Marriage

Marriage denotes the union of man and woman in the legal relation of husband and wife as the same may be defined by local law or custom. The term may be properly applied to connections between the sexes which to civilised people seem exceedingly slight and loose, provided that they are founded on contract, are intended to endure, and are approved of, or at least permitted, by public or group opinion; but these are conditions essential to marriage. It is not strictly applicable to cases in which the wife is got by capture; for no relations or consequences that can be called legal can arise out of an act of violence which arouses resentment and provokes to retaliation; but, if the captor's tribe approve, there may be de facto marriage in such cases, and true marriage if, in addition, the tribe of the woman acquiesces in the capture when effected, in which case an approach is made to marriage with the form of capture—i.e. marriage proceeding upon a contract, but carried out through a form or pretence of capturing the bride.

Many nations have had traditions of a time when marriage was unknown among their own predecessors, and of some lawgiver to whom its institution was ascribed, who was, for example, among the Egyptians, Menes; among the Chinese, Fo-hi; among the Greeks, Cecrops; among the Hindus, Svetaketu. And (if man had to work out his own institutions) it is plain that societies everywhere would need time for arriving at those regulative customs, in the absence of which there would be no marriage, and neither right nor wrong in matters of sex; much time, indeed, wherever there prevailed that law of incest (exogamy) which cut off men from marrying all women of their own kindred, however remote the relationship, the women among whom their connections must have been made at first. Darwin, founding upon observation of the higher animals, was of opinion that, before the springing up of marriage custom, the jealous rage of the male would determine that there would be no general promiscuity of the women, and that there would at first be a prevalence of polygyny. It should, however, be remembered that among early peoples and backward peoples, with marriage fully defined, jealousy has often been practically unknown. Observation of men, savage and civilised, would perhaps suggest that, before some notion of right in matters of sex had sprung up, there would be no uniform behaviour in those matters, that men would do as they could, as passion prompted and opportunity offered, and that they would not be over-scrupulous in their connections—i.e. that they might be polygamists, polyandrists, or monogamists according to circumstances, and that there would be as much promiscuity as there was opportunity for.

An attempt to show in outline the history of marriage and of kinship has necessarily been made under the head of Family (q.v.), and to that reference must here be made. In that account the beginnings of marriage are traced to the predominance of a modification of promiscuity, to Nair polyandry, or something equivalent to it, which could yield a system of kinship through females only—a limitation of kinship which can only have become established when there was usually no father in the household, and fatherhood was uncertain, not thought of, or not claimed. Ultimately, in advanced societies everywhere, marriage came to be regarded as not to be duly constituted without a religious sanction.

While the law of exogamy forbids a man to marry any woman of his own kindred, a law which has been named endogamy forbids a man (where it prevails) to marry any woman who is not of his kindred. Endogamy has been widely prevalent, and not among rather advanced populations only, but among many which are decidedly backward; but there are indications, often conclusive, of its having been preceded by exogamy, and it may be taken to have been preceded by it at least in most cases. Exogamy, if this be conceded, has prevailed at one time or another nearly everywhere. The known cases in which peoples have depended for their wives upon capture, or have, after a contract for marriage, gone through the form of capturing the bride (which undoubtedly is a relic of capture), are a most extensive class; and exogamy gives the explanation of all such cases. Exogamous men having unfriendly neighbours might have to go without wives if they did not capture women from their neighbours; and when these also were exogamous, we may believe that in time captures would be made easy—that reciprocal captures would be more or less arranged, until at length there were contracts made for exchange or purchase of women, and the capture became a form only. As a form capture has in fact lingered on, in shapes more or less distinct, in the marriage ceremonies of many modern peoples. For an attempt to show the origin of the law, which had the remarkable effect of interdicting marriage between all men and women of the same blood or kindred, see The English Historical Review, No. 9, January 1888; and The Origin of Exogamy, by J. F. M'Lennan.

