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"Marriage", says Bishop, "as distinguished from the agreement to marry and from the act of becoming married, is the civil status of one man and one woman legally united for life, with the rights and duties which, for the establishment of families and the multiplication and education of the species, are, or from time to time may thereafter be, assigned by the law of matrimony." (I.Mar. and Div. Sec. 11.)
The municipal law deals with this status only as a civil institution. Though sometimes spoken of as a contract, marriage in the eyes of the municipal law is not a contract strictly speaking, but is a status resulting from the contract to marry. Justice Story speaks of it as "an institution of society founded upon the consent and contract of the parties". (Story, "Confl. Laws", Sec. 108.Note.) All competent persons may intermarry, and marriage being presumed to be for the interest of the State and of the highest public interest, is encouraged. It is held to be a union for life. The law does not permit it to be a subject of experimental or temporary arrangement, but a fixed and permanent status to be dissolved only by death or, where statutes permit, by divorce. In England, the solemnization of a marriage was required to be before a clergyman until the statute passed in 1836, and all other marriages excepting those of Quakers and Jews, were null. By that act civil marriages and those of dissenters from the Church of England are legalized and regulated. In order to constitute a valid marriage there must be a consent of the parties, and in some of the states of the Union no formality is necessary.
By the common law the age at which minors were capable of marrying, known as the age of consent, was fixed at fourteen years for males and twelve years for females. Marriages under the age of seven years for both were void, but between seven and the age of consent the parties could contract an imperfect marriage, which was voidable but not necessarily void. The marriage of parties who had attained the age of consent was valid even though they lacked parental consent, until in England the marriage act of 1753 declared such marriages void. This act, however, has never been the law in the United States. In England under the statute of 32 Henry VIII, c.38, all marriages were made lawful between parties not within the Levitical degrees of relationship; this was interpreted to mean all marriages excepting those between relatives in the direct line and in the collateral line to the third degree, according to the rules of the Civil Law, including both the whole and the half blood. In the United States, in the absence of statutes to the contrary, marriages are unlawful only in the direct ascending and descending line of consanguinity and between brothers and sisters. In most, if not all, of the States, however, there are statutes covering this subject, and in a number of them marriages between first cousins are forbidden. Marriages that are made without formalities, but by the mere consent of the parties, are known as common law marriages. In order to make such marriages effective, there must be a present intention to make the contract and it must be expressed accordingly,(in other words, "per verba de praesenti". Words expressing a future intention do not give the necessary consent, but when words are used with the future intention apparently, followed by consummation, or, as it is said, "per verba de futuro cum copula', a marriage is constituted, the future promise having been converted by action into an actual marriage. Marriages contracted without conforming to a statutory regulations are valid in a number of states and not in others. Formal solemnization is unnecessary. Where no penalty for disobedience of statutory formalities is provided, their omission does not invalidate the marriage.
The requirement of a license to marry was first brought into England by Lord Hardwicke's Marriage Act of 1753. It is not part of the common law of the United States, but very generally licenses are required in the states, though not to the extent of making marriages invalid where they have not been granted. The Society of Friends or Quakers is excepted from the requirement is some of the states, and in other the parties may have recourse to the publication of banns instead of securing a licenses. Parental consent is required in almost all of the states, the age for males being from sixteen to twenty-one and for females from eighteen to twenty-one. In nearly all of the states, if either of the parties has been continuously absent for a number of years and has not been known to be living during that time, the other party may contract a new marriage. The general doctrine of the law on the subject of foreign marriages is that a marriage valid where celebrated is valid everywhere. Exceptions are made in a number of states where citizens go to another jurisdiction in order to evade the laws of the home domicile. In some of the states marriages between persons of different races are made void. If either of the parties is not of sound mind at the time of entering into the marriage, it is void unless confirmed when sanity is regained. Where a physical incapacity exists the marriage may be made void on the application of the other party who was ignorant of the fact. Under the common law a marriage can be annulled for mistake as to identity or fraud. There are certain kinds of fraud where an ordinary contract would be declared void, which do not affect a marriage contract because of public policy. In some of the United States annulment would be allowed for deception as to chastity, but not it is said, in England. Duress sufficient to overcome the will of the consenting party is a cause for annulment unless subsequently ratified. As in England, so in all of the United States there are statutes regulating the formalities in connection with marriages other than common law marriages, and in addition to ministers of the various churches, who for the purpose are looked upon as civil officers, other designated officials are authorized to perform the marriage ceremony, excepting in a few of the states. Marriages may be proved both by direct and circumstantial evidence, the presumption being in favor of a former marriage where there has been cohabitation and reputation.
