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 towards each other the duties imposed by law on the relation of husband and wife. For the laws of the Hebrews and Romans and the canon or ecclesiastical law of the Middle Ages on the subject of marriage, see Fulton's Laws of Marriage.
Besides the full lawful marriage of Roman citizens, there were two other recognized re lations of the sexes. One was the so called "natural" marriage or matrtmonium juris pentium, between a full citizen and a half citizen or an alien. It was a legal union and the children were legitimate. As Roman citizenship extended to all the subjects of the empire its importance vanished. Bryce, Stud. in Hist. etc. The other relation was coneubinatus (q. v.).
Marriage, in our law, as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman united in law for life, for the discharge to each other and the community of the duties legally incum bent on those whose association is founded on the distinction of sex. 1 Bish. Mar. & D. § 9.
It does not mean a mere temporary agree ment to dwell together for a time for the gratification of sexual desires, but it is es sential that the contract be entered into With a view to its continuance through life and then be followed by celebration and cohabitation, with the apparent object of continuing such cohabitation through life; Olson v. Peterson, 33 Neb. 358, 50 N. W. 155.
The better opinion appears to be that mar riage is something more than a mere civil contract. It has been variously said by dif ferent writers to be a status, or a relation, or an institution. This view is supported by the following: Story, Confl. Laws § 108 n. ; Schoul. Flush. & W. § 12 ; Ditson v. Ditson, 4 R. I. 87 ; Noel v. Ewing, 9 Ind. 37 ; 3 P. D. 1; Mag. & Rev. 4 ser. 26. But see contra, McCreery v. Davis, 44 S. C. 195, 22 S. E. 178, 22 L. R. A. 655, 51 Am. St. Rep. 794. In New York it has been held to be merely a civil con tract ; Hynes v. McDermott, 7 Abb. N. C. (N. Y.) 98. It is both a civil relation and a con tract ; Andrews v. Andrews, 188 U. S. 14, 23 Sup. Ct. 237, 47 L. Ed.. 366 ; but is not a con tract within the federal constitutional provi sion as to impairment of contracts ; Maynard v. Hill, 125 U. S. 190, 8 Sup. Ct. 723, 31 L. Ed. 654.
All persons are able to contract marriage unless they are under the age, or un less there be other disability. The age of
consent at common law is fourteen in males and twelve in females ; 2 Kent 78 ; Gov ernor v. Rector, 10 Humphr. (Tenn.) 61; Par ton v. Hervey, 1 Gray (Mass.) 119 ; Beggs v. State, 55 Ala. 111. This is still the rule in the older states ; but in Ohio, Indiana, and other western states, the age of consent is raised to eighteen for males, and fourteen for females ; Schoul. Husb. & W. § 24.. When a person under the age marries, such person can, when arrived at lawful age, avoid the marriage, or, if the other is of legal age, con firm it. It has been held that the one who is of legal age may also disaffirm the mar riage ; Co. Litt. 79 ; East, P. C. 468 ; but see People .v. Slack, 15 Mich. 193. The dis affirmance may be either with or without a judicial sentence ; 1 Bish. Marr. & D. § 150. If either of the parties is under seven, the marriage is void ; 1 Sharsw. Bla. Com. 436 ; Gathings v. Williams, 27 N. C. 487, 44 Am. Dec. 49.
If a marriage of a minor takes place after she has reached a legal marriageable age, the parent cannot sue to annul it, and the statute fixing the age of consent does not al ter the common law permitting girls under that age to marry without the consent of, their parents; In re Hollopeter, 52 Wash. 41, 100 Pac. 159, 21 L. R. A. 847, 132, Am. St. Rep. 952, 17 Ann. Cas. 91; Fisher v. Ber nard, 65 Vt. 663, 27 Atl. 316.
As to the age for contracting marriage in different countries, see 2 Halleck, Int. L., Baker's ed. App.
If either party is non compos mentis, or in sane, the marriage is void. See INsANITY.
If either party has a husband or wife liv ing the marriage is void; Fenton v. Reed, 4 Johns. (N. Y.) 53, 4 Am. Dec. 244 ; Martin's Heirs v. Martin, 22 Ala. 86 ; 1 Bla. Com. 438 ; Monnier v. Contejean, 45 La. Ann. 419, 12 South. 623 ; although the woman may have thought her first husband was dead ; Thomas v. Thomas, 124, Pa. 646, 17 Atl. 182.
See McCaffrey v. Benson, 40 La. Ann. 10, 3 South. 393 ; Rawson v. Rawson, 156 Mass. 578, 31 N. E. 653 ; INTENT.
A man may contract marriage before entry of a decree declaring his former marriage to have been void ; Eichhoff's Estate, 101 Cal. 600, 36 Pac. 11. See NULLITY OF MARRIAGE.
Consanguinity and affinity within the rules prescribed by law in this country render a marriage void. In England they rendered the marriage liable to be annulled by the ec clesiastical courts; Sutton v. Warren, 10 Mete. (Mass.) 451; 2 Bla. Com. 434. See