CHAPTER II.

ENGLAND.

INTRODUCTION.--The law of England regards marriage as a contract, a status and an institution. As a contract it is in its essence an expressed consent on the part of a man and woman, competent to make the contract, to cohabit with each other as husband and wife, and with each other only. As Lord Robertson says: "It differs from other contracts in this, that the rights, obligations or duties arising from it are not left entirely to be regulated by the agreement of parties, but are to a certain extent matters of municipal regulation, over which the parties have no control by any declaration of their will."

As a status created by contract, marriage confers on the parties certain privileges and exacts certain duties under legal protection and sanction.

From the earliest period of the recorded history of England it has always been accepted doctrine that marriage as an institution is the keystone of the commonwealth and the highest expression of morality.

The men of the law in England were anciently persons in holy orders, and the judges were originally bishops, abbots, deans, canons and archdeacons. As late as 1857 the clergy in their ecclesiastical courts had exclusive jurisdiction of matrimonial causes. They administered the Canon Law of the Western Church affecting marriage and ruled that in marriages lawfully made, and according to the ordinance of matrimony, the bond thereof can by no means be dissolved during the lives of the parties.

By the passage of the Divorce Act of 1857 the jurisdiction in matrimonial causes was transferred to a new civil tribunal, and absolute divorce was sanctioned, with permission of remarriage on proof of adultery on the part of the wife, or adultery and cruelty on the part of the husband.

It is seriously contended by some eminent churchmen that in spite of this legislation the Church of England still has as its definite existing law the old rule which obtained before the Reformation, namely, that marriage is indissoluble; that a limited divorce from bed and board may be permitted, but that an absolute divorce which leaves either party free to remarry during the lifetime of the other is forbidden. This supposed conflict between the civil and ecclesiastical laws of the realm furnishes an academic topic and engenders bad feeling, but it has no real existence.

The Church of England exists by Act of Parliament and manifestly has no power to nullify statutes enacted by the legislature which established it as the official religious organization of the Kingdom.

The civil courts of England have never considered marriage as a sacrament or religious ordinance, but have held that the dogmas and precepts of Christianity do not affect the civil status of marriage, but simply add to it a religious character. In this respect the law of England is in exact harmony with the attitude of the primitive Christian Church.

Lord Stowell tells us that "in the Christian Church marriage was elevated in a later age to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import concerning it contained in sacred writings. The law of the Church, the canon law (a system which, in spite of its absurd pretensions to a higher origin, is in many of its provisions deeply enough founded in the wisdom of man), although in conformity to the prevailing theological opinion, it reverenced marriage as a sacrament, still so far respected its natural and civil origin as to consider that where the natural and civil contract was formed it had the full essence of matrimony without the intervention of the priest, it had even in that state the character of a sacrament; for it is a misapprehension to suppose that this intervention was required as a matter of necessity even for that purpose before the Council of Trent."

The English courts only recognize as a true marriage one which, in addition to being valid in other respects, involves the essential requirement that it is a voluntary union of one man and one woman for life to the exclusion of all others, which is substantially the definition of marriage given by Lord Penzance in the leading case of Hyde v. Hyde.

No marriage is recognized which is founded on principles which are in conflict with the general morality of Christendom. The term Christendom is used as a matter of convenience only. It includes all those nations generally recognized to be civilized, whatever may be their prevailing religion.

LEX LOCI CONTRACTUS.--It is a well-established rule that the law of the place where the contract of marriage was concluded, that is, the _lex loci contractus_, or, as it is sometimes termed, the _lex loci celebrationis_ (law of the place of celebration), alone governs the court in ascertaining whether or not the marriage is regular. All the formal preliminaries, such as publication of banns, or license, and consent of the parties entitled to give or withhold consent according to the _lex loci contractus_, must be complied with.

LEGAL AGE.--The legal age for marriage in England and Wales is fourteen for a male and twelve for a female. The consent of the father of each of the contracting parties is required of those under twenty-one. If the father is dead the consent of the mother is required unless there is a guardian appointed by the father.

FORMAL REQUIREMENTS.--There are certain formal preliminaries to a valid marriage in England, such as the publication of banns, or the procurement of a common or special license which operates as a dispensation with the banns.

BANNS.--The banns must be published on three Sundays in the parish in which the parties reside, and if they reside in different parishes the banns must be published in each parish. The marriage ceremony must be celebrated in one of the churches where the banns have been published. If they are published in two different parishes the clergyman of one parish must give a certificate of publication, which must be delivered to the clergyman who solemnizes the marriage.

