A.D. 886, appears to have been the first who declared ecclesiastical benediction necessary to marriage; but his constitution was in force only in the Eastern empire. Among the early barbarian codes no mention is made of this ceremony; and in the history of Gregory of Tours marriage is treated as a civil contract. In most countries the marriage ceremony is now performed in presence of a clergyman, and accompanied with the nuptial benediction, or other religious observances. The religious forms, however, are not essential to the validity of marriage, any further than may have been rendered necessary by the positive institutions of any particular state; for it belongs to the secular power alone to determine what forms, if any, shall be required in addition to the consent of the parties, in order to constitute a valid marriage. Blackstone observes, "The intervention of a priest to solemnise this contract is merely juris positivi, and not juris naturalis aut divini."1 Council of Before the decree of the Council of Trent, in November Decree of 1563, which declared that after that date all marriages not Trent, 1563. contracted in presence of a priest and two or three witnesses should be void, private marriages without the intervention of the clergy were recognised throughout Christendom. This famous decree is stigmatised by Pothier as a clerical usurpation, which never had any authority in France. Fifty-six prelates voted against it. Maillard, the Dean of the Sorbonne, we are told, declared that it was beyond the power of the Church, as well as unsound in principle, the first marriage between Adam and Eve, which was the pattern for all others, having been contracted privately without witnesses.2 II.-FRENCH LAW OF MARRIAGE. By the Code Napoleon marriage in France requires to be celebrated before a civil officer of the domicile of one of the 1 Black. Com., book 1, ch. 15. On this point see Principal Lee's Lectures on the History of the Church of Scotland, vol. i. p. 248, note. 2 Father Paul's History of the Council of Trent, book 7. Pothier, Traité de Mariage, part 4, c. 1, § 4. How mar riage contracted in France. Marriage contracts. contracting parties, in presence of four witnesses, after certain public notices have been given; and a formal instrument, called acte de mariage, is drawn up in evidence of the contract. This is usually followed by a religious ceremony to consecrate the union of the spouses, but that is not required to validate the marriage; and any minister of public worship who proceeds to the religious ceremony before the civil marriage, is liable to severe punishment under the penal code. In this country we adopt the same age of consent to marriage as the Roman law-that is, fourteen for males and twelve for females; but in France a man under eighteen and a woman under fifteen cannot marry,—at least they cannot do so without a dispensation from the Crown for grave reasons. A son under twenty-five, and a daughter under twenty-one, cannot marry without the consent of their parents, or the survivor of them; but in case of difference the father's consent is sufficient. If the parents are dead, or cannot consent, the grandfather and grandmother take their place; and failing all these, the consent of a family council must be obtained. When the son and daughter are above the ages specified, they may marry without any of the foregoing consents, provided they previously make certain respectful applications to their parents, according to prescribed forms. Children have no legal right to demand a marriageportion, or other establishment in life, from their father or mother.4 3 It is usual in France, before marriage, to make a contract to regulate the respective rights and interests of the future spouses; and if such a contract exists, it requires to be mentioned in the acte de mariage, under the law of 18th July 1850. The contract may contain special conventions, or may declare in a general manner that the parties understand their marriage to proceed either upon the principle of the communion of goods, or upon the principle of dotation (sous le régime de la communauté, ou sous le régime dotal). In the first case, under the communion of goods, the rights of 1 Code Civil, art. 75, 76, 165. 3 Code Civil, art. 144-151. the spouses and their heirs will be governed by the regulations in book 3, title 5, chapter 2, of the Civil Code, beginning with article 1390. In the second case, under the principle of dotation, their rights will be governed by the regulations in chapter 3 of the same book and title, commencing with article 1540. Civil Code. The rules of the French law regarding the constitution of Rules of marriage will be found in the first book of the Civil Code, art. 63-76, and art. 144-228; and the legal effects of marriage, as affecting the property of the spouses, are treated very fully under the head "Contract of Marriage," in the third book of the Civil Code, art. 1387-1581. III.-ENGLISH LAW OF MARRIAGE. Sect. 1.