the consent of guardians or relatives, and often of both, was very generally required by the local statutes, if not for the validity of the marriage, at all events for the avoidance of the penalty.[1] On the other hand the law of Zeeland, which penalized and also anulled marriages contracted without such consents, seems to be mentioned as exceptional.[2]
The statutory penalty does not attach the spouse who is a minorWith regard, more particularly, to the statutory penalty, it must be noticed that it attaches only to the person of full age of either sex who inveigles a minor of the other sex into marriage. Such person is not allowed to take any benefit from the property of the minor spouse, whether present or future, whether by gift, legacy, inheritance, or in what way soever. One effect of this is that the major spouse takes no advantage from the mar- riage by way of community of property, nor, where this exists, by ante-nuptial contract.[3] But the minor spouse is not penalized,[4] so that where both spouses are minors the penalty is not incurred.
Consent of parents when the spouses are of full age, It remains to speak of the requirement of consent of parents when the parties to the marriage are of full age. This case is provided for by the Political Ordinance (Art. 3) in the following terms:[5]
'But if any young man or young woman being above the age of twenty-five and twenty respectively and having
parents, apphes for the aforesaid Sunday banns without- ↑ This is (semble) the law in Cape Colony. Mostert v. The Master (1878) Buch. 83. Mr. Justice Kotzé, however, says (Van Leeuwen, vol. i, p. 107, note): 'At the Cape of Good Hope the consent of guardians to the minor's marriage is necessary. Marr. O. in C. 1839, secs. 10 and 17.' In Natal the consent of guardians has been held to be necessary to the valid marriage of a minor. In re McDuling and Brown (1885) 6 N. L. R. 88. In the Transvaal, by Law No. 3 of 1871, sec. 8, it is not lawful to solemnize the marriage of a minor, if he or she cannot produce the consent of father or guardian. In Ceylon, the consent of guardians is required. Ord. No. 19 of 1907, sec. 22. For Brit. Gui. see Ord. No. 25 of 1901, sec. 30.
- ↑ V. d. K. Th. 126.
- ↑ 'The husband, whether he knew at the time or did not know the lady to be a minor, can receive no benefit from such a marriage and can have no control over her property.' Mostert v. The Master (1878) Buch. at p. 85, per Sir Henry de Villiers C.J.,
- ↑ Voet,23.2.20.
- ↑ 1 G. P. B. 331.
