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 heretof ore), 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 clergy man. An order in Council of Oct. 28, 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 or dained minister. The Merchant Shipping Act 1894 (s. 240) pro vides that the master of a ship for which an official log is re quired 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 solem nized 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 in Great Britain subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in Great Britain, 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 Great Britain 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. (I) "A public or regular marriage," says Fraser, "is one celebrated, of 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 to 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 Scot land 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 21 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 de scribed 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 Scot land. The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void.