-Constitution of Marriage in England. cil of Trent, required. In the celebrated case of Dalrymple,1 Lord Stowell ex- After Counpressed an opinion that, prior to the Marriage Act of George presence of II., marriage, by the law of England, was constituted by con- clergyman sent de præsenti, without the presence of a clergyman, or any religious ceremony. But that opinion was overruled by the judgment of the House of Lords, in Queen v. Millis, in 1844, where it was decided that, after the decree of the Council of Trent, the ecclesiastical law of England required the presence of a clergyman to marriage.2 In England, the formalities of marriage are now regulated English Marriage by the Marriage Acts, which allow marriage to be solemnised Acts. either with a religious ceremony or without it. The Act of 4 Geo. IV. c. 76 adhered to the principle of the common law, that marriages taking place in England must be solemnised between all persons (whatever their religious belief) by a minister in holy orders, and according to the rites of the Established Church, the only exceptions being in favour of Jews and Quakers, whose usages were left undisturbed. This principle having been found to operate harshly against Dissenters, the Act 6 and 7 Will. IV. c. 85 (since amended in 12 Hagg. C. R. 54, and Dodson's Report. 210 Cl. and Fin., p. 534. Where marriage must be celebrated. Ceremony. Marriage of minors. sundry points of detail) introduced new regulations, whereby marriages may now be celebrated in England, after due notice and certificate issued, either in a registered place of worship, and in the presence of some registrar of the district and of two witnesses, or at the office of the superintendent-registrar, and in his presence, and in the presence of some registrar of the district and of two witnesses, upon making the declaration, and using the form of words prescribed. By these Acts, marriage cannot be constituted, in England, by mere consent alone, however clearly expressed, before witnesses. There must be some previous notice, or proclamation of banns, or licence. Either a clergyman of the Established Church or the registrar of the district must be present, with witnesses, at the ceremony or mutual declaration respectively; and the marriage must be in an authorised place, and at authorised hours. It will thus be observed, that in England the marriage ceremony must take place in a church, or, after due notice and certificate, in a licensed chapel or building, or in the registrar's office. When the marriage takes place in a church or chapel of the Church of England, the service must be performed by the officiating minister, according to the rites of that Church, in presence of two or more witnesses. If the marriage is solemnised in a registered dissenting chapel, there may be superadded to the civil contract whatever religious ceremony parties may think fit to adopt. But if the parties contract marriage in a registrar's office, the mutual declaration and exchange of matrimonial consent completes the civil contract, and no religious ceremony is used at such marriage.1 The Archbishop of Canterbury is authorised to grant special licences to marry at any convenient time or place. In all other cases, marriage in England cannot take place in a private house, and must be celebrated with open doors in canonical hours-that is, between 8 and 12 in the forenoon. If the person proposing to marry is a minor, and not a widow or widower, the consent of the father of such person, 1 19 & 20 Vict. c. 119, s. 12. Paterson's Compendium, p. 287. if living, must be obtained. If the father is dead, the consent of a guardian is required; and if there be no guardian, the consent of the mother, if unmarried; if there be no mother unmarried, then the consent of a guardian appointed by the Court of Chancery; and in some cases of disability, or where consent is unreasonably withheld, relief may be obtained by petition to the Lord Chancellor. Formerly a marriage might be declared void by reason of the want of consent by parents or guardians, but this rule was found to be productive of mischief; and, under the existing law, if a minor succeed in getting the marriage ceremony performed, the marriage is not accounted void by reason of the nonconsent of parents and guardians.1 All marriages, whether taking place under 4 Geo. IV. c. 76, or 6 and 7 Will. IV. c. 85, are required by law to be registered. These Acts do not extend to any marriage contracted by Marriages British subjects out of England. A marriage entered into in out of England. Scotland or in a foreign country, if made in such form as is deemed sufficient in the place where it is contracted, will be considered valid by the law of England; and even the Gretna Green marriages were recognised by the English courts, though the parties eloped to Scotland on purpose to evade the laws of marriage in their own country. It is a general rule, whatever inconveniences may sometimes attend it, that a marriage duly solemnised in any country according to its own law, ought to be recognised as binding in point of form all over the world. But there is a distinction. between marriage rites and the legal capacity of marrying; for the form of the ceremony depends on the place where the marriage is solemnised, while the legal capacity of persons to marry is determined by the country of their domicile. This principle was established by the judgment of the House of Lords in Brook v. Brook. The parties were domiciled in England, where marriage with a deceased wife's sister is prohibited, and they were married at the Danish port of Altona, where the law permitted them to marry. This marriage was declared invalid, and the grounds of decision were, that all 1 6 & 7 Will. IV. c. 85, s. 25. Addison on Contracts, 5th ed., p. 756. |