The parties must reside in the parish for fifteen days prior to the publication of the banns, and the marriage must take place within three months of the last publication. Where a man has procured the banns to be published in false names, or has concealed his true name, he will not be allowed to annul the marriage on that account only. A party cannot take advantage of his own fraud for the purpose of invalidating a marriage.

LICENSE.--No publication of banns is necessary in the case of a marriage under a bishop's license. Licenses may be obtained at the offices of the bishop's registrars, and full information as to procuring a license may be obtained through the local clergy. A license granted by a bishop is only available in his diocese, and one of the parties must have resided for fifteen days immediately preceding the issue of the license in the parish in which the marriage is to take place. The cost varies in different dioceses, but it is usually between L2 and L3. The Archbishop of Canterbury has power to issue a special license enabling a marriage to be solemnized at any time or place. The cost of this is from L20 to L30, and it can be obtained at the Faculty Office, Doctors' Commons, London, E.C.

CERTIFICATE OF REGISTRAR.--A marriage by the certificate of the registrar of marriages may take place at a Roman Catholic place of worship, a Nonconformist chapel, or at the office of the registrar of marriages. The parties must have resided in the district at least seven days preceding the date of the notice, which must be given to the superintendent registrar, or, if they live in different districts, then notice must be given to the superintendent registrar of each district, and it must be exhibited in his office for twenty-one days. If no valid objection to the marriage is made the superintendent registrar issues his certificate and the marriage may take place within three months. The cost, including certificate, is 9s. 7d.

REGISTRAR'S LICENSE.--A marriage by registrar's license may take place either at his office or at a Roman Catholic or Nonconformist place of worship. Notice must be given by one of the parties to the superintendent registrar of the district in which he or she has resided for at least fifteen days, and he will then issue his license at the expiration of one day. The marriage can then immediately take place, or it may take place any time within three months. The cost is L2 14s. 6d.

No marriage license will be issued to parties, either of whom is under twenty-one years of age, unless one of the parties makes oath that the consent of the proper persons has been obtained, or that there is no person alive whose consent would ordinarily be necessary.

A marriage may be legally concluded without a marriage license if banns are duly published.

HOURS FOR MARRIAGE.--Marriages can only be solemnized between 8 a.m. and 3 p.m., except in the case of marriages by special license and Jewish marriages.

FALSE NAMES.--Where both parties conspire to procure banns to be published in a false name or names or to practise a fraud with the object of obtaining a license the marriage may be annulled, but if the one party only is guilty the marriage will be valid.

MARRIAGE BY REPUTATION.--In most cases it is necessary to produce clear evidence of a marriage ceremony, but in some exceptional instances a marriage may be proved by long reputation--_e.g._, if two persons have lived together as man and wife for many years, and if they have always been regarded as such by their friends and neighbours, the Court will presume a legal marriage unless evidence is produced to prove that the parties were not lawfully married.

CERTIFICATES OF MARRIAGES--MARRIAGE LINES.--A marriage certificate (marriage lines) can be obtained at the time of the marriage for 2s. 7d. If applied for subsequently the cost will be 3s. 7d. A certificate can be obtained at the church, chapel, synagogue or meeting house where the ceremony was performed, or at the General Register Office, Somerset House, or at the office of the superintendent registrar of the district where the marriage took place. The entry in the register at either of these places may be inspected on payment of 1s. A certificate of a marriage entered into in England or Wales prior to July 1, 1837, should be obtainable either from the registrar general or from the church where it was solemnized.

IMPEDIMENTS--PROHIBITED DEGREES.

A man may not marry his:

1 Grandmother.

2 Grandfather's Wife.

3 Wife's Grandmother.

4-5 Father's Sister, Mother's Sister (_i.e._, aunt by blood).

6-7 Father's Brother's Wife, Mother's Brother's Wife (Uncle's Wife, _i.e._, aunt by affinity).

8-9 Wife's Father's Sister, Wife's Mother's Sister (Wife's Aunt).

10 Mother.

11 Stepmother.

12 Wife's Mother (Mother-in-law).

13 Daughter.

14 Wife's Daughter (Step-daughter).

15 Son's Wife (Daughter-in-law).

16 Sister.

17 Brother's Wife (Sister-in-law).

18-19 Son's Daughter, Daughter's Daughter, (Granddaughter).

20 Son's Son's Wife (Son's Daughter-in-law).

21 Daughter's Son's Wife (Daughter's Daughter-in-law).

22 Wife's Son's Daughter (Stepson's Daughter).

23 Wife's Daughter's Daughter (Stepdaughter's Daughter).

24-25 Brother's Daughter, Sister's Daughter (niece).

