MARRIAGE, is the lawful conjunction of man and wife ; it was also anciently used to denote the interest of bestowing a ward or a widow in marriage.
Taking marriage in the light of a civil contract, the law treats it as it does all other contracts : allowing it to be good and valid in all cases where the parties, at the time of making it, were in the first place willing to contract ; secondly, able to contract ; and, lastly, actually did con tract, in the proper forms and solemnifies required by law.
By several statutes, a penalty of 1001. is inflicted for marrying any persons without banns or licence ; but by 26 George II. c. 33, if any person shall solemnize matri mony without banns or licence, obtained from some persons having authority to grant the same, or in any other place than a church or chapel where banns have been usually published, unless by special licence from the Archbishop of Canter bury, he shall be guilty of felony, and transported for fourteen years, and the marriage shall be void. Marriages ac cording to the laws of any other country are valid in England, if duly solemnized in another country, as marriages in Scot land are ; but by 26 George II. c. 33, s. 11, marriages by licence, where the par ties are not twenty-one, must not be with out consent of the father or guardian of the party. If the guardian or mother is beyond sea, or insane, the Chancellor will proceed, upon relation, in their stead. Questions have lately arisen, whether this act applies to illegitimate children, and the civilians have held that it does. Mar riages cannot be solemnized between per sons within the Levitical degrees ; but, if solemnized, they are not void till after sentence of the proper court. Promises
of marriage, and pre-contracts, do not prevent the parties from lawfully marry ing other persons ; but an action lies for a breach of the contract. Marriage brokage bonds are void in equity, and all contracts in restraint of marriage gene rally are void ; but contracts and legacies, upon condition not to marry any particu lar person, or without proper consent, are allowed, though if there is not a de vise over, the legacy is vested neverthe less. To marry a woman an heiress fomit: bly, is a capital felony, by 3 Henry VII. c. 2, and 39 Elizabeth, c. 9.
A wife cannot leave her husband. If she elope from him, she loses her dower, Unless she returns and is reconciled. An action of trespass lies for taking away a wife, with the goods of her husband, and also for criminal conversation with the wife of any one.
If a man ill-use and turn his wife away, she has credit for necessaries wherever she goes, and he is obliged to pay her debts ; but it is otherwise, if she elopes or commits adultery. A married woman cannot be sued for her own debts, al though she has a separate maintenance.
Divorces are of two kinds, absolute, and from bed and hoard. The former can only be by act of Parliament, unless it is fot some original defect in the marriage ; the latter is allowed on account of ill treatment, &c. and then the wife has ali mony or maintenance allowed her.