MARRIAGE. A contract, made in due form of law, by which a man and woman reciprocally engage to live with each other during their joint lives, and to discharge to wards each other the duties imposed by law on the relation of husband and wife.
2; All persons are able to contract mar riage unless they are under the legal age, or unless there be other disability. The age of consent at common law is fourteen in males, and twelve in females. Reeve, Dom.. Rel. 236 ; 2 Kent, Comm. 6th ed. 78 ; 1 N. Chipm. Vt. 254: 10 Humphr. Tenn. 61 ; I Gray, Mass. 119. See 20 Ohio; 1. When a person under this age marries, such person can, when he or she arrives at the a:ge above specified, avoid the marriage, or such person or both may, if the other is of legal age, confirm it. If either of the parties is under seven, the marriage is void. 1 Sharswood, Blackst. Comm. 436, and note 9 ; 5 bed. Eq. No. C. 487.
If either party is non eompos mentis, or in sane, the marriage is void. 21 N. fl, 52 ; 22 'id. 553 ; 4 Johns. Ch. N. Y. 343.
If either party has a husband or wife living, tbe marriage is void. 4 Johns. N. Y. 53 ; 22 Ala. N. s. 86 ; 1 Salk. 120 ; 1 Sharswood, Blackst. Comm. 438. See NULLITY OF MAR RIAGE.
Consanguinity and affinity within the rules rescribed by law in this country render a marriage void. The statutes of particular states will be referred to hereafter. In Eng land they render the marriage liable to be annulled by the ecclesiastical courts. 10 Metc. Mass. 951 ; 2 Blackstone, Comm. 434. See CONFLICT OF LAWS.
3. The parties must each be willing to marry the other.
If either pa,rty acts under compulsion, or is under duress, the marriage is voidable. 2 Hagg. Cons. 109, 246.
Where one of the parties is mistaken in the person of the other, this requisite is wanting. But a mistake in the qualities or character of the other party will not avoid the marriage. Poynter, IVIarr. & D. c. 9.
If the apparent willingness is produced by fraud, the marriage will be valid fill set aside by a court of chancery or by a decree of divorce. 5 Paige, Ch. N. Y. 43. Fraud is sometimes said to render a marriage void ; but this is incorrect, as it is competent for the party injured to waive the tort and af 'firm the marriage. Impotency in one of the parties is sometimes laid down as rendering the marriage void, as being a species of fraud on the other party ; but it is only a ground for annulling the contract by a court, or for a divorce.
4. The parties must actually make a con tract of marriage: the form and requisites of it will depend on the law of the place. SCC LEX LOCI.
At common law, no particular form of words or ceremony was necessary. Mutual assent to the relation of husband and wife was sufficient. Any words importing a pre sent assent to being married to each other were sufficient evidence of the contract. If the words imported an assent to a future marriage, if followed by consummation, this established a valid marriage by the canon iaw, but not by the common law. 10 Clark & F. Hou. L. 534 ; 15 N, Y. 345 ; 2 River, Husb. 8c W. 445-475 ; 1 How. 219 ; 2 N. H. 268.
5. At common law, the consent might be given in the presence of a magistrate or of any other person as a witness, or it might be found by a court or jury from the subsequent acknowledgment of the parties, or from the proof of cohabitation, or of general reputa tion resulting from the conduct of the par ties. In the original United States the com mon-law rule prevails, except where it has, been changed by legislation. 6 Binn. Penn. 905 ; 4 Johns. N. Y. 52 ; 7 Wend. N. Y. 47. See 10 N. H. 388; 4 Burr. 2058; 1 How. 219, 234 ; 1 Gray, Mass. 119 ; 2 Me. 102.
In civil cases, a marriage can generally be proved by showing that the parties have held themselves out as husband and wife, and by general reputation founded on their conduct. There is an exception, however, in the case of such civil suits as are founded on the mar riage relation, such as actions for the seduc tion of the wife, where general reputation and cohabitation will not be sufficient. 4 N. Y. 230 ; 3 Bradf. Surr. N. Y. 369, 373 ; 6 Conn. 496 ; 29 Me. 323 ; 14 N. H. 950.
6. In most of the states, the degrees of-re lationship within which marriages may not be contracted are prescribed by statute. This limit in cases of consanguinity is generally, though not always, that of first cousins. In some of the states, a violation of the rule ren ders, by statute, the marriage absolutely void. In others, no provision of this kind is made. Various statutes have been passed to guard against abuse of the m arri age ceremony. Such of them as require license, or the publica tion of banns, or the consent of parents or guardians, are regarded as directory, and, unless explicitly declaring the marriage to be void, if not complied with do not render it void. Mass. Gen. Stat. (1860) 529 ; Conn. Comp. Stat. (1854) 323; Swan, Rev. Stat. of Ohio (1854), 569; 4 Iowa, 449; 26 Mo. 260; Reeve. Dom. Rel. 196,200; 1 Rev. Swift's Dig. f.",0 ; 2 Watts, Penn. 9 ; 1 IIow. 219 ; 2 Hoist. N. J. 138 ; 2 N. H. 268. As to rights of mar ried women, see HUSBAND AND WIFE ; WIFE.