1902 Encyclopedia > Law of Marriage

Law of Marriage

LAW OF MARRIAGE. Marriage may be defined here as the act, ceremony, or process by which the legal relation-ship of husband and wife is constituted. In most if not all legal systems it takes the form of a contract—the mutual assent of the parties being the prominent and indis-pensable feature of the ceremony. Whether it is really a contract or not, and if so to what class of contracts it belongs, are questions which have been much discussed, but into which it is not necessary to enter. While the consent of parties is universally deemed one of the con-ditions of a legal marriage, all the incidents of the relation-ship constituted by the act are absolutely fixed by law. In the United States it has been expressly decided that marriage is not a contract within the meaning of the constitutional law, which prohibits state enactments "impairing the obligation of contracts." Mr Bishop, however, in his very valuable book on Marriage and Divorce, suggests that a State law permitting the status of marriage to be created without the consent of both parties would not be constitutional; but that is a difficulty arising out of the peculiar relation of the States to the Union. The question whether marriage is merely a contract or more than a contract, whether a purely civil or also a religious act, belongs to a similar order of inquiries. The jurist has only 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.

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 " (inamis) 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 ass et libram, like that employed in emancipation and testa-mentary disposition and other processes. Usus was the acquisition of the wife by prescription, through her cohabiting with the husband for one year without having been absent from his house three continuous nights. But a true marriage might be concluded without adopting any of these modes, and they all fell into desuetude and with them the subjection of the wife to the manus. Marriage without manus was contracted by the interchange of con-sent, without writing or formality of any kind. By some jurists it is regarded as incomplete until consummated by delivery of the woman, and is accordingly referred to the class of real contracts. The restrictions as to age, relation-ship by consanguinity and affinity, previous marriage, &c, were in the main those which have continued to prevail in modern Europe with one important exception. The consent of the paterfamilias to the marriage of the children under his power was essential.

In the Canon Law, which is related on the one hand to the civil law, on the other to the modern matrimonial law of Europe, although marriage was not merely a contract but a sacrament, the validity of marriages by consent was nevertheless admitted. " When the natural and civil contract was formed," says Lord Stowell, " it had the full essence of matrimony without the intervention of a priest. It had even in that state the character of a sacrament, for it is a misapprehension to suppose that this intervention was required as a matter of necessity even for that purpose before the council of Trent."

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. The parties were formerly inadmissible as witnesses in this action; but they are now competent to give evidence, subject to the condition that the plaintiff shall not recover " unless his or her testimony shall be corroborated by some other material evidence" (32 & 33 Vict. c. 68). The ordinary defences, e.g., fraud, discharge, minority, are available in these actions, and there are also special defences arising from the nature of the contract, such as the bad character of the plaintiff, the relationship of the parties within the prohibited degrees, &c. 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 cognizance 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 life-time of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was proximity of relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by 5 & 6 WilL IV. c. 54. A pre-engagement to another person was at one time recognized as a canonical disability. Civil disabilities are (1) the fact that either party is already married and has a spouse still living ;

(2) the fact that either party is a person of unsound mind ;

(3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Koman law, viz., four-teen for males and twelve for females ; (4) proximity of relationship within the prohibited degrees, already alluded to. The statute which lawyers regard as establishing the rule on this last point is the 32 Henry 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 Elia. 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, which reckons from one of the persons related to the common stock and so down to the other person. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage). A man may neither marry his sister nor his deceased wife's sister, for both are related to him in the second degree; nor his sister's daughter, nor his deceased wife's sister's daughter, for both are in the third degree ; but he may marry his first cousin, for she is in the fourth degree. Consanguinei of either spouse are related by affinity to the other; but the consanguinei of the one are not necessarily related to the consanguinei of the other. Hence two brothers may marry two sisters, or a father and son a mother and daughter. A husband is not related to the affines of his wife, and so a man may marry the widow of his deceased wife's brother. The rule as to collaterals includes those related by the half blood and bastards (see Stephen's Commentaries, book iii. c. 2). Other disabilities previously admitted were abolished by the statute of Henry. The Act of 5 & 6 Will. IV. c. 54 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, as already stated, been only voidable. ThS Act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity) actually celebrated before the 31st August 1835.

