Concealment of pregnancy by another man was no ground of nullity, Moss v. Moss, 1897 P. 263. But the law is different in most other countries, e.g., in Cape Colony, by Roman Dutch law, see Horak v. Horak, (1861) 3 Searle, 389, and see now Matrimonial Causes Act, 1937, and DIVORCE.
Marriages Abroad.--A mixed Ecclesiastical and Common Law, is in force for parties, one at least of which is British subject outside England, except as altered by special colonial or Indian legislation, not merely prohibitory and negative, but creating a nullity by express words [Catterall v. Sweetman, (1845) 4 N.C. 222, and (1847) 5 N.C. 466]; and it has been decided that, in places where it is difficult or impossible to procure an ordained parson--e.g., up country in India--the Common Law will recognize a contract 'per verba de pr'senti' as a lawful marriage, Maclean v. Cristall, (1849) 7 NC Supp xvii. On this depended the validity of marriages solemnized in ambassadors' chapels, or before a British consul, or within British lines, or on board a man-of-war, or a merchant vessel, which are now regulated by the (English) Foreign Marriages Act, 1892 (55 & 56 Vict. c. 23), and see also the (English) Naval Marriages Act, 1908 (8 Edw. 7, c. 26), and generally, as to the Army and Navy, see 22 & 23 Geo. 5, c. 31.
As to marriages between British subjects resident in the United Kingdom and British subjects resident in other parts of the King's dominions or in British Protectorates, see Marriage of British subject (Facilities) Act, 1915 (5 & 6 Geo. 5, c. 40), and 1916 (6 & 7 Geo. 5, c. 21). Consult Eversley and Craies, Marriage Laws of the British Empire.
Foreign Marriages.--As to British subjects married in foreign Christian countries according to the forms and laws of those countries, the Common Law in ascertaining their validity is guided by the lex loci contractus, and if they are valid according to the ex loci contractus, is wont to recognize them as valid in England, provided the parties, being incompetent to marry in England, have not married abroad to evade those restrictions. As to children, legitimated 'per subsequens matrimonium,' the English law did not, before the Legitimacy Act, 1926 (16 & 17 Geo. 5, c. 60), recognize them as legitimate so as to inherit realty upon an intestacy, Birtwhisle v. Vardill, (1840) 7 Cl &Fin 895. As to persons legitimated on or after 15th December, 1926, see that Act, s. 8, though it is otherwise as to personalty [Re Goodman's Trusts, (1881) 17 Ch D 266], and they could take under a specific devise or real estate to 'children', Gray v. Stamford, (1892) 3 Ch 88. The law of England will not recognize non-Christian, Mormon, or polygamous marriages, see Re Bethell, (1887) 38 Ch D 220. As to marriages of British subjects with foreigners abroad, see the Marriage with Foreigners Act, 1906 (6 Edw. 7, c. 40).
Marriages in Scotland.--These marriages are either 'regular,' i.e., celebrated by a minister of religion after due notice by the publication of banns, or after posting in a conspicious place on the outer wall of the registrar's office a notice under the Marriage Notices (Scotland) Act, 1878 (41 & 42 Vict. c. 43), or 'irregular' (see below). Any minister of any denomination may perform the marriage ceremony, which must take place before two witnesses after due proclamation of banns. One of the parties must have resided in Scotland for a minimum period of fifteen days.
Irregular Scots Marriages.--The capacity to contract valid irregular marriages in Scotland is recognized but restricted by Lord Brougham's Act (19 & 20 Vict. c. 96), for preventing Gretna Green marriages, by which, 'after 1856, no irregular marriage contacted in Scotland by declaration, etc., shall be valid, unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage.'
Irregular marriages can be contracted either per verba de pr'senti or per verba de futuro subsequente copula. In the former case nothing more is necessary than a present interchange of consent, in whatever manner given, to become henceforth husband and wife. Consummation is not required; the consent may be exchanged most secretly, the parties may never have lived together, but still the mutual intention, when proved, constitutes marriage. The so-called marriage by habit and repute, or by declaring themselves husband and wife before witnesses, is merely evidence of such intention--evidence which may be rebutted if it be proved that the real intention of the parties was contrary to their outward acts. See, e.g., the remarkable case were, inspite of an express public declaration before the woman's family by the man, 'Maggie, you are my wife, before heaven, so help me, O God !'it was held by the House of Lords that no real marriage was then intended by either of the parties, Steuart v. Robertson, (1875) LR 2 HL SC 494.
The irregular marriage per verba de futuro subsequente copula--by promise, followed by cohabitation, to marry at a future time--differs from the irregular marriage per verba de pr'senti, in the essential particular that it does not amount to a lawful marriage without having been declared so to be by special legal process or 'declarator,' whereas the marriage per verba de pr'senti, it proved, amounts to a legal marriage without any such process. Moreover, the promise must either be proved by writing of the promisor, or by confession of it on oath. The result is that if the promise was not in writing the promise cannot be proved and the marriage declared after the death of the promisor. Such appears to be the better opinion (see per Lord Moncrieff in Burns v. Burns, cited in the Report of the Marriage Commission, 1868), but the question has not been judicially decided.
Irregular marriages require to be registered within twenty-one days by appearance before a sheriff and are not recognized unless this formality be complied with. Failure so to register a marriage may necessitate the raising of an Action of Declaration of Marriage in the Court of Session.
As to non-Christian marriage, see Articles by Sir D. Fitzpatrick in Journal of Society of Comparative Legislation, August, 1900, and December, 1901.
See also HUSBAND AND WIFE; MARRIED WOMEN'S PROPERTY; DOMICILE; MARITAL RIGHTS; NECESSARIES; ROYAL MARRIAGES ACT; WILL.
It includes remarriage, Mainia v. Dy. Director of Consolidation, AIR 1989 SC 1872: (1989) 4 SCC 370: (1989) 3 SCR 685. [Gujarat Registration of Marriage Act, 2006, s. 2(b)]
Means a marriage between Parsis whether contracted before or after the commencement of this Act. [Parsi Marriage and Divorce Act, 1936 (3 of 1936), s. 2(6)]
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