1899 Marriage Law
The following extract has been transcribed by Peter Stuart from a very poor copy of
THE SHILLING LAW BOOK.
LANGFORD LEWIS, B.A., LOND.
OP THE INNER TEMPLE, BARRISTER-AT-LAW
London
JAMES BOWDEN
10, HENRIETTA STREET,
COVENT GARDEN, W.C.
1899
The copy is in very poor condition and in places some of the print is hard to read and therefore some minor errors in the translation may have occurred. However, the majority of the original document is readable and may assist researchers to better understand marriage, divorce and property issues as they prevailed in 1899
In spite of a certain famous piece of advice, there does not, in this country at any rate, seem to be any serious diminution in the number of people marrying and being given in marriage. And it is probable that most of them do so without in any way realising what new legal rights and obligations they enter into the moment the marriage ceremony is over. For the time being, no doubt, they are not interested in knowing. If they are well off, their parents or guardians will probably see to it that their property is carefully settled, under sound legal advice ; and in, this case the married couple can hardly help knowing something of their rights, as they have to execute the settlement. But settlements are a luxury reserved for the wealthy, or at any rate for such as are at least moderately well off, and only a small proportion of those who are married ever have them. Where there is no settlement the rights of the husband and wife in each other's property depend entirely upon the general law; and we propose here to state very shortly what that is, together with the law relating to the marriage ceremony itself, the law of divorce and separation, and the general obligations of the married state.
Probably the most interesting part of the law of husband and wife, at any rate to the yet unmarried, is
To get married, there must first of all be no legal impediment to the marriage. Persons of full age (as to which see later), and not within the prohibited degrees of relationship, may marry each other. These degrees are tabulated in the Prayer Book, and still include (1899) deceased wife's sister and deceased husband's brother.
If either of the parties to the marriage has a husband or wife living, the marriage is void, and the party can be prosecuted for bigamy, the penalty for which may be as much as seven years' penal servitude. Honest belief in the death of the other spouse, or his or her absence without being heard of for seven years before the ceremony of marriage, is a good defence. Persons who have been divorced can marry again after the decree has been made absolute, which is done six months after the decree nisi has been pronounced but a clergyman may refuse to marry a guilty respondent, though he cannot prevent the (marriage ceremony taking place in the church of which he is the incumbent.
Marriage may take place in any one of five different ways
The first three preliminaries are applicable to marriages in church only, the two last are the methods adopted for Nonconformist or civil marriages.
Banns
Banns must be published in the parish church or chapel-of-ease of each parish where the parties reside on three Sundays (not necessarily consecutive) before the wedding. The parties, or one of them, must give the clergyman their full names and places of residence in writing, seven days before the first publication of banns. Wilful misstatement of names will make the marriage null and void. All chapels-of-ease, it should be noted, are not licensed for marriage; banns can only be published in a chapel so licensed. A marriage by banns can only be solemnised in one of the churches or chapels in which the banns were published. Banns will only remain in force for three months after the last publication.
License
A marriage may take place, without the necessity of publishing banns, upon the license of the archbishop, bishop, or ordinary of the diocese. For London and the Province of Canterbury they are obtainable at the vicar-general's office, Doctor's Commons, upon payment of fees amounting to £2 2s. 6d. and upon the applicant making an affidavit to the effect that there is no legal impediment to the intended marriage, and that one at least of the parties has, for fifteen days or more before the issue of the license, resided in the parish in the church of which the marriage is intended to take place. The residence must be a bond fide one, and the granting of the license is a matter of discretion, not a matter of course. The marriage can only take place in the church or chapel-of-ease mentioned in the license.
Special License
The advantage of a special license is that it enables the parties who have obtained it to dispense with the necessity of residing in any particular place before its grant. They may be married at any time and at any church within three months from the date of issue. A special license is an expensive luxury, however, costing about £30. It is applied for in the same manner as an ordinary license.
Registrar's License / Registrar's Certificate
Persons intending to be married in a Nonconformist chapel, or without a religious ceremony, must obtain a license or certificate from the registrar of births, deaths, and marriages.
