Powers of district registrars. Option as to district registry. is contention as to the grant, until such contention is terminated or disposed of by decree or otherwise, or in which it otherwise appears to him that probate or administration ought not to be granted in common form. As it is not unlikely that the district registrar may occasionally find himself face to face with a problem of considerable difficulty, a correction to his possible inopia consilii (to borrow Mr. Coote's phrase) is provided by another section, which provides, "In every case where it appears to a district registrar that it is doubtful whether the probate or letters of administration which may be applied for should or should not be granted, or where any question arises in relation to the grant of any probate or administration, the district registrar shall transmit a statement of the matter in question to the registrars of the Court of Probate, who shall obtain the directions of the judge in relation thereto, and the judge may direct the district registrar to proceed in the matter of the application according to such instructions as to the judge may seem necessary, or may forbid any further proceeding by the district registrar in relation to the matter of such application, leaving the party applying for the grant in question to make application to the Court of Probate through the principal registry or (if the case be within its jurisdiction) to a county court." It is, however, purely optional for the applicant to apply to a district registry for a grant of probate or administration, as the Act provides that" it shall not be obligatory on any person to apply for probate or administration to any district registry or through any county court" (1). (1) 20 & 21 Vict. c. 77, s. 59, and rule 1, Rules of 1862. BOOK X. DIVORCE. CHAPTER I. JURISDICTION. Divorce The jurisdiction in divorce and matrimonial matters now Creation of vested in the Probate, Divorce, and Admiralty Division of the High Court of Justice (1), was originally given to the Divorce Court, then first created by the Act passed in 1857 (2), to amend the law relating to divorce and matrimonial causes in England. Before that Act complete relief from the matrimonial bond could only be obtained by means of a private Act of Parliament, which is still occasionally resorted to in respect to cases which come from Ireland. Under the system existing prior to 1857 in England, and still existing, so far as Ireland is concerned, three distinct tribunals had to be resorted to: 1. A Court of law for damage against the adulterer. "The ancient but not venerable" action for criminal conversation or "crim. con." as it was called was abolished by 20 & 21 Vict. c. 85, s. 59. 2. A Court Ecclesiastical for divorce a mensa et thoro, equivalent to a judicial separation; and 3. The Imperial Parliament for a dissolving statute (3). See, as to the practice of the House of Lords in respect of Divorce Bills, post, p. 1046. The jurisdiction of the Divorce Division is confined to matters Territorial matrimonial in England. England, as defined by Act of Parlia- extent of jurisdicment (4) explained by the decisions of the Court, signifies tion. England, Wales, and Berwick-on-Tweed, but not the Isle of Man or the Channel Islands. All other countries are foreign to the Divorce Division. "The Court," as was said by a celebrated judge in a celebrated case, "is a Court for England, not for the United Kingdom or for Great Britain; and for the purposes of (1) Judicature Act, 1873, s. 34. (2) 20 & 21 Vict. c. 85. (3) See Macqueen's Practice of Parliamentary Divorce, 465, et seq. (1) 20 Geo. 2. c. 42, s. 3, and sec Ford's Matrimonial Law, p. 2. English this jurisdiction, Ireland and Scotland are to be deemed foreign countries equally with France or Spain " (1). The expression "Divorce and matrimonial causes," implies that the first question arising will relate to the marriage in consequence of which the suit is brought, for, unless there has been at least a ceremony of marriage, there can be no inquiry in the matrimonial court. Marriages which render matrimonial proceedings necessary here in England may be classed under two titles, foreign and English. Foreign marriages, are marriages contracted out of England, or with a man who has a foreign domicile. All marriages which are the subject of judicial inquiry here must have been contracted in accordance with the marriage law of the country in which the ceremony was performed, i.e. according to the lex loci contractus (2), and on the same basis as marriages throughout Christendom, which have for their object the voluntary union for life of one man and one woman to the exclusion of all others. In a case decided this year, in which the authorities in the law as to the validity of a marriage were carefully considered, the question was whether a marriage which had been contracted in Bechuanaland, according to the customs of a tribe among whom polygamy was allowed, was a valid one. The marriage ceremony was thus described: "When the consent of the parents has been obtained the bridegroom slaughters a sheep, a buck, an