88 89 WANT OF CONSENT NO INVALIDATION OF MARRIAGE ON FOREIGN TERRITORY: FOREIGN MARRIAGE ACT, 1892. 107 THE clear policy of the law requires that the inception of the matrimonial state shall, as far as possible, be safeguarded from fraud and mistake, and not lightly entered upon; therefore every marriage is to be prefaced by certain necessary acts, without which it is either absolutely null and void, or liable to be called in question, and the parties to it severely punished for their tortious or irregular conduct. The lex loci celebrationis determines what necessary acts should preface the inception of the tie; the lex domicilii determines the capacity of the parties to contract marriage. The validity, but not invalidity, of the marriage of any natural born and domiciled English subject may be tested in the Probate Division in a petition by such person for a decree that the marriage is valid under the Legitimacy Declaration Act, 1858.2 The necessary preliminaries will be set forth in this chapter in three sections : Section 1. The consent of proper parties. 2. The essential requirements of a valid marriage in 3. The requirements of a valid marriage celebrated by SECTION I. The Consent of Proper Parties. tracting The nature of marriage renders it absolutely necessary that the Consent of contracting parties should consent to form a binding union; and proper parties. if the ceremony be gone through between infants or minors Infant conwho have not reached the age of consent (twelve in girls and parties. fourteen in boys), the result is an inchoate and imperfect marriage, which may be treated by the parties on attaining the age of consent as null and void without the aid of a judicial sentence, and indeed is now treated by the courts as void. Not only is the consent of the contracting parties requisite, but where the parties are minors, the approbation of those in whose power they are is now by statute strictly required. By common law the marriage of infants who have reached the age of consent is valid per se, and does not require the consent of parents and guardians; but since Lord Hardwicke's Act such consent is requisite by statute. "The father, if living, of any party under twenty-one years of Father or guardian, age, such party not being a widower or widow; or if the father 1 See Re Bethell, Bethell v. Hildyard, 38 Ch. D. 220, and post, chap. xviii. International Aspect of Marriage and Divorce." "The 221 & 22 Vict. c. 93. See Scott v. Att.-Gen. 11 P. D. 128; Brinkley v. Att.Gen., 15 P. D. 76. 3 See ante, p. 74. or mother. riage. shall be dead, the guardian or guardians of the person of the party so under age lawfully appointed, or one of them; and in case there shall be no such guardian or guardians, then the mother of such party, if unmarried; and if there shall be no mother unmarried, then the guardian or guardians of the person appointed by the Court of Chancery, if any, or one of them, shall have authority to give consent to the marriage of such party; and such consent is hereby required for the marriage of such party so under age, unless there shall be no person authorized to give such consent." If the father of the minor be non compos mentis, or if the guardians or mother be also non compotes mentis or beyond seas, &c., or such persons shall unreasonably or from undue motives refuse or withhold their consent, the persons desirous of marrying may apply by petition to the Lord Chancellor, &c., who, on finding the marriage to be a proper one, may declare it to be so; and such declaration shall operate as validating the marriage." 7 1 Want of con- The consent of the proper person has been held to be directory sent of father, &c., does not only, and its want does not render the marriage celebrated withinvalidate mar-out it invalid. A formal writen consent is not requisite, nor a personal knowledge of the party intending to marry the minor. It is enough if the consent be given at the ceremony, which fact may be proved by the presence of the father, who does not express his dissent. Though consent in the case of a marriage by licence, and after publication of banns, is presumed, the presumption does not hold good where the father remained totally ignorant of the marriage for some time after its celebration. Where dissent is openly expressed by the proper parties to a marriage intended to be celebrated after publication of banns, such publication becomes null and void. Where, however, there is no dissent, the publication, even without consent, operates to render the marriage valid, and after solemnization it cannot be set aside.10 Jurisdiction of court over marriages of wards. An action in the Chancery Division relative to infants or their estates makes the infants wards of court, and during the pendency of the suit, attempting to marry," or marrying, or abetting the marriage of the wards, is a contempt, and punishable." The 9 Geo. IV. c. 76, s. 8. 10 Diddear v. Faucit, 3 Phill. 580. 6 Cope v. Burt, 1 Hag. Con. R. 434. 8 Balfour v. Carpenter, 1 Phill. 221. 