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|18||Wedding ceremony participants||1,814|
|32||Age at first marriage||1,149|
|33||Legal status of polygamy||1,136|
|37||International marriage agency||990|
|42||Jewish views on marriage||784|
|52||Same-sex marriage legislation around the world||569|
|58||Fathers' rights movement||431|
|59||Alienation of affections||392|
|70||Living apart together||287|
|71||Dowry law in India||278|
|73||Fear of commitment||270|
|76||Islamic marital practices||245|
|82||Cost of raising a child||197|
|90||Marriage in ancient Rome||164|
|91||Stag and doe||161|
|92||Emotionally focused therapy||152|
|99||Proposal of relationship||132|
|104||Buddhist view of marriage||108|
|108||Criticism of marriage||92|
|111||Visual markers of marital status||77|
|113||The Act of Marriage||75|
|117||Open marriage styles||66|
|119||Breach of promise||60|
|121||Open marriage jealousy||57|
|122||Adultery in literature||56|
|131||Open marriage relationship||41|
|133||Green card marriage||40|
|135||Parents' rights movement||37|
|136||Weddings in the United States||35|
|143||Convention on the Nationality of Married Women||30|
|145||Cousin marriage case law in the United States||29|
|148||Love & Respect||28|
|155||Effects of marriage||25|
|156||Grounds for divorce||25|
|157||Cousin marriage in the Middle East||25|
|162||Ancient Greek marriage law||20|
|164||Marriage of state||18|
|167||Open marriage acceptance||16|
|169||Iran's Family Protection Law||16|
|172||Open marriage incidence||14|
|186||Late Bloomer Bride||8|
|188||Simmons v. Simmons||7|
|189||Weinberger Law Group||7|
|191||Jewish prenuptial agreement||6|
|194||Marriage abroad||less than 5 views|
|195||Royal Pragmatic on Marriage||less than 5 views|
|196||People with the longest marriages||less than 5 views|
|197||Marriage mill||less than 5 views|
|198||Servile marriage||less than 5 views|
|199||Megullia Dotata||less than 5 views|
|200||Bitlaha||less than 5 views|
|201||Tongqi||less than 5 views|
|202||Cunningham v. Cunningham||less than 5 views|
This category has the following 7 subcategories, out of 7 total.
The following 185 pages are in this category, out of 185 total. This list may not reflect recent changes (learn more).
Romantic relationship events
Feelings and emotions
|Entering into marriage|
|Legal states similar|
|CohabitationTemplate:· Civil union|
|Dissolution of marriage|
|AnnulmentTemplate:· DivorceTemplate:· Alimony|
|Issues affecting children|
|PaternityTemplate:· LegitimacyTemplate:· Adoption|
Legal guardianTemplate:· Foster care
WardTemplate:· Emancipation of minors
Grandparent visitation Parental responsibility
Contact (including visitation)
Parenting planTemplate:· Residence in UK
CustodyTemplate:· Child support
|Spousal abuseTemplate:· Child abuse|
Child abductionTemplate:· Child marriage
AdulteryTemplate:· BigamyTemplate:· Incest
|Conflict of laws|
|MarriageTemplate:· NullityTemplate:· Divorce|
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found. Such a union, often formalized via a wedding ceremony, may also be called matrimony.
People marry for many reasons, including one or more of the following: legal, social, emotional, economical, spiritual, and religious. These might include arranged marriages, family obligations, the legal establishment of a nuclear family unit, the legal protection of children and public declaration of commitment.
Marriage practices are very diverse across cultures, yet almost every known society has had some form of marriage between a man and a woman. In some societies an individual is limited to being in one such couple at a time (monogamy), while other cultures allow a male to have more than one wife (polygyny) or, less commonly, a female to have more than one husband (polyandry). Some societies also allow marriage between two males or two females. Societies frequently have other restrictions on marriage based on the ages of the participants, pre-existing kinship, and membership in religious or other social groups.
The act of marriage usually creates normative or legal obligations between the individuals involved. In some societies these obligations also extend to certain family members of the married persons. Almost all cultures that recognize marriage also recognize adultery as a violation of the terms of marriage, and forbid incestuous marriages. In cultures that allow the dissolution of a marriage this is known as divorce.
Marriage is usually recognized by the state, a religious authority, or both. It is often viewed as a contract. Civil marriage is the legal concept of marriage as a governmental institution irrespective of religious affiliation, in accordance with marriage laws of the jurisdiction. If recognized by the state, by the religion(s) to which the parties belong or by society in general, the act of marriage changes the personal and social status of the individuals who enter into it.
|“||Marriage is the union of two different surnames, in friendship and in love, in order to continue the posterity of the former sages, and to furnish those who shall preside at the sacrifices to heaven and earth, at those in the ancestral temple, and at those at the altars to the spirits of the land and grain.||”|
Anthropologists have proposed several competing definitions of marriage so as to encompass the wide variety of marital practices observed across cultures. In his book The History of Human Marriage (1921), Edvard Westermarck defined marriage as "a more or less durable connection between male and female lasting beyond the mere act of propagation till after the birth of the offspring." In The Future of Marriage in Western Civilization (1936), he rejected his earlier definition, instead provisionally defining marriage as "a relation of one or more men to one or more women that is recognised by custom or law".
The anthropological handbook Notes and Queries (1951) defined marriage as "a union between a man and a woman such that children born to the woman are the recognized legitimate offspring of both partners." In recognition of a practice by the Nuer of Sudan allowing women to act as a husband in certain circumstances, Kathleen Gough suggested modifying this to "a woman and one or more other persons."
Edmund Leach criticized Gough's definition for being too restrictive in terms of recognized legitimate offspring and suggested that marriage be viewed in terms of the different types of rights it serves to establish. Leach expanded the definition and proposed that "Marriage is a relationship established between a woman and one or more other persons, which provides that a child born to the woman under circumstances not prohibited by the rules of the relationship, is accorded full birth-status rights common to normal members of his society or social stratum" Leach argued that no one definition of marriage applied to all cultures. He offered a list of ten rights associated with marriage, including sexual monopoly and rights with respect to children, with specific rights differing across cultures.
Duran Bell also criticized the legitimacy-based definition on the basis that some societies do not require marriage for legitimacy, arguing that in societies where illegitimacy means only that the mother is unmarried and has no other legal implications, a legitimacy-based definition of marriage is circular. He proposed defining marriage in terms of sexual access rights.
The modern English word "marriage" derives from Middle English mariage, which first appears in 1250–1300 C.E. This in turn is derived from Old French marier (to marry) and ultimately Latin marītāre (to marry) and marītus (of marriage).
[[File:|thumb|right|A Wedding Ring]] Although the institution of marriage pre-dates reliable recorded history, many cultures have legends concerning the origins of marriage. The way in which a marriage is conducted and its rules and ramifications has changed over time, as has the institution itself, depending on the culture or demographic of the time. Various cultures have had their own theories on the origin of marriage. One example may lie in a man's need for assurance as to paternity of his children. He might therefore be willing to pay a bride price or provide for a woman in exchange for exclusive sexual access. Legitimacy is the consequence of this transaction rather than its motivation. In Comanche society, married women work harder, lose sexual freedom, and do not seem to obtain any benefit from marriage. But nubile women are a source of jealousy and strife in the tribe, so they are given little choice other than to get married. "In almost all societies, access to women is institutionalized in some way so as to moderate the intensity of this competition." Forms of group marriage which involve more than one member of each sex, and therefore are not either polygyny or polyandry, have existed in history. However, these forms of marriage are extremely rare. Of the 250 societies reported by the American anthropologist George P. Murdock in 1949, only the Caingang of Brazil had any group marriages at all.
For most of European history, marriage was more or less a business agreement between two families who arranged the marriages of their children. Romantic love, and even simple affection, were not considered essential.[dubious ] Historically, the perceived necessity of marriage has been stressed.
In Ancient Greece, no specific civil ceremony was required for the creation of a marriage - only mutual agreement and the fact that the couple must regard each other as husband and wife accordingly. Men usually married when they were in their 20s or 30s and expected their wives to be in their early teens. It has been suggested that these ages made sense for the Greek because men were generally done with military service by age 30, and marrying a young girl ensured her virginity. Married Greek women had few rights in ancient Greek society and were expected to take care of the house and children. Time was an important factor in Greek marriage. For example, there were superstitions that being married during a full moon was good luck and, according to Robert Flacelière, Greeks married in the winter. Inheritance was more important than feelings: A woman whose father dies without male heirs can be forced to marry her nearest male relative—even if she has to divorce her husband first.
There were several types of marriages in ancient Roman society. The traditional ("conventional") form called conventio in manum required a ceremony with witnesses and was also dissolved with a ceremony. In this type of marriage, a woman lost her family rights of inheritance of her old family and gained them with her new one. She now was subject to the authority of her husband. There was the free marriage known as sine manu. In this arrangement, the wife remained a member of her original family; she stayed under the authority of her father, kept her family rights of inheritance with her old family and did not gain any with the new family. The minimum age of marriage for girls was 12.
From the early Christian era (30 to 325 CE), marriage was thought of as primarily a private matter, with no uniform religious or other ceremony being required. However, bishop Ignatius of Antioch writing around 110 to bishop Polycarp of Smyrna exhorts, "[I]t becomes both men and women who marry, to form their union with the approval of the bishop, that their marriage may be according to God, and not after their own lust."
In the 12th century women were obligated to take the name of their husbands and starting in the second half of the 16th century parental consent along with the church's consent was required for marriage .