26-27 Brother's Son's Wife, Sister's Son's Wife (nephew's wife).

28-29 Wife's Brother's Daughter, Wife's Sister's Daughter (niece by affinity).

A woman may not marry her:

1 Grandfather.

2 Grandmother's Husband.

3 Husband's Grandfather.

4-5 Father's Brother, Mother's Brother (uncle by blood).

6-7 Father's Sister's Husband, Mother's Sister's Husband, (Aunt's Husband, _i.e._, uncle by affinity).

8-9 Husband's Father's Brother, Husband's Mother's Brother (husband's uncle).

10 Father.

11 Stepfather.

12 Husband's Father (father-in-law).

13 Son.

14 Husband's Son (stepson).

15 Daughter's Husband (son-in-law).

16 Brother.

17-18 Husband's Brother, Sister's Husband (brother-in-law).

19-20 Son's Son, Daughter's Son (grandson).

21 Son's Daughter's Husband (son's son-in-law).

22 Daughter's Daughter's Husband (daughter's son-in-law).

23 Husband's Son's Son (stepson's son).

24 Husband's Daughter's Son (stepdaughter's son).

25-26 Brother's Son, Sister's Son (nephew).

27-28 Brother's Daughter's Husband, Sister's Daughter's Husband (niece's husband).

29-30 Husband's Brother's Son, Husband's Sister's Son (nephew by affinity).

GROUNDS OR CAUSES FOR DIVORCE.--A husband is entitled to a divorce if his wife has committed adultery, but a wife is not so entitled unless her husband has committed incestuous adultery, bigamy, rape, sodomy, bestiality, adultery coupled with cruelty, or adultery coupled with desertion without reasonable excuse for two years or more. Incestuous adultery is adultery with a woman within the prohibited degrees.

A wife will not be granted a decree of divorce on the ground of her husband's adultery coupled with cruelty unless the cruelty relied on consists of bodily hurt or injury to health, or a reasonable danger or apprehension of one or the other of them. There must be at least two acts of cruelty on the part of the husband.

The communication of venereal disease when the husband knows of his condition is an act of cruelty.

PROCEDURE.--The application for a divorce is made by a petition to the Probate, Divorce and Admiralty Division of the High Court of Justice.

The party seeking relief is called the petitioner, and the party against whom the petition is brought is called the respondent. The party with whom a husband alleges his wife has committed adultery is called the co-respondent. The person with whom a wife alleges her husband has committed adultery is not a party to the suit. However, a woman implicated in a divorce suit may, upon proper application, secure an order permitting her to attend the proceedings as an intervener.

Divorce proceedings in England are very expensive; the costs in an ordinary uncontested suit amount to from thirty to forty pounds sterling.

A petitioner or respondent who is not worth twenty-five pounds after payment of his or her debts, exclusive of wearing apparel, may sue or defend in _forma pauperis_. A person whose income exceeds one pound a week cannot, except in special cases, sue or defend in _forma pauperis_. A party desiring to sue or defend in _forma pauperis_ must as a preliminary measure prepare a written statement of his or her case, setting forth the facts relied upon as a cause of action or defence, and obtain thereon an endorsed opinion of a barrister-at-law setting forth his professional opinion that the cause of action or defence as stated is good in law. The applicant must then make an affidavit, attaching the statement and the barrister's opinion. This affidavit is then filed in the Divorce Registry of Somerset House, where two days later, if a proper case is made out, an order is issued granting the applicant leave to sue or defend in _forma pauperis_. No fees are charged in respect to this application nor upon the subsequent proceedings in court. No solicitor or barrister is assigned to the party proceeding in this form.

JURISDICTION.--The Court will only entertain jurisdiction when the husband is domiciled in England. If the husband is temporarily residing abroad an action by him or his wife for divorce must be instituted in England.

The English Courts do not recognize a change of domicile which is obtained simply to enable the parties to obtain a divorce in another country, the laws of which offer greater facilities.

If the domicile of the husband is in England, and either the husband or the wife obtains a decree of divorce in the United States of America or elsewhere, the English courts will treat such a divorce as a nullity. A person's domicile is his or her permanent home. An Englishman who lives in America for twenty-five years is not domiciled there unless by all the facts his conduct shows that he has abandoned his English domicile.

CONDONATION.--A matrimonial offence which is a sufficient cause for divorce may be condoned or forgiven by the spouse aggrieved, and such condonation is a good defence to the action. But subsequent misconduct will revive the offence as if there had been no condonation.