This account of exogamy takes it to have been in the first instance an interdict upon wiving only; but the difficulty is rather to see how men came to abstain from marrying their own women than how, that point reached, they afterwards went on to abstaining from them altogether. Of course, it had to be kept in view that the law of exogamy must have been, in fact, a practice which became prevalent and then obligatory, and that, while it was growing up, the practice must have been the same that it was after it had got the force of law, so that, if exogamy at first necessitated a practice of capturing wives, it must have been a practice of capturing wives that became consolidated as exogamy. Groups composed of a single totem kindred, when exogamous (see FAMILY), could only get wives by capture. And thus it was a practice (1) of capturing women of stranger groups for wives, and (2) of taking for wives only stranger or foreign—i.e. captured—women that had to be accounted for. A long-continued scarcity of women (which infanticide might account for) is suggested as the explanation of a systematic practice of capture, and the position of men relatively to captured women on the one hand, and their own women (these being scarce) on the other, as the explanation of marriage being ultimately confined to captured or foreign women. What is scarce is of importance, and the position of women among their own kinsmen must have tended to be high, so that something like the Nair relation only could be formed with women by their kinsmen, and that it may be without any contract, practically, at any rate, at the woman's mere choice. The captured woman, on the other hand, would be a slave; the captors could have her as a subject wife, absolutely on their own terms. It is this sort of connection that was destined to prevail, to become the type of marriage, and it was the lot of the captive, not of the kinswoman. To subject the latter to it would have been an outrage, an offence against her and the kin, indeed, even at first what we call a sin; and the practice which at first exempted her, when it became consolidated as custom, excluded her from the condition of wife to any of her kinsmen, with the feeling remaining, and grown intense, that it would be a shocking and sinful thing for them to have her in that condition. The passage from this to the disuse of the Nair or quasi-Nair connections between men and their own women which would have continued while marriage was growing up—and probably until after convenience had made capture easy, i.e. more or less of a form, when there would be practically exchange of women—and then to the interdiction of such connections, time being given, does not appear to present much difficulty. Moreover there are a few cases known in which all marriage between relatives being forbidden, other connections seem not to be excluded. This account of exogamy is, at any rate, founded at every point upon human nature and its observed tendencies. The scarcity of women which is the basis of it is also the basis of the history of marriage which traces that institution back to polyandrous beginnings.

See works cited at FAMILY, and in addition, Darwin, Descent of Man (1870); Fison and Howitt, Kamilaroi and Kurnai (1880); A. Lang, Custom and Myth (1884); Max. Kovalevsky, De l'Origine de la Famille et de la Propriété (1890).

The solemn and binding nature of marriage is recognised by all civilised peoples; and, although in various countries there is vast difference in details, both as to legal obligations and public ceremonies, there is much substantial agreement. Thus the restrictions as to age, consanguinity, &c. which prevail in England and other modern countries were nearly the same in the Roman law, where, however, the consent of the paterfamilias was an essential. The canon law regards marriage as a sacrament and not as a contract; but it recognises the validity of marriage by mere consent, and without ecclesiastical sanction, in countries where such marriages are treated as valid.

England.—A promise of marriage, given in exchange for the promise of the other party, is binding in English law. Performance is not enforced, but damages may be recovered for breach of promise. It is not necessary that the promise should be proved by writing. The parties may give evidence, but the plaintiff cannot recover unless his or her testimony is corroborated by some other material evidence. If either party discovers that the other has been guilty of gross misconduct, or of serious misrepresentation in regard to his or her circumstances and previous life, breach of promise may be justified. It has been held that a bodily infirmity, rendering it dangerous for the defendant to marry, is no defence to an action.

Males of fourteen and females of twelve, not subject to any physical or mental incapacity, are permitted to contract marriage; but for the marriage of a minor the consent of parents or guardians ought previously to be obtained (see INFANT). Persons already married are, of course, incapable of marrying again, unless set free by death or by Divorce (q.v.). A man may not marry his mother or other ascendant, his daughter or other descendant, or any woman within the third degree of consanguinity. He is also precluded, by reason of affinity, from marrying any woman related as ascendant, descendant, or blood-relation within the third degree to a deceased wife. Since 1835 marriages within the prohibited degrees are wholly void; it is not necessary that proceedings should be taken to annul any such union. The policy of the law which forbids a man to marry his Deceased Wife's Sister (q.v.) has been much questioned; and bills for legalising such marriages have several times been passed by the House of Commons.

