Marriage. A term both for the relationship of husband and wife, and for the ceremony
which creates such a relationship. In English and Scots law, the basic legal concept of
marriage is that generally recognized in Christian communities, namely the voluntary and
permanent relationship of one man and one woman to the exclusion of all others, for life or
until earlier legal dissolution. The concepts and rules have been materially influenced by the
pre-Reformation canon law of marriage. The requisites of marriage are that each party should
be capable in respect of sex, age, mental capacity, and single status of contracting
marriage, that they should not be within degrees of relationship prohibited from
marrying one another, they they should freely consent to take each other in marriage, and that
prescribed notices and formalities be complied with. Marriage is normally preceded by
an exchange of promises to marry in future (sponsalia dejuturo) after which the intending
spouses are said to be engaged or betrothed. But this is not a necessary or legal
requisite.
In England and Scotland, the intending spouses must be of opposite sexes, each must have
attained the age of 16, have sufficient mental capacity to understand the nature of the contract
of marriage and what he or she is undertaking in agreeing to marry, and be of single status
(unmarried, widowed or divorced). Incapacity to have issue is irrelevant. Sexual impotency at
and after the time of marriage is a ground for having the marriage avoided.
The parties must not be within the prohibited degrees of consanguinity or affinity, as laid
down for England in the Marriage Act, 1949 , and for Scotland by the Marriage (Sc.)
Act, 1977 .
Half-blood relationship, illegitimate relationship and adoptive relationship are within the
prohibited degrees.
There must be free and genuine consent to marry and consent obtained by duress, fraud or
personation, or while a party is incapacitated by drink or drugs, is invalid.
At common law in England, the parties had to take each other as husband and wife in the
presence of an episcopally ordained clergyman, before the Reformation a priest, and after the
Reformation a priest or deacon. In 1753 , statute required all marriages to be solemnized
in the parish church or public chapel of the Church of England, by icence, or after due
proclamation of banns, and ince 1823, the formalities have been determined y statute. The
modern formalities are that every marriage shall be by publication of banns, common r special
licence, or superintendent registrar's
certificate, or certificate and licence, or naval officer's licence and, save in the cases of
marriages according to the usages of Jews or Quakers and in the case of a marriage by special
licence, solemnized in a church or chapel of the Church of England in which marriages may
lawfully be solemnized, or in a non-conformist church or building duly registered for the
solemnization of marriages, or in a naval, military, or air force chapel, or in a superintendent
registrar's office. Where a party to a marriage is under 18, the consent of both, or
sometimes one of them, is generally necessary or, alternatively, the consent of the High Court,
a county court, or a magistrates' court. The only essential of the ceremony is the
declaration that each takes the other in marriage, the remaining formalities being matters of
choice or of religious practice.
At common law in Scotland, following canon law, parties might marry irregularly, by
exchange of consent in writing or in the presence of two witnesses (declaration de
praesenti), or by promise, proved by writing or admission on oath, followed by sexual relations
on the faith of the promise (promise subsequence copula), or by cohabitation with acquisition of the reputation of being regarded as married persons, or regularly, by banns and
solemnization by a clergyman of the Church of Scotland. After 1852, to stop runaway
marriages, at least one party had to be usually resident in Scotland for 21 days before the
marriage. Since 1940, the first two modes of contracting irregular marriage are incompetent
and, apart from cohabitation with habit and repute, marriage requires notice to a registrar, and
must be solemnized by a clergyman or by an authorized registrar.
No consent of parents or guardians is required for marriage in Scotland of a person aged 16
but under full age.
A marriage is void ab initio if any of the legal requisites are not satisfied, or if there is not
genuine consent to the marriage.
A marriage is voidable and may be avoided by the court if either party is physically or
psychologically impotent and incapable of consummating the marriage or, in England
only, if either party is of unsound mind or a mental defective, or subject to recurrent fits of
insanity or epilepsy, or the respondent was suffering from a venereal disease in a
communicable form, or the respondent was pregnant by some person other than the
petitioner. A voidable marriage which is approbated by the parties or not challenged is legally
equivalent to a valid one.
Once a valid marriage has been contracted the parties have the status, rights, and
liabilities of married persons (HUSBAND and WIFE) and the marriage is dissoluble on the
death of one or by legal divorce.
Marriage, in feudal law. The lord had an interest in the marriage of the widows and
daughters of tenants to control who by marriage came to hold their lands. By the late twelfth
century the King was known to sell the marriage of male heirs.
Marriage Act. Lord Hardwicke's Marriage Act provided that no marriage was valid unless
solemnized by an Anglican clergyman after banns called on three successive Sundays in the
parish church. It applied to Protestant dissenters and Roman Catholics, who felt aggrieved,
but not to the royal family, Jews, or Quakers. It put an end to Fleet marriages and other
hasty and disreputable unions and ensured that marriage records would be more reliable in
future.
Marriage articles. A contract in consideration of marriage to settle property on terms
intended to be embodied subsequently in a formal marriage settlement.
Marriage broking. Arranging marriages as a business. The consideration for arranging a
marriage, marriage brokage, is irrecoverable, the transaction being deemed contrary to
public policy.
Marriage counselling. Advice and guidance by a third party to married persons whose
relationship has become disharmonious, seeking to enable them to resolve their conflicts
and difficulties.
Promise of Marriage. A promise by one person that he or she will contract a valid
marriage with the promisee within a stated, or a reasonable time. To refuse or fail to do so
was formerly a breach of contract in England. In early times, spiritual courts enforced
specific performance of such a contract and jurisdiction to do so survived till 1753, but
since long before then only damages were given. The right to recover damages was
abolished in England in 1970.
Marriage settlement. An agreement made prior to a marriage but in contemplation and in
consideration of it, under which property, real or personal, is settled for the benefit of the
prospective husband and wife and any issue of the marriage. They are effected by vesting
the settled property in trustees, with a trust instrument declaring the terms of the trusts
created. A post-nuptial settlement may be made containing similar provisions.
In Scotland, the corresponding concepts are ante-nuptial and post-nuptial marriage
contracts.
Married woman. At common law in England and Scotland, husband and wife were one
person in law, the legal personality of the wife being submerged in that of the husband.
Accordingly, a married woman was in general incapable of acquiring, holding, or alienating
any property. In England, the husband acquired a freehold interest in all estates of inheritance
and life estates of which the wife was or became seised, and on the birth of issue he became
entitled to an estate for life in her estate of inheritance on her death. Money and personal
chattels belonging to the wife at the time of her marriage or acquired by her during it, were
vested in the husband absolutely. In equity, however, property might be given to a married
woman for her separate use and was then protected during coverture, while a married woman
carrying on a separate trade might, by agreement with her husband, become entitled to the
business and its profits for her separate use. She could dispose of the equitable interest in any
property held to her separate use and not subject to a restraint on anticipation without her
husband's concurrence. In Scotland, the law was to the same general effect, a married
woman's property being often protected by the creation of an ante-nuptial marriage-contract
trust. In both countries, the law has been completely altered by a series of statutes dating from
1857 and a married woman is now a separate legal person with full power of acquiring,
holding, and dealing with any kind of property. A few traces of the former rules long
remained, such as that a wife's domicile was determined by her husband; some still do, such
as that the incomes of the spouses are aggregated for the purposes of income tax.