CONNIVANCE.--It is a sufficient defence to an action for divorce for the respondent to show that the adultery complained of was committed by the connivance or active consent of the petitioner.

COLLUSION.--Collusion is the illegal agreement and co-operation between the petitioner and the respondent in a divorce action to obtain a judicial dissolution of the marriage.

FORM OF DIVORCE DECREES.--An English decree of divorce is in the first instance _nisi_, or provisional. If after six months it is unaffected by any intervention by the King's Proctor, or any other person, it can be made absolute upon proper application.

KING'S PROCTOR.--This is the proctor or solicitor representing the Crown in the Probate, Divorce and Admiralty Division of the High Court of Justice in matrimonial causes.

In his official capacity he can only intervene in a divorce suit on the ground of collusion.

Sir James Hannen, discussing the powers of this officer, said in a leading case: "If, then, the information given to the King's Proctor before the decree _nisi_ does not rise to a suspicion of collusion, but only brings to his knowledge matters material to the due decision of the case, he is not entitled to take any step, and the direction of the Attorney-General would probably be that he should watch the case to see if these material facts are brought to the notice of the court. If at the trial they should be, there will be no need for the King's Proctor to do anything more, for he would not be entitled to have the same charges tried over again unless material facts were not brought to the notice of the court.

"If, however, those material facts are not so brought to the notice of the court by the parties, he will then be entitled as one of the public, but still acting under the direction of the Attorney-General, to show cause against the decree being made absolute."

In special cases the court has power to make the decree absolute before the expiration of six months after the decree _nisi_.

Until the decree is made absolute neither party can lawfully contract another marriage; and in the event of the suit being contested the parties must further wait until the time for an appeal has passed.

ALIMONY, TEMPORARY AND PERMANENT.--During the pendency of the suit the husband is liable to provide his wife with alimony or maintenance. The amount granted is within the court's discretion, but generally it is about twenty-five per centum of the husband's income. Upon the granting of a decree in the wife's favour the court has power to grant the wife permanent alimony, the amount of which depends on all the facts, such as the husband's income, the wife's means and the social status of the parties. If a wife secures an order for alimony against her husband, he being a man of property, the court may require him to give security for its payment or direct him to make a transfer of money to a trustee or trustees for the convenient payment to the wife. Permanent alimony is usually smaller than temporary alimony, or alimony _pendente lite_, but no rule as to the amount can be safely stated, it resting in the discretion of the Court.

If a husband has no considerable property he will be directed to pay the alimony awarded against him in monthly or weekly instalments.

INSANITY.--Insanity is neither a cause nor a bar to divorce. If an insane wife commits adultery, or if an insane husband commits adultery coupled with the other offences which make out a cause of action against him, the innocent party is entitled to a decree of divorce. So an insane party may be a petitioner for divorce, but can only appear by his or her committee in lunacy.

HUSBAND'S NAME.--A divorced wife is entitled to continue to use her former husband's surname.

ANNULMENT OF MARRIAGE.--An action for the annulment of marriage has for its purpose the setting aside of the marriage contract on the theory that proper consent to the marriage has never been given by both the parties.

The following are the causes or grounds for such annulment:

1. A prior and existing marriage of one of the parties;

2. Impotency, or such physical malformation of one of the parties which prevents him or her from consummating the marriage by sexual intercourse;

3. Relationship within the prohibited degrees;

4. Marriage procured by fraud, violence or mistake;

5. Insanity of one of the parties at the time of the marriage;

6. Marriage performed without legal license, or without the required publication of banns.

JUDICIAL SEPARATION.--By the Matrimonial Causes Act a decree of judicial separation, which is equivalent in effect to a divorce _a mensa et thoro_ under the old law, may be obtained either by the husband or wife on the ground of adultery, or cruelty, or desertion without legal cause for two years and upwards.

The defences which may be set up by the respondent vary according to the cause relied upon by the petitioner, but there is one absolute bar in suits for judicial separations brought on any ground, and that is that the petitioner has committed adultery since the date of the marriage.

SEPARATION ORDERS.--Besides the ordinary suit to obtain a judicial separation which must be prosecuted in the High Court a wife can obtain speedy and inexpensive relief by making an application to a police magistrate, or a board of magistrates, for a separation order. This remedy is limited to married women whose husbands are domiciled in England or Wales.