Persons intending to marry are required to give notice of their intention; the forms commonly used for this purpose are bans, and the certificate of a superintendent-registrar. Bans (q.v.) are the subject of a separate article. Instead of giving notice to the parish minister, the parties may apply to a registrar or superintendent-registrar of the district in which they have resided seven days: if they reside in different districts application must be made in both. After twenty-one days the superintendent-registrar issues a certificate for the marriage: one shilling is paid for entry of notice, and one shilling for certificate. Parties desiring to be married without delay must obtain a license dispensing with the ordinary forms. The Archbishop of Canterbury may grant a special license (which is issued by his vicar-general) for marriage at any time or place. License for a marriage in church is obtained from a surrogate on an affidavit as to residence, absence of lawful impediment, and (if either party be a minor) consent of parents or guardians. A license may also be obtained on giving one day's notice to the superintendent-registrar, and making a declaration as to residence, &c. The fees payable for licenses are considerably higher than those paid for banns and for the ordinary certificate. It is to be observed that the registrar cannot give a license for marriage in church. His ordinary certificate is usually accepted in lieu of banns; but a clergyman may insist on banns or episcopal license when the marriage is in church.

In the actual celebration of marriage the law requires that the ceremony take place between 8 A.M. and 3 P.M. (12 A.M. until 1886), that the parties declare that they know of no impediment to their marriage, that formal words of consent be used in the presence of witnesses, and that the marriage be duly registered. If the marriage is in church, the prayer-book service is used, and the minister enters the marriage in the register. If it is in a Nonconformist chapel or other registered building, a registrar must be in attendance. Persons who wish to be married according to a secular form may be married at a register office, in presence of a superintendent-registrar, and of a registrar and two other witnesses. Persons so married may afterwards go through a religious ceremony, but such ceremony is not a marriage, in the legal sense of the word, and therefore must not be registered. In 1863 a Royal Commission reported on the marriage laws of the United Kingdom, pointing out the grave inconveniences resulting from the maintenance of different laws in England, Scotland, and Ireland, and from the uncertainty of the English law. The excessive formality of the statute law is in some degree neutralised by the rule that a marriage is not avoided unless for some fraud or irregularity of which both parties are cognisant. Thus, a man who is married in a false name is duly married, unless the wife is a party to the deception; and it has been held that a marriage in church, without banns or license, is valid, if the wife is under the belief that the husband has complied with the necessary legal forms. For further particulars in regard to forms, see Hammick's Marriage Law of England; and for the legal effects of marriage, see the article HUSBAND AND WIFE.

A marriage celebrated in church by a person professing to be in holy orders, and not known by both parties to be an impostor, is valid. If both parties acquiesce in the celebration of marriage by a pretended clergyman, the marriage is void. Marriage by proxy is not known to English law, and if it were thought desirable to permit such a marriage in the case of a sovereign or other person of exalted rank, a special act of parliament would probably be passed for the purpose. When one party is a Protestant and the other a Roman Catholic, it was formerly not unusual to arrange for two religious ceremonies; but the Roman Catholic clergy now decline to officiate in such cases, unless the parties promise that there shall be no Protestant ceremony. The Anglican clergy being no longer the sole authoritative registrars, the repetition of the Catholic marriage in an Established church is not now tolerated. For papal dispensations granted to Catholics, see DISPENSATION.

In regard to marriages celebrated abroad, and marriages in England where the parties, or one of them, may be of foreign nationality, it is important to observe that the law of the parties' domicile governs the essentials of the marriage (capacity of the parties to contract marriage, &c.), and that the law of the place of celebration governs the forms with which the marriage must be solemnised, except in the case of a marriage celebrated in an ambassador's house, or other place enjoying the privilege of ex-territoriality. It is not always easy to say what are the essentials of a marriage, and what rules and ceremonies are to be considered merely formal. French law, for example, requires persons about to marry to obtain, or at least to apply for, the consent of their parents. A Frenchman is married in England without asking his parents' consent. It may be said that he has only omitted a formality not required by English law; but the French courts hold in such cases that an essential requisite of valid marriage is wanting. It is obviously most inconvenient that persons deemed to be married in one country should be considered unmarried in another; the 'conflict of laws' as to marriage and divorce is the cause of much hardship and injustice.

