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Marriage

law, contract, marriages, parties, england, according, time and validity

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MARRIAGE is a contract made according to the forms prescribed by the law whereby a man and woman mutually agree to live together, in con jugal union, during their joint lives. It is " the voluntary union for life of one man and one woman to the exclusion of all others." Marriage was not originally a sacrament of the Christian Church, nor is it now recognised as such except by certain of the more sacerdotal sects. It was not until the time of Pope Innocent III., at the commencement of the thirteenth century. that marriage was required to be celebrated in church. Before that time there was no celebration of marriage in the church, but the man went to the house inhabited by the woman and carried her back to his own house : this was practically the whole ceremony. But yet, according to English law as laid down by Lord Stowell in Lindy v. Belisario, marriage is not merely a civil or a religious contract, and is not to be considered as originally and simply one or the other. The English law of marriage is therefore so closely bound up with religion — the religion of England — that when marriages are celebrated in foreign countries, having foreign religions, it is possible that doubts may arise as to their validity in England. The general rule of law in this connection was thus stated by Lord Brougham in Warrender v. Warrender : " A marriage, good by the laws of one country, is held good in all others where the question of its validity may arise. For the question must always be : Did the parties intend to contract marriage ? And if they did that which in the place they were in is deemed a marriage, they cannot reasonably, or sensibly, or safely, be considered otherwise than as intending a marriage contract." But this general rule extends " no further than to the ascertaining of the validity of the contract and the meaning of the parties, that is, the existence of the contract and its con struction. If indeed there go two things under one and the same name in different countries—if that which is called marriage is of a different nature in each—there may be sonic room for holding that we are to consider the thing to which the parties have bound themselves, according to its legal acceptance in the country where the obligation was contracted. But marriage is one and the same thing substantially all the Christian world over. Our whole law of marriage assumes this ; and it is important to observe, that we regard it as a wholly different thing, a different status from Turkish or other marriages among infidel nations, because we clearly never should recognise the plurality of wives, and consequent validity of second marriages, standing the first, which second marriages the laws of those countries authorise and validate." And in the words of Lord Penzance, in Hyde v.

Hyde car Woodmansee, " the matrimonial law of this country is adapted to the Christian marriage, and it is wholly inapplicable to polygamy." Where fore, In Iv Bethell: Bethell v. Hild,yard, it was held that a man was not married, according to the law of England, who, being a resident at Mafeking, went through the form of marriage according to the custom of the Baralong tribe with a Baralong girl. In that case it was proved that the Baralongs had no religion, nor any religious customs, and that poly gamy was allowed.

But such questions as these have no importance in connection with marriages in England ; their importance exists because of the constant movement of Englishmen to foreign and uncivilised countries.'" As to FOREIGN MARRIAGES in general, see the article under that title. In order that a marriage celebrated in England may be valid it is necessary, in the first place, that neither of the parties thereto should, at the time, be bound by an already subsisting valid marriage [see BIGAMY] and it is also necessary that neither of them should be within the prohibited degrees of CONSANGUINITY (q.v.), even though the relationship is illegitimate and not sanctioned by lawful marriage. too, both of the parties must be of the necessary age ; the man must be at least fourteen years old, and the woman twelve. And lastly, the parties to the marriage must have mental and physical capacity. A lunatic or idiot, therefore, cannot contract a valid marriage unless, in the case of a lunatic, the marriage was celebrated in a lucid interval. But it was decided, in Attorney-General v. Parnther, that the burden of proof lies on the party who alleges the lucid interval ; he must show sanity and competency at the period when the act was clone. And his proof of lucidity must be as strong as if the nature of the proof were to establish lunacy. The requisite physical capacity is that necessary to fulfil the characteristic matrimonial function. Its absence is known as " impotence," and in order that a marriage may be invalidated on this ground it should have existed at the time of the marriage. As a rule, applications for annul ling a marriage on the ground of impotence are not entertained by the courts until there has been at least a three years' cohabitation.

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