A marriage founded on banns can only be solemnised in one of the churches or chapels in which the banns have been published (a), and banns cannot lawfully be published in all churches or chapels, but only in parish churches, and in other churches or chapels specially authorised by episcopal licence(b), or order in council (c). Banns. Although banns are intended as a security against clandestine and unlawful marriages, the law has given the clergyman no express power to call for or compel information as to the age, kindred, history, or other circumstances of parties unknown to him; except that he may, if he think fit, require from them seven days' notice, with a statement of their names, places of abode within his parish or chapelry, and length of residence in such places of abode(d), though legal penalties may be incurred by a false statement of any of such particulars. Of licences there are two kinds: a common licence, which is granted by the ordinary through his chancellor and surrogates; and a special licence, which is granted only by the archbishop of Canterbury (e). Licences. Special licence. For the latter no fixed period of residence is necessary; it authorises marriage at any hour of the day or night, and in any place, whether consecrated or not(ƒ). It is granted only on special grounds, and for a pecuniary payment so large as to be prohibitory to persons who are not affluent. The granting of special licences being of comparatively rare occurrence, has no general influence on the marriage laws of this country (g). [ *532] Common licence. *A common licence may be obtained by any person who is prepared to make the requisite payments, and to declare on oath that one of the parties to be married, has, for the preceding fifteen days had his, or her, usual place of abode within the parish or district, in the church or chapel of which the marriage is to be solemnised; that there is no lawful impediment to the marriage known to the deponent, and, (if either party be a minor, not previously married) that the consent of the proper parent or guardian (if any) has been obtained(h). The only penalty expressly imposed by law for the false statement of any of these particulars is forfeiture (to be enforced, if necessary, in chancery) of any pecuniary benefits which the party might take under the marriage. No further inquiry is made by the surrogate; no kind of publicity is given to the application; and no interval of time is required to elapse between the application or the grant of the licence, or between the grant of the licence, and the solemnisation of the marriage. Registrar's certificate. The conditions on which a superintendent registrar's certificate for marriage by a clergyman of the established church may be obtained, are identical with those required for the other modes of solemnisation, which may take place under the registrar's certificate, and will be hereafter specified. The clergy of the established church are not bound, but they are at liberty to solemnise marriage under these certificates(i); a small portion, however, only of church marriages being so celebrated. A marriage by common licence, or by a clergyman under a registrar's certifi (a) 4 Geo. 4, c. 76, s. 2. (b) 4 Geo. 4, c. 76, ss. 2, 3. (f) See Shelford on Marriage, 260. (c) 59 Geo. 3, c. 134, s. 6; 7 & 8 Vict. c. 56, cences are issued yearly from the Faculty 8. 4. (d) 4 Geo. 4, c. 76, s. 7. (e) 25 Hen. 8, c. 21, ss. 3, 4; 4 Geo. 4, c. 76, s. 20; 6 & 7 Will. 4, c. 85, s. 1. Office. (h) 4 Geo. 4, c. 76, ss. 10, 14. (i) 6 & 7 Will. 4, c. 85, s. 1; 19 & 20 Vict. c. 119, s. 11. cate, must be solemnised in a church or chapel named in the licence, or within the district of the registrar. And every church marriage requires for its celebration the ministry of a duly ordained clergyman (the presence of a civil registrar not being required); and such marriage (unless by special licence) must be celebrated between the hours of 8 and 12 o'clock A. M.(k); and, further, the law directs that it be attested by two witnesses besides the officiating minister(). 2. Marriages by the estab [*533] 2. Our law offers to persons who may not desire to be married according to the rites of the established church, the alternative of marriage, according to their own religious usages(m), or marriage by a purely civil cereother than those mony (n). Whichever alternative be chosen, certain preliminary lished church. proceedings are required to be taken in the office of the superintendent registrar, which stand in place of the banns or licences of the established church; and the presence of a civil registrar at the solemnisation of the marriage is, in all cases, required (0), except when the marriage is according to the usages of Quakers or of Jews(p). These preliminary requirements are