Scotland.—The law of Scotland regards marriage as a contract constituted by the consent of the parties alone. In its effects it differs from other contracts in respect that it confers upon the parties a certain distinct status, and inasmuch as its duration and legal consequences cannot be changed at the will of the parties. This is what is referred to when marriage is said to be an institute or something more than a contract. As the free consent of the parties is necessary, marriage is impossible when those elements are present which the law regards as involving incapacity to give consent. Thus idiots and mad persons cannot marry, and a marriage to which the assent of one or other of the parties has been gained by fraud, force, or fear, or error as to some essential matter, will be void. Intoxication, if the person is so drunk as not to know what is being done, also invalidates a marriage. Pupils—i.e. females under twelve and males under fourteen—cannot marry; but, if the parties are of marriageable age, the consent of their parents or guardians is not necessary. Besides these incapacities, specially affecting the nature of the consent given, and attaching to marriage in common with all other contracts, there are others peculiar to marriage only. Thus, impotency renders a marriage void, and a previous marriage, while it subsists, prevents either of the parties from lawfully contracting another; marriage between adulterers is forbidden by an old statute (regarding which, however, doubts have been expressed as to whether its force is not gone by desuetude), and relationship within certain degrees prevents the relations from marrying. The forbidden degrees, as in England, are drawn from the Jewish law as set forth in the Book of Leviticus (see above). A further preliminary requisite to a valid marriage is that one or other of the parties shall have resided in Scotland for a term immediately preceding the marriage. This term varies according to the form which the marriage takes. An irregular marriage is not good unless one of the parties either had his or her usual residence in Scotland, or lived there for twenty-one days before the marriage. In the case of a marriage after proclamation of Banns (q.v.) the session-clerk cannot proclaim banns until the parties have resided in his parish for six weeks. Where publication of notice by the registrar takes the place of banns parties must reside for fifteen days in the district before intimating to the registrar their intention to marry, and seven further days must elapse before the marriage takes place.

As regards the manner of contracting marriage the law of Scotland is peculiar among those of other nations for the freedom which it allows to the contracting parties. If their present consent to marry is proved, the law requires no special form of proof, imposes no restrictions as to time and place, and enjoins no special mode of celebration. The blessing of the church is not required by the law of the land to make a marriage good; although all marriages celebrated without the assistance of a clergyman are called irregular marriages. It is enough that the parties give their free consent to marry each other. If a man and woman have lived together as husband and wife, and have had the reputation among their neighbours of being married to one another, and this reputation is general in the neighbourhood, uncontradicted by any one and of considerable duration in point of time, these parties will be held to have exchanged a consent to marry, and the courts will declare them to be married. This is called marriage by habit and repute. Where a promise to marry has been given and sexual intercourse between the parties has followed in Scotland, upon the faith of the promise, the court, upon proof of the promise by the writing or the oath of a defender, will declare the parties to have been married, the presumption of the law being that the intercourse has taken place only on an interchange of consent to marry. This is called marriage by promise subsequent copula. Cases of marriage by habit and repute or by promise sub cop. are very rare. In the general case, the fact of the interchange of consent to marry is not left to be presumed by law, but is proved in the most unequivocal way either by writing or witnesses. These cases are distinguished as marriages by words of present consent per verba de presenti. According to this form persons may marry by declaring, with or without witnesses, that they then consent to marry and do marry, or by making a written declaration to that effect, and acting upon their declaration. This method of interchange of words of present consent was the one followed in the Gretna Green (q.v.) or 'over the border' marriages by runaways from England. They were checked by Lord Brougham's Act of 1856, requiring residence in Scotland for twenty-one days as a pre-requisite to the validity of an irregular marriage. But if this condition be fulfilled they are still possible. Persons who marry in this way may be convicted before a magistrate or justice of the peace of having contracted an irregular marriage; and, as the conviction is recorded in the books of the court and stands as evidence of the marriage, this way of getting married—by declaration and a police-court conviction—has been thought to be the cheapest known way of securely tying the bonds of wedlock, since it entails no necessary fees to any functionary. But persons convicted of an irregular marriage are required to register their marriage, and the registrar is entitled to a fee of twenty shillings. Parties to an irregular marriage may apply within three months after its date to the sheriff for a warrant to register their marriage. The sheriff grants warrant upon proof of the marriage by written declaration; and a certified copy of the entry in the register is declared by statute to be evidence of the marriage. The proceeding of applying to the sheriff for warrant to register is often believed by the parties to be a civil ceremony of marriage, and popular language speaks of couples having been married by the sheriff. By a mistaken notion and confusion with the English forms of marriage this 'marriage by the sheriff' is sometimes referred to as 'marriage by special license,' sometimes as 'marriage before the registrar,' while the truth is that the parties have married themselves, and only apply to the public functionaries to make their marriage a matter of public record.