The celebration of marriages is now regulated wholly by statutory legislation. The most important Acts now in force are the i Geo. IV. c. 76 and the 6 & 7 William IV. c. 85. The former regulates marriages within the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is re-quired 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 banus 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, or mother if unmarried, or guardian appointed by the court, is each in order of substitution 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 with-in three months after banns or licence, and between the hours of eight and twelve in the morning.

For the relief of the great body of dissenters the Act 6 & 7 Will. IV. c. 85 was passed. It permits marriage to be solemnized in two additional ways,—viz. (1) by certificate of the superintendent regis-trar o'f 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 there-after suspended for twenty-one days in some conspicuous place in the registrar's office. The notice must be accompanied by a decla-ration as to the absence of impediments, necessary consent, &c. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohi-bition 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 wit-nesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impedi-ment ; (2) at the superintendent registrar's office, with the same declaration, but -with no religions 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 speci-fied 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 Eng-land,—the ecclesiastical authorities retaining their monopoly 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 certilicate, or without notice or certificate, &c, the marriage shall be null and void. And, as under the former Marriage Act of Geo. IV., a valid marriage between persons one of whom is under age, brought about by fraud or false oath, subjects the offendingparty to a forfeiture of all property that otherwise might accrue to him from the marriage, a like penalty is provided in like cases under the later Act.

It will be observed that 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 invali-dating 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 ecclesim, by reason of any contract of matrimony whatsoever whether per verba cle prcsenti or per verba de future-." 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 future- also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiai." In his celebrated judgment in the case of Dalrymple v. Dalrymple, which turned on the effect of promises exchanged between the parties in Scotland, Lord Stowell laid, it down " as the basis of the canon law, the known basis of the matrimonial law of Europe," that " in the irregular marriage, i.e., sponsalia per verba de presenti, everything was presumed to be complete and consummated in substance but not in ceremony; and the ceremony was enjoined to be undergone as a matter of order. In the sponsalia de futuro nothing was presumed to be complete or consummated either in substance or in ceremony, but if the parties who had exchanged the promise had carnal intercourse with each other the effect was to convert the engagement into an irregular marriage." On the other hand, in the case of the Queen v. Millis in the House of Lords on appeal from the Irish Queen's Bench, the position of Lord Stowell was strongly criticized. Lord Lyndhurst's conclusion was that, '' although a marriage contracted per verba de presenti was indissoluble, though it could not be released even by the mutual consent of the parties, though either of them might en-force it and compel solemnization, though it had the eifect of ren-dering voidable a subsequent marriage solemnized in facie ecelesim, even after the cohabitation and birth of children, though it was considered to be of the essence and substance of matrimony—yet by the law of England it did not confer those rights of property or the more important right of legitimacy consequent on a marriage duly solemnized according to the rites of the church." The lords were equally divided in their decision, and the question has since been agitated not so much with reference to England, where after the Act of Geo. II. it had a merely historical interest, as to the colonies and the United States (see below), where the common law of Eng-land prevails unless changed by legislation. Dr Lushington in the case of a marriage in New South Wales declared that, when there has been a '' fact of consent between two parties to become man and wife," such is "sufficient marriage to enable me to pronounce when necessary a decree of separation." In the cases noticed the promises had been exchanged before ministers of religion not technically "in holy orders," and the question has accordingly sometimes been put in the form whether, according to the common law, the inter-vention of a clergyman was necessary to a valid marriage.

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 suc-cessors, 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."

Scotland.-—The chief point of distinction, as compared with English law, is the recognition of irregular marriages above noticed. (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, and to other ministers by 4 & 5 Will. IV. c. 28. (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, according to Fraser, constitute marriage, unless followed either by solemnization in facie ecclesise or declarator. On the other hand, in Lorimer's Handbook it is urged that the promise and copula are mere tokens of consent recognized by the law, and that " the date of the marriage is the date of the copula." However this may be, Lord Moncreiff's opinion in the case of Brown v. Burns is admitted on both sides 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 copnda is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.

By 19 & 20 Vict. c. 96, it is enacted that no irregidar 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 Scot-land.