With few local exceptions, until 1545, Christian marriages in Europe were by mutual consent, declaration of intention to marry and upon the subsequent physical union of the parties. The couple would promise verbally to each other that they would be married to each other; the presence of a priest or witnesses was not required. This promise was known as the "verbum." If freely given and made in the present tense (e.g., "I marry you"), it was unquestionably binding; if made in the future tense ("I will marry you"), it would constitute a betrothal. One of the functions of churches from the Middle Ages was to register marriages, which was not obligatory. There was no state involvement in marriage and personal status, with these issues being adjudicated in ecclesiastical courts. During the Middle Ages marriages were arranged, sometimes as early as birth, and these early pledges to marry were often used to ensure treaties between different royal families, nobles, and heirs of fiefdoms. The church resisted these imposed unions, and increased the number of causes for nullification of these arrangements. As Christianity spread during the roman period and the Middle Ages, the idea of free choice in selecting marriage partners increased and spread with it.
The average age of marriage in the late 13th century into the 16th century was around 25 years of age.
As part of the Protestant Reformation, the role of recording marriages and setting the rules for marriage passed to the state, reflecting Martin Luther's view that marriage was a "worldly thing". By the 17th century many of the Protestant European countries had a state involvement in marriage. As of 2000, the average marriage age range was 25–44 years for men and 22–39 years for women. In England, under the Anglican Church, marriage by consent and cohabitation was valid until the passage of Lord Hardwicke's Act in 1753. This act instituted certain requirements for marriage, including the performance of a religious ceremony observed by witnesses.
As part of the Counter-Reformation, in 1563 the Council of Trent decreed that a Roman Catholic marriage would be recognized only if the marriage ceremony was officiated by a priest with two witnesses. The Council also authorized a Catechism, issued in 1566, which defined marriage as, "The conjugal union of man and woman, contracted between two qualified persons, which obliges them to live together throughout life."
In the early modern period, John Calvin and his Protestant colleagues reformulated Christian marriage by enacting the Marriage Ordinance of Geneva, which imposed "The dual requirements of state registration and church consecration to constitute marriage" for recognition.
In England and Wales, Lord Hardwicke's Marriage Act 1753 required a formal ceremony of marriage, thereby curtailing the practice of Fleet Marriage. These were clandestine or irregular marriages performed at Fleet Prison, and at hundreds of other places. From the 1690s until the Marriage Act of 1753 as many as 300,000 clandestine marriages were performed at Fleet Prison alone. The Act required a marriage ceremony to be officiated by an Anglican priest in the Anglican Church with two witnesses and registration. The Act did not apply to Jewish marriages or those of Quakers, whose marriages continued to be governed by their own customs.
In England and Wales, since 1837, civil marriages have been recognized as a legal alternative to church marriages under the Marriage Act of 1836. In Germany, civil marriages were recognized in 1875. This law permitted a declaration of the marriage before an official clerk of the civil administration, when both spouses affirm their will to marry, to constitute a legally recognized valid and effective marriage, and allowed an optional private clerical marriage ceremony.
In contemporary English common law, a marriage is a voluntary contract by a man and a woman, in which by agreement they choose to become husband and wife. Edvard Westermarck proposed that "the institution of marriage has probably developed out of a primeval habit".
The mythological origin of Chinese marriage is a story about Nüwa and Fu Xi who invented proper marriage procedures after becoming married. In ancient Chinese society, people of the same surname were not supposed to marry and doing so was seen as incest. However, because marriage to one's maternal relatives was not thought of as incest, families sometimes intermarried from one generation to another. Over time, Chinese people became more geographically mobile. Individuals remained members of their biological families. When a couple died, the husband and the wife were buried separately in the respective clans’ graveyard. In a maternal marriage, a male would become a son-in-law who lived in the wife's home.
The New Marriage Law of 1950 radically changed Chinese marriage traditions, enforcing monogamy, equality of men and women, and choice in marriage; arranged marriages were the most common type of marriage in China until then.
While it is a relatively new practice that same-sex couples are being granted the same form of legal marital recognition as commonly used by mixed-sex couples, recent publicity and debate over the past decade gives an impression that civil marriage for lesbian and gay couples is novel and untested. There is a long history of recorded same-sex unions around the world. It is believed that same-sex unions were celebrated in Ancient Greece and Rome, some regions of China, such as Fujian, and at certain times in ancient European history. A law in the Theodosian Code (C. Th. 9.7.3) issued in 342 CE imposed severe penalties or death on same-sex marriage in ancient Rome but the exact intent of the law and its relation to social practice is unclear, as only a few examples of same-sex marriage in that culture exist.
There is wide cross-cultural variation in the social rules governing the selection of a partner for marriage. There is variation in the degree to which partner selection is an individual decision by the partners or a collective decision by the artners kin groups, and there is variation in the rules regulating which partners are valid choices.
In many societies the choice of partner is limited to suitable persons from specific social groups. In some societies the rule is that a partner is selected from an individual's own social group - endogamy, this is the case in many class and caste based societies. But in other societies a partner must be chosen from a different group than one's own - exogamy, this is the case in many societies practicing totemic religion where society is divided into several exogamous totemic clans, such as most aboriginal Australian societies. In other societies a person is expected to marry their cross-cousin, a woman must marry her father's sister's son and a man must marry his mother's brother's daughter - this is often the case if either a society has a rule of tracing kinship exclusively through patrilineal or matrilineal descent groups as among the Akan people of Africa. Another kind of marriage selection is the levirate marriage in which widows are obligated to marry their husband's brother, this is mostly found in societies where kinship is based on endogamous clan groups.
In other cultures with less strict rules governing the groups from which a partner can be chosen the selection of a marriage partner may involve either the couple going through a selection process of courtship or the marriage may be arranged by the couple's parents or an outside party, a matchmaker.
A pragmatic (or 'arranged') marriage is made easier by formal procedures of family or group politics. A responsible authority sets up or encourages the marriage; they may, indeed, engage a professional matchmaker to find a suitable spouse for an unmarried person. The authority figure could be parents, family, a religious official, or a group consensus. In some cases, the authority figure may choose a match for purposes other than marital harmony.
In rural Indian villages, child marriage is also practiced, with parents at times arranging the wedding, sometimes even before the child is born. This practice is now illegal under the Child Marriage Restraint Act.
In some societies ranging from Central Asia to the Caucasus to Africa, the custom of bride kidnapping still exists, in which a woman is captured by a man and his friends. Sometimes this covers an elopement, but sometimes it depends on sexual violence. In previous times, raptio was a larger-scale version of this, with groups of women captured by groups of men, sometimes in war; the most famous example is The Rape of the Sabine Women, which provided the first citizens of Rome with their wives.
Other marriage partners are more or less imposed on an individual. For example, widow inheritance provides a widow with another man from her late husband's brothers.
A marriage is usually formalized at a wedding or marriage ceremony. The ceremony may be officiated either by a religious official, by a government official or by a state approved celebrant. In many European and some Latin American countries, any religious ceremony must be held separately from the required civil ceremony. Some countries - such as Belgium, Bulgaria, France, the Netherlands, Romania and Turkey - require that a civil ceremony take place before any religious one. In some countries - notably the United States, Canada, the United Kingdom, the Republic of Ireland, Norway and Spain - both ceremonies can be held together; the officiant at the religious and civil ceremony also serving as agent of the state to perform the civil ceremony. To avoid any implication that the state is "recognizing" a religious marriage (which is prohibited in some countries) - the "civil" ceremony is said to be taking place at the same time as the religious ceremony. Often this involves simply signing a register during the religious ceremony. If the civil element of the religious ceremony is omitted, the marriage is not recognized by government under the law.
While some countries, such as Australia, permit marriages to be held in private and at any location, others, including England and Wales, require that the civil ceremony be conducted in a place open to the public and specially sanctioned by law. In England, the place of marriage need no longer be a church or register office, but could also be a hotel, historic building or other venue that has obtained the necessary license. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
Within the parameters set by the law of the jurisdiction in which a marriage or wedding takes place, each religious authority has rules for the manner in which weddings are to be conducted by their officials and members.
Marriage is an institution which can join together people's lives in a variety of emotional and economic ways. In many Western cultures, marriage usually leads to the formation of a new household comprising the married couple, with the married couple living together in the same home, often sharing the same bed, but in some other cultures this is not the tradition. Among the Minangkabau of West Sumatra, residency after marriage is matrilocal, with the husband moving into the household of his wife's mother. Residency after marriage can also be patrilocal or avunculocal. Such marriages have also been increasingly common in modern Beijing. Guo Jianmei, director of the center for women's studies at Beijing University, told a Newsday correspondent, "Walking marriages reflect sweeping changes in Chinese society." A similar arrangement in Saudi Arabia, called misyar marriage, also involves the husband and wife living separately but meeting regularly.
Conversely, marriage is not a prerequisite for cohabitation. In some cases couples living together do not wish to be recognized as married, such as when pension or alimony rights are adversely affected, or because of taxation consideration, or because of immigration issues, and for many other reasons. In modern western societies some couples cohabitate before marriage to test whether such an arrangement might work in the long term.
In some cases cohabitation may constitute a common-law marriage, and in some countries the laws recognize cohabitation in preference to the formality of marriage for taxation and social security benefits. This is the case, for example, in Australia.
Many of the world's major religions look with disfavor on sexual relations outside of marriage. Many nonsecular states, mostly with Muslim majorities, sanction criminal penalties for sexual intercourse before marriage. Sexual relations by a married person with someone other than his/her spouse is known as adultery and is also frequently disapproved by the major world religions (some calling it a sin). Adultery is considered in many jurisdictions to be a crime and grounds for divorce.
On the other hand, marriage is not a prerequisite for having children. In the United States, the National Center for Health Statistics reported that in 1992, 30.1 percent of births were to unmarried women. In 2006, that number had risen to 38.5 percent. Children born outside of marriage, bastards and whoresons, were known as illegitimate and suffered legal disadvantages and social stigma. In recent years the legal relevance of illegitimacy has declined and social acceptance has increased, especially in western countries.
