that the second marriage is to all intents and purposes void (1). 2. The marriage of a lunatic, unless where contracted in a lucid interval, is void (m), provided that the insanity is such as to prevent a real appreciation of the engagement apparently entered into (n). The invalidity of the marriage may be asserted, and a decree of nullity obtained, as well by the sane as by the insane party to the marriage (0). In order to avoid the difficulty of proving the exact state of the party's mind at the time of the marriage, it has been specifically provided by the Marriage Act, 1811 (p), that the marriage of a person already found lunatic shall be totally void, unless he or she has been previously declared to have, at the date of the celebration, regained a sound mind. 3. The third (and most frequent) civil incapacity is undue proximity of relationship, whether of consanguinity or of affinity. This disability received statutory recognition by a statute of 1540 (7), which enacted that " no reservation or "prohibition, God's law except, shall trouble or impeach "any marriage without the Levitical degrees " (1). The following marriages are deemed to be within the Levitical degrees, and are accordingly prohibited. (1) Marriages contracted between persons lineally related in infinitum (s); (2) Marriages contracted between collaterals (1) Bro. Ab. tit. Bastardy, pl. 8; Riddleston v. Wogan (1602), Cro. Eliz. 858; Pride v. Bath (1695), 1 Salk. 120; R. v. Harborne (1835), 2 A. & E. 540. (m) Hancock v. Peaty (1867), L. R. 1 P. & D. 335. (n) Durham v. Durham (1885), 10 P. D. 80. (0) Hunter v. Edney (1881), 10 P. D. 93. (p) 51 Geo. 3, c. 37. (7) 32 Hen. 8, c. 38; see also earlier statutes since repealed giving a list of prohibited degrees, 25 Hen. 8 (1534), c. 22, and 28 Hen. 8 (1536), c. 7; Sherwood v. Ray (1831), 1 Moo. P. C. 353, and the 99th canon of 1603. (r) Levit. xviii., xx.; Brook v. Brook (1861), 9 H. of L. Cas. 232. (s) Gibs. Cod. 413; Burn, tit. Marriage, I.; Extrar. de Consanguin. etc. Can. 8; Grot. De (whether of the whole blood or of the half-blood) (t) to the Jure Belli et Paris, 1. 2, ch. 5, (t) Bac. Abr. Marriage, A. (a) Vaughan, 302; Brook v. Brook (1861), 9 H. L. C. 193. (b) See last note. Deceased Wife's (d) Sir T. Raym. 464; R v. Act celebrated in Italy, where it is permitted, has been held valid in this country (e). 4. [The fourth civil disability is want of age, a disability which, as it avoids other contracts, so it avoids this contract also. But it is not necessary to the contract of marriage. that the parties should have obtained their full age of twenty-one; for a male person is enabled by law to consent to matrimony at the age of fourteen, and a female at the age of twelve (f). But even though the male be under fourteen, or the girl under twelve, the marriage is regarded as being inchoate only and imperfect (g), not void; so that either of the parties, upon coming to the proper age for his or her consent, may disagree to (and so avoid) the marriage (h), or else may affirm it.] A marriage between persons, either of whom is under the age years, was by the canon law treated as absolutely void (i), and would probably be so regarded at the present day, though Lord COKE tells us that "if the wife be past the age of nine years at the time of the death of her husband, she shall be endowed, albeit he were but four years old.” of seven And here note, that what is above stated is to be understood of the actual marriage, by which the parties become man and wife; for a promise to marry at a future time, which, like other contracts, gives a right of action for damages in case of its violation (k), is not binding on the defendant unless he or she be at the time of the full age of twenty-one years. But, where there are mutual promises to marry made by two persons, one of the age of twenty-one, and the other under that age, the first may be sued for a breach of his promise, although the latter cannot be sued (1). We have next to consider the forms necessary to the validity of a marriage. The canon law recognised the validity for many purposes of a marriage by mere consent, whether per verba de præsenti or per verba de futuro subsequente copula; but the temporal courts refused to give full effect to a marriage not solemnized in church or at y rate in the presence of a priest (m). The rule that at common law the presence of a clergyman in Anglican orders is essential to the validity of a marriage for all purposes was finally established by R. v. Millis in 1843 (n). If this requirement is complied with, a marriage is, as regards form, validly celebrated in cases where no further formalities are prescribed by statute, as in the case of a marriage on board a British man-of-war (o). But in the majority of cases the formalities necessary to a valid marriage are now regulated by the Marriage Acts, 1811 to 1898, of which the most important are those of 1823 and 1836 (4 Geo. IV. c. 76; 6 & 7 Will. IV. c. 85). By the Marriage Act, 1823 (repealing and in part reenacting the Act 26 Geo. II. c. 33, commonly called "Lord Hardwicke's Act"), the first formality required is, the previous publication of banns upon three suc (1) Hood v. Ward (1732), Str. 937; Warwick v. Bruce (1813), 2 Mau. & Sel. 205; Infants' Relief Act, 1874 (37 & 38 Vict. c. 62); Coxhead v. Muilis (1878), 3 C. P. D. 439; Northcote v. Doughty (1879), 4 C. P. D. 385; Ditcham V. Worrall (1880), 5 C. P. D. 410. (m) Pollock & Maitland, Bk. ii., c. vii.; Haydon v. Gould (1710), 1 Salk. 119. () 10 Cl. & F. 534. The Lords were equally divided, and the force of the decision rests only on the principle of præsumitur pro neganti. The decision was fol lowed in Catherwood v. Caslon (1844), 13 M. & W. 261. It has been decided that a clergyman cannot validly celebrate his own marriage, no other clergyman being present (Beamish v. Beamish (1861), 9 H. L. C. 273). (0) Culling v. Culling, [1896] P. 116. 66 cessive Sundays in the church where the marriage is to be solemnized (p); or, in lieu thereof, a licence from the proper ecclesiastical authority, that the marriage shall be had without banns (7), that is, either a "special" licence from the Archbishop of Canterbury (r), or a common" licence from the ordinary or his surrogate (s). The banns must be published, and the licence granted, in the true names of the marrying parties (t) ; and the marriage must be solemnized within, at the latest, three months after the complete publication of the banns, or grant of the licence (u). The Act also requires, that (except by special licence) the marriage shall be in a church or chapel wherein banns may be lawfully published (e), and shall take place between the hours of eight and twelve in the forenoon; but by the Marriage Act, 1886 (y), the time has now been extended to three in the afternoon. The presence of two witnesses is required, in addition to that. of the minister who celebrates the marriage (). In order to prevent the marriage of persons under the age of twenty-one without the consent of their parents or guardians, the statute also provides, that in the case of the publication of banns of a person under twenty-one, not being a widower or a widow, (either of whom is deemed emancipated by the first marriage,) if the parent or guardian of the infant openly signifies his dissent at the time the banns are published, the publication shall be see (u) Act, 1823, ss. 9, 19. () Ibid. ss. 3, 4, 12, 13; and 58 Geo. 3, c. 45; 59 Geo. 3, c. 134; 5 Geo. 4, c. 32; 6 Geo. 4, c. 92; 11 Geo. 4 & 1 Will. 4, c. 18; 6 & 7 Will. 4, c. 85, ss. 26-34; 7 Will. 4 & 1 Vict. c. 22; 1 & 2 Vict. c. 107, ss. 16, 33, 34; 7 & 8 Vict. c. 56; 20 Vict. c. 19, s. 9; 23 Vict. c. 24. (y) 49 & 50 Vict. c. 14. |