A party applying for a certificate must have resided seven days in the registrar's district, and give the registrar a notice, accompanied by an affidavit to the effect that there is no impediment to the marriage, in the form required. If the parties live in different districts, notice in each is necessary. The notice is entered in the Marriage Notice Book, and is also exhibited in the registrar's office for twenty-one days, when the certificate is issued.
For a license a similar notice and affidavit are necessary, but fifteen instead of seven days' previous residence in the district is required. The registrar may issue the license the day after it is applied for.
The marriage must take place at the chapel or other place mentioned in the certificate or license, and until recently the registrar had to be present at the ceremony. Under the Marriage Act, 1898, however, the presence of the registrar at a marriage in a Nonconformist chapel is no longer necessary, certain safeguards being substituted, but the parties may still, if they wish, require the registrar to be present. The parties may also be married by the registrar at his office, without any religious ceremony. Quakers and Jews have always been allowed to be married according to their own peculiar rites.
Before minors (i.e., persons under 21 years of age) can be married by license, the consent of parent or guardian to the marriage must be proved to have been obtained. At the vicar-general's office the applicant's declaration upon oath that such consent has been obtained is considered sufficient. If the minor is a ward of Court, the consent of the Court must be first obtained, and if the marriage takes place without such consent it will be treated as a contempt of Court, and punished accordingly. But once a marriage has taken place with the proper formalities, the mere facts that one or both of the parties are minors, and that the consent of parents was not obtained, cease to be of-any significance, and cannot possibly invalidate it. Indeed, the ancient rule of the Common Law, which holds good to this day, is that males of 14 years and upwards and females of 12 years and upwards are marriageable - that is to say, if they are married, the marriage holds good. Under those ages the marriage is voidable. It was certainly the custom for persons to be married very much younger in early times, and there were probably good reasons for such a custom. It may be remarked in passing that the English marriage law presents a striking contrast to that prevailing in France and other continental countries which derive their legal institutions from Roman Law, for there the rule is that a marriage of minors without parental consent is absolutely void, unless subsequently confirmed by the parents.
Majority, too, in France at least, is fixed at 25 instead of 21. In England two young people under 21 may go out in the morning and return to tell their astonished parents that they have got married, and the parents can do nothing but accept the situation. Such a state of things would be impossible in France, where elopements, consequently, are unknown. In mentioning this, however, it is not intended to suggest that " they do these things better abroad," but merely to show that what suits one country does not suit another. In France, in all that concerns marriage and the rights of property, the interests of the family, in England, the liberty of the individual, are regarded as the predominant factors.
The Action for Breach of Promise of Marriage.
Although it is manifestly impossible for the Courts to compel the performance of a promise to marry, still a person who has been promised marriage can bring an action for damages for breach of the promise, and cases occur every day. In theory either the man or the woman can bring the action, but in practice the plaintiff is always the woman. Few men seem, up to the present, to have had the hardihood to bring such an action in this country, but there is reason to believe that such cases will be commoner in the future, and there are conceivable circumstances under which heavy damages might be obtained.
The main point to note about the action is that it cannot succeed unless material corroboration of the plaintiff's evidence is forthcoming. It does not matter what kind of corroboration or how strong, so long as it is material. Thus, in a case where the plaintiff's sister said she overheard the plaintiff say to the defendant, "You promised to marry me, and you do not keep your word," and this was the only corroborating evidence, it was held to be enough. Proof of plaintiff's immorality is a good defence to the action so also is a release of the engagement by the plaintiff.
Personal Rights of Husband and Wife
A husband is entitled to a limited control over and custody of his wife. Since the celebrated Jackson case in 1891 however, it seems impossible to state exactly how much. The result of that case is that a husband cannot compel his wife to live with him, if she does not want to, though he is still obliged to support her.
If a man's wife is enticed away from him, and harboured by some person, the husband has a right of action against the offending party.
Since the Married Woman's Property Act, 1882, a married woman can sue for wrongs done to her without making her husband a co-plaintiff in the action.
Husband's and Wife's Interests in their respective Property
Prior to the passing of the Married Woman's Property Act, which came into operation in 1882, when a man got married his wife's personal property, unless secured to her by settlement or otherwise, all became vested in him. Since the passing of the above Act, the law has been altered, and may shortly be stated as follows, assuming there is no settlement on the marriage.
