§1. To render a marriage contract lawful, the parties must be of sufficient age, called the age of consent; which, by the common law of the land, is fourteen years in males, and twelve in females. In some states the age of consent has been altered by statute. In Ohio, Indiana, and Michigan, it has been raised to eighteen years in males, and fourteen in females; in Illinois to seventeen and fourteen; in Wisconsin, to eighteen and fifteen.
§2. The parties must also have sufficient understanding to transact the ordinary business of life. Idiots and lunatics cannot legally contract marriage. Persons must also act freely. If the consent of either party has been obtained by force or fraud, the marriage may be declared void. The parties must not be nearly related. The degrees of relationship at which they are forbidden to marry are in some states fixed by law; but the laws of these states on the subject are not uniform. Some states have forbidden marriages which come within what is called the Levitical degrees; but these degrees have received different interpretations. According to the interpretation of some, the relation of uncle and niece and aunt and nephew, come within this rule.
§3. No person can lawfully remarry who has a wife or husband living. Such second marriage is, by the common law, null and void. In some of the states, perhaps in most of them, it is declared polygamy, and a state prison offense, except in certain cases; as when the husband or wife of the party who remarries has been long absent, and the party re-marrying does not know the other to have been living within the time; or when the former husband or wife of the party remarrying has been sentenced to imprisonment for life; or when the former marriage has been lawfully annulled or dissolved. If, however, a marriage has been annulled or dissolved for the cause of adultery, the criminal party is, in some states at least, not allowed to remarry.
§4. In some of the cases excepted in the preceding section, the second marriage is merely excusable. Although the party to such marriage is exempt from the penalty, yet if the former wife or husband is living, though the fact is unknown, and no divorce has been duly announced, or the first marriage has not been duly annulled; the second marriage is void. Where there is no statute regulation, the common law governs, which is, that nothing but death, or a decree of a competent court, can dissolve the marriage tie.
§5. The manner in which marriages are to be solemnized, and by whom, and the manner in which marriage licenses are to be obtained, or notices of marriage published, (which are required in some states,) are prescribed by the laws of the states in which such regulations exist. Marriages may usually be solemnized by ministers of the gospel, judges, justices of the peace, and certain other officers. But by the common law, a marriage is rendered valid by a simple consent of the parties declared before witnesses, or subsequently acknowledged; or such consent may be inferred from continual cohabitation and reputation as husband and wife.
§6. In law, the husband and wife are regarded as one person. By the common law, the husband, by marriage, acquires a right to the property of the wife which she had before marriage, and which she may acquire after marriage. To her personal property, including debts due her by bond, note, or otherwise, he has an absolute right, and may use and dispose of the same as he pleases. Her chattels real, however, which are leases of land for years, though personal property, he can not dispose of by will; and if he makes no disposition of them during his life time, and she outlives him, she takes them in her own right. If he survives his wife, he acquires an absolute right to them.
§7. But to the real estate of the wife, the husband does not acquire an absolute right. He has only a right to the use, rents, and profits thereof during his life, if he shall die before his wife; and in that event she takes the estate again in her own right. If the wife dies first, and there are no children, her heirs immediately take the estate. If there are children living, the husband holds the estate for life, and on his death it goes to the wife or her heirs.
§8. But this rule of the common law which gives to the husband the possession and disposal of the property of the wife, has been repealed by special enactments in most of the states. By these state laws, the real and personal property of the wife owned by her before marriage, or conveyed to her by any other person than her husband after marriage, with the rents and profits of such property, is declared to be her own, and at her disposal, and not liable for the debts of her husband, except in a few cases specified in the law of each state. In some of these states, although the property of the wife is not liable for the husband's debts, he has the control and management, and the rents and profits of it.
§9. As the husband, by common law, acquires, by marriage, an interest in the property of his wife, he becomes liable for her debts contracted before marriage; but if they are not recovered of him during coverture, he is discharged Coverture, in law, is the state of a married woman, considered as under cover, or under the power of her husband. Some of the states which have abolished the common law right of the husband to the property of the wife acquired before marriage, have also abolished the common law obligation of the husband to pay the debts of the wife contracted before marriage; her property alone being liable for such debts.
§10. The husband is bound to maintain his wife, and is liable for debts which she may contract for necessaries, but for nothing more. If he refuses to provide for her wants, or if, through other ill treatment or fault on his part, they become separate, he is liable to fulfill her contracts for necessaries, even though he has forbidden persons to trust her. If they part by consent, and he secures to her a separate maintenance, and pays it according to agreement, he is not liable, even for necessaries.