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 cognizance 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 depresenti, or per verba defuturo cum copula, constitutes a complete marriage." Conditions, however, may be imposed by the various State legislatures, and as to these the rule has established itself in American jurisprudence that " a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of. nullity." Thus in Pennsylvania, where a statute provided that all marriages "should be solemnized before twelve witnesses," marriages not so celebrated were nevertheless held to be good. In New Hampshire justices and ministers of the gospel are authorized to solemnize marriage, and all other persons are forbidden to do so under penalties; yet a marriage by consent, as at common law, without justice or minister, has been held valid. On the other hand, under a very similar statute in Massachusetts, it was held that " parties could not solemnize their own marriage," and that a marriage by mutual agreement, not in accordance with the statute, was void. Bishop regards this as an isolated exception to the general course of the decisions. So when State legislation requires any particular form to be used the want thereof only invalidates the act if the statute expressly so enacts. Many of the State codes inflict penalties on ministers or justices for celebrating the marriage of minors without the consent of the parents or guardians. The original law as to prohibited degrees has been considerably modified in the States. The prohibition of marriage with a deceased wife's sister is said by Bishop to be all but unknown in the United States, Virginia apparently being the only one where it is still retained. Some writers apply the term legislative marriages to cases in which the State by enactment confirms a marriage which was void for some defect. Questions sometimes arise as to whether such enactments are within the constitution of the State.

France.—Articles 144-226 of the Code Napoleon prescribe the qualifications and conditions of marriage. The man must be eighteen and the woman fifteen years of age. A son under twenty-five, and a 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 grand-father and grandmother take their place. A man after twenty-five and a woman after twenty-one are still bound formally to ask the consent of their parents ; until the age of thirty and twenty-five respectively tills request must be repeated twice, and after the third application parties are at liberty to marry without such consent. Even after the age of thirty, formal notice must be served on the parents or grandparents one month before marriage. 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 on two distinct Sundays, containing the names, occupa-tions, and domiciles of the parties and their parents. The marriage cannot take place until three days after the second publication, 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 con-ditions as to banns and consent of parents have been observed.
International Law.—In the " conflict of laws" on the subject of marriage, it has been well settled that the lex loci governs. If the marriage is valid by the law of the country where it is celebrated it is recognized as valid everywhere; if invalid there it is invalid everywhere. "This rule," says Story, "has received the most deliberate sanction of the English and American courts and of foreign jurists." The most prominent, if not the only known exceptions, Story considers to be marriages (1) involving incest or polygamy, or (2) forbidden by the public law of a country from motives of policy, and (3) marriages celebrated in a foreign country under circum-stances which impose on the parties the law of their own country. Westlake {Private International Law, chap. iv.) lays it down as in-dispensable to the validity of a marriage that the lex loci should be satisfied in respect of forms, consent of parents and guardians, and capacity of the parties. The law of the parties' domicile should also be satisfied as to capacity unless when it imposes incapacity of a penal nature unknown to the lex loci. Story, in reference to the first of the three exceptions alluded to above, attempted to set up a clear and just moral difference between marriages that are incestuous by the law of nature and those that are so by the municipal law of particular States only, with more particular reference to consan-guinity and affinity. "It would be a strong point to put that a marriage perfectly valid between a man and the sister of his former deceased wife in New England would be held invalid in Yirginia or England, even though the parties formerly belonged to or were born in the latter country or State. But, as to persons not so belonging, it would be of the most dangerous consequence to suppose that the courts of either of them would assume the liberty to hold such marriages a nullity merely because their own jurisprudence would not in a local celebration of marriage therein uphold it." This position has been expressly disavowed by the English courts. In Brook v. Brook it was held that an Englishman's marriage with his deceased wife's sister during a residence in Denmark where the union is lawful is invalid in England. In Hyde v. Hyde in the English divorce court it was held that a marriage contracted in a country where polygamy is lawful between a man and a woman who profess a faith which allows polygamy is not a marriage as understood in Christendom ; and, although it was a valid marriage by the lexloci, and at the time when it was contracted both the man and the woman were single and competent to contract marriage, the court will not recognize it as a valid marriage in a matrimonial suit. The difference in the law of divorce in different countries produces many complications of this kind. It appears that a divorce of an English marriage abroad for cause not recognized in England as ground for a divorce will be upheld in England if the parties were domiciled at the time of the divorce in the foreign state ; otherwise not. Com-pare also the French rule as to marriages of French subjects in foreign countries. The too frequent consequence of these variances is that the same persons are held married in one country and unmarried in another, while their children are legitimate in one country and illegitimate in another. There is no subject in relation to which the establishment of a common code for all civilized nations is more urgently required.