Where marriages are annulled, the decree relates back to the date of the marriage, while divorce relates only to the date of its own decree (see DIVORCE). Penalties are usually prescribed for violation of statutory regulations relating to a marriage by ministers or other persons authorized to perform the ceremony. Marriage of itself gives to the husband and wife certain interests in the property of the other, both real and personal, which by modern legislation have been largely modified. Formerly the husband was to all intents and purposes owner of his wife's property, but now she has absolute control of it in England and in the United States, reserving to the husband certain rights which become effective after her death. In England under the common law, the marriage of partners after the birth of children does not legitmate them, but in most of the American states and in European continental countries it is sought to encourage marriage by providing that illegitimate children may thus be legitimated. The laws of most foreign countries make strict requirements as to mental capacity, and establish certain degrees of consanguinity and affinity within which marriage cannot be contracted. There are certain impediments, not known in the United States, imposing a period of delay in connection with military service, and providing a time within which a woman may not contract marriage after the dissolution of a previous one. The tendency in continental countries is to establish civil marriage as the only form recognized by the State. This is the law in Belgium, France, Germany, Hungary, Italy, the Netherlands, Rumania, and Switzerland, where the civil ceremony alone is recognized in the eyes of the law, and in most of these countries clergymen are prohibited under severe penalties from performing the religious ceremony before the civil marriage has taken place. A civil ceremony is required in Austria when both parties belong to no legally recognized Faith. There are similar provisions in Denmark, Norway and Sweden. Bulgaria, Finland, Croatia, Slavonia, and Servia recognize the religious ceremony alone.
In Japan a marriage code which became effective in 1898, contains sections dealing with the laws of family and of succession. The form of ceremony is not regulated, but the marriage itself is valid only under certain conditions. The laws of countries other than the United States provide in a number of instances for the consent of parents or guardian after the parties have attained the age of twenty-one years. Thus in Austria parties between the age of fourteen and twenty-four years are incapable of contracting a valid marriage without the consent of their father or, if he be dead or incapable of acting, both of their guardian and of the court. Even for those who have attained the age of twenty-four, but who for any reason are incapable of entering into a valid obligation, e.g. if they have been legally declared spendthrifts, such consent is necessary. In the case of minors of illegitimate birth, the consent both of the guardian and of the court is requisite. In general, persons in military service cannot contract a valid marriage without the written permission of their superiors. A law of 1889 provides that a man shall not be permitted to marry before reaching the age of military service, or before leaving the third age class, i.e., at the age of twenty-three years. In France the man must be at least eighteen years of age and the woman fifteen to contract a valid marriage, unless the President of the Republic grants a special dispensation. By a law dated 25 June, 1907, parental consent is no longer required for men and women over twenty-one years of age, but both men and women under thirty must ask for it and serve upon the dissenting parent or parents an instrument requesting it. The parties may marry three days after service has been made. Under the law previous to that date, men under the age of twenty-five and women under the age of twenty-one could not marry without the consent of their parents or the survivor if one of them was dead.