ox, or The head of the animal is taken to the bride's parents, as also is the hide, which is cleaned and softened. They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife's parents " (3). cow. The Court decided that this union was not a valid marriage according to the law of England. "I am bound," said the judge, "by the authorities, to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it be formed on the same basis as marriages throughout Christendom, and be in its essence 'the voluntary union for life of one man and one woman to the exclusion of all others."" We come now to English marriages. (1) Per Sir Cresswell Cresswell, Yelverton v. Yelverton, 1 Sw. & Tr. 586 (1859). (2) Sottomoyor, otherwise De Barros v. De Barros, 3 P. D. 1. (3) Re Bethell. Bethell v. Hildyard, 38 Ch. D. 220. English Marriages. In order that an English marriage should be valid, it is Requisites necessary- 1. That the parties should be capable of contracting marriage, i.e., they must be single persons, not within the prohibited degrees of consanguinity or affinity, and there must be consent, sound mind, and ability to perform the duties of matrimony (see post, Nullity of Marriage). 2. That the form, place, and time of marriage should be according to law (1). THE FORM OF MARRIAGE. The forms and ceremony of marriage are chiefly regulated by 4 Geo. 4, c. 76, and 6 & 7 Will. 4, c. 85, and the other" Registration Acts." Marriage can be effected in four different ways:— 1. By banns. 2. By common licence. 3. By special licence. 4. By a registrar's certificate. (1.) With licence. (2.) Without licence (2). An Act to be cited as the Marriage Act, 1890 (53 & 54 Vict. c. 47), which came into operation on Jan. 1, 1891, provides, among other things, that every marriage between parties of whom one at least is a British subject, which shall be solemnized in accordance with the provisions of the Act in the house of any British ambassador or minister residing within the country to the Court of which he is accredited, shall be deemed and held to be as valid in the law as if it had been solemnized within the United Kingdom with a due observance of all forms required by law, and the Consular Marriage Acts, as amended by the Act, and as modified by adaptations made in pursuance of the Act, shall apply accordingly. Regulations on the subject may be made by the Queen in Council. It is also provided by the same Act that every marriage () See Ford's Matrimonial Law, where the law is summed up as follows: "The rules as to mode and place of marriage are liable to certain qualifications for the protection of either party to the contract who may have acted in good faith. consent, sound mind, and capacity, But are essential ingredients of a valid (2) Dixon on Divorce, p. 17. of mar riage. Marriage by banns. Marriage by banns. Common licence. Special licence. between parties of whom one at least is a British subject which, from and after the commencement of this Act, shall be solemnized in accordance with the provisions of this Act on board one of Her Majesty's vessels on a foreign station, shall be deemed and hela to be as valid in the law as if the same had been solemnized within the United Kingdom with a due observance of all forms required by law. When the marriage is by banns the statute (1) prescribes that the "Banns shall be published in an audible manner in the parish church or in some public chapel in which banns may be lawfully published, of or belonging to the parish or chapelry wherein the persons to be married shall dwell, according to the prescribed form of words and at the prescribed time, upon Three Sundays preceding the solemnization of the marriage; and whensoever it shall happen that the persons to be married shall dwell in divers parishes or chapelries, the banns shall, in like manner be published in the church or in the chapel as before mentioned, belonging to the parish or chapelry wherein each of the said persons shall dwell." It is also provided that if any persons shall knowingly and wilfully intermarry without one publication of banns the marriage shall be void to all intents and purposes. The statute further enacts "All other rules prescribed by the Rubric on the subject, shall be duly observed, and that in all cases where banns shall have been published, the marriage shall be solemnized in one of the parish churches or chapels where the banns shall have been published and in no other place whatsoever." The common licence is that of the Ordinary or Surrogate of the place where the ceremony is performed. The special licence is that of the Archbishop of Canterbury (2). THE CEREMONY OF MARRIAGE. The ceremony, if after banns in a church, must until 10th of May, 1886, have been performed by a clergyman, between the hours of 8 and 12 A.M. (3), and attested by two other witnesses (4). It may now, since the passing of the Marriage Act, (1) 4 Geo. 4, c. 76, s. 2; and see Templeton v. Tyree, 2 P. & D. 420. (2) See as to special licence: 25 Hen. 8, c. 21; and as to common licence, 10 & 11 Vict. c. 98, s. 5. All questions concerning marriage licences were excepted from the juris- |