Some married couples choose not to have children and so remain childfree. Others are unable to have children because of infertility or other factors preventing conception or the bearing of children. In some cultures, marriage imposes an obligation on women to bear children. In northern Ghana, for example, payment of bridewealth signifies a woman's requirement to bear children, and women using birth control face substantial threats of physical abuse and reprisals.
Marriage laws refer to the legal requirements which determine the validity of a marriage, which vary considerably between countries.
In some jurisdictions but not all, marriage relationships may be created by the operation of the law alone. Unlike the typical ceremonial marriage with legal contract, wedding ceremony, and other details, a common-law marriage may be called "marriage by habit and repute (cohabitation)." A de facto common-law marriage without a license or ceremony is legally binding in some jurisdictions but has no legal consequence in others.
These rights and obligations vary considerably between societies, and between groups within society.
Marriage is an institution that is historically filled with restrictions. From age, to race, to social status, to consanguinity, to gender, restrictions are placed on marriage by society for reasons of benefiting the children, passing on healthy genes, maintaining cultural values, or because of prejudice and fear. Almost all cultures that recognize marriage also recognize adultery as a violation of the terms of marriage.
The United States has had a history of marriage restriction laws. Many states enacted miscegenation laws which were first introduced in the late 17th century in the slave-holding colonies of Virginia (1691) and Maryland (1692) and lasted until 1967 (until it was overturned via Loving v. Virginia). Many of these states restricted several minorities from marrying whites. For example, Alabama, Arkansas, and Oklahoma banned Blacks in particular. States such as Mississippi and Missouri banned Blacks and Asians. States such as North Carolina and South Carolina banned Blacks and Native Americans, and some states such as Georgia, South Carolina, and Virginia banned all non-whites.
It is a relatively new practice that same-sex couples are being granted the same form of legal marital recognition available to mixed-sexed couples. In the United States, the 1996 Defense of Marriage Act (DOMA) explicitly defines marriage for the purposes of federal law as between a man and a woman and allows states to ignore same-sex marriages from other states (though states arguably could do this already). Forty-one US states currently define marriage as between a man and a woman. Three of those states have statutory language that pre-dates DOMA (enacted before 1996) defining marriage as such. Thirty states have defined marriage in their constitutions. Arizona is the only state that has ever defeated a constitutional amendment defining marriage between a man and a woman (2006), but it subsequently passed one in 2008.
Societies have often placed restrictions on marriage to relatives, though the degree of prohibited relationship varies widely. With few exceptions, marriages between parents and children or between full siblings have been considered incest and forbidden. However, marriages between more distant relatives have been much more common, with one estimate being that 80% of all marriages in history have been between second cousins or closer. In modern times this proportion has fallen dramatically, but still more than 10% of all marriages are believed to be between first and second cousins. In the United States, such marriages are now highly stigmatized, and laws ban most or all first-cousin marriage in 30 states. Specifics vary: in South Korea, historically it was illegal to marry someone with the same last name.
Many societies have required a person to marry within their own general social group, which anthropologists refer to as endogamy. An example of such restrictions would be a requirement to marry someone from the same tribe.
Restrictions against polygamy have been common. Opposition to the recognition of Deseret as a State by the Federal government was founded on opposition to the once-practiced polygamous marriages of Mormons.
In many jurisdictions, a civil marriage may take place as part of the religious marriage ceremony, although they are theoretically distinct. Some jurisdictions allow civil marriages in circumstances which are notably not allowed by particular religions, such as same-sex marriages or civil unions.
All mainstream religions have strong views relating to marriage. Most religions perform a wedding ceremony to solemnize the beginning of a marriage.
Betrothal (erusin), which is merely a binding promise to get married, is distinct from marriage itself (nissu'in), with the time between these events varying substantially. Since a wife was regarded as property in those days, the betrothal (erusin) was effected simply by purchasing her from her father (or guardian); the girl’s consent is not explicitly required by any biblical law. Like the adjacent Arabic culture (in the pre-Islamic period), the act of marriage appears mainly to have consisted of the groom fetching the bride, although among the Israelites (unlike the Arabs) the procession was a festive occasion, accompanied by music, dancing, and lights. To celebrate the marriage, week-long feasts were sometimes held.
In biblical times, a wife was regarded as chattel, belonging to her husband; the descriptions of the bible suggest that she would be expected to perform tasks such as spinning, sewing, weaving, manufacture of clothing, fetching of water, baking of bread, and animal husbandry. However, wives were usually looked after with care, and bigamous men were expected to ensure that they give their first wife food, clothing, and sexual activity.
Since a wife was regarded as property, her husband was originally free to divorce her for any reason, at any time. A divorced couple were permitted to get back together, unless the wife had married someone else after her divorce.
In Judaism, marriage is viewed as a contractual bond commanded by God in which a man and a woman come together to create a relationship in which God is directly involved.
Christians believe that marriage is a gift from God, one that should not be taken for granted. They variously regard it as a sacrament, a contract, a sacred institution, or a covenant. From the very beginning of the Christian Church, marriage law and theology have been a major matter. The foundation of the Western tradition of Christian marriages have been the teachings of Jesus Christ and the Apostle Paul.
Christians often marry for religious reasons ranging from following the biblical injunction for a "man to leave his father and mother and cleave to his wife, and the two shall become one,"
Divorce is not encouraged. Most Protestant churches allow people to marry again after a divorce. In the Roman Catholic Church, marriage can only be ended by an annulment where the Church for special reasons regards it as never having taken place.
"'...So they are no longer two, but one. Therefore what God has joined together, let man not separate."
Anglicans, Catholics, and Eastern Orthodox consider marriage termed holy matrimony to be an expression of divine grace, termed a sacrament or mystery. In Western ritual, the ministers of the sacrament are the husband and wife themselves, with a bishop, priest, or deacon merely witnessing the union on behalf of the church, and adding a blessing. In Eastern ritual churches, the bishop or priest functions as the actual minister of the Sacred Mystery (Eastern Orthodox deacons may not perform marriages). Western Christians commonly refer to marriage as a vocation, while Eastern Christians consider it an ordination and a martyrdom, though the theological emphases indicated by the various names are not excluded by the teachings of either tradition.[dubious ] Marriage is commonly celebrated in the context of a Eucharistic service (a nuptial Mass or Divine Liturgy). The sacrament of marriage is indicative of the relationship between Christ and the Church.
"The matrimonial covenant, by which a man and a woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; this covenant between baptized persons has been raised by Christ the Lord to the dignity of a sacrament." 
The mutual love between man and wife becomes an image of the eternal love with which God loves humankind. The celebration of marriage between two Catholics normally takes place during the public liturgical celebration of the Holy Mass, because of its sacramental connection with the unity of the Paschal mystery of Christ (Communion). Sacramental marriage confers a perpetual and exclusive bond between the spouses. By its nature, the institution of marriage and conjugal love is ordered to the procreation and upbringing of offspring. Marriage creates rights and duties in the Church between the spouses and towards their children: "[e]ntering marriage with the intention of never having children is a grave wrong and more than likely grounds for an annulment."
According to current Catholic legislation governing marriage, "The essential properties of marriage are unity and indissolubility; in Christian marriage they acquire a distinctive firmness by reason of the sacrament. Divorce is not recognized, but annulments predicated upon previously existing impediments may be granted. Offspring resulting from annulled relationships are considered legitimate. The remarriage of persons divorced from a living, lawful spouse are not separated from the Church, but they cannot receive Eucharistic communion.
Protestant denominations see the primary purpose of marriage to be to glorify God by demonstrating his love to the world. Other purposes of marriage include intimate companionship, rearing children and mutual support for both husband and wife to fulfill their life callings. Protestants generally approve of birth control and consider marital sexual pleasure to be a gift of God.
Most Reformed Christians would deny the elevation of marriage to the status of a sacrament, nevertheless it is considered a covenant between spouses before God.cf.
Historically, five competing models of marriage in Christianity have shaped Western marriage and legal tradition:
Members of the Church of Jesus Christ of Latter-day Saints (LDS) believe that "marriage between a man and a woman is ordained of God and that the family is central to the Creator's plan for the eternal destiny of His children." The LDS belief is that marriage between a man and a woman can last beyond death and into eternity.
Islam also commends marriage, with the age of marriage being whenever the individuals feel ready, financially and emotionally.
In Islam, polygyny is allowed for men while Polyandry for women is not, with the specific limitation that they can only have up to four wives at any one time, given the religious requirement that they are able to and willing to partition their time and wealth equally among the respective wives.
For a Muslim wedding to take place, the bride and her guardian must both agree on the marriage. Should either the guardian or the girl disagree on the marriage, it may not legally take place. In essence, while the guardian/father of the girl has no right to force her to marry, he has the right to stop a marriage from taking place, given that his reasons are valid. The professed purpose of this practice is to ensure that a woman finds a suitable partner whom she has chosen not out of sheer emotion.
From an Islamic (Sharia) law perspective, the minimum requirements and responsibilities in a Muslim marriage are that the groom provide living expenses (housing, clothing, food, maintenance) to the bride, and in return, the bride's main responsibility is raising children to be proper Muslims. All other rights and responsibilities are to be decided between the husband and wife, and may even be included as stipulations in the marriage contract before the marriage actually takes place, so long as they do not go against the minimum requirements of the marriage.
In Shia Islam marriage must take place in the presence of at least two reliable witnesses, with the consent of the guardian of the bride and the consent of both the bride and the groom. Following the marriage, the couple is immediately allowed to consummate the marriage. To create a religious contract between them, it is sufficient that a man and a woman indicate an intention to marry each other and recite the requisite words in front of a Muslim priest. The wedding party can be held days, or months later, whenever the couple and their families want to announce the marriage in public.
In Sunni Islam, marriage must take place in the presence of witnesses, with the consent of both the bride and the groom. Following the marriage they may consummate their marriage.
