be actually said. The ceremonies required by the law are complied with, when the hands of the parties are joined together and the clergyman, or other official, pronounces them man and wife; if they understand by the act that they are to render marital duties - that they have agreed to cohabit together they are married." The consummation of marriage is the assumption of the rights, duties, and obligations of the marriage relation by the parties; it contemplates cohabitation, which implies sexual rights and duties, known as intercourse. 6. License. The procurement of a marriage license is a statutory requirement, in some states, preliminary to solemnization of a marriage. The effect of non-compliance with the statute is not to render the marriage void, but the provision is held to be a directory one-one prohibitory and penal with respect to the officer who performs the ceremony." The statutes of some states direct that no person shall be joined in marriage, until a license shall have been obtained for that purpose from the clerk of the orphans' court in the county wherein the marriage is performed, and require that one or both of the applicants shall be identified to the satisfaction of the clerk, and provide that a license so issued shall authorize the marriage ceremony to be performed in any county of the state, and that a duplicate certificate shall be returned duly signed by the person solemnizing said marriage, to the clerk of the orphans' court of the county in which the marriage is solemnized, which shall be recorded by the said clerk in the marriagelicense docket and filed among the records of the office." In cases in which the parties intend to solemnize the marriage themselves, it is provided by the statutes that such marriage shall not take place until the clerk of the orphans' court of the proper county shall certify their right to do so in a declaration in a form prescribed by the statutes." 22 191 Kay & J. (Eng.) 4 (1854). 20 17 B. Mon. (Ky.) 154 (1856). 21 Pa. P. L., 1885, p. 146; Pa. P. L., 1893, p. 27. 22 Pa. P. L., 1885, p. 146. 7. Banns, the formal announcement of an intended marriage, are required to be published in England, as a preceding formality to a proposed marriage." Like the license formality, publication of banns is merely directory and does not affect the validity of a marriage; but, where required, the publication must be in the true names of the parties, and conform strictly to the law directing them, to be of any avail." 8. Consent of Parents. - The marriage of persons competent to marry is valid at common law, without the consent of parents. In England, the law was changed by the Marriage Act, which provides that the marriage of minors, not being a widower or widow, solemnized by license (not including marriages by banns) should be void when entered into without the consent of the father if living, or if dead, of the guardian or mother, or of the court of chancery." Subsequently, this law proving too stringent, from which many mischiefs resulted, because of the absolute nullity created, new legislation was enacted which made the consent of parents merely directory, which did not render a marriage void." The new statute merely creates a penalty for failing to obtain consent - the forfeiture of all property accruing from the marriage." In some of the United States, statutes exist which, under some interpretations, are regarded as making the marriage of a minor, without the consent of parents, a nullity; but usually such statutes are regarded as not affecting the validity of marriages." The general rule of law is that a marriage valid where it is celebrated is valid everywhere; but the converse to this is equally general, that a marriage void where it is celebrated is void everywhere." The validity of a marriage contract is to be determined by the law of the state where it was entered into; if valid there it is to be recognized as such elsewhere, unless contrary to the prohibitions of natural laws, or the express prohibition of a statute." 231 B. & A. (Eng.) 190 (1830). 274 Geo. IV. c. 76. 281 Gray (Mass.) 119 (1854). 29 31 Mich. 127 (1875); 17 B. Mon. (Ky.) 154 (1856). 3086 N. Y. 18 (1881). COMPETENCY OF PARTIES 9. Competent parties to a marriage are those who are free to contract, such as are sane, under no mental disability, not impotent, nor too closely related by blood or marriage, and are of full legal age, which, at common law, is fourteen years in males and twelve years in females, which is still the legal age of consent in some of the old commonwealths. A marriage solemnized between parties of the commonlaw ages is valid, without the consent of the parents or guardians, notwithstanding statutory prohibition of ministers and magistrates, under a penalty, for marrying a female under the age of eighteen, or a male under the age of twenty-one years, without the consent of parents. The law looks beyond the welfare of an individual and a class, in regulating the intercourse of the sexes, and regards the general interest of society, and seeks, in the exercise of a wise and sound policy, to chasten and refine this intercourse, and to guard against the evils which would result from illicit cohabitation. With this view, in order to prevent fraudulent