Another disability is want of sanity. It is not to be understood that weak-minded people must not marry; they can, and do in considerable numbers. But if a person who is a lunatic go through the form of marriage, except during a lucid interval, the marriage is void. This objection to the validity of a marriage does not often occur; but sometimes the question whether a man was lunatic or of sound mind when married is difficult to determine, but most likely to be settled in favour of his sanity, unless there was manifestly some fraudulent or sordid motive for the marriage.
Nearness of relationship, either by birth or marriage, is another disability. First-cousins and all persons more distantly related, may lawfully intermarry. But ancestors and descendants in the direct line are prohibited; as are also brothers and sisters, uncles and nieces, aunts and nephews. We will not here enter into any controversy as to the expediency of the law which prohibits the marriage of a widower with the sister or niece of his deceased wife. Before 1835, a marriage between persons whose relationship was within the prohibited degrees was not necessarily void, but voidable only during the joint lives of the parties thereto; so that if the marriage were not set aside during the lives of both parties, on the death of either of them it was treated as having been a valid marriage, and the children born thereof were legitimate to all intents and purposes. But in that year an Act of Parliament was passed declaring such marriages void in future.
The last existing disability which we shall notice is that of being married already. A married person cannot legally marry again until the first marriage is dissolved, either by death or by a judicial decree. On this subject much misapprehension exists. Many persons believe that a wife who has been deserted by her husband for seven years or upwards, without hearing from him, or knowing whether he is alive or dead, may marry again; but this is a mistake. Such a marriage would be void if the former husband should be proved to have been alive at the time it was celebrated. Probably the delusion had its origin in the fact, that in those circumstances the woman could not be convicted of bigamy. For that purpose alone, the presumption of the husband’s death after seven years of absence without any information as to his continued existence, would be recognised by the law, and might be pleaded as a defence to an indictment for bigamy.
Formerly, an engagement to any other person was a bar to marriage. If A promised to marry B, he could not marry C unless B absolved him from his promise. But this disability has long been abolished, though B might sue A for breach of promise.
The next consideration is, ‘How to marry.’ Excluding the Royal Marriage Act, and merely drawing attention to the fact that a marriage between two members of the Society of Friends (or Quakers) at a meeting-house, or between two Jews either at a synagogue or elsewhere, were not affected by Lord Hardwick’s Act, and are not affected by the Acts which are now to be referred to, we will next briefly epitomise the most important provisions of the Marriage Act of 1823. This Act confirms the power which had long previously been enjoyed by the Archbishop of Canterbury of granting special licenses, by virtue of which parties may be married at any place specified therein and at any hour of the day. These licenses are issued at the Faculty Office, on sufficient cause being shown, and verified by affidavit. It is not very difficult to find a reason which will be satisfactory to the officials, if an applicant be willing to strain his own conscience. A special license, however, costs about thirty pounds.
An ordinary license can only be issued for solemnisation of matrimony in a parish in which one of the parties has resided for at least fifteen days previously; and if what is termed a caveat should have been entered against the granting of a license, the objection raised thereby must be disposed of by the Court, or the caveat be withdrawn, before the license can be granted.
If the marriage is to be performed in an Episcopal church by license, one of the parties must attend at the vicar-general’s office, the diocesan registry, or before a surrogate—a clergyman appointed by the bishop for the purpose of granting ordinary marriage licenses—and swear that there is no impediment of kindred or alliance, or other lawful hindrance to the marriage; and also as to the residence in the parish, and the consent of parent or guardian if necessary. It will be remembered that an infant widow or widower may remarry without such consent.
A cheaper way of being married according to the rites of the Church of England is after publication of banns. This consists in reading the names of the parties publicly on three successive Sundays at a prescribed part of the service. If both parties do not reside in one parish, the banns must be published in both their respective parishes; and if either of the parties be a minor—not having been previously married—his or her parent or guardian may publicly declare his or her dissent, and thereupon the publication of banns is void.
Marriage, whether by license or by banns, must be celebrated within three months, or the whole of the preliminaries must be gone through anew. All marriages in England must be between eight o’clock in the forenoon and twelve at noon, except marriages by special license.
Questions often arise as to the name in which a person should be married. As a general rule, the same name should be used for this as for the ordinary business of every-day life—the name by which the person is generally known. If John Jones has called himself John Robinson, and has been so called by other persons so long that his original name has been forgotten, the publication of the banns of marriage between John Jones and Mary Smith would not answer the object of the statute, for it would not inform the parishioners that the person known by them as John Robinson proposed to get married. Accuracy in name is now, however, of little importance, because the use of a false name no longer renders a marriage null, unless both the man and the woman are parties to the fraud, and so a favourite device of a hundred years ago is legally impracticable.