In England the common law rule of fourteen for males and twelve for females governs the marriage age. Consent of parents is necessary for persons under twenty-one, except for a widow or widower. The proper person to give consent is the father or, if he be dead, the mother, if unmarried, or finally a guardian appointed by the Court. Soldiers must get the consent of their commander. Violation of these provisions does not, however, invalidate the marriage; but in case of soldiers the woman is not recognized as having a military status. In Scotland the impediments are the same as in England, but no consent of parents or guardian is required. Regular marriages are celebrated by some minister of religion in the presence of at least two witnesses, after the publication of banns or issuance of registrar's certificate. Irregular marriages are clandestine marriages, celebrated without publication of banns or notice to the registrar. Such marriages may be made by mere consent without a clergyman and are valid. In Ireland provisions are made for marriages by Episcopalians, Catholics, and Presbyterians, by ministers of other denominations, and by the civil registrars. The impediments to marriage are substantially the same as in England.
In Germany a man may not marry, except in unusual cases, under the age of twenty-one or a woman under the age of sixteen. A legitimate child under the age of twenty-one must obtain the consent of the father or, if he be dead, of the mother; an illegitimate child, the consent of the mother; an adopted child, the consent of the foster parent. Military men, public officials, and foreigners, before marriage, must obtain a special permit, and military men in active service must also obtain the consent of their officers.
In Italy the consent of the parents or next of kin is required for men under twenty-five years of age and for women under twenty-one years of age. In case of refusal of consent, provision is made for an appeal to a court. Foreigners desiring to marry in Italy must present a certificate from a competent authority that they have satisfied the requirements of the laws of their own country. Foreigners ordinarily residing in Italy are subject to the requirements of the Italian law. Military officials cannot marry without the royal permission, which is not given unless they have an assured income of about eight hundred dollars at least, and have made a settlement for the benefit of the bride. Somewhat similar regulations are made for lower officers and privates in revenue service.
In the Netherlands the consent of parents is required of an individual under thirteen years of age. The marriageable age begins with men at eighteen and women at sixteen. If both parents are dead or incapacitated, an individual under twenty-one requires the consent of a grandparent or, in default of a grandparent, of a guardian and second guardian. Officers of the army and navy require the consent of the sovereign before they can marry, and no man between the ages of eighteen and forty may marry unless he has proved he has performed military service or has been excused from it.
In Switzerland the consent of parents is required of all persons under twenty years of age. The consent of parents is required also in Belgium of all persons under the age of twenty-five, the law being somewhat similar to that of France.
In Russia children must obtain the consent of their parents if living, without regard to their age, a man attaining the marriageable age at eighteen and a woman at sixteen.
In Denmark the marriageable age is twenty for men and sixteen for women, and consent of parents must be obtained by minors under the age of twenty-five.
In Sweden females under the age of twenty-one require the consent of a marriage guardian, usually her father or brother or some other male relative. Men require no parental consent. Men may marry at the age of twenty-one or over, and women at the age seventeen or over.
In Norway the marriageable age for men is twenty and for women sixteen. Parental consent is necessary for both parties under the age of eighteen.
Parental consent appears to be necessary, under certain conditions, in all European countries where the parties are under the age of twenty-one and in many where they are liable to military service. In Japan the consent of parents or of the family council is essential to the marriage of a man under thirty and of a woman under twenty-five. The marriage laws of the different Canadian province are not uniform but are quite similar. The minimum age for marriage in the Province of Quebec is fourteen for males and twelve for females. Parental consent is necessary for any one under twenty-one years of age. In Quebec alone of the Canadian Provinces illegitimate children are legitimated by the marriage of their parents. The laws of Australia and New Zealand are based upon the English statutes and common law.
Bishop, Marriage, Divorce and Separation (Chicago, 1891); AM. and Eng. Enc. of Law s.v. Marriage; Bouvier, Law Dictionary; special reports of the Census Office (Washington, 1867-1906, Part I), with a valuable summary of the marriage and divorce laws of all modern States, from which the foregoing facts in relation to foreign countries have been derived.
WALTER GEORGE SMITH