Common law marriage

“ Several States still retain upon their statute-books the common-law prohibition of marriage between persons related by consanguinity, or affinity, nearer than the third degree; while other States have progressed to that degree of liberality on the road to individual freedom and universal happiness which permits a person to marry, if not his grandmother, at least the daughter of his wife by a former husband. ”

“ Unlike our colleagues who are prepared immediately to overthrow the long established definition of marriage, we believe that our democratically elected representatives should be given a chance to address the issue under the constitutional mandate set forth in this opinion.
We cannot escape the reality that the shared societal meaning of marriage -- passed down through the common law into our statutory law -- has always been the union of a man and a woman. ”

“ The old theory of the common law, as given in elementary writers, was that if the wife was allowed to own property separate from her husband it would make a distinct interest; it would break up and destroy the harmony of the marriage relation; the marriage relation must be a unit; there must be but one interest; and therefore the legal existence of the wife must be merged into that of the husband. ”

“ In the words of a writer who believes the courts are historically and logically justified in this view, "they affirm that when from a comparative study of the whole course of legislation as well as of the terms of the various statutes, it is the plain intent to make conformity to any statutory formality indispensable to the constitution of marriage, such common law is ipso facto repealed, and a marriage celebrated by mere consent, without this formality, has no validity whatever in law. ”

“ And yet, it is generally accepted as the law, on principle, notwithstanding the marriage is celebrated without license, and the ceremony performed by an unauthorized person, that if the parties simply by mutual consent agree to marry, and live together as man and wife, such consent and cohabitation are valid and binding between the parties, and the issue thereof are entitled to all the rights of legitimate children. To reverse this common-law doctrine by general statutory provisions might work hardship in some individual cases ”

“ I am satisfied for reasons that follow that, even if it is, the application for leave to appeal directly to this Court should be refused.
[12] ⁠This appeal is likely to raise complex and important questions of the legal conformity of our common law and statutory rules of marriage in the light of our Constitution and its resultant jurisprudence. Marriage and its legal consequences sit at the heart of the common law of persons, family and succession and of the statutory scheme of the Marriage Act. Moreover marriage touches on many other aspects of law, including labour law, insurance and tax. ”

“ There should be some uniformity of law, as to marriage contract and its dissolution by divorce, in the different States. Another practical consideration is this: women must be prepared to assume personal responsibilities as they attain personal rights. No State Legislature has said "Go to, let us make the married woman the legal equal of her husband," but legislation has pointed in that direction more and more during these last years, so pregnant of changes in her position. ”

“ Not only as regards her property, but also in her full civil rights and the disposition of her person, the married woman must be placed on an equal footing with the unmarried. It is true that the law is not so favourable as many people believe to “conjugal rights.” But this belief has survived for centuries and in turn influences morals ”

“ Where the parties live together ostensibly as husband and wife, demeaning themselves toward each other as such, and are received into society and treated by their friends and relations as having and being entitled to that status, the law will, in favour of morality and decency, presume that they have been legally married. ”

“ Our time has displaced the ancient division of labour, by which the wife cared for the children and the husband provided maintenance. But the law of marriage dates from a time when this division held full sway and when it was, therefore, almost impossible for a woman to receive protection for herself and her child otherwise than in matrimony. Now society has begun to provide such protection for unmarried mothers, and the renunciation of liberty by which the wife purchases the protection of marriage is seen to be not only more and more unworthy, but also unnecessary. ”

“ All their gallant sympathy and protection explodes, when the angel they worship so far condescends to come down to the plane of mortals as to become a wife.
Admitting that it does not come within the scope of the law to regulate the marriage institution, which is the province of a higher tribunal, the conscience and the affections, it is the true province of legislation to recognize the equal rights of both sexes in entering into the relation, thus removing a great source of selfish motives in the thirst for gain and love of power. ”

“ As under the Mosaic law, these causes were invented only for the advantage of the husband. A wife had no right even to desire a divorce from her husband.
An examination of the seven causes shows that a woman could be divorced practically at her husband’s pleasure. The New Civil Code has changed all this. A wife has equal rights with her husband to the benefits of the divorce law. ”

