To constitute a valid marriage, as well before as since the Marriage Acts. it is necessary, 1st, that there should be two persons capable of standing in the re lation of husband and wife to each other; 2ndly, that they should be willing to stand in that relation ; and 3rdly, that they should have contracted with one another to stand in that relation.
t. The capacity of standing in the re lation of husband and wife implies that at the time of the contract there should be no natural or legal disability. Total and permanent disability on either side to consummate marriage will render the contract void. Temporary disability from disease does not affect the validity of a marriage. Temporary disability from defect of age does not invalidate the mar riage, but it leaves the party or parties at liberty to avoid or to confirm such pre mature union on attaining the age of consent, which for males is 14, and for females 12. Before the abolition of feudal tenures, when the lords were en titled to sell the marriages of their male and female wards, infantine marriages were very common, fathers being anxious to prevent wives and husbands from being forced upon their children after their death, and lords being eager either to secure the prize for their own family, or to realise the profit resulting from a sale. A person who is already married is under a legal disability to contract a second marriage whilst the first wife or husband is alive; and although there may have been the strongest grounds for believing that the first wife or husband was dead, the children of the second marriage would not in England derive any benefit from the absence of moral guilt in their parents, though in France and some other countries the issue of marriages so con tracted, bona fide, are treated with greater indulgence.
Consanguinity within certain degrees, and affinity also, is a legal impediment to marriage. The degree of nearness which shall disable parties from uniting in marriage varies in different countries, and has varied at different periods in our Own. [AFFINITY.] The impediment to marriage arising out of consanguinity applies in the same degree to illegitimate as to legitimate consanguinity, and the impediment re suiting from affinity is created by illicit connexion as well as by marriage. The Council of Trent restricted the impedi ment of affinity arising out of illicit con nexion to the second degree.
2. Each party must have• the will to contract marriage with the other. An idiot therefore, who cannot understand the nature of the conjugal relation, is incapable of contracting marriage ; and also a lunatic, except during a lucid interval. But however absurd it may appear, children are presumed to have sufficient intelligence to understand the nature of the marriage engagement at seven ; and though the contract is not absolutely binding upon them until they reach the age of consent, still the mar riage of a child above the age of seven would prevent its forming a second mar riage until the age of consent, as until that age it cannot dissent from the first marriage.
3. There must be an actual contract of marriage. This, at common law, might be by words of present contract, winch would, without more, constitute a perfect marriage,—or by words of future con tract, followed by cohabitation.
The unlimited freedom of marriage was first limited in England by the Mar riage Act of 1753 (26 Geo. H. c. 33), the principal provisions of which form the basis of the present law. Many of these provisions are taken from the canon law, an observance of which was, before this statute, necessary to constitute a regular marriage, though a marriage con tracted without them was valid.
The restrictions upon the common-law freedom of marriage are now embodied in two statutes.
The 4 Geo. IV. c. 76, contains the fol lowing provisions :—Banns of matrimony are to be published in the church, or a public chapel in which banns are allowed to be published, of the parish or chapelry wherein each of the parties dwells, im mediately after the second lesson of morn ing service, or of evening service if there be no morning service, upon three Sun days preceding the solemnization (§ 2).
Notice of the names of the parties, their place of abode, and the time during which they have dwelt there, is to be delivered to the minister seven days before the first publication (§ 7). Banns are to be re published on three Sundays, if marriage do not take place within three months after publication is completed (§ 9). No licence of marriage (that is, dispensation from the obligation to publish banns) is to be granted to solemnize marriage in any church or chapel not belonging to the parish or chapelry within which the usual place of abode of one of the parties has been for fifteen days immediately before the granting of the licence (§ 10). Extra-parochial places are to be taken to belong to the parish or chapelry next ad joining (§ 12). Upon obtaining a licence, one of the parties must swear that he or she believes that there is no impediment of kindred or alliance (consanguinity or affinity), or of any other lawful cause, nor any suit commenced in any ecclesiastical court, to hinder the marriage, and that one of the parties has, for fifteen days im mediately preceding, had his or her usual place of abode within the parish or cha pelry; and where either of the parties, not being a widower or widow, is under the age of twenty-one, that the consent of the person or persons whose consent is required by that act has been obtained, or that there is no person having authority to give such consent (§ 14). The father, if living, of any party under twenty-one, not being a widower or widow, or, if the father be dead, the guardian or guardians of the person of such party, or one of them, and in case there be no guardian, then the mother of such party if un married, and if there be no mother un married, then the guardian or one of the guardians of the person appointed by the Court of Chancery, has authority to give consent to the marriage of such party ; and such consent is required, unless there be no person authorised to give it (§ 16). In case of the father, guardian, or mother being non campus mends, or beyond sea, or unreasonably or from undue motives refusing or withholding consent, any person desirous of marrying may petition the lord-chancellor, master of the rolls, or vice-chancellor ; and in case the mar riage proposed shall, on examination, appear to be proper, the lord-chancellor, &c. may judicially declare the same to be so; and such declaration shall be equi valent to consent of the father, &c. (§ 17.) If a marriage be not had within three months after licence, marriage cannot be solemnized without a new licence or banns (§ 19). The archbishop of Can terbury is authorized to grant special licences to marry at any convenient time or place (§ 20). If any persons know ingly and wilfully intermarry in any other place than a church or such public chapel, unless by special licence, or, knowingly and wilfully, intermarry with out the publication of banns and licence, or, knowingly and wilfully, consent to the solemnization of such marriage by a person not being in holy orders, the mar riage is null and void (§ 22). (It has been held, that in order to invalidate a marriage under this section, both parties must know the irregularity of the pro ceeding.) When a marriage is solem nized between parties, both or one of them being under is by false oath or fraud, the marriage is valid, but the guilty party is to forfeit all property accruing from the marriage (§ 23). After the solemnization of any marriage by banns or licence, no proof can be required of actual dwelling or usual place of abode, nor can any evidence be received to prove the contrary (§ 26). Marriages are to be solemnized in the presence of two witnesses besides the minister, and regis tered.