Divorce, i.e., the annulment of marriage for any cause but an impediment which makes the marriage ipso facto void, is un known to the Roman Catholic Church. Separation a vinculo matrimonii is only possible under the canon law by a judicial decree of nullity (annullatio matrimonii), which implies, not the severing of the ties of a real marriage, but the solemn declaration that such marriage has never existed. There may, however, be a "separation from bed and board" (a thoro et mensa), even perpetual, which does not however give either party the right to remarry during the lifetime of the other. But, marriage not being regarded as a sacrament until consummated, it may be dissolved, if non-consummation be proved, by one or both parties taking the religious vows, or by papal dispensation. The Church claims exclusive control over marriage, and the Council of Trent anathematized the opinion held by Luther and other reformers, that it was properly a subject for the civil courts (si quis dixerit causas matrimoniales non spectare ad judices ecclesiasticos anathema sit, Sess. xxiv. cap. 2). This attitude became of extreme political importance when even in Catholic countries the codes established civil marriage as the only legally binding form.
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. Impotence at the time of the marriage 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 (I) the fact that either party is already married and has a spouse still living (a decree nisi does not enable the parties to marry until it is made absolute) ; (2) the fact that either person is a party of unsound mind; (3) want of full age which, after remain ing for centuries as in the Roman Law, viz., males 14, females 52,
was, by the Age of Marriage Act, 1929, fixed at 16 for both sexes; (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 c. 38 (repealed in part by 2 & 3 Edw.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 i & 2 P. and M. c. 8, but revived by i Eliz. c. I, 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 for bidden marriages, as more particularly specified in previous statutes, are those between persons in the ascending and descend ing 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 alines (related by marriage), now altered so far as a deceased wife's sister is concerned. (See p. 947.) The act of 1835 enacted that "all marriages which shall hereafter be cele brated between persons within the prohibited degrees of con sanguinity 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 bef ore Aug. 31, 1835.
For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a de ceased wife's sister. In all the self-governing colonies, with the exception of Newfoundland, the restriction had ceased to 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 185o, and only became law by 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 pre serves the peculiar status of the wife's sister under the Matri monial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.