Real Property, including Leaseholds of Chattels Real
Both husband and wife keep their own, unaffected by any right of the other. A wife, if married since 1882, may now sell, mortgage, or lease her property without the concurrence of her husband, or any necessity for her 11 separate examination "-meaning a personal interview with the judge, who satisfied himself that the intended transaction had her full and uncontrolled concurrence.
Personal Property
The husband's rights in his own personal property remain unaffected, and since 1882 any rights he had to his wife's have been entirely taken away, and she keeps her own. From 1870 to 1882 the law allowed the wife to keep her earnings only. The rule applies to all property, present or reversionary.
Wife's Equity to a Settlement
Even in the time when a wife's property vested in her husband on marriage, where he had to take further steps to make it his own absolutely, the Court of Chancery would refuse its aid to him, except upon the condition that he settled a portion of it on her and her children. This rule was known as the " wife's equity to a settlement."
Rights of Widow and Widower in the Property of their Deceased Husband or Wife.
We may preface this section by remarking that if either party to the marriage has previously made a will; such will is revoked by the fact of marriage. This should not be forgotten, as (particularly where there is no settlement) the making of a new will by one or both of the parties may be eminently desirable. We may now proceed to discuss the position of affairs on the death of either party.
It is not proposed to deal here with the distribution of the deceased's property where there is a will, because the general rule in this country is that a man may leave his own property by will to any person and in any way he pleases, and the law has nothing to do except to stand by and see that the directions of the will are carried out, or to interpret them if their meaning is doubtful. To this rule there are two important exceptions, viz. : (t) that a man may not leave certain kinds of property e.g., land - to a charity, and (2) that the accumulation of income for more than twenty-one years from the testator's death is forbidden. Having thus premised, we may proceed to discuss the devolution of property in the absence of a marriage settlement.
On Death of Wife Intestate and without Issue
Her husband becomes entitled to all her personal property, subject to the payment of her debts; but he must take out letters of administration to it. He also takes all her real property and holds it for his own life, as " tenant by the curtesy," if any issue of the marriage capable of inheriting it has been born alive, otherwise it will go to her heir-at-law immediately.
On Death of Husband Intestate, and without Issue
If the net value of his estate, real or personal, is under £500, his widow is entitled to the whole of it. If it exceeds £500, she has a charge on it for £500 in priority to any other payment. This £500 is given under the Intestates Estate Act, 1890, and is in addition to the wife's other share in the property.
Apart from the above, his real estate goes to his heir-at-law, subject to a claim by his widow to " dower," which means that she is entitled to enjoy one-third of his freehold land for the rest of her life. Dower attaches to all land not otherwise disposed of, and so is not confined to the case of an intestacy. His personal property goes, half to his widow and half to his next of kin, subject to the above claim for £500.
On Death of Wife Intestate and Leaving Issue
The husband will be entitled to all her personal estate, and her real estate for life, as if she had left no issue. After his death, the eldest son will take the real estate as heir-at-law, or, if there is no son, the daughters equally.
On Death of Husband Intestate leaving Issue
The widow will take one-third of her husband's net personal estate. The remaining two-thirds will be divided equally among the children, if more than one, or go to an only child. Subject to the widow's claim to dower, the real estate will go to the eldest son as heir, and if there is no son the daughters will take it equally. The widow has no prior claim to £500, where there are issue.
A husband and wife are mutually incompetent to give evidence for or against each other in criminal matters, except in certain cases, such as charges of wife-beating, etc.
In civil matters, however, there is no such rule. Again, a husband and wife cannot steal from one another, except in case of desertion by one of them taking the other's property. They cannot sue one another for torts or injuries. Formerly a married woman could not hold or dispose of property without her husband's consent, for the law regarded them as being one person, but since 1882 she can do so.
The Obligations of Married Life
A husband is bound to maintain and support his wife and family, and this obligation, as regards his wife, ceases only if she deserts him and goes and lives in adultery. If he deserts or ill-treats her, or neglects to maintain her. or her infant children, and she leaves him in consequence, he may be ordered by the magistrates in a court of summary jurisdiction, upon her application, to contribute a sum not exceeding £2 weekly to her support. In such a case the magistrates may also make a separation order, which will have the same effect as a decree for judicial separation pronounced in the High Court.