12 Butler v. Freeman, Ambl. 301; Wellesley v. Duke of Beaufort, 2 Russ. 1; Phipps v. Earl of Anglesea, 1 P. Wms. 696. jurisdiction of the court is not affected by the father of the infant being alive, or by a testamentary guardian having been appointed. Ignorance of the infant being a ward of court does not free the marrying party from the consequences of his act.' The Court of Chancery will restrain its wards from contracting marriages which are likely to prove injurious to them, although they have attained the age of consent, and might contract a valid marriage. It will, therefore, make orders preventing the access of an ineligible or improper person by letter or other means.2 The court in flagrant cases will not content itself with merely committing the party in contempt, but will direct a criminal prosecution. The settlements made by the court on the marriage of its wards will be discussed later on." Illegitimate minors can have no lawfully appointed guardians Bastard except those given to them by the Court of Chancery; and when minors. there are no such guardians appointed, the illegitimate minors may contract a valid marriage without the consent of any person; for their parents (not being lawful parents) have no power either to consent or to object to their marriage. Forfeiture of Property accruing from a Marriage obtained by Forfeiture of Fraud.-Between the passing of Lord Hardwicke's Act and 1823, property under the want of consent of the proper parties avoided the marriages c. 76, 8. 23. of minors which were obtained in fraud of such parties. But in the latter year the Act of 4 Geo. IV. c. 76, s. 23, provided that where marriages (celebrated according to the rites of the Church of England) of minors, who are neither widowers nor widows, by licence or after publication of banns are procured by false oath or fraud, the Attorney- or Solicitor-General may sue for a forfeiture of all estate, right, title, and interest in any property accruing to the party so offending by force of such marriage by information at the relation of a parent or guardian of a minor whose consent has not been given to the marriage." The court may then declare the forfeiture, and order that all the estate and interest as shall have accrued or shall accrue to the offending party by force of the marriage shall be secured under 1 Herbert's Case, 3 P. Wms. 116; Nicholson v. Squire, 16 Ves. 259. See post, Part IV. chap. v. 2 Wellesley v. Duke of Beaufort (ubi sup.); Smith v. Smith, 3 Atk. 305. 3 Priestley v. Lamb, 6 Ves. 421. 4 Post, Part IV. chap. v. 5 Horner v. Horner, 1 Hag. Con. R. 337; Priestley v. Hughes, 11 East 1. 6 The provisions of this section are extended by 6 & 7 Wm. IV., c. 85, s. 43, and 19 & 20 Vict. c. 119, s. 19, to marriages not celebrated according to the rites of the Church. 7 Sect. 25. The complaint of the parent or guardian must be on oath, and made within three months from the time of the marriage becoming known to the relator; and the information must be filed within a year after the solemnization of the marriage. Usual settlement where minor is a female. Requirements of a valid marriage in England. Church of England marriages. the direction of the court for the benefit of the innocent party, or of the issue of the marriage, or of any of them, in such manner as the court shall think fit, for the purpose of preventing the offending party from deriving any interest in real or personal estate, or pecuniary benefits from such marriage. If both parties are guilty, then the property may be settled by the court for the benefit of the issue of the then or any future marriage. Any previous agreements made in contemplation of such marriage are void.1 The proper mode of settling the property of the minor (if a female) by the court has been held to be, that if there be no children, the wife should have the power of appointing the whole, during the coverture by will, and if she survive her husband, either by deed or will; if there be children, and the wife die first, then the whole to go to the children-if sons, at twenty-one, and if daughters, at twenty-one or marriage; but if she survive her husband, then two-thirds go to the children of the marriage, and one-third to be subject to her appointment by deed or will. This latter provision enables her to provide for a second marriage. Where the fund is small, the court will order it not to be settled, but paid into court; and will declare the trusts of it both in possession and in reversion.3 The court will not now make an order for a settlement in these cases, unless the Attorney-General appears separately from the relator.* SECTION 2. The Essential Requirements of a Valid Marriage in England. When persons intending marriage have obtained the consent (if necessary) of the proper parties to their union, they must celebrate or solemnize their marriage in a lawful and recognized manner, after satisfying the requisite formalities imposed upon them by law. This section will be subdivided into two parts; namely: 1. The essential requirements of a marriage celebrated in accordance with the rites of the Church of England. essential requirements of Nonconformist marriages. 2. The (1) Church of England Marriages.-Where marriages are celebrated according to the rights of the Established Church, the preliminary requirements are either (a) publication of banns; (b) or special licence; (c) or common or Ordinary's Licence; (d) or superintendent-registrar's certificate in lieu of publication 1 Sect. 24. 2 Att.-Gen. v. Lucas, 2 Ph. 753; followed in Att.-Gen. v. Read, L. R. 12 Eq. 38. 3 Att.-Gen, v. Clements, L. R. 12, Eq. 32. 4 Att.-Gen. v. Read (ubi sup.). |