declarations made by the man and the woman that they presently do take each other for husband and wife.” These declarations “may be emitted on any day at any time and without the presence of witnesses,” and either by writing or orally or by signs, and in any form which is clearly expressive of intention. Such a marriage is as effectual to all intents and purposes as a public marriage. The children of it would be legitimate; and the parties to it would have all the rights in the property of each other, given by the law of Scotland to husband and wife. (3) A promise followed by copula does not constitute marriage, unless followed either by solemnization in facie ecclesiae or declarator. Lord Moncreiff’s opinion in the case of Brown v. Burns is admitted to be good law, viz. that declarator is essential to the constitution of a marriage of this kind, so that, if no such declarator be brought in the lifetime of both parties, the marriage can never be established afterwards. The copula is presumed to have reference to the promise, but evidence may be adduced to show that such was not the case.
By the Marriage (Scotland) Act 1856 it is enacted that no irregular marriage shall be valid in Scotland, unless one of the parties has lived in Scotland for the twenty-one days next preceding the marriage, or has his or her usual residence there at the time.
“Habit and repute” has sometimes been spoken of as constituting marriage in the law of Scotland, but it is more correctly described as evidence from which marriage may be inferred. The repute must be the general, constant, and unvarying belief of friends and neighbours, not merely the controverted opinion of a section of them. The cohabitation must be in Scotland, but in one case proof of cohabitation in another country was allowed, as tending to throw light on the nature of the cohabitation in Scotland.
The consent of parents is not necessary to the validity of the marriage, even of minors, but marriage under the age of puberty with or without such consent is void.
United States.—The absence of ecclesiastical courts has suggested difficulties as to the extent to which the law of England on this subject continued to prevail after the revolution. Bishop holds it to be the universal fact running through all the cases that everywhere in the country the English decisions on marriage and divorce are referred to with the same apparent deference which is shown on other subjects to the decisions of the English common law and equity tribunals. The same author observes that “all our marriage and divorce laws, and of course all our statutes on the subject, in so far as they pertain to localities embraced within the limits of particular states, are state laws and state statutes, the national power with us not having legislative or judicial cognisance of the matter within those localities.” Some of the states have extended the ages below which marriage cannot take place. The common law of the states is assumed to be that “a contract per verba de presenti, or per verba de futuro cum copula, constitutes a complete marriage.” Conditions, however, may be imposed by the various state legislatures, and as to these the rule has established itself in American jurisprudence that “a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.” Thus in Pennsylvania, where a statute provided that all marriages “should be solemnized before twelve witnesses,” marriages not so celebrated were nevertheless held to be good. In New Hampshire justices and ministers of the gospel are authorized to solemnize marriage, and all other persons are forbidden to do so under penalties; yet a marriage by consent, as at common law, without justice or minister, has been held valid. On the other hand, under a very similar statute in Massachusetts, it was held that “parties could not solemnize their own marriage,” and that a marriage by mutual agreement, not in accordance with the statute, was void. Bishop regards this as an isolated exception to the general course of the decisions. So when state legislation requires any particular form to be used the want thereof only invalidates the act if the statute expressly so enacts. Many of the state codes inflict penalties on ministers or justices for celebrating the marriage of minors without the consent of the parents or guardians. The original law as to prohibited degrees has been considerably modified in the states. The prohibition of marriage with a deceased wife’s sister has been abolished in the United States. But New Hampshire, Ohio, Indiana, Kansas, Arkansas, Nevada, Washington, the Dakotas and Montana have for long forbidden marriages between first cousins by blood, and Louisiana, Oregon, Pennsylvania, Michigan, Nebraska, Utah and Wisconsin have since adopted the same principle. Virginia prohibits the marriage of a woman with the husband of her brother’s or sister’s daughter.
Attention is also being paid to the question of marriage from a physical point of view. New Jersey prohibits the marriage of any person who has been confined in any public asylum as an epileptic, insane or feeble-minded patient, without a medical certificate from two physicians of complete recovery, and that there is no probability of the transmission of such defects. This prohibits the granting of a marriage licence where either party is an habitual drunkard, epileptic, imbecile or insane, or where the applicant at the time of making application is under the influence of any intoxicant or narcotic drug. In Michigan, Minnesota, Kansas and Oregon, marriage is prohibited to epileptics, &c., except when the woman is over forty-five. In Michigan, also, marriage is forbidden to anyone who has suffered from a venereal disease and has not been cured. The equality of property rights between husband and wife is fully established in America. Indeed, in many states the movement has gone so far as to give the wife in matters of property and in reference to divorce greater privileges than the husband. Thus a husband is often liable for a wife’s debts where a wife would not be, mutatis mutandis, for a husband’s; and a wife may usually obtain a decree of divorce for any ground on which one may be awarded to the husband, and, in addition, for neglect to provide sustenance or support. Emphasis on the personal or moral relation of the parties in marriage tends to throw into the background the legal aspects and requirements; and it tends also to minimize, so far as the state is concerned, the religious and sacramental aspect of marriage. Marriage tends to become a relation established by parties between themselves, and one in which the consent of the parties becomes the only constitutive element. In the theory of American law no ceremony is essential to create the marriage relation. But this position has never been endorsed by any considerable proportion of the community, and in fact probably 910ths and perhaps 99100ths of the marriages in the United States are contracted through some ceremony.
France.—Articles 144–226 of the Code Napoléon, as amended by an act of 1907, prescribe the qualifications and conditions of marriage. The man must be eighteen and the woman fifteen years of age. A son and daughter under twenty-one cannot marry without consent of the father and mother, or of the father only if they disagree, or of the survivor if one be dead. If both are dead grandfather and grandmother take their place. Between the ages of twenty-one and thirty the parties must still obtain the consent of their parents, but if this be refused it can be regulated by means of a “respectful and formal act” before a notary. If the consent is not given within thirty days the marriage may take place without it. If neither parents nor grandparents be alive, parties under twenty-one require the consent of the family council. These rules apply to natural children when affiliated; those not affiliated require the consent of a specially appointed guardian. Marriage is prohibited between all ascendants and descendants in the direct line, and between persons related by marriage in the same line, between brother and sister, between uncle and niece, and brother-in-law and sister-in-law.
Before the solemnization of marriage banns are required to be published for a period of ten days, which must include two Sundays, containing the names, occupations, and domiciles of the parties and their parents. There must be an interval of three days before the marriage can take place, and if a year is allowed to elapse fresh banns must be put up. On the day appointed by the parties, and in the parish to which one of them belongs, the marriage is celebrated by the civil officer or registrar reading over to them the various necessary documents, with the chapter of the code relating to husband and wife, receiving from each a declaration that they take each other for husband and wife, and drawing up the act of marriage. All this has to be done in the presence of four witnesses.
Marriages contracted abroad between French subjects or between French subjects and foreigners are valid in France if celebrated according to the forms of the foreign law, provided the French conditions as to consent of parents have been observed. (See also Marriage with Foreigners Act, supra.)
Germany.—The code of 1900 lays down rules applicable to the celebration of all marriages within the German Empire. Civil marriage alone is recognized by the code. It is effected by the declaration of the parties before a registrar in the presence