In the Bahá'í Faith marriage is encouraged and viewed as a mutually strengthening bond, but is not obligatory. A Bahá'í marriage requires the couple to choose each other, and then the consent of all living parents.
Hinduism sees marriage as a sacred duty that entails both religious and social obligations. Old Hindu literature in Sanskrit gives many different types of marriages and their categorization ranging from "Gandharva Vivaha" (instant marriage by mutual consent of participants only, without any need for even a single third person as witness) to normal (present day) marriages, to "Rakshasa Vivaha" ("demoniac" marriage, performed by abduction of one participant by the other participant, usually, but not always, with the help of other persons). The Hindu Widow's Remarriage Act 1856 empowers a Hindu widow to remarry. Though traditionally widow remarriages were frowned upon and are still considered taboo in many parts of India, the society is changing and the incidence of widow remarriage is on a rise.
In a Sikh marriage, the couple make rounds around the holy book called Guru Granth Sahib four times and the holy man speaks some words from the Guru Granth Sahib in the form of kirtan. The ceremony is known as 'Anand Karaj' and represents the holy union of between two souls that are united as one.
[[File:|thumb|left|A same-sex couple exchanging wedding vows in an Unitarian Universalist Fellowship.]]
For the most part, religious traditions in the world reserve marriage to heterosexual unions, but there are exceptions including Unitarian Universalist, Metropolitan Community Church, Quaker, United Church of Canada, United Church of Christ and Reform Jewish congregations, some Anglican dioceses, and various Neopagan faiths. This model is currently recognized by various jurisdictions and religious denominations.
Religious groups have differing views on the legitimacy of polygyny, or the practice of a man taking more than one wife. Most Christian groups prohibit it and condemnations can be found from very early Christian leaders. But polygamy is allowed in Islam and also Confucianism, though in most areas today it is uncommon. Judaism and Hinduism are religions that allowed polygamy in ancient times but whose modern authorities prohibit it.
Religion has commonly weighed in on the matter of which relatives, if any, are allowed to marry. Relations may be by consanguinity or affinity, meaning by blood or by marriage. On the marriage of cousins, Catholic policy has evolved from initial acceptance, through a long period of general prohibition, to the modern-day requirement for a dispensation. Islam has always allowed it, while Hindu strictures vary widely.
The financial aspects of marriage vary between cultures and have changed over time.
In some cultures, dowries and bride prices continue to be required today. In both cases, the financial arrangements are usually made between the groom (or his family) and the bride's family; with the bride in many cases not being involved in the arrangement, and often not having a choice in whether to participate in the marriage.
In Early Modern Britain, the social status of the couple was supposed to be equal. After the marriage, all the property (called "fortune") and expected inheritances of the wife belonged to the husband.
A dowry was not an unconditional gift,[in Early Modern Britain?] but was usually a part of a wider marriage settlement. For example, if the groom had other children, they could not inherit the dowry, which had to go to the bride's children. In the event of her childlessness, the dowry had to be returned to her family, but sometimes not until the groom's death or remarriage.
In some cultures, dowries continue to be required today (for example, in Sudan), while some countries impose restrictions on the payment of dowry. In India, nearly 7,000 women are killed annually in disputes over dowries, and activists believe that figures represent only a third of the actual number of such murders.
In other cultures, the groom or his family were expected to pay a bride price to the bride's family for the right to marry the daughter, or dower, which was payable to the bride. This required the groom to work for the bride's family for a set period of time.
In the Jewish tradition, the rabbis in ancient times insisted on the marriage couple entering into a marriage contact, called a ketubah. Besides other things, the ketubah provided for an amount to be paid by the husband in the event of a divorce or his estate in the event of his death. This amount was a replacement of the biblical dower or bride price, which was payable at the time of the marriage by the groom to the father of the bride.
Morning gifts, which might also be arranged by the bride's father rather than the bride, are given to the bride herself; the name derives from the Germanic tribal custom of giving them the morning after the wedding night. She might have control of this morning gift during the lifetime of her husband, but is entitled to it when widowed. If the amount of her inheritance is settled by law rather than agreement, it may be called dower. Depending on legal systems and the exact arrangement, she may not be entitled to dispose of it after her death, and may lose the property if she remarries. Morning gifts were preserved for many centuries in morganatic marriage, a union where the wife's inferior social status was held to prohibit her children from inheriting a noble's titles or estates. In this case, the morning gift would support the wife and children. Another legal provision for widowhood was jointure, in which property, often land, would be held in joint tenancy, so that it would automatically go to the widow on her husband's death.
Islamic tradition has similar practices. A 'mahr', either immediate or deferred, is the woman's portion of the groom's wealth (divorce) or estate (death). These amounts are usually set on the basis of the groom's own and family wealth and incomes, but in some parts these are set very high so as to provide a disincentive for the groom exercising the divorce, or the husband's family 'inheriting' a large portion of the estate, especially if there are no male offspring from the marriage. In some countries, including Iran, the mahr or alimony can amount to more than a man can ever hope to earn, sometimes up to US$1,000,000 (4000 official Iranian gold coins). If the husband cannot pay the mahr, either in case of a divorce or on demand, according to the current laws in Iran, he will have to pay it by installments. Failure to pay the mahr might even lead to imprisonment.
In many countries today, each marriage partner has the choice of keeping his or her property separate or combining properties. In the latter case, called community property, when the marriage ends by divorce each owns half. In many legal jurisdictions, laws related to property and inheritance provide by default for property to pass upon the death of one party in a marriage firstly to the spouse and secondly to the children. Wills and trusts can make alternative provisions for property succession.
In some legal systems, the partners in a marriage are "jointly liable" for the debts of the marriage. This has a basis in a traditional legal notion called the "Doctrine of Necessities" whereby a husband was responsible to provide necessary things for his wife. Where this is the case, one partner may be sued to collect a debt for which they did not expressly contract. Critics of this practice note that debt collection agencies can abuse this by claiming an unreasonably wide range of debts to be expenses of the marriage. The cost of defense and the burden of proof is then placed on the non-contracting party to prove that the expense is not a debt of the family. The respective maintenance obligations, both during and eventually after a marriage, are regulated in most jurisdictions; alimony is one such method.
Some have attempted to analyze the institution of marriage using economic theory; for example, anarcho-capitalist economist David D. Friedman has written a lengthy and controversial study of marriage as a market transaction (the market for husbands and wives). In the past the economic status of women was enhanced through marriage; however, as more women work nowadays, men gain more economically than women.
In some countries, spouses are allowed to average their incomes; this is advantageous to a married couple with disparate incomes. To compensate for this somewhat, many countries provide a higher tax bracket for the averaged income of a married couple. While income averaging might still benefit a married couple with a stay-at-home spouse, such averaging would cause a married couple with roughly equal personal incomes to pay more total tax than they would as two single persons. This is commonly called the marriage penalty.
Moreover, when the rates applied by the tax code are not based on averaging the incomes, but rather on the sum of individuals' incomes, higher rates will definitely apply to each individual in a two-earner households in progressive tax systems. This is most often the case with high-income taxpayers and is another situation where some consider there to be a marriage penalty.
Conversely, when progressive tax is levied on the individual with no consideration for the partnership, dual-income couples fare much better than single-income couples with similar household incomes. The effect can be increased when the welfare system treats the same income as a shared income thereby denying welfare access to the non-earning spouse. Such systems apply in Australia and Canada, for example.
Sometimes people marry for purely pragmatic reasons, sometimes called a marriage of convenience or sham marriage. For example, according to one publisher of information about "green card" marriages, "Every year over 450,000 United States citizens marry foreign-born individuals and petition for them to obtain a permanent residency (Green Card) in the United States." While this is likely an over-estimate, in 2003 alone 184,741 immigrants were admitted to the U.S. as spouses of U.S. citizens. Many more were admitted as fiancés of US citizens for the purpose of being married within 90 days. Regardless of the number of people entering the US to marry a US citizen, it does not indicate the number of these marriages that are convenience marriages, which number could include some of those with the motive of obtaining permanent residency, but also include many people who are US citizens. One example would be to obtain an inheritance that has a marriage clause. Another example would be to save money on health insurance or to enter a health plan with preexisting conditions offered by the new spouse's employer. Many other situations exist, and, in fact, all marriages have a complex combination of conveniences motivating the parties to marry. A marriage of convenience is one that is devoid of normal reasons to marry.
Some people want to marry a person with higher or lower status than them. Others want to marry people who have similar status. Hypergyny refers to the act of seeking out those who are of slightly higher social status. In most cases, hypergyny refers to women wanting men of higher status. Isogyny refers to the act of seeking out those who are of similar status.
In most societies, the death of one of the partners terminates the marriage, and in monogamous societies this allows the other partner to remarry, though sometimes after a waiting or mourning period.
Many societies also provide for the termination of marriage through divorce. Marriages can also be annulled in some societies, where an authority declares that a marriage never happened. In either event the people concerned are free to remarry (or marry). After divorce, one spouse may have to pay alimony.
The absolute right of two married partners to consent to divorce was only recognized in western nations in recent decades. In the United States no-fault divorce was first recognized in California in 1969 and the final state to recognize it was New York in 1989.
Several cultures have practiced temporary and conditional marriages. Examples include the Celtic practice of handfasting and fixed-term marriages in the Muslim community. Pre-Islamic Arabs practiced a form of temporary marriage that carries on today in the practice of Nikah Mut'ah, a fixed-term marriage contract. Muslim controversies related to Nikah Mut'ah have resulted in the practice being confined mostly to Shi'ite communities.
President of the Institute for American Values David Blankenhorn claims that children who grow up in homes where parents are married to one another are less likely to be impoverished, to have emotional or behavioral problems, to engage in premature sexual relations, to use drugs, or to commit suicide.
