CHAPTER V.

CONTRACT OF MARRIAGE.

Requisites to its validity.-Consent.-Force, fraud, fear, mistake.-Capacity.-Impediments.-Mental incapacity.-Impotency.-Want of age.— Want of parent's consent.-Under the civil law.-Former law of France. -Code Civil.-Law of Holland, Spain, England before the Marriage Act. -Under the present Marriage Act of England.-Law of Scotland, Ireland, Colonies.—Impediments of consanguinity and affinity.-A second marriage, the husband or wife of a prior marriage being still alive.-The absence of either for a certain length of time.-Effect of, under the civil law.—The law of England.-Putative marriages.

THE STATUS OF MARRIAGE, OR THE RELATION OF
HUSBAND AND WIFE.

In treating of this status, the subjects of enquiry are, 1st, The constitution of the status; or, what is essential to the validity of a marriage. 2ndly, The personal powers, capacities, or disabilities incident to it; and the rights of the husband and wife in the property, real and personal, which either possessed at the time of their marriage, or acquired during the coverture and 3rdly, The termination of the status; or the dissolution of the marriage by divorce, or by the death of either of the parties.

It is necessary to appropriate to each of these subjects a distinct and separate consideration, because the law which decides whether the marriage is valid, that is, whether the status exists, may not be that to which recourse is had in ascertaining the powers, capacities, or disabilities incident to the status, or the rights of

the husband and wife in the property of each other. Again, it may be necessary to resort to the law of another country, in order to determine whether the status is terminated; or, in other words, whether the marriage is dissolved by divorce.

Questions arise under these several heads, in which there may be the conflicting laws of different countries, whenever the place in which the marriage is celebrated is not that of the parties' domicile at the time of their marriage, or that of their subsequent domicile, or that in which their real property is situated, or that in which the marriage is dissolved.

SECTION I.

OF CONSENT AND CAPACITY.

MARRIAGE, which in its origin is a contract of natural law, has become, in civil society, a civil contract, regulated by law, and endowed with civil consequences. In most civilized countries the sanctions of religion have been superadded to it. In catholic countries it is regarded as a sacrament. (a)

It is here treated as a civil contract. Its alliance with religion is only considered in respect of those religious rites which are enjoined by municipal law, and made essential to its validity.

The civil law defines it to be "conjunctio maris et fœminæ consortium omnis vitæ, divini et humani juris communicatio." (b)

Its validity, like that of every other civil contract,

(a) Lord Stowell in Dalrymple and Dalrymple, reported by Dr. Dodson, (b) Dig. lib. 23, tit. 2, § 1.

p. 11.

depends on the will and capacity of the persons to make it, and on its being made in the manner and with the solemnities required by law.

The will or consent of the parties is the very essence of the contract. "Nuptiæ consistere non possunt, nisi consentiant omnes; id est, qui cöeunt, quorumque in potestate sunt." (a) "Nuptias non concubitus sed consensus facit." (b)

Hence, a marriage which takes place under the influence of fraud, force, or fear, is ipso facto void. "Metus non vani hominis sed qui merito et in hominem constantissimum cadat." But the subsequent voluntary cohabitation of persons, when the fear or force no longer exists, will give validity to the marriage. (c)

There is also an absence of will or consent when either party marries under the influence of error or mistake, circa substantia; as in respect of the person or sex, but not when it regards the name, fortune, or personal qualities. (d)

According to the Code Civil, a suit for nullity of marriage on either of these grounds cannot be sustained, if there has been an uninterrupted cohabitation between the parties as man and wife for the space of six months, after the complete restoration of liberty of the person alleged to be under coercion; or, in case of error of person, after the error has been discovered. (e) So a marriage celebrated between parties, where the free consent of both parties, or that of either of them, shall be wanting, or where there has been an error of person, can only be impeached by the parties themselves, or by

(a) Dig. lib. 23, tit. 2, 1. 2.

(b) Ib. lib. 50, tit. 17, 1. 30.

