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 ecclesiae, by reason of any contract of matrimony whatsoever whether per verba de presenti or per verba de futuro.” 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 futuro also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae.”
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 successors, 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.”
In 1886 an act was passed in the British parliament to remove doubts which had been entertained as to the validity of certain marriages solemnized in England when one of the parties was resident in Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled a wife whose husband is convicted of an assault on her, or who has been deserted by him, or been obliged owing to his cruelty to live apart from him, to apply to the justices, who are empowered by the act to make an order for separation and for payment by the husband to his wife of such weekly sum, not exceeding two pounds, as they may consider reasonable. The Marriage Act 1898 authorized the celebration of marriages in places of worship duly registered for the solemnization of marriages under the Marriage Act of 1836 without the presence of the registrar, on condition of their being solemnized in the presence of a person duly authorized by the governing body of the place of worship in question. It also made further provision for the due recording of all marriages in the general registers. The Marriages Validity Act of 1899 removed doubts as to the validity of marriages in England on Irish banns and in Ireland on English banns. Lastly, the Marriage with Foreigners Act 1906 enabled a British subject desirous of marrying a foreigner in a foreign country to comply with the foreign law by obtaining from a registrar a certificate that no legal impediment to the marriage has been shown. Similar certificates, by arrangement between His Majesty and foreign countries, are issued in the case of a foreigner desirous of marrying a British subject in the United Kingdom.
The Foreign Marriage Act 1892 has consolidated the English law relating to marriages celebrated abroad, and brings it into harmony with the current tendencies of marriage law reform generally. Under it a marriage between British subjects abroad is as valid as a marriage duly solemnized in England (as heretofore), if celebrated in accordance with the local law or in the presence of diplomatic or consular agents who are appointed to act as “marriage officers.” The old fiction of assimilation of a British embassy to British soil can no longer be relied upon to uphold a marriage at a British embassy solemnized by an ordained clergyman. An order in council of the 28th of October 1892, moreover, provides that in the case of any marriage under the act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be recognized by the law of the foreign country to which the alien belongs.
A marriage may be solemnized on board one of His Majesty’s ships at a foreign station, provided a warrant of a secretary of state has authorized the commanding officer to be a marriage officer. At sea, marriages on British public or private ships seem still valid at common law, if performed by an episcopally ordained minister. The Merchant Shipping Act 1894 (sect. 240) provides that the master of a ship for which an official log is required shall enter in it every marriage taking place on board, with the names and ages of the parties.
Again, under the Foreign Marriage Act all marriages solemnized within the British lines by a chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid in law as if they had been solemnized within the United Kingdom subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in the United Kingdom, the publication of banns and the issue of certificates on board His Majesty’s ships in certain cases, or when one of the parties to a marriage intended to be solemnized in the United Kingdom is an officer, seaman or marine, borne on the books of one of His Majesty’s ships at sea.
The principle of the English law of marriage, that a marriage contracted abroad is valid if it has been solemnized according to the lex loci, may be now taken to apply just as much to a marriage in a heathen as in a Christian country. Whether the marriage has or has not been celebrated according to Christian laws has no bearing upon the question, providing it is a monogamous marriage—a marriage which prevents the man who enters into it from marrying any other woman while his wife continues alive.
Scotland.—The chief point of distinction, as compared with English law, is the recognition of irregular marriages. (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 (1711), and to other ministers by 4 and 5 Will. IV. c. 28 (1834). (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 constitute marriage, unless followed either by solemnization in facie ecclesiae or declarator. Lord Moncreiff’s opinion in the case of Brown v. Burns is admitted 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 copula is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.
By the Marriage (Scotland) Act 1856 it is enacted that no irregular 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 Scotland.