Such separation orders are intended to furnish summary relief to the wives of workingmen, and the amount awarded for the wife's support to be paid by her husband cannot exceed two pounds a week, no matter what the husband's income may be.

The following are the causes for which, upon application, a magistrate or board of magistrates is authorized to grant a separation order:

1. Habitual drunkenness of the husband, which renders him at times dangerous to himself or others, or incapable of managing himself or his affairs;

2. When the husband has been convicted of an aggravated assault upon his wife, or has been convicted by an Assize or Quarter Sessions Court of an assault and has been sentenced to a fine of more than five pounds or to imprisonment for more than two months;

3. Desertion by the husband of his wife;

4. Persistent cruelty of the husband toward his wife;

5. Neglect to provide reasonable maintenance for wife or infant children.

By the Licensing Act of 1902 a husband is entitled to a separation order by a magistrate or board of magistrates if his wife is an habitual drunkard.

RESTITUTION OF CONJUGAL RIGHTS.--Husbands and wives are entitled to each other's society, and if, without sufficient reason, either of them neglects to perform his or her obligations the injured party may institute what is known as a suit for restitution of conjugal rights, in which the court will grant a decree directing the offending party to render conjugal rights to the other party. If the decree is not complied with, such non-compliance is equivalent to desertion, and a suit for judicial separation may be instituted immediately. If the husband is the offending party, and if he has been guilty of adultery, a suit for divorce may at once be instituted; or if he commits adultery subsequently to the date of the decree for restitution, proceedings for divorce may be taken. Furthermore, if the suit for restitution is brought by the wife, the husband may be directed to make such periodical payments for her benefit as the court may think just. If the suit for restitution is brought by the husband, and if the wife is entitled to any property, the court may order a settlement for the whole or part of it for the benefit of the husband and children of the marriage, or either or any of them, or may order the wife to pay a portion of her earnings to the husband for his own benefit, or to some other person for the benefit of the children of the marriage. A husband cannot compel his wife to live with him by force, and if he seizes and retains possession of her, she or her relatives can obtain a _habeas corpus_ to compel him to release her, but persons who wrongfully induce a wife to leave her husband, or who detain her from his society by improper means, are liable to an action for damages by him. If a husband declines to live with his wife because he discovers that she has been unchaste before marriage she cannot obtain a decree for restitution of conjugal rights unless he knew of the fact before the marriage took place. If a husband has been guilty of cruelty he cannot obtain a decree for restitution.

FOREIGN MARRIAGES.--The Foreign Marriage Act of 1892 (55 and 56 Vict. c. 23) forms a complete code upon the subject of the marriage of British subjects abroad.

Its chief requirement is that one at least of the parties to the marriage must be a British subject.

Notice of the proposed marriage must be given fourteen days before the ceremony, and it must be performed before one of the following officials, who is termed in the Act a "marriage officer": the British ambassador, minister or charge-d'affaires, accredited to the country where the marriage takes place; the British consul, governor, high commissioner, or official resident. The term consul in the Act includes a consul-general, a vice-consul, pro-consul, or consular agent.

If the woman is a British subject, and the man is a subject or citizen of another country, the marriage officer must be satisfied that the intended marriage would be recognized by the laws of the country where the man to be married belongs.

In 1896 there was passed the Marriage with Foreigners Act (6 Edw. 7, 3. 40), which is intended to protect British subjects who contract marriages with subjects or citizens of other countries, either at home or abroad, and to run the risk of having their marriages treated as invalid by the law of the country of the foreign contracting party. It provides for the granting of certificates by competent authority in the country to which the foreign party to the marriage owes allegiance, stating that there is no lawful impediment to the proposed marriage.

CONFLICT OF LAWS.--English courts do not recognize a decree of divorce granted by the courts of a foreign country as having any effect outside of the country where granted, unless at the time of the beginning of the action which resulted in the decree both parties were domiciled within the jurisdiction of the court which granted it.

This rule applies to divorce decrees obtained in Scotland because for all the purposes of private international law Scotland is a foreign country.

The English courts will, however, recognize as possessing extra-territorial validity a decree of divorce which is recognized as valid by the courts of the country where the parties were actually domiciled at the time of its being granted.

In the case of Gillig v. Gillig, decided in 1906, the English High Court recognized as valid in England a divorce granted in South Dakota, U. S. A., of parties domiciled in New York, because the decree in question was recognized as valid by the courts of the State of New York. It is the doctrine of English courts that an honest adherence to the principle that domicile alone gives jurisdiction in a divorce action will preclude the scandal which arises when a man and woman are held to be husband and wife in one country and strangers in another.