Cases of irregular marriage by interchange of words of consent, though much more common than those of marriage by habit and repute or by promise and copula, are rare in comparison with marriages celebrated by clergymen. These are forms of marriage by the interchange of words of consent; the law not regarding the presence of a clergyman or the sanction of the church as necessary to marriage. If a clergyman officiates at a marriage he may do so only after the publication of Banns (q.v.) or publication of notice by a registrar as in England. If he do so without these preliminaries the marriage becomes a clandestine marriage, and the clergyman and the parties are subject to penalties. When notice to the registrar of an intention to marry takes the place of banns, the notice is entered in a Marriage Notice Book, and publicly posted on the registrar's office for seven days, after which time, if no objections are taken, the registrar issues a certificate of publication of notice which authorises a clergyman to marry the parties producing it. There is now no provision of law restraining clergymen of other churches than the Established Church of Scotland from celebrating regular marriages. While regular marriages are always treated in law as marriages 'in the face of the church,' it is not the practice to solemnise Presbyterian marriages in church, nor is such a solemnisation necessary to make a marriage regular and lawful. The ceremony is usually conducted by a clergyman at the house of the bride's father; although of late years there have been signs that Presbyterians may come to adopt the custom of marrying within the church walls. The proceedings ought to include, and usually do include, an express inquiry whether the parties consent to marry; a declaration by them, given generally by a nod or a curtsy, that they do consent; a solemn admonition by the clergyman; a declaration by him that the parties are married; and the nuptial benediction. The ceremony should take place in the presence of witnesses who know the parties, and who are capable of giving evidence. After the marriage is solemnised (which may take place any hour of the day), a schedule, which is given out to the parties along with the certificate of publication of banns, or of publication of notice by a registrar, has to be presented, filled up, to the clergyman; signed by the parties, the clergyman, and at least two witnesses, and delivered to the parties, who must transmit it within three days, under penalties, to the registrar of the parish in which the marriage is solemnised. See HUSBAND AND WIFE, DIVORCE.

Ireland.—The law of Ireland as to the constitution of marriage is substantially the same as that of England. The form of celebration may differ according as the marriage is solemnised in the Disestablished Church of Ireland, the Roman Catholic, or the Presbyterian Church; or between persons of different religious persuasions; but the legal rights and duties of the several churches with regard to marriages are now practically the same—to provide for publication of a marriage and for its solemnisation between certain hours in a building set apart for divine service.

United States.—In the United States the general rule in almost all the states is that no specific form is necessary to the constitution of marriage if the consent of the spouses is proved. But marriage differs from contract in that it cannot be modified or dissolved by consent, nor rescinded on proof of fraud. The law in some states requires that marriages be authorised by taking out a license, and solemnised before a magistrate or a clergyman. Pennsylvania provides that marriages must be solemnised before twelve witnesses. But a marriage good at common law is good notwithstanding any statute on the subject, unless the statute contain express words of nullity. The original law of the prohibited degrees has been modified; and the prohibition of marriage with a deceased wife's sister is all but unknown.

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