as follows: Notice. The parties intending to marry must give notice (g) to the superintendent registrar of each district (if more than one) in which they reside, accompanied by statutory declarations stating (subject to the penalties of perjury(r) if the statement be false) various particulars more numerous and precise than those required for a church licence. A notice book is kept in the superintendent registrar's office, in which copies of all such notices must. be entered, and which is open to public inspection at reasonable times(s). The Certificate and marriage may take place either upon the certificate or upon the licence of the superintendent registrar. In the former case the notice must state a previous residence of at least seven days within the district, and a copy of the notice must be "suspended in some conspicuous place" in the superintendent registrar's office, during *twenty-one successive [*534] days next after entry in the notice book(t). licence. In the latter case, the declaration must show a residence in the district for at least fifteen days next before the notice; and a licence, authorising an immediate marriage, may issue on the second day after the entry in the notice book(u). If one of the parties reside in Ireland or Scotland, notice to the Irish registrar, followed by his certificate according to the Irish marriage law, or a due publication of banns in Scotland, is accepted as equivalent to an English notice and certificate. The certificate or licence specifies the place where the marriage is to be solemnised, which may be either the office of the superintendent registrar himself, or a registered building(x), or, in the case of a person professing to be a Quaker or a Jew, a place where marriages are celebrated according to the usages of either body. Place of marriage. (k) 4 Geo. 4, c. 76, s. 21. (2) 4 Geo. 4, c. 76, s. 28. (m) 6 & 7 Will. 4, c. 85, s. 20. (n) 6 & 7 Win. 4, c. 85, s. 21. (0) 6 & 7 Will. 4, c. 85, s. 20. (p) 6 & 7 Will. 4, c. 85, ss. 2, 16; 19 & 20 Vict. c. 119, ss. 20-22. (q) 6 & 7 Will. 4, c. 85, s. 4; 19 & 20 Vict. e 119, ss. 3, 4. VOL. I.- 45 (r) 19 & 20 Vict. c. 119, ss. 2, 18. (8) 6 & 7 Will. 4, c. 85, s. 5. (t) 6 & 7 Will. 4, c. 85, s. 4; 19 & 20 Vict. c. 119, s. 4. (u) & 7 Will. 4, c. 85, s. 12; 19 & 20 Vict. c. 119, s. 9. (x) Every separate building, certified under 52 Geo. 3, c. 155, as a place of religious worship (see also 18 & 19 Vict. c. 81), may, under If the marriage be in a registered building, it must (as a general rule) be within the district, or one of the districts in which the notice was given; but the certificate or licence may authorise its solemnisation in the usual place of worship of the parties (if not more than two miles beyond the limits of the district), or in a registered building within the nearest district in which the ceremonies which they wish to be adopted are used, upon special cause being shown [*535] by certain forms of declaration *prescribed by statute(y) for cases in which adherence to the general rule might be inconvenient or impracticable. No marriage can be solemnised under the registrar's certificate in any church or registered place of worship, without the consent of the minister of such church or place of worship(z). Presence of registrar. Form of Every marriage in the registrar's office must be solemnised in the presence of the superintendent registrar; and every marriage in a registered building must be solemnised in the presence of one of the registrars under his superintendence(a). Both in the registrar's office and in a registered building the marriage must be solemnised in the presence of two witnesses, and between 8 and 12 o'clock A. M., and the parties must declare that they take each other as husband and wife knowing of no lawful impediment(b). No other form of solemnisation is prescribed: the addition of any kind of religious ceremony being permitted in a registered building(c), but prohibited in the superintendent registrar's office(d). marriage. In all foregoing respects the law and practice are uniform, whether the parties principally concerned be Roman Catholics, Presbyterians, or of any other religious denomination, except Quakers and Jews. The marriages of Quakers and Jews, having been excepted from the operation of the acts prior to 6 & 7 Will. 4, c. 85(e), have been subjected to special legislation (f). The same notice is required from them as from other non-conformists, and they must, like others, be married under the superintendent registrar's certificate or licence. But they are not restricted to marriage in registered buildings or in places within the *district in which the parties dwell; any place within the superin[ *536] tendent registrar's district, in which marriages can properly be solemnised according to