the wife's blood relations, or between the wife and the husband's blood relations (x).

Marriages within the prohibited degrees which have been celebrated since 31st August, 1835, are absolutely void to all intents and purposes whatsoever (y). Before that date they were only voidable.

Corporal Infirmity, or natural inability to perform the essential duties, is a good ground for nullifying a marriage. A judgment of the Divorce Division is necessary, and it must be obtained during the lifetime of the parties. Generally, it is not granted until after three years' cohabitation (≈).

Prior Marriage-or rather, having another husband or wife living-in which case, besides the penalties consequent upon it as a felony (bigamy), the second marriage is void (a). Such prior marriage must be a valid one, either according to English or foreign law. As to what is a valid foreign marriage the general rule is, that a marriage valid where celebrated, even in a heathen country if civilized, e.g., Japan, is good everywhere: except marriages involving polygamy and incest (b). But this must be taken to apply only where one of the parties is a domiciled inhabitant of the particular country, for if (e. g.) a domiciled Englishman goes to Denmark for the purpose of there marrying his deceased wife's sister, the marriage is not valid in England on his return (c). In order to render the marriage good in England, a Danish domicil must have been previously acquired.

The question also frequently arises whether a divorce is a valid one. In the English Court a decree absolute must have been pronounced, and the time for appealing against such decree elapsed, or the appeal disposed of, before the parties can legally marry again (d).

(x) Hammick, p. 31.

(y) 5 & 6 Will. 4, c. 54, s. 2; Andrews v. Ross (1888), 14 P. D. 15. (z) See generally Dixon on Divorce,

81.

(a) Bla. Com. ; 2 Ste. Com. 258. (b) Hyde v. Hyde (1866), L. R. 1 P. & D. 133; Re Bethell (1888), 38

Ch. D. 237; Brinkley v. Att. -Gen. (1890), 15 P. D. 76.

(c) Brook v. Brook (1857), 3 Sm. & Gif. 481.

(d) Jud. Act, 1881, s. 9; 31 & 32 Vict. c. 77; Cleaver v. Cleaver (1884), L. R. 9 App. C. 631.

If the decree was obtained in a foreign court, that is, out of England, it does not necessarily follow that the divorce is recognized in England. The question is complicated and depends largely on the law of domicil. Thus it has been held by the House of Lords that the English Courts will recognize as valid the decision of a competent foreign Christian tribunal dissolving the marriage solemnized in England between a domiciled native in the country where such tribunal has jurisdiction and an Englishwoman, although the dissolution may have been for a cause which would not have been sufficient to obtain a divorce in England (e). But where the husband is a domiciled Englishman at the date of his marriage, two cases arise-(1) where he retains his English domicil, in which case no foreign tribunal can dissolve the marriage for ground on which it was not liable to be dissolved in England (ƒ); (2) where he bonâ fide changes his domicil—this case has not been formally decided, but it would seem that the decision of the foreign tribunal would be accepted (g).

When a husband or wife has not been heard of for seven years, he or she may be presumed to be dead, and the survivor may marry again without being guilty of the offence of bigamy; but if the first husband or wife proves to be living, the second marriage is absolutely void.

Want of Age. A marriage by a child under seven is utterly void; by a boy under fourteen or a girl under twelve is voidable by either party on the child attaining the age of consent (ie., fourteen and twelve). No re-marriage is necessary. The above rules relate to the actual marriage contract. No one under the age of twenty-one can make a binding "promise to marry." Formerly the consent of guardians to the marriage of infants (under twenty-one) was necessary to the validity of the marriage, but such is not the case now,

(e) Harvey v. Farnie (1882), 8 App. C. 43.

(f) Lolley's Case (1812), Russ. & Ry. C. C. 237; Shaw v. Att.-Gen.

(1870), L. R. 2 P. & D. 156.

(g) See Shaw v. Att.-Gen., ubi sup.; and Eversley on Domestic Relations, p. 508.

though it ought to be obtained (h). All the property accruing from such a marriage, when brought about by false swearing or fraud, is liable to be forfeited for the benefit of the innocent party or the issue of the marriage (¿).

Since 1823 no minister has been punishable by ecclesiastical censures for solemnizing a marriage between minors unless he has notice of the dissent of the parent or guardian (). As the statute is silent as to the kind of notice, it is to be presumed that either actual or constructive notice is sufficient. A clergyman ought not, therefore, to solemnize the marriage without inquiry if any rumour of the guardian's dissent has reached him. Knowledge of the fact that one of the parties is a ward in Chancery would probably lead to the clergyman's committal for contempt of Court (1).

