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PART III.

PERSONAL RELATIONS.

TITLE I. MARRIAGE.

II. PARENT AND CHILD.
III. GUARDIAN AND WARD.
IV. MASTER AND SERVANT.

TITLE I.

MARRIAGE.

CHAPTER I. THE CONTRACT OF MARRIAGE.

II. DIVORCE.

III. HUSBAND AND WIFE.

CHAPTER I.

THE CONTRACT OF MARRIAGE.

ARTICLE I. VALIDITY OF MARRIAGE.

II. AUTHENTICATION OF MARRIAGE.

ARTICLE I.

VALIDITY OF MARRIAGE.

SECTION 55. What constitutes marriage.

56. Minors capable of contracting marriage.

57. Marriage, how manifested and proved.

58. When void.

59. Incompetency of parties to.

60. Of whites and negroes or mulattoes, void.

61. Polygamy forbidden.

62. Pardon does not restore marital rights.

63. Marriage contracts subject to the same rules as other contracts.

64. Marriage contracted without the State.

What constitutes marriage.

Minors

capable of contracting marriage.

SEC. 55. Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be followed by a solemnization, as provided in Sec. 74, or by a mutual assumption of marital rights, duties or obligations.

[New section.]

Const. of Cal., Art. XI, Sec. 12; "Marriage," Sec. 1;

Cool. Bl. Comm., I, 433 and note 2, and 437; Graham vs. Bennett, 2 Cal., 503; Letters vs. Cady, 10 Cal., 533.

NOTE.-In Graham vs. Bennett, above cited, it is held that "an open avowal of the intention, and an assumption of the relative duties which it imposes on each other, is sufficient to render it valid and binding."

As to whether consent alone constitutes marriage: In Jewell's Heirs vs. Jewell (1 How., 219) the Court was equally divided. In Regina vs. Millis (10 Jeb. and Fin., 534) the House of Lords, on appeal from Ireland, was also equally divided on the same question--Lords Brougham, Denman and Campbell in favor, and Lords Lynhurst, Coltenham and Abinger against it. On reference of the question to the Court, Tindel, C. J., gave the unanimous opinion of the Court that it was not a valid marriage, and held "that by the law of England, as it existed at the time of the Marriage Act, a contract of marriage per verba de praesenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual Court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law." (Parsons on Contracts, p. 78 and notes.)

The declaration of marriage and actions to establish marriage, provided for in this chapter, correspond to this right of solemnization.

Secs. 34 and 37 of the New York Civil Code are as follows: "SEC. 34. Marriage is a personal relation, arising out of a civil contract, to which the consent of parties capable of making it is alone necessary.

"SEC. 37. The consent to a marriage must be to one commencing instantly, and not to an agreement to marry afterwards."

SEC. 56. Any unmarried male of the age of eighteen. years or upwards, and any unmarried female of the age of fifteen years or upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage.

N. Y. C. C., Sec. 36; Cool. Bl. Comm., I, 435.

NOTE. Our statute provides that "no person shall be joined in marriage unless they shall have first obtained a license," which must show proper age, consent, etc. Upon this class of statutes, Parsons on Contracts says: "The English statute makes the marriage of minors, without such consent, absolutely void. In this country, that would depend upon the statutes of the several States. Generally, if not universally, the marriage would be held valid, although the person celebrating it might be punishable," and cites Parton vs. Hervey, 1 Gray, 119.

The Commission dare not make serious changes affecting the law of marriages, yet it would seem that to permit boys and girls, fourteen and twelve years old, to become husband and wife, without the consent of parents or guardians, and take upon themselves all the responsibilities which belong to that relation, and, through it, to society, is so shocking to common sense and popular judgment, and so dangerous to the well-being of the parties themselves, that some better limit ought to be established. Either raise the age of consent to fifteen and eighteen, or make the marriage absolutely void, if consummated without the consent of parents or guardians, or a Probate Court.

The civil law made naked consent to constitute marriage, yet that included the consent of parents or tutors, without which the marriage was void. France has in a measure retained this law, requiring all males under twenty-five and all females under twenty-one to obtain the consent of parents or guardians before contracting marriage.

It is substantially the same in Holland. English statutes make such marriage void. But by 19 and 20 Vic., Chap. 119, Sec. 17, they are valid if actually solemnized without consent. (Cool. Bl. Comm., 437 and note 12.)

FINAL NOTE.-In final review, the Commission has concluded to raise the ages of consent to fifteen in females and eighteen in males.

SEC. 57. Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases. Cohabitation, admissions of the parties, general reputation, being received as husband and wife in society, public houses or private families, and all other pertinent circumstances, are competent evidence to prove marriage.

[New section.]

People vs. Anderson, 26 Cal., 129; Parsons on Contracts,

p. 77 and note; Starr vs. Pock, 1 Hill, p. 270; Clay-
ton vs. Wardell, 4 N. Y., 230; Case vs. Case, 17
Cal., 598.

NOTE.-Sec. 35, New York Civil Code, is as follows:
"Consent to a marriage may be manifested in any form, and
may be proved like any other fact."

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When void.

Incompetency of parties to.

Of whites and negroes

SEC. 58. If either party to a marriage is incapable of consent for want of age or understanding, or is incapable, from physical cause, of entering into the marriage state, or if the consent of either is obtained by fraud or force, the marriage is void.

N. Y. C. C., Sec. 39; Cool. Bl. Comm., I, 435.

NOTE. This is the rule in Graham vs. Bennett (2 Cal., 503), but contra in Baker vs. Baker (13 Cal., 87). Fraud "vitiates it ab initio, and authorizes a divorce."

The above note was appended to the section as first printed-taken from the New York Civil Code, which avoided the marriage from date of decree.

SEC. 59. Marriages between parents and children, ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, are incestuous, and void from the beginning; whether the relationship is legitimate or illegitimate.

N. Y. C. C., Sec. 38; "Marriage," Sec. 2.

SEC. 60. All marriages of white persons and negroes or mulattoes or mulattoes are illegal and void.

void.

Polygamy forbidden.

Pardon does

not restore marital rights.

"Marriage," Sec. 3.

SEC. 61. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless

1. The former marriage had been annulled or dissolved for some cause other than the adultery of such person; or, 2. Unless such former husband or wife had been finally sentenced to imprisonment for life; or,

3. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent inarriage; in which case the subsequent marriage is void only from the time its nullity is adjudged by a competent tribunal.

N. Y. C. C., Sec. 40; Cool. Bl. Comm., I, 435; Bowers

vs. Bowers, 9 N. Y. Lg. Ols.

SEC. 62. No pardon granted to any person sentenced to imprisonment for life in this State, restores such person to the rights of any previous marriage, or to the guardianship of any issue of such marriage.

N. Y. C. C., Sec. 41.

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