their respective usages, may be named in the certificate or licence, and the presence at the marriage of their own registering officer in the case of Quakers, or of an officer certified in a particular manner to be the secretary of a Jewish synagogue, in the case of Jews, is accepted as sufficient to authenticate the contract, without the attendance of a civil registrar. With respect to the marriages of minors, the law is substantially the same (though with some unimportant differences in its directory provisions), whether the marriage is intended to be solemnised by the established church or otherwise (g). Marriages of minors. Lord Russell's Act (6 & 7 Will. 4, c. 85), be registered as a building for the solemnisation of marriages, upon the application of a proprietor, or trustee, accompanied by a certificate of at least twenty householders, that they have used such building for one year as their usual place of religious worship, and that they desire it to be registered; and any part of a building licensed and used for pub. lic religious worship as a Roman Catholic chapel only, is deemed, for this purpose a separate building. (y) 3 & 4 Vict. c. 72. (2) 19 & 20 Vict. c. 119, s. 11. (e) 26 Geo. 2, c. 33, s. 18; 4 Geo. 4, c. 76, s. 31. (ƒ) 6 & 7 Will. 4, c. 85, ss. 2, 39; 3 & 4 Vict. c. 72, s. 5; 19 & 20 Vict. c. 119, ss. 20-22. (g) The civil law required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parent's power (Dig. 23, 2, 2 & 18); and if such *The consent of parents or guardians (subject to an appeal to the court of chancery in cases of unreasonable refusal (k)), is so far [*537] refusal(h)), required by law, that the parent or guardian by publicly forbidding the banns(i), or the solemnisation, or by caveat(k), or by entry in the registrar's marriage notice book(), may prevent the banns from proceeding, or the licence or certificate (as the case may be) from issuing, orthe marriage from taking place; and the consequence of the marriage of a minor, without the proper consent, may be, that the court of chancery will deprive the offending party of any pecuniary benefit from the marriage(m). But it is not incumbent on any clergyman, surrogate, or superintendent registrar, to call for any proof of consent beyond the declarations of the parties, when a licence is applied for, or notice given to a registrar: and the marriage of a minor, if actually solemnised without the requisite consent, is valid in law(n).(146) hibition of A caveat, or entry of prohibition, in the registry of the ordinary (0), or in a registrar's office(p), alleging any legal impediment to a marriage, stops the Caveat, and pro- issue of the surrogate's licence, or of the registrar's certificate or marriage. licence, until the objection is disposed of in due course of law. Superintendent registrars are empowered to inquire into and decide upon the validity of such objections, subject to an appeal to the registrar-general(9): and a *caveat entered in the registry of the ordinary, may be brought for adjudication before the judge (r), for whom the surrogate is deputy, or [*538] (in the absence and with the sanction of the judge) may be disposed of by the surrogate. Effect of noncompliance with legal requisites. The effect of non-compliance with the various legal requirements, as well in cases of marriage by the established church as in others, must, in the next place, be considered. consent from the father was wanting, the marriage was null, and the children illegitimate (Inst. 1, 10, 12); but the consent of the mother or guardians, if unreasonably withheld, might be supplied by the judge, or the president of the province, and if the father was non-compos, a similar remedy was given (Inst. 1, 10, 1), but no such restriction was known here till it was thought proper to introduce somewhat of the same policy into our laws by stat. 26 Geo. 2, c. 33, which enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty-one (not being a widow or a widower, who are supposed emancipated), without the consent of the father, or, if he be not living, of the mother or guardian, should be absolutely void. A like provision was made as in the civil law, where the mother or guardian was non compos, beyond sea, or unreasonably dissatisfied, to dispense with such consent at the discretion of the lord chancellor: but no provision was made, in case the father should labour under any mental or other incapacity. The strictness required by this act was found so prejudicial, and so many cases involving apparent hardship occurred of marriages being declared null after many years of cohabitation, that the law was by stats. 