Besides true marriage, with which we have been exclusively dealing hitherto, 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 matri-monial restrictions now obsolete.

The institution of slavery is a fruitful source of this kind of debased matrimony. In Roman law no slave could contract marriage whether with another slave or a free person. The union of male and female slaves (coontubernium) was recognized for various purposes; a free woman entering into a union with a slave incurred under the S. C. Claudianum the forfeiture of her own liberty; but the bondwoman might be the concubine of a freeman. In the United States, where slavery was said to be regulated by the prin-ciple 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. Such at least is the purport of the more recent decisions.

In Roman law no legal marriage could be contracted unless there was connubium between the parties. Originally there was no con-nubium 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 Poppsea) introduced restrictions depending on the condition of the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freedwomen or women of inferior rank, and the husband of a freedwoman becoming a. senator was set free from his marriage. In the canon law new restrictions were developed. Persons who bound themselves not to marry were deemed incapable of marrying. The order of the clergy were forbidden to marry. And disparity of faith was recognized by the early church as a bar to matrimony, e.g., between Christians and pagans, and between orthodox and heretics (see Dictionary of Christian Antiquities, art. "Marriage").

CONCUBINAGE, which such restrictions tended to develop, is noticed under a separate heading {q.v.). It might be described as marriage which has no consequences, or only slight and peculiar consequences, in legal status. In the left-handed or ' ' morganatic " marriages of the German royal families we have the nearest approach ever made by concubinage to true marriage, the children being legitimate, but neither they nor the wife acquiring any right to the rank or fortune of the husband. Under the Royal Marriage Act in England a union of this kind has no matrimonial effect whatever.

Differences of religion are no longer regarded in Christian countries as hindrances to marriage, except possibly in some branches of the Greek Church. But 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 Catho-lics and Protestants. In some countries the clergy make it a con-dition of such marriages that the children shall be educated in the Catholic faith. English law gives the father an indefeasible right to dictate the faith of his children, no matter what engagements he may have entered into (see INFANT). The practice on this point varies in Europe—the question being ignored in French law, Ger-many following in some parts the same rule as England, in others giving effect to ante-nuptial stipulations. In Ireland mixed marriages (i.e., between Catholic and Protestant) were by 19 Geo. II. c. 13 null and void if celebrated by a Catholic priest. This Act is repealed by 33 & 34 Vict. c. 110, which permits mixed marriages to be validly celebrated by an Episcopalian or Roman Catholic clergyman, subject to conditions set forth in section 38. (E. R.)



A full collection of juridical opinion as to the legal character of marriage is to be found in Lord Fraser's Husband and Wife, vol. i. chap. ii.

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 Philliniore's Ecclesiastical Lam, vol. i.

Some restrictions on marriage peculiar to the canon law are noticed at the end of this article.
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 con-
sent 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 their day 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 Philliniore's Ecclesiastical Lam, vol. i.

The restrictions are enumerated in the following lines :— Error, Conditio, Votum, Cognatio, Crimen, Cultus Disparitas, Vis, Ordo, Ligamen, Honestas, Aetas, Affinis, si Clandestimis et Impos, Eaptave sit ruulier nec parti reddita tutse.

Said to be so called because the wife's rights were limited to the Morgengabe (donum matutinale). The common law in Germany per-mits them to the royal houses and the higher nobility, and the law of Prussia to the lower nobility also. Inequality of condition ( Uneben-biirtigkeit) is not necessary to a marriage of this kind, which may be made letween persons of equal rank, e.g., with the object of not pre-judicing the children of a first marriage by allowing full rights to the offspring of a second. A woman of high rank may make a morganatic alliance with a man of inferior position.

The above article was written by: Edmund Robertson, K.C., M.A., LL.D., Barrister; late Fellow of Corpus Christi College, Oxford; Reader on Law to the Council of Legal Education; M.P. for Dundee from 1885; Civil Lord of the Admiralty, 1892-95; author of American Home Rule.

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