A wife having separate property of her own may be ordered by the justices to maintain her husband if he becomes chargeable to the parish, and she is also as liable as a widow to maintain her infant children, and even her grandchildren, in case they are left orphans. But the husband in every case remains primarily liable to maintain his children.
Where a husband runs away and leaves his wife and children, so that they become chargeable to the parish, he may be convicted as a " rogue and a vagabond," and sent to prison for three months, or fined a sum not exceeding £25.
Since the Married Woman's Property Act, 1882, a married woman can enter into and make herself liable on contracts just the same as a man or an unmarried woman, but only to the extent of her separate property which she is not restrained from anticipating. And a married woman entering into a contract will be presumed, until the contrary be proved, to have separate property, and to have contracted with respect to it. Even if she has no separate property at the time she enters into the contract, it will bind any such property which she may afterwards acquire.
A married woman may now be made bankrupt, but only if she carries on a trade or business altogether apart from hex husband's control. In such a case any restraint upon anticipating her settled property will be void and ineffectual against her trustee in bankruptcy.
All property which a woman has at the time of her marriage, or comes into during. her married life, and which does not fall into the possession or under the control of her husband (which will be the case as to all her property, if she was married since 1882) is her " separate estate." She can dispose of all " separate estate " exactly as if she was unmarried, unless it is settled upon her and she is restrained from anticipating or alienating it by the terms of the instrument under which she is entitled, in which case she cannot deal with the capital or future income, but can only spend the income as paid to her from time to time. The Court has a discretionary power to remove a restraint upon anticipation, but it is rarely exercised, and only if it will be for the wife's benefit to do so.
Implied Agency of Married Women
A wife can of course contract on her husband's behalf by his express authority, like any other agent, and as to this no difficulty arises. The real question of importance is - When will the wife be deemed to have implied authority to pledge her husband's credit ?
It is now settled - though the contrary view once prevailed - that a wife, merely as wife, has no implied authority to pledge her husband's credit. If she has such authority, it will be implied from circumstances, not from the mere fact of marriage alone.
Where the husband and wife are living together she will have implied authority to order necessaries for the household, and he will have to pay for them. He will also be liable to pay for anything else she has ordered, if he has knowingly permitted her to represent herself as having his implied authority to contract as his agent. But he will not be liable if he has forbidden his wife to pledge his credit, or if he has already supplied her with necessaries in sufficient quantity.
Where the husband and wife are living apart, as a rule, the wife will not be presumed to have any authority to pledge her husband's credit, unless he has deserted her or turned her away (not having separate property of her own) without making her any proper allowance. She will in that case become his agent by necessity, and may pledge his credit for necessaries."
"Necessaries" will differ in kind and amount according to the husband's station in life. The following among others have been decided to be "necessaries " - food, drink, lodging, wearing apparel, fuel, washing, medical attendance, also legal expenses incurred by a deserted wife.
Liability of Husband and Wife for the Wife's Debts incurred before Marriage
This is far too complicated a subject to deal generally with, and it will be sufficient to state the law as to persons married since 1882, after the Married Woman's Property Act came into force. A husband is liable for his wife's prenuptial debts to the extent only of any property which he has acquired or become entitled to, from or through his wife. But the wife is now primarily liable for all her pre-nuptial debts and contracts out of her separate property, subject to any restraint upon anticipation which may fetter it. A wife is also primarily liable for any " tort " (the technical expression for an actionable wrong) committed by her not only before marriage, but, since 1882, after her marriage and so long as she remains married.
There are three ways of putting an end to or suspending the relation of husband and wife. These are
By the first two the relation is suspended merely, by the third it is dissolved.
Mutual Separation
A husband and wife may agree to separate by executing a deed for that purpose. If lawful in its terms, the Court will enforce a separation deed against both parties, and prevent either from molesting the other. But a deed contemplating the future separation of the parties is unlawful as against public policy, and will not be enforced in a court of law.