3 Geo. 4, c. 75 and 4 Geo. 4, c. 76 relaxed, to this extent, that though consent is still required for the marriage of minors yet marriages taking place without such consent are valid. On this subject see Appendix to Report of the Commission on the Laws of Marriage, A. D. 1868, pp. 16-23, 64. (h) 4 Geo. 4, c. 76, s. 17. See Ex parte, I. C. 3 Myl. & Cr. 471. (i) 4 Geo. 4, c. 76, s. 8. (k) 4 Geo. 4, c. 76, s. 11; 6 & 7 Will. 4, c 85, s. 13. Any person vexatiously entering a caveat with the superintendent registrar on grounds found to be frivolous, is liable for the costs of the proceedings, and for damages to be recovered in a special action on the case by the person against whose marriage such caveat has been entered. 6 & 7 Will. 4, c. 85, s. 37; 7 Will. 4 & 1 Vict. c. 22, s. 5. (2) 6 & 7 Will. 4, c. 85, s. 9. (m) 4 Geo. 4, c. 76, s. 23; 6 & 7 Will. 4, c. 85, s. 43. (n) 3 Geo. 4, c. 75, s. 2; 4 Geo. 4, c. 76, s. 23; 6 & 7 Will. 4, c. 85, s. 25; 19 & 20 Vict. c. 119, s. 17. (0) 4 Geo. 4, c. 76, s. 11. (p) 6 & 7 Will. 4. c. 85, s. 13. (146) See note 138. The false statement of any of those particulars, as to which affidavits or statutory declarations are needed, though punishable(s), or visited with forfeiture of pecuniary interests(t), does not vitiate a marriage. And although in the wilful celebration of a marriage by a clergyman of the established church, or a registrar, in contravention of the law is felony by statute(u), yet no evidence can be offered after a marriage, for the purpose of showing noncompliance with the provisions of the statutes as to residence (v). Nullities. No want of attestation, or other mere defect of form, will vitiate a marriage contracted in good faith. But it may be vitiated and rendered null in law by the falsification, or even by a slight disguise, through the fraud of both parties, of a christian name or surname in the publication of banns(x), (though not in a licence(y)); and possibly also in a registrar's certificate(z). A marriage, also, according to the rites of the established church is by statute 4 Geo. 4, c. 76, s. 22, "null and void to all intents and purposes whatsoever," if the parties (i. e. both of them) have knowingly and [ *539] wilfully intermarried in any place other than a church or chapel in which banns may be lawfully published (unless by special licence), or have "knowingly and wilfully" intermarried "without due publication of banns, or licence from a person having authority to grant the same, first had and obtained," or have "knowingly and wilfully assented to or acquiesced in the solemnisation of such marriage by any person not being in holy orders." Further, a marriage purporting to be solemnised under the statute 6 & 7 Will. 4, c. 85, is by that act declared to be "null and void "if the parties shall "knowingly and wilfully" intermarry in any place other than the church, chapel, or registered building specified in the notice and certificate, or without due notice to the superintendent registrar, or without the superintendent registrar's certificate, duly issued, or without his licence, when necessary, or in the absence of a registrar or superintendent registrar, where his presence is necessary under the act. No publication of banns, common or special licence, or superintendent registrar's certificate or licence, is available as legal authority for the solemnisation of a marriage at any time more remote than three months from the date of the last publication of banns or of the issue of the licence or certificate(a). A marriage cannot lawfully be contracted according to the peculiar usages of the Quakers, except between persons, both of whom are members of, or, (if not members,) "profess with and are of the persuasion of " the Society of Friends, nor according to the peculiar usages of the Jews, except between persons, both of whom are of the Jewish religion. These usages being referred to by the statutes as the rules of lawful solemnisation, difficult questions, perhaps even affecting the validity of marriages bona fide contracted, may be liable to arise, in cases in which it may be alleged that those usages have not been properly [*540] *observed. Except, however, in these peculiar cases, of Quakers and Jews, no marriage in England is liable to be held void on any ground (8) 6 & 7 Will. 4, c. 85, s. 38; 19 & 20 Vict. c. 119, s. 18. (t) 4 Geo. 4, c. 76, s. 23; 6 & 7 Will. 4, c. 85, s. 43. (u) 4 Geo. 4, c. 76, s. 21; 6 & 7 Will. 4, c. 85, s. 39. (v) 4 Geo. 4, c. 76, s. 26; 6 & 7 Will. 4, c. 85, s. 25; 19 & 20 Vict. c. 119, s. 17. (x) 4 Geo. 4, c. 76, ss. 7, 22; Mather v. Ney, 3 M. & S. 265; R. v. Inhabitants of Tibshelf, 1 B. & Ad. 190; Wells v. Wells and Cottam, 3 Swa. & Tr. 364, 593. (y) Lane v. Goodwin, 4 Q. B. 361; Bevan v. McMahon, 2 Swa. & Tr. 230. (2) See Holmes v. Simmons, L. R. 1 P. & D. 523. (a) 4 Geo. 4, c. 76, ss. 9, 19; 6 & 7 Will. 4, c. 85, s. 15; Wiltshire v. Prince, 3 Hag. Ecc. R. 332; Tongue v. Allen, 1 Moo. P. C. 90. |