Early theories explaining the determinants of postmarital residence (e.g., Lewis Henry Morgan, Edward Tylor, or George Peter Murdock) connected it with the sexual division of labor. However, to date, cross-cultural tests of this hypothesis using worldwide samples have failed to find any significant relationship between these two variables. However, Korotayev's tests show that the female contribution to subsistence does correlate significantly with matrilocal residence in general; however, this correlation is masked by a general polygyny factor. Although an increase in the female contribution to subsistence tends to lead to matrilocal residence, it also tends simultaneously to lead to general non-sororal polygyny which effectively destroys matrilocality. If this polygyny factor is controlled (e.g., through a multiple regression model), division of labor turns out to be a significant predictor of postmarital residence. Thus, Murdock's hypotheses regarding the relationships between the sexual division of labor and postmarital residence were basically correct, though, as has been shown by Korotayev, the actual relationships between those two groups of variables are more complicated than he expected.
Many people have proposed arguments against marriage for various reasons. These include political and religious criticisms, reference to the divorce rate, as well as celibacy for religious or philosophical reasons.
Many controversies have arisen over the centuries in relation to marriage - including issues relating to the suitability of partners of different denominations, faiths, tribes or races, the acceptable number and minimum age of wives, the rights of partners, especially wives, and wider family obligations. For example, a contemporary controversy of particular significance in the USA concerns the exclusion of homosexual relationships from legal and social recognition and the rights and obligations it provides. Social conservatives opposed to same-sex marriage in some countries claim that any attempt to define marriage to include anything other than the union of one man and one woman would "deprive the term of its fundamental and defining meaning." In other countries, polygamy is a "socially conservative" practice. Advocates of same-faith marriage and same-race marriage may criticize the legalization of interfaith marriage and interracial marriage, respectively.
Currently 37 U.S. states have passed laws which define marriage as limited to a union between one man and one woman: 33 state legislatures have passed statutes to that effect, and 4 states (Alaska, Hawaii, Nebraska and Nevada) have, by popular vote, passed Defense of Marriage Acts (DOMAs) as constitutional amendments; the Ohio state legislature is currently debating a Defense of Marriage Act. Thirteen states, therefore, do not currently have laws on their books which limit marriage to a union between one man and one woman.
The state of Massachusetts has sued the U.S. federal government over its definition of marriage. The lawsuit, brought by the first state to legalize gay marriage, said the 1996 Defense of Marriage Act (DOMA) infringed on a state's sovereign right to define marital status. The lawsuit alleges that DOMA infringed on a state's sovereign right to define marital status and is unconstitutional.
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MARRIAGE. Marriage (Fr. man age, from marier, to marry; Lat. maritare, from mas, maxis, a male), or " matrimony " (Lat. matrimonium, from mater, a mother), may be defined either (a) as the act, ceremony, or process by which the legal relationship of husband and wife is constituted; or (b) as a physical, legal and moral union between man and woman in complete community of life for the establishment of a family.' It is possible to discriminate between three stages, taking marriage in the latter sense as an institution - the animal or physical stage, the proprietary or legal stage, and the personal or moral stage. In the first or physical stage the relation of the sexes was unregulated, and in many cases of brief duration. In the second or legal stage greater permanence was secured in marriage by assigning the husband a property right in his wife or wives. In the last stage the proprietary relation falls more and more into the background, and the relation of husband and wife approximates that of two individuals entirely equal before the law. Although in the history of marriage these three stages have been roughly successive, the order of their entering the conscious experience of the individual is usually the reverse of their order in the development of the race; and in the solemnization of a marriage based upon affection and choice the growth of the relation begins with the moral, advances to the legal and culminates in the physical union, each one of these deriving its meaning and its worth from the preceding. In most legal systems marriage, in the sense of a ceremony, takes the form of a contract - the mutual assent of the parties being the prominent and indispensable feature. Whether it is really a contract or not, and if so to what class of contracts it belongs, are questions which have been much discussed, but into which it is not necessary to enter. While the consent of parties is universally deemed one of the conditions of a legal marriage, all the incidents of the relationship constituted by the act are absolutely fixed by law. The jurist has to deal with marriage in so far as it creates the legal status of husband and wife. It should be added that, while marriage is generally spoken of by lawyers as a contract, its complete isolation from all other contracts is invariably recognized. Its peculiar position may be seen at once by comparing it with other contracts giving rise to continuous relationships with more or less indefinite obligations, like those of landlord and tenant, master and servant, &c. In these the parties may in general make their rights and duties what they please, the law only intervening when they are silent. In marriage every resulting right and duty is fixed by the law.
Besides true marriage, inferior forms of union have from time to time been recognized, and may be briefly noticed here. These have all but disappeared from modern society, depending as they do on matrimonial restrictions now obsolete.
The institution of slavery is a fruitful source of this kind of debased matrimony. In Roman law no slave could contract marriage whether with another slave or a free person. The union of male and female slaves (contubernium) was recognized for various purposes; a free woman entering into a union with a slave incurred under the S.C. Claudianum the forfeiture of her own liberty; but the bondwoman might be the concubine of a freeman. In the United States, where slavery was said to be regulated by the principle of the civil) law, the marriage of slaves was so far recognized that on emancipation complete matrimony took effect and the children became legitimate without any new ceremony.
It is doubtless true, as anthropologists have pointed out, that in the history of the race " marriage is rooted in the family rather than the family in marriage " (Westermarck: History of Human Marriage, p. 22); but in that conscious experience of the individual with which law and ethics are especially concerned, this relationship is reversed, and the family originates in marriage (see Family, and allied headings).
In Roman law no legal marriage could be contracted unless there was connubium between the parties. Originally there was no connubium between plebs and patricians, and the privilege was conceded after a long struggle by the Lex Canuleia. In later times Latini and Peregrini were excluded from connubium except where the right had been expressly conferred. The great matrimonial law of the early empire (Lex Julia et Papia Poppaea) introduced restrictions depending on the condition of the parties which later legislation extended and perpetuated. Senators under that law were forbidden to marry freedwomen or women of inferior rank, and the husband of a freedwoman becoming a senator was set free from his marriage. In the canon law new restrictions were developed. Persons who bound themselves not to marry were deemed incapable of marrying. The order of the clergy were forbidden to marry. And disparity of faith was recognized by the early church as a bar to matrimony, e.g. between Christians and pagans .and between orthodox and heretics (see Dictionary of Christian Antiquities, art. " Marriage ").
Concubinage, which such restrictions tended to develop, is noticed under a separate heading (q.v.). It might be described as marriage which has no consequences, or only slight and peculiar consequences, in legal status. In the left-handed or " morganatic " marriages of the German royal families we have the nearest approach ever made by concubinage to true marriage, the children being legitimate, but neither they nor the wife acquiring any right to the rank or fortune of the husband. The marriage of persons of different religions frequently requires the intervention of the law as to the faith of the children, more particularly in Europe as between Roman Catholics and Protestants. English law gives the father, except under special circumstances, the right to dictate the faith of his children (see Infant). The practice on this point varies in Europe - the question being ignored in French law, Germany following in some parts the same rule as England, in others giving effect to ante-nuptial stipulations. In Ireland mixed marriages (i.e. between Roman Catholic and Protestant) were by 19 Geo. II. c. 13 null and void if celebrated by a Roman Catholic priest. This act was repealed by 33 & 34 Vict. c. I10, which permits mixed marriages to be validly celebrated by an Episcopalian or Roman Catholic clergyman, subject to conditions set forth in § 38.
Roman law. - The three primitive modes of marriage were confarreatio, coemptio in manum, and usus, all of which had the effect of placing the woman in the " power " (manus) of her husband, and on the same footing as the children. The first was a religious ceremony before ten witnesses, in which an ox was sacrificed and a wheaten cake broken and divided between the spouses by the priest. Coemptio was a conveyance of the woman by mancipatio, and might be described as a fictitious sale per aes et libram, like that employed in emancipation and testamentary disposition and other processes. Usus was the acquisition of the wife by prescription, through her cohabiting with the husband for one year, without having been absent from his house three continuous nights. But a true marriage might be concluded without adopting any of these modes, and they all fell into desuetude and with them the subjection of the wife to the manus. Marriage without manus was contracted by the interchange of consent, without writing or formality of any kind. By some jurists it is regarded as incomplete until consummated by delivery of the woman, and is accordingly referred to the class of real contracts. The restrictions as to age, relationship by consanguinity and affinity, previous marriage, &c., were in the main those which have continued to prevail in modern Europe with one important exception. The consent of the paterfamilias to the marriage of the children undor his power was essential.