marriages, the common law has fixed that period in life, when the sexual passions are usually first developed, as the one when the infants are deemed to be of age of consent, and capable of entering into the contract of marriage." The effect of statutory prohibitions is not to render duly solemnized marriages of persons under certain ages, fixed by the statutes, void, but, as said above, they are only directory upon ministers and magistrates, to prevent the solemnization of marriages when the prescribed conditions and formalities have not been fulfilled; but, in the absence of any provision declaring marriages not celebrated in a prescribed manner or between parties of certain ages absolutely void, it is held that all marriages regularly made according to the common law, are valid and binding, although contracted in violation of the specific regulations imposed by statutes." In North Carolina, it is held that the only effect of a statute is to make sixteen instead of fourteen years in respect to males, and 311 Gray (Mass.) 119 (1854). 327 Mass. 405 (1810); 6 Binn. (Pa.) 408 (1814). fourteen instead of twelve years in respect to females, the ages at which parties are capable of making a perfect marriage, leaving the rule of the common law unaltered in other respects." Statutes prescribing at what ages persons may marry exist in most jurisdictions, the age of consent as fixed by the common law being enlarged. These statutes are to be construed according to the rules stated above. Generally, the laws of the place where the marriage is celebrated determine the validity of the union, and the law of the parties' domicil determines the capacity of the persons who contract a marriage." 10. A person free to contract is one who is not already married, or one who having been married has been legally adjudged as divorced absolutely, in which event both would be free to marry again, except in certain jurisdictions where statute law prohibits marriage after divorce; or one whose marriage has been dissolved by the death of one of the parties, in which case the survivor would be free to marry again." The presumption of death is specified, by statute in most jurisdictions, to exist where one of the contracting parties to a marriage has been absent, unheard of, or beyond seas for seven years. But such statutes do not apply to cases where the party who marries a second time knows that his or her absent spouse by a former marriage is alive, nor is such second marriage valid, if the first still exist." Though a man marry repeatedly he can have but one lawful, living wife. So long as she is living and the marriage bond remains in force, all his subsequent marriages are utterly null and void, and generally require no decree of a court to annul them, for they never had any legal existence." Statute law makes a person who marries another person, while having a legal spouse living, guilty of bigamy-a felony which did not exist at common law." The marriage of a woman with a man whose wife by a former marriage is still = 337 Jon. (N. C.) 194 (1859). 34 10 Watts (Pa.) 158 (1840). 35 86 N. Y. 18 (1881); 38 Md. 357 (1873). 3650 Md. 161 (1878); 114 Mass. 563 (1874). 37 22 Ala. 86, 101 (1853); 23 Pa. 104 (1854). 38 50 Md. 161 (1878). living, undivorced, is void, and her subsequent marriage with another is valid, although the husband by the void marriage is still living." Although a decree annulling a marriage void from beginning is usually considered not necessary to enable the injured party to marry again, it has been ruled otherwise in Pennsylvania, where a man married a woman who had a husband then living, and the man petitioned the court to annul the marriage. It was held that it is only after a sentence nullifying or dissolving a marriage, or a conviction of bigamy, that the parties are at liberty to marry again, basing the decision on a statute which provided for the relief of an innocent and injured party who has entered into the marriage where one of the parties is under natural or legal incapacity of faithfully discharging the matrimonial vow, or is guilty of acts inconsistent with his contract." The marriage of one who has a suit for divorce pending, and who has obtained a decree nisi, a provisional decree, which by its terms is to be made absolute on notice, after six months' publication "unless sufficient cause to the contrary appear," is illegal and void, though the party, not understanding the effect of the provisional decree, marry, believing he is at liberty to contract another marriage." So, a limited divorce, or one from bed and board, does not dissolve the marriage relation and make the parties free to marry again." 11. A person, to be competent to marry, must be sane and under no mental disability, else the marriage is void. A lunatic may not enter into a marriage state, any more than he may enter into any other contract; nor a fool, nor a person not of sound mind; if he do, the marriage is absolutely void." The necessary capacity of mind to enable persons to marry was, formerly, that fixed as the standard in ordinary 394 Brew. (Pa.) 305 (1867). 40 10 Phila. 131 (1874); Pa. P. L., 1815, p. 150. 41 121 Mass. 232 (1876). 42 21 How. (U. S.) 582 (1858); see The Law of Divorce. 43 12 Mass. 363 (1815). |