Encyclopaedia Britannica, 11th Edition, "Map" to "Mars" / Volume 17, Slice 6

by Various

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. 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 cognisance 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 lifetime of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by the Marriage Act 1835. Civil disabilities are (1) the fact that either party is already married and has a spouse still living;[12] (2) the fact that either person is a party of unsound mind; (3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Roman law, viz. fourteen for males and twelve for females;[13] (4) relationship within the prohibited degrees.

The statute which lawyers regard as establishing the rule on this last point is the 32 Hen. 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 c. 38 (repealed in part by 2 & 3 Edw.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 Eliz. 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. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage), now altered so far as a deceased wife’s sister is concerned (see below). The act of 1835 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 been only voidable. The act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity) actually celebrated before the 31st of August 1835.

For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a deceased wife’s sister. In all the self-governing colonies, with the exception of Newfoundland, the restriction had ceased to Marriage with a Deceased Wife’s Sister. exist. The first act legalizing marriage with a deceased wife’s sister was adopted by South Australia. The royal assent, however, was not given till the parliament of that state had five times passed the bill. In quick succession similar statutes followed in Victoria, Tasmania, New South Wales, Queensland, New Zealand, West Australia, Barbados, Canada, Mauritius, Natal and Cape Colony. As regards the Channel Islands, marriages of the kind in question were made legal in 1899, and in 1907 in the Isle of Man.

In England the bill to render marriage with a deceased wife’s sister valid was first adopted by the House of Commons in 1850, and rejected by the House of Lords in 1851. It was subsequently brought before the legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870, 1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May, when in the House of Lords the prince of Wales and the duke of Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888, 1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most cases it passed the House of Commons but was rejected in the House of Lords. The bill of 1896, however, which was judiciously drafted to avoid the compulsory celebration by clergymen of marriages against which they had conscientious scruples, was carried in the Lords. Both the prince of Wales and the duke of York were among the “contents.” The prime minister and eighteen bishops, including the two archbishops, voted against the bill, the earl of Rosebery and Lord Kimberley for it. At the third reading the bill was carried by 142 to 104 votes. Its promoters, however, did not succeed in getting an opportunity of bringing it before the House of Commons.

From 1896 to 1901 no further direct steps were taken, but in 1898 and again in 1900 (May 28) the subject was brought forward in the House of Lords by Lord Strathcona in the form of a bill under which marriages with a deceased wife’s sister contracted in any British colony should be deemed valid for all purposes within the United Kingdom. In 1898, and again in 1900, the bill was carried on the third reading without a dissentient vote. The House of Commons took no action on either occasion. An imperial bill reached a second reading in the House of Commons in 1901 and again in 1902, but it was blocked by the High Church opponents of the measure when attempts were made to get it to the committee stage (Feb. 5 and June 6). The reform was, however, finally adopted in 1906 under the title of the Colonial Marriages (Deceased Wife’s Sister) Act. The effect of the act was to make such marriages legal in all respects, including the right of succession to real property and to honours and dignities within the United Kingdom. The natural sequence of the passing of the act of 1906 was the reintroduction in 1907 of the bill relating to England. Introduced by a private member, it was adopted by the government, passed the House of Commons, and finally the House of Lords (on the second reading by 111 votes to 79), and became law as the Deceased Wife’s Sister Marriage Act, 1907. The act contains a proviso justifying clergymen in refusing to solemnize marriages with a deceased wife’s sister, and it preserves the peculiar status of the wife’s sister under the Matrimonial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.

The celebration of marriages is now regulated wholly by statutory legislation. The most important acts in force are the Marriage Acts 1823, 1836, 1886 and 1898.[14] 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 required 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 banns 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, is 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 within three months after banns or licence, and between the hours of eight in the morning and three in the afternoon.

For the relief of the great body of Dissenters the act of 1836 was passed. It permits marriage to be solemnized in two additional ways—viz. (1) by certificate of the superintendent registrar of 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 thereafter suspended for twenty-one days in some conspicuous place in the registrar’s office. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition 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 witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar’s office, with the same declaration, but with no religious 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 specified 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 England—the ecclesiastical authorities retaining their jurisdiction 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 certificate, or without notice or certificate, &c., the marriage shall be null and void.

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 invalidating a marriage actually solemnized.