Canon law. - The canon law of marriage is based partly on the Roman law, the validity of which the Church from the first recognized, partly on the Jewish law as modified by the new principles introduced by Christ and his apostles, developed by the fathers of the Church and medieval schoolmen, and regulated and defined by popes and councils. The most important of these principles was that of the indissolubility of marriage, proclaimed by Christ without qualification according to Mark x. II, 12, and with the qualifying clause " saving for the cause of fornication " according to Matt. v. 32. This lofty view of marriage, according to which man and wife are made " one The restrictions are enumerated in the following lines: Error, Conditio, Votum, Cognatio, Crimen, Cultus, Disparitas, Vis, Ordo, Ligamen, Honestas, Aetas, Affinis, si Clandestinus et Impos, Raptave sit mulier nec parti reddita tutae.
flesh " by the act of God (" What therefore God hath joined together, let no man put asunder," Mark x. 9) was, however, modified by the idea of the consummating act of marriage as in itself something unholy, a result of the Fall. Christ himself, indeed, did not teach this; but for St Paul marriage is clearly a concession to the weakness of the flesh (i Cor. vii.). " The time is short," and in view of the imminent coming of the Lord the procreation of children a matter of no importance (v. 29), but " it is better to marry than to burn " (v. 9). He is, however, obviously not clear on the point, and at the end of his argument strikes a note of doubt (v. 40); elsewhere he defends marriage, against those who would have forbidden it altogether, as a gift of God (I Tit. iv. 3-5) and even, in seeming contradiction to i Cor. vii. 29, commands the bearing of children (I Tit. v. 14). Finally it is to St Paul that the idea of marriage as a sacrament is to be traced, in the mystic comparison of the relations of husband and wife to those of Christ and his Church (Eph. v. 23-32). These are the main foundations in Scripture on which the Christian law of marriage is built up, and they are obviously principles which admit of a large amount of variety of interpretation and of practice. They were developed in the early Church under the influence of the rapidly growing passion for the celibate life, partly an outcome of the same dualistic principle which produced the asceticism of the Jewish Essenes and of the Gnostics, partly perhaps a natural reaction from the appalling moral corruption of the decaying empire. Marriage, it is true, from being no more than a terminable civil contract, became a thing holy, a mystic union of souls and bodies never to be divided; valid, indeed, but not spiritually complete, without the public blessing of the Church (Tertullian, Ad uxorem, lib. ii. cap. 9); and from Augustine's time onward it was reckoned as a sacrament. But at the same time there was a tendency to restrict its rights and its range. So far as marriage was a physical union, this had for its object solely the perpetuation of the race and the avoidance of fornication; the most that was conceded was that the intention of having offspring not only made the conjugal act blameless, but even gave to the desire that inspired it an element of good (Augustine, de nupt. et conc. 3). But the ideal married life was that attributed to Mary and Joseph. Thus Augustine cited this as an example that a true marriage may exist where there is a mutual vow of chastity (op. cit. 12), and held that the sooner this relation was established the better (de bono conjug. 22). Marriage being then an inferior state, to be discouraged rather than the reverse, the tendency was rapidly to narrow the field within which it might be contracted. Remarriage (bigamy) was only allowed after many struggles, and then only to the laity; St Paul had laid down that a " bishop " must be " the husband of one wife," and to this day the priests of the Orthodox Eastern Church may not remarry. Clerical celibacy, at first a counsel of perfection, was soon to become the rule of the Church, though it was long before it was universally enforced in the West; in the East it still applies only to monks, nuns and bishops (see Celibacy). The marriage of the laity was hampered by the creation of a number of impediments. The few and definite prohibitions of the Roman and of the Jewish law (Lev. xviii. 6-18; xx.) in the matter of marriage between kindred, were indefinitely extended; until in 506 the council of Agde laid it down that any consanguinity or affinity whatever constituted an impediment. 2 Moreover, man and wife being " one flesh," the Church exaggerated relationship by affinity into equal importance with that of consanguinity as an impediment to matrimony; and, finally, to all this added the impediments created by " spirtual affinity," i.e. the relations established between baptizer and baptized, confirmer and confirmed, and between godparents, their godchildren and their godchildren's relatives.
The result of this system was hopeless confusion and I Canon lxi. Aut qui ex propria consanguinitate aliquam, aut quam consanguineus habuit. duceret uxorem. .. incestos esse non dubitamus (Mansi Conc. viii. p. 336). According to the canon law " affinity " is the relation between two persons of whom one has had commerce, licit or illicit, with a relation of the other.
uncertainty, and it was early found necessary. to modify it. This was done by Pope Gregory I., who limited the impediment to the 7th degree of relationship inclusive (civil computation)' which was afterwards made the law of the empire by Charlemagne. Later still Innocent III. found it necessary again to issue a decree (4th Lateran Council) permitting marriages between a husband and the relations of his wife, and vice versa, beyond the 4th degree inclusive (canonical computation). 2 This remains the canonical rule of the Roman Catholic Church. As regards impediments due to spiritual affinity, these were limited by the Council of Trent to the relation of the baptizer and baptized; the baptizer and the parents of the baptized; the baptizer and the godfather and godmother; the godparents and the baptized and its parents: i.e. a godfather may not marry the mother of the child he has held at the font, nor the godmother the father of such child.
In the fully developed canon law impediments to marriage are of two kinds, public and private (impedimenta publica and privata), i.e. according as the objection arises out of the very nature of marriage itself or from consideration for the rights of particular persons; near relationship, for instance, is a public impediment, impotence (impotentia) and force (vis et metus) are private impediments. Impediments are further divided into separating (impedimenta dirimentia) or merely suspensive (impedimenta tantum impedientia); to the first class belongs, e.g. a previous marriage not dissolved by death, which involves the nullification of the marriage even where through ignorance the crime of bigamy is not involved; to the second belongs the case of one or both of the contracting parties being under the age of puberty. 3 Impediments, moreover, are absolute or relative, according as they are of universal application or only affect certain persons; near relationship, for instance, is an absolute impediment, difference of religion between the parties a relative impediment. In addition to consanguinity and affinity, impuberty and existing marriage, the canon law lays down as public and absolute impediments to marriage the taking of holy orders and the vows of chastity made on entering any of the religious orders approved by the Holy See. In these impediments the canon law further distinguishes between those which are based on the law of nature (jus naturae) and those which are based on the law of the Church (jus ecclesiae). From impediments based on the law of nature, or of God, there is no power even in the pope to dispense; e.g. marriage of father and daughter, brother and sister, or remarriage of husband or wife during the lifetime of the wife or husband of another marriage, which is held to be a violation of the very nature of marriage as 1 The civil law counts, in the direct line, as many degrees as there are generations between the parties; e.g. the son is in regard to his father in the 1st degree, the grandson in the 2nd, and vice versa. In the collateral line it computes degrees by generations, i.e. from one of the relations to the common ancestor, without including him or her, and from him or her back to the other relation; e.g. two brothers are in the 2nd degree of relationship to one another, uncle and nephew in the 3rd, cousins-german in the 4th.
The canon law, which in this case derives from the old Germanic law, has the same computation as regards the direct line. In the case of collateral relations, however, it differs, having two rules: (1) In the case of equal line - i.e. when the collaterals are equally removed from the common progenitor, it reckons the same number of degrees between the collaterals as between one of them and the progenitor; e.g. brothers are related in the 1st degree, while cousinsgerman are related in the 2nd degree because they are two generations from the common grandfather. (2) In the case of unequal line - i.e. when the collaterals are unequally removed from the common ancestor, the degree of their relationship is that of the most remote from the common progenitor; e.g. uncle and niece are related in the 2nd degree - i.e. that of the niece to the grandfather.
2 Innocent III. also decided that the husband's relations were not related to those of the wife, and vice versa, thus establishing the rule that " affinity does not breed affinity " (affinitas non parit affinitatem). This is fixed by the canon law at 14 for a male, 12 for a female. If, however, owing to the precocious physical development of a girl, the marriage has been consummated before she has reached this age, it cannot be nullified.
an indissoluble union. 4 From impediments arising out of the law of the Church dispensations are granted, more or less readily, either by the pope or by the bishop of the diocese in virtue of powers delegated by the pope (see Dispensation). Thus dispensations may be granted for marriage between persons related by consanguinity in any beyond the 2nd degree and not in the direct line of ascent or descent; e.g. between uncle and niece (confined by the council of Trent to the case of royal marriages for reasons of state) and between cousins-german, or in the case of marriage with a heretic. In this latter case a dispensation is now (i.e. since the papal decrees ne temere of the 2nd of August 1907, which came into force at Easter 1908) only granted on condition that the parties are married by a Catholic bishop, or a priest accredited by him, that no religious ceremony shall take place except in a Catholic church, and that all the children shall be brought up in the Roman Catholic faith.' In the absence of any impediment a marriage is according to the canon law completed between baptized persons by the facts of consent and consummation; the principle isstill maintained that the parties to the marriage, not the priest, are the " ministers of the sacrament " (ministri sacramenti). 6 From the first, however, the Church, while recognizing the validity of private contracts, enjoined the addition of a public religious ceremony, so that they might be " sanctified by the word of God and prayer " (1 Tim. iv. 5). 7 Tertullian (de pudicitia, cap. iv.) says that clandestine marriages, not professed in the Church, were reckoned among Christians as all but fornication, and he speaks of the custom of seeking permission to marry from the bishop, priests and deacons (de monogamia, cap. xi.). This latter precaution became increasingly necessary as impediments were multiplied, and Charlemagne, in a capitulary of 802, forbade the celebration of a marriage until " the bishops, priests and elders of the people " had made diligent inquiry into the question of the consanguinity of the parties. This was the origin of the publication of banns which, long customary in France, was made obligatory on the whole Church by Pope Innocent III. In the Eastern Church the primitive practice survives in the ceremonial blessing by the priest of the betrothal, as distinguished from the marriage ceremony. The ecclesiastical recognition of clandestine marriages, however, survived until the crying evil was remedied 4 It is maintained that no pope has ever given a dispensation for such a marriage. Such a case seems, however, to be narrated by Ordericus VitaIis (Hist. eccles. viii. 23; ed. A. le Prevost, Paris, 1838-855, t. iii. p. 408; ed. A. Duchesne, 1619, 704 B). Robert Mowbray, earl of Northumberland, had only been married to Maud de Laigle three months when he was condemned to perpetual imprisonment for rebellion against King William Rufus. After describing her forlorn state Orderic continues: " Nec ipsa eo vivente, secundum legem Dei, alteri nubere legitime valebat. Tandum, permissu Paschalis Papae (II.), cui res, a curiosis enucleata, patuit, post multos dies Nigellus de Albineo ipsam uxorem accepit." This may mean no more, of course, than that the curiosi " untied the knot " by discovering an impediment - the usual expedient in such cases. In any case the fact that Nigel de Albini, in his turn, soon afterwards obtained a " divorce " from her on the ground that her first husband was his relative by consanguinity, hardly points to a strict view of the sanctity of the marriage tie.