(c) Dig. lib. 4, tit. 2, 1. 6. Brouwer, de Jure Connub. lib. 1, c. 17, n. 6, 7. Perez, Cod. lib. 5, tit. 4, n. 9. Van Leeuwen, Cens. For. part 1, lib. 1, c. 13, n. 6, 7. Harford v. Morris, 2 Hag. Cons. Rep. 423. Portsmouth v. Portsmouth, 1 Hagg. Eccles. Rep. 355. Christ. Dec. vol. 2, Decis. 114. (d) Perez, Cod. lib. 5, tit. 4, n. 9. Brouwer, de Jure Connub. c. 18, n. 6.

Wakefield v. M‘Kay, 1 Phill. 134. Code Civil, art. 1110. (e) Art. 181.

that one party whose consent has not been free, or on whom the imposition has been practised. (a)

The persons must be capable of contracting marriage; that is, they must not labour under any of the personal incapacities which the law has opposed to their marriage.

There were certain impediments to marriage peculiar to the civil law, which are not adopted in the codes of other countries. These were impediments described as being ex causa potestatis. Thus a tutor or curator could not marry his ward until his office had terminated, or unless his accounts had been passed. A person administering a government, or public office, in a province, and the members of his family, were not permitted to intermarry with a person domiciled in his province, unless they had been betrothed to each other before he had accepted the office. (b) Notwithstanding these prohibitions, the subsequent voluntary cohabitation of the parties, after the relationship which caused the prohibition had ceased, rendered the marriage valid ab initio. (c)

To these impediments might be added others. "Ex causa publicæ honestatis-ex causa inæqualitatis conditionis aut dignitatis-ex causa diversitatis religionis." The impediment founded on the difference of the religious creeds of the parties is adopted by the law of Spain, if the party be not a Christian. (d)

The other impediments, which are common to the codes of all countries are-1st, Mental incapacity; 2nd, Impotence existing at the time of the marriage; 3rd, The want of age; 4th, The want of the parents' or guardians' consent; 5th, Cognatio aut affinitas; 6th, A prior marriage, or having another husband or wife.

The marriage of a lunatic, or insane person, which

(a) Code Civil, Art. 180.

(c) Voet, lib. 23, tit. 2, n. 39.

(b) Pothier on the Pandects, lib. 23, tit. 2. (d) L. 15, tit. 2, p. 4.

does not take place during a lucid interval, is absolutely void.

By the laws of England and Ireland, a marriage with a party who has been found insane under a commission of lunacy, or the care of whose person has been committed to trustees, if it take place before he has been declared of sound mind by the chancellor, or a majority of his trustees, is void. (a)

The physical impossibility of consummating the marriage, or impotency, is another ground for annulling the marriage contract. (b)

From the opportunities which this cause of nullity affords for collusion between the parties, the strictest proof is required. In countries adopting the canon law, suits for setting aside the marriage are not permitted to be entertained, except in those cases where the imperfection is palpable, unless the parties have been in continued cohabitation for three years; and when the proof of the defect is doubtful, a further cohabitation is enjoined. (c)

In France this cause of nullity was so scandalously abused, that the Code Civil does not enumerate it amongst the other impediments to a lawful marriage. It has, however, been decided by the Court of Appeal at Treves, to be a valid ground for annulling a marriage. (d)

This impediment renders the marriage voidable, and not ipso facto void. The marriage remains, therefore, valid, unless it be set aside in the lifetime of the parties. A party contracting a marriage, with knowledge of his impotency, cannot annul his contract. (e)

(a) 15 Geo. 2, c. 30. 51 Geo. 3, c. 37.

(b) Greenstreet v. Cumyns, 2 Phill. 10. Brown v. Brown, 1 Hagg. Eccles. Rep. 523. Briggs v. Morgan, 2 Hagg. Cons. Rep. 324.

(c) Oughton, tit. 217. Ayliffe's Parergon, tit. Divorce.

(d) 27 Jan. 1808. Sirey, An. 1808, part 2, p. 214. 1 Toullier, p. 443. (e) 3 Phill. 147, Norton and Seton.