Want of Reason. The marriages of lunatics so found by inquisition were formerly totally void (m), and they may now be nullified as a matter of course. Persons knowingly assisting at the marriage of a lunatic so found by inquisition are guilty of contempt of Court (n). Insanity and idiocy generally (except during a lucid interval), also being drunk and consequently incapable at the time of the ceremony, would invalidate the marriage, and enable a decree of nullity to be obtained (o).

A deaf and dumb person is capable of contracting matrimony by signs.

Force or fraud. Marriages may be rendered void if the consent of either party is obtained by fraud or coercion; but such a case, as a general rule, could hardly escape the notice of the clergyman or registrar.

In a recent case, in which a marriage was declared null, the judge said: "On the evidence I have come to a clear con

clusion. It is that long before the ceremony was gone through the feelings of this young lady towards the respondent were such that of her free and unconstrained will she never would have married him-that she had been reduced by mental and bodily suffering to a state in which she was incapable of offering resistance to coercion and threats, which, in her normal condition, she would have treated with the contempt she must have felt for the man who made use of them, and that therefore there never was any such consent on her part as the law requires for the making of a contract of marriage" (n).

Misrepresentation as to means, position, &c., is not sufficient. Error, e. g., marrying the wrong person, is also ground for a decree of nullity.

Form of marriage. This depends on whether the marriage is to be by a Church of England minister (bishop, priest, or deacon), by a registrar, or by the registering minister of Quakers or Jews. These are the only officials capable of performing a legal marriage.

In a Church marriage the forms required by statute to be observed may be divided into two classes :-(1) Essential forms, neglect of which renders the marriage void; (2) Directory forms, neglect of which does not invalidate the marriage, but renders the minister liable to punishment. (1) The marriage is null and void to all purposes (i) if a person shall knowingly and wilfully marry without either due publication of banns, registrar's certificate, or a licence; (ii) if the marriage is celebrated (unless by special licence) in a place other than a church or chapel (o), wherein banns may be lawfully published; or (iii) if both parties consent to or acquiesce in the solemnization of their marriage by a person not in (episcopal) holy orders (p). (2) The statutes also direct that the marriage shall take place (iv) between the

(n) Per Butt, J., Scott v. Sebright (1886), 12 P. D. 31. See also Cooper v. Crane, (1891) P. 369.

(e) A vestry (q. v.) is prima facie part of the church; and as to churches under repair, &c., see BANNS.

(p) 4 Geo. 4, c. 76, s. 22.

hours of 8 a.m. and 3 p.m. (q), (v) in the presence of two witnesses in addition to the minister, and (vi) that all the rules and forms prescribed by the rubric (except where altered by statute) shall be observed. As to these requirements, it has been held that (v) is directory only, and that where there is only one witness present instead of two the marriage is not thereby invalidated (r); and it would seem that the other two requirements (iv) and (vi) are also directory only. The essential of a marriage at common law is the mutual expression of consent, and it would seem that this may be (so far as creating a valid marriage is concerned) in any form of words (s). Consequently, if capable persons complying with (i), (ii), and (iii) state at any hour of the day their willingness to take each other for man and wife, this would seem to be a valid marriage. The duty of the clergyman, however, is to see that all the requirements of the Acts are carried out. He ought, therefore, to read the whole of the marriage service (without any omissions), and begin and finish it within the proper hours, in the presence of the proper number of witnesses. If he fails in any of these matters he is liable to a prosecution for felony. Of course, such a prosecution would never be instituted in the case of a trifling infringement of the directory rules, e. g., allowing the service to overlap the proper hours, &c.

If the parties are deceived by a person pretending himself to be in episcopal holy orders, as in the recent Ellis case, any doubt as to the validity of the marriage will be removed, if necessary, by Act of Parliament (t). The parties cannot be expected to inquire into such matters. There is always a strong presumption in law that a marriage is legal, particularly after the lapse of a great length of time; and this presumption must be met by strong, distinct, and satisfactory disproof (u).

(7) 4 Geo. 4, c. 76, s. 21; 49 & 50 Vict. c. 14. Before 1886 the time was 8 a.m. to 12 noon.

(r) Wing v. Taylor (1861), 30 L. J. P. & M. 258, 263.

(s) Compare form in Church Service and the registry form given post.

(t) See 51 & 52 Vict. c. 28.

(u) Stephens, P. B. 1504; and see 19 & 20 Vict. c. 119, s. 17.