' The customary rule for more than three centuries after the Council of Trent was that male children followed the religion of the father, female children that of the mother. On the general subject of the attitude of the Church towards mixed marriages see O. D. Watkins, Holy Matrimony, pp. 468 et seq. For the Roman Catholic view see " An Instruction on Mixed Marriages " in Bishop Ullathorne's Eccl. Discourses (London, 1876).
Among the " errors " denounced by Pope Pius IX. in the Syllabus of 1864 is lxvi.: Matrimonii sacramentum non est, nisi quid contractui accessorium ab eoque separabile, ipsumque sacramentum in una tantum nuptiali benedictione situm est." This condemns the attempts of certain canonists (e.g. Melchior Cano) to distinguish between the contractus naturalis and sacramentalis. This view, which was first advanced by the jurist and theologian Johanna Gropper (1502-1559) at the council of Cologne (1536), and gained support especially in France, makes the " matter " of the sacrament the consent of the parties, the " form " the prayers and benedictions, the " minister " the priests (see e.g. " Du sacrament de mariage " in vol. v. of the Dissertationes selectae of Petrus de Marca, d. 1662, archbishop of Paris, Bamberg, 1789, p. 148).
See the list of quotations from the early fathers given by Watkins, Holy Matrimony, p. 93.
by a decree of the council of Trent (Sess. xiv. de matrim.), 1 which laid it down that for a valid marriage it was at least necessary that consent should be declared before a priest and in the presence of three witnesses. According to the actual law of the Roman Catholic Church, then, a civil marriage is only valid when the Tridentine decree has not been published; where this has been published, or has been in practice without publication, such a marriage can only become valid if followed by a religious ceremony in the prescribed form. Where such form has not followed the ecclesiastical courts must treat the marriage as voidable through the impedimentum clandestinitatis. Divorce, i.e. the annulment of marriage for any cause but an impediment which makes the marriage ipso facto void, is unknown to the Roman Catholic Church. Separation a vinculo matrimonii is only possible under the canon law by a judicial decree of nullity (annullatio matrimonii), which implies, not the severing of the ties of a real marriage, but the solemn declaration that such marriage has never existed. There may, however, be a " separation from bed and board " (a thoro et mensa), even perpetual, which does not however give either party the right to remarry during the lifetime of the other. But, marriage not being regarded as a sacrament until consummated, it may be dissolved, if non-consummation be proved, by one or both parties taking the religious vows, or by papal dispensation. The Church claims exclusive control over marriage, and the council of Trent anathematized the opinion held by Luther and other Reformers, that it was properly a subject for the civil courts (si quis dixerit causas matrimoniales non spectare ad judices ecclesiasticos anathema sit, Sess. xxiv. cap. 2). This attitude became of extreme political importance when even in Catholic countries the codes established civil marriage as the only legally binding form.
England.-Marriage may be the subject of an ordinary contract on which an action may be brought by either party. It is not necessary that the promise should be in writing, or that any particular time should be named. Promises to marry are not within the meaning of " agreement made in consideration of marriage " in the statute of frauds, which requires such agreements to be in writing. Contracts in restraint of marriage, i.e. whose object is to prevent a person from marrying anybody whatever, are void, as are also contracts undertaking for reward to procure a marriage between two persons. These latter are termed marriage brocage contracts.
Any man and woman are capable of marrying, subject to certain disabilities, some of which are said to be canonical as having been formerly under the cognisance of the ecclesiastical courts, others civil. The effect of a canonical disability as such was to make the marriage not void but voidable. The marriage must be set aside by regular process, and sentence pronounced during the lifetime of the parties. Natural inability at the time of the marriage to procreate children is a canonical disability. So was relationship within the prohibited degrees, which has been made an absolute avoidance of marriage by the Marriage Act 1835. Civil disabilities are (1) the fact that either party is already married and has a spouse still living; 2 (2) the fact that either person is a party of unsound mind; (3) want of full age, which for this purpose is fixed at the age of puberty as defined in the Roman law, viz. fourteen for males and twelve for females; 3 (4) relationship within the prohibited degrees.
The statute which lawyers regard as establishing the rule on 1 The later teaching of the Eastern Church is laid down in the Orthodox Confession of Peter Mogilas, patriarch of Kiev (2640). There are three essentials for a Christian marriage: (1) suitable matter (An ap, o&oc), i.e. a man and woman whose union no impediment bars, (2) a duly ordained bishop or priest, (3) the invocation of the Holy Ghost, and the solemnity of the formularies Ao'yLwv). 2 A divorce nisi does not enable the parties to marry until it is made absolute.
A marriage in which either of the parties is below the age of consent is, however, said to be not absolutely void; if the parties agree to continue together at the age of consent no new marriage is necessary, but either of them may disagree and avoid the marriage.
this last point is the 32 Hen. VIII. c. 38 (repealed in part by 2 & 3 Edw. VI. c. 23, in whole by i & 2 P. and M. c. 8, but revived by I Eliz. c. i, and so left as under the Act of Edward), which enacts that " no prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees." The forbidden marriages, as more particularly specified in previous statutes, are those between persons in the ascending and descending line in infinitum, and those between collaterals to the third degree inclusive, according to the computation of the civil law. The prohibitions extend not only to consanguinei (related by blood) but to affines (related by marriage), now altered so far as a deceased wife's sister is concerned (see below). The act of 1835 enacted that " all marriages which shall hereafter be celebrated between persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void to all intents and purposes whatsoever." They had previously been only voidable. The act at the same time legalized marriages within the prohibited degrees of affinity (but not consanguinity) actually celebrated before the 31st of August 183 5.
For many years an active and ceaseless agitation was carried on on behalf of the legalization in England of marriage with a deceased wife's sister. In all the self-governing colonies, with the M arriage exception of Newfoundland, the restriction had ceased to kith a exist. The first act legalizing marriage with a deceased Deceased wife's sister was adopted by South Australia. The Wife's royal assent, however, was not given till the parliament Sister. of that state had five times passed the bill. In quick succession similar statutes followed in Victoria, Tasmania, New South Wales, Queensland, New Zealand, West Australia, Barbados, Canada, Mauritius, Natal and Cape Colony. As regards the Channel Islands, marriages of the kind in question were made legal in 1899, and in 1907 in the Isle of Man.
In England the bill to render marriage with a deceased wife's sister valid was first adopted by the House of Commons in 1850, and rejected by the House of Lords in 1851. It was subsequently brought before the legislature in 1855, 1856, 1858, 1859, 1861, 1862, 1866, 1869, 1870, 1871, 1872, 1873, 1875, 1877 and 1878 (Colonial bills), 1879 (6th May, when in the House of Lords the prince of Wales and the duke of Edinburgh voted in favour of it), 1880, 1882, 1883, 1884, 1886, 1888, 1889, 1890, 1891, 1896, and 1898 and 1900 (Colonial bills). In most cases it passed the House of Commons but was rejected in the House of Lords. The bill of 1896, however, which was judiciously drafted to avoid the compulsory celebration by clergymen of marriages against which they had conscientious scruples, was carried in the Lords. Both the prince of Wales and the duke of York were among the " contents." The prime minister and eighteen bishops, including the two archbishops, voted against the bill, the earl of Rosebery and Lord Kimberley for it. At the third reading the bill was carried by 142 to 104 votes. Its promoters, however, did not succeed in getting an opportunity of bringing it before the House of Commons.
From 1896 to 1901 no further direct steps were taken, but in 1898 and again in 1900 (May 28) the subject was brought forward in the House of Lords by Lord Strathcona in the form of a bill under which marriages with a deceased wife's sister contracted in any British colony should be deemed valid for all purposes within the United Kingdom. In 1898, and again in 1900, the bill was carried on the third reading without a dissentient vote. The House of Commons took no action on either occasion. An imperial bill reached a second reading in the House of Commons in 1901 and again in 1902, but it was blocked by the High Church opponents of the measure when attempts were made to get it to the committee stage (Feb. 5 and June 6). The reform was, however, finally adopted in 1906 under the title of the Colonial Marriages (Deceased Wife's Sister) Act. The effect of the act was to make such marriages legal in all respects, including the right of succession to real property and to honours and dignities within the United Kingdom. The natural sequence of the passing of the act of 1906 was the reintroduction in 2907 of the bill relating to England. Introduced by a private member, it was adopted by the government, passed the House of Commons, and finally the House of Lords (on the second reading by III votes to 79), and became law as the Deceased Wife's Sister Marriage Act, 1907. The act contains a proviso justifying clergymen in refusing to solemnize marriages with a deceased wife's sister, and it preserves the peculiar status of the wife's sister under the Matrimonial Causes Act 1857, under which adultery with her by the husband is incestuous adultery.
The celebration of marriages is now regulated wholly by statutory legislation. The most important acts in force are the Marriage Acts 1823, 1836, 1886 and 1898.4 The former regulates marriages 4 A complete list of the acts regulating the solemnization of marriage or confirming marriages, which through some defect might be void, will be found in Phillimore's Ecclesiastical Law (2nd ed. 1895).
within the Church of England, but was intended to be of universal application, Jews and Quakers only being excepted by section 31. It requires either the previous publication of banns, or a licence from the proper ecclesiastical authority. As to banns, the rule of the rubric, so far as not altered by the statute, is required to be observed. They must be published on three successive Sundays at morning service after the second lesson, in the church of the parish in which the parties dwell; the bishop may, however, authorize the publication of banns in a public chapel. Seven days' notice must be given to the clergyman of the names of the parties, their place of abode, and the time during which they have lived, there. If either party is under age, the dissent of the parents or guardians expressed at the time of publication of banns renders such publication null and void. Licence in lieu of banns may only be granted by the archbishop, bishop or other authority, for the solemnization of a marriage within the church of the parish in which one of the parties shall have resided for fifteen days before. Before a licence can be granted an oath must be taken as to the fact of residence and that the necessary consent has been obtained in the case of persons under age. The father, or lawful guardian, is the proper person to consent to the marriage of a minor, and the place of any such person incapacitated mentally is taken by the lord chancellor. The absence of such consent does not, however, avoid a marriage once solemnized. But if persons wilfully intermarry (unless by special licence) in a place not being a church or public chapel, or without due publication of banns or proper licence, or before a person not in holy orders, the marriage is null and void to all purposes. Marriage must be celebrated within three months after banns or licence, and between the hours of eight in the morning and three in the afternoon.