Judicial Separation
Either husband or wife may obtain a decree for judicial separation, the husband on the ground of his wife's adultery or desertion for two years, the wife for the husband's adultery or cruelty. The parties still remain man and wife, however, and cannot marry again. The petition is more often brought by a wife than a husband, because a husband can get a divorce - which a wife cannot - on the ground of adultery alone.
The defences to a petition for judicial separation are practically the same as to a divorce petition. The Court may order the husband to pay the wife an allowance, called " Alimony," while they continue separated. The amount of the alimony will depend upon whether or not the wife has separate property, but it is usually calculated so as to allow the wife to enjoy one-third of the original joint income of the parties.
Divorce
After a decree for divorce or dissolution of marriage the parties are no longer man and wife. They are free to marry again six months after the decree nisi is pronounced, when, upon a further application to the Court, it is made absolute.
A husband can obtain a divorce on the ground of his wife's adultery alone, a wife on the ground of her husband's adultery, coupled with either bigamy, desertion without reasonable cause for two years, or cruelty. If the petitioner sets up a case of cruelty her evidence must be corroborated.
There are several defences to a divorce petition, which may be divided into Absolute Bars, and Discretionary Bars.
Absolute Bars are as follows:
(a) Denial of allegations in petition, and failure to prove petitioner's case.
(b) Connivance, i.e., that the petitioner knew of and permitted the misconduct of the respondent. This is a very serious defence, and requires to be most strictly proved.
(c) Condonation, i.e., that the petitioner discovered and forgave the respondent his or her adultery, such forgiveness being evidenced by a renewal of cohabitation.
(d) Collusion, i.e., that the parties made an arrangement between themselves in order to obtain a divorce. Strictly speaking, this is not a defence, as neither party would be likely to set it up, but it is an absolute bar to obtaining a decree, and it is chiefly in order to detect collusion that the decree is not made absolute at once, but six months after the hearing of the petition. All these are unanswerable defences to a divorce petition, when proved.
Discretionary Bars are as follows:
(a) Adultery of Petitioner. - Except under very special circumstances, this is really an absolute bar.
(b) Unreasonable Delay in presenting the petition. Delay may be explained and excused by want of means, or some other good cause.
(c) Cruelty of petitioner, or desertion of respondent by petitioner for two years or more.
(d) Neglect or Misconduct of petitioner. These may turn out good defences, but they are not necessarily so.
Upon a petition for divorce or judicial separation, the Court has power to make any orders it pleases about the custody or maintenance of the children of the marriage. As a rule, the custody of the children is taken away from the guilty party.
Restitution of Conjugal Rights
If either the husband or the wife leaves and refuses to live with the other, the injured party may bring an action for restitution of conjugal rights ; and although the Court cannot, unfortunately, enforce its decree by compelling the husband, for example, to live with his wife, the effect is that if he disobeys it his disobedience is treated as desertion, and she can at once get a decree for judicial separation, coupled with an order for alimony, without waiting two years for it.
Summary Jurisdiction
A wife can now get a separation order upon her application to the local court of summary jurisdiction, on the ground of her husband's (1) desertion of her; or (2) persistent cruelty and wilful neglect, compelling her to live apart from him; or (3) if her husband has been convicted for an assault upon her and has been sentenced to pay a fine of over £5 or to undergo over two months' imprisonment. If the wife proves her case, and has not misconducted herself, she will get an order for separation, with the custody of the children under sixteen, and the husband will have to pay her by way of maintenance a weekly sum not exceeding forty shillings.
In order to be recognised as valid in the United Kingdom, a marriage celebrated abroad must, generally speaking, be valid according to the law of the country where it took place. English marriages may be celebrated abroad in a British embassy, or on a British ship.
Divorces.-The English Courts will generally recognise a foreign divorce, even if the parties have been married in England, upon grounds which may not be sufficient in England, so long as the husband was at the time of the divorce bonā fide domiciled in the country where he obtained it, and there is no fraud or collusion. Of course, if the parties have deliberately gone abroad to get a divorce which they could not get at home, such a divorce will not be recognised here.
It should be remembered that, in this connection, Scotland is a " foreign country," as its marriage and divorce laws are very different from those of England. It is much easier to get married and to get divorced in Scotland. But Scotch laws are intended for the use only of Scotch people.