For the relief of the great body of Dissenters the act of 1836 was passed. Itermits marriage to be solemnized in two additional ways - viz. (11) by certificate of the superintendent registrar of a district without licence, and (2) by such certificate with licence. In the first case, notice must be given to the registrar of the district or districts within which the parties have resided for seven days previous, which notice is inscribed in a marriage-notice book, open to public inspection at all reasonable times, and thereafter suspended for twenty-one days in some conspicuous place in the registrar's office. Any person whose consent is necessary to an ecclesiastical licence may forbid the issue of a certificate, but in default of such prohibition the certificate will issue at the end of the twenty-one days. The marriage may then take place on any day within three months of the entry of notice, and in one of the following ways: (I) in a certified place of religious worship, registered for the solemnization of marriage; in that case a registrar of the district with two witnesses must be present, and the ceremony must include a mutual declaration of assent by the parties and a disavowal of any impediment; (2) at the superintendent registrar's office, with the same declaration, but with no religious service; (3) in a church according to the usual form, the consent of the minister thereof having been previously obtained; (4) according to the usages of Jews and Quakers. The place of marriage in all cases must have been specified in the notice and certificate.
In the second case, when it is desired to proceed by licence, notice must be given to the registrar of the district in which one of the persons resides, together with a declaration that he or she has resided for fifteen days therein, that there is no impediment, and that the necessary consents if any have been obtained. The notice is not exhibited in the registrar's office, and the certificate may be obtained at the expiration of one whole day after entry, together with the licence. No registrar's licence can be granted for a marriage in church or according to the forms of the Church of England - the ecclesiastical authorities retaining their jurisdiction in that respect. It is also provided that in the case of persons wilfully intermarrying in a place other than that mentioned in the notice and certificate, or without notice or certificate, &c., the marriage shall be null and void.
The various rules as to consent of parents, &c., to the marriages of minors are regulations of procedure only. The absence of the necessary consent is not a disability invalidating a marriage actually solemnized.
The Act 26 Geo. II. c. 33, commonly known as Lord Hardwicke's Act, which forbids the solemnization of marriage without banns or licence, also enacts that " in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration in facie ecclesiae, by reason of any contract of matrimony whatsoever whether per verba de presenti or per verba de futuro." Blackstone observes that previous to this act " any contract made per verba de presenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, was deemed valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae." Royal marriages in England have been subject to special laws. The Royal Marriage Act of 1772 (12 Geo. III. c. I I), passed in consequence of the marriages of the dukes of Cumberland and Gloucester, enacted that " no descendant of his late majesty George II. (other than the issue of princesses married or who may marry into foreign families) shall be capable of contracting matrimony without the previous consent of his majesty, his heirs and successors, signified under the Great Seal. But in case any descendant of George II., being above twenty-five years old, shall persist to contract a marriage disapproved of by his majesty, such descendant, after giving twelve months' notice to the privy council, may contract such marriage, and the same may be duly solemnized without the consent of his majesty, &c., and shall be good except both Houses of Parliament shall declare their disapprobation thereto." In 1886 an act was passed in the British parliament to remove doubts which had been entertained as to the validity of certain marriages solemnized in England when one of the parties was resident in Scotland. The Summary Jurisdiction (Married Women) Act of 1895 enabled a wife whose husband is convicted of an assault on her, or who has been deserted by him, or been obliged owing to his cruelty to live apart from him, to apply to the justices, who are empowered by the act to make an order for separation and for payment by the husband to his wife of such weekly sum, not exceeding two pounds, as they may consider reasonable. The Marriage Act 1898 authorized the celebration of marriages in places of worship duly registered for the solemnization of marriages under the Marriage Act of 1836 without the presence of the registrar, on condition of their being solemnized in the presence of a person duly authorized by the governing body of the place of worship in question. It also made further provision for the due recording of all marriages in the general registers. The Marriages Validity Act of 1899 removed doubts as to the validity of marriages in England on Irish banns and in Ireland on English banns. Lastly, the Marriage with Foreigners Act 1906 enabled a British subject desirous of marrying a foreigner in a foreign country to comply with the foreign law by obtaining from a registrar a certificate that no legal impediment to the marriage has been shown. Similar certificates, by arrangement between His Majesty and foreign countries, are issued in the case of a foreigner desirous of marrying a British subject in the United Kingdom.
The Foreign Marriage Act 1892 has consolidated the English law relating to marriages celebrated abroad, and brings it into harmony with the current tendencies of marriage law reform generally. Under it a marriage between British subjects abroad is as valid as a marriage duly solemnized in England (as heretofore), if celebrated in accordance with the local law or in the presence of diplomatic or consular agents who are appointed to act as " marriage officers." The old fiction of assimilation of a British embass y to British soil can no longer be relied upon to uphold a marriage at a British embassy solemnized by an ordained clergyman. An order in council of the 28th of October 1892, moreover, provides that in the case of any marriage under the act, if it appears to the marriage officer that the woman about to be married is a British subject, and that the man is an alien, he must be satisfied that the marriage will be recognized by the law of the foreign country to which the alien belongs.
A marriage may be solemnized on board one of His Majesty's ships at a foreign station, provided a warrant of a secretary of state has authorized the commanding officer to be a marriage officer. At sea, marriages on British public or private ships seem still valid at common law, if performed by an episcopally ordained minister. The Merchant Shipping Act 1894 (sect. 240) provides that the master of a ship for which an official log is required shall enter in it every marriage taking place on board, with the names and ages of the parties.
Again, under the Foreign Marriage Act all marriages solemnized within the British lines by a chaplain or officer or other person officiating under the orders of the commanding officer of a British army serving abroad, are as valid in law as if they had been solemnized within the United Kingdom subject to due observance of all forms required by law. The Naval Marriages Act 1908 authorizes, for the purpose of marriages in the United Kingdom, the publication of banns and the issue of certificates on board His Majesty's ships in certain cases, or when one of the parties to a marriage intended to be solemnized in the United Kingdom is an officer, seaman or marine, borne on the books of one of His Majesty's ships at sea.
The principle of the English law of marriage, that a marriage contracted abroad is valid if it has been solemnized according to the lex loci, may be now taken to apply just as much to a marriage in a heathen as in a Christian country. Whether the marriage has or has not been celebrated according to Christian laws has no bearing upon the question, providing it is a monogamous marriage - a marriage which prevents the man who enters into it from marrying any other woman while his wife continues alive.
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The chief point of distinction, as compared with English law, is the recognition of irregular marriages. (1) " A public or regular marriage," says Fraser, " is one celebrated, after due proclamation of banns, by a minister of religion; and it may be celebrated either in a church or in a private house, and on any day of the week at any hour of the day." The ministers of the National Church at first alone could perform the ceremony; but the privilege was extended to Episcopalians by I o Anne c. 7 (1711), and to other ministers by 4 and 5 Will. IV. c. 28 (1834). (2) A marriage may also " be constituted by 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.
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 consenf, 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 1 oths and perhaps 1 oaths of the marriages in the United States are contracted through some ceremony.
Articles 144-226 of the Code Napoleon, 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 1goo 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 of each other of their intention to be married. Two witnesses of full age must be present. The registrar asks each of the parties whether he or she will marry the other, and on their answer in the affirmative declares them duly married and enters the marriage in the register. The marriage must be preceded by a public notice. Marriages are void between descendants and ascendants; relatives by marriage in the ascending or descending line; brother and sister of the whole or half blood.
In the great majority of the other European countries civil marriage is obligatory. In Roman Catholic countries the parties usually supplement the obligatory civil marriage by a religious ceremony, more especially since the papal decree Ne temere of the 2nd of August 1907 (which came into force at Easter 1908), which requires marriages between Roman Catholics, or between Roman Catholics and those not professing that faith, to be celebrated before a bishop or priest duly authorized far the celebration thereof.
- Eversley, The Law of Domestic Relations (3rd ed., London, 1906); Lush, The Law of Husband and Wife (London, 1909); Crawley, The Law of Husband and Wife (London, 1892); Geary, Marriage and Family Relations (London, 1892); Griffiths, Married Women's Property Acts (London, 1891); Vaizley, Law of Settlements of Property made on Marriage (London, 1887); Bishop, (America) Marriage, Divorce and Separation (Chicago, 1892); David Murray, (Scotland) The Law relating to the Property of Married Persons (Glasgow, 1892); E. A. Westermarck, History of Human Marriage (3rd ed., 1901), with other works cited in the article Family. M. Neustadt, Kritische Studien zum Familienrecht des burgerlichen Gesetzbuchs (Berlin, 1907); O. D. Watkins, Holy Matrimony (London, 1895), a comprehensive study of the history and theory of Christian marriage, from the High Anglican point of view, with special reference to missions dealing with heathen converts; J. Wickham Legg, " Notes on the Marriage Service in the Book of Common Prayer of 1549," in Ecclesiological Essays (London, 1905), a valuable comparative study of Christian marriage rites, with numerous references; the articles " Ehe, Christliche," by Gottschick, and " Eherecht " (many references), by Sehling, in Herzog-Hauck, Realencyklopddie (3rd ed., Leipzig, 1898, vol. v.); Abbe Andre, Cours de droit canon (3rd ed., Wagner, Paris, 1901), art. " Mariage," " Affinite," &c.
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