“ The disputed favor of a woman who, according to the new code, only asserts her rights, and claims to change “husbands” as often as she pleases. God help the age and nation in which such things are daily done, and where animal passion laughs in the teeth of law! Who does not see how every right and security hangs by the sanctity of marriage? Marriage, in the proper sense of the word, implies exclusive and permanent possession, and represents the first and greatest right of property. ”

“ The same principle governs all suits against a married woman; the husband must be sued with her: "In all actions brought against a feme covert while the relation of marriage subsists, the husband must be joined for conformity, it being an inflexible rule of law that a wife shall not be sued without her husband.... ”

“ This jurisdiction of the state over the freedom of all marriages involves, that the state must recognize and confirm all marriages of its citizens.
Every marriage must have legal validity, that is, it must not infringe upon the rights of the woman, who must give herself up with her free will, and from love. A citizen must be obliged to prove this to the state, unless he wishes to render himself suspicious of having used violence. This proof he can not well furnish otherwise than by causing the woman to declare the marriage to be her own free will before the law. ”

“ We must take the first step, by compelling legislators, who will not look at great principles, to protect the wife of the drunkard, by giving her her own earnings to expend upon herself and her children, and not allow them to be wasted by the husband. I say that it is legitimate for us to ask for a law which we believe is merely a temporary expedient, not based upon the great principle of human and marriage equality. Just so with this question of marriage. It must come upon this platform, for at present it is a relation which legally and socially bears unequally upon woman. ”

“ The conception of marriage involves, that the woman who surrenders her personality shall at the same time surrender the possession of all her property and her exclusive rights in the state. The state, in recognizing the marriage, recognizes and guarantees the possessions of the wife to the husband; that is, not as against the claims of the wife, for a law dispute with her is impossible, under our presupposition, but against the claims and attacks of all other citizens. ”

“ The right to marry has been historically and remains the right to choose a spouse and, with mutual consent, join together and form a household. FF 19-20, 34-35. Race and gender restrictions shaped marriage during eras of race and gender inequality, but such restrictions were never part of the historical core of the institution of marriage. ”

“ It is one thing when the State exerts its power either to forbid extramarital sexuality...or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy. ”

“ If you were in a country where only one wife is allowed by law, then you would be obliged to have but one. What shall I say? A Bishop in England, where he knew polygamy to be contrary to law, must have but one wife; if you want another, and the law will not allow it, you must go where it is allowed by law. ”

“ The offense of cohabitation is complete when a man, to all outward appearances, is living or associating with more than one woman as his wife. To constitute the offense it is not necessary that it be shown that the parties indulge in sexual intercourse. The intention of the law-making power, in enacting the law, was to protect monogamous marriage by prohibiting all other marriage, whether evidenced by a ceremony, or by conduct and circumstances alone. ”

“ On the other hand, the compulsory marriage laws of to-day, as well in relation to divorce as to the guardianship given the man, have become obstacles to the higher development of the common life of man and woman. ”

“ It might be more helpful to think of marriage as just marriage-a relationship out of which spring duties to both spouse and society and from which are derived rights,-such as the right to soceity and services and to conjugal love and affection-rights which generally prove to be either priceless or worthless, but which none the less the law sometimes attempts to evaluate in terms of money when one is deprived of them by the negligence or design of a third party. ”

“ But everybody else who, having repented of breaking the law, and having treated the marriage as void, has separated front the person who never was his wife, shall be married compulsorily by the Bill to that person. Is that the sort of legislation of which your Lordships will approve? You not only give to the law-breakers themselves everything they ask, but you say that persons who have regretted their disobedience of the law shall be forced back into their original illegal relations. ”

“ In these States the international and interstate rule, that a marriage legally contracted in one State is valid in every other State, is outraged and defied; and parties lawfully married in a State which does not prohibit the intermarriage of white and colored persons removing into these States are not recognized as husband and wife, but are made subjects of a law punishing fornication and adultery. ”

“ Marriage requires two parties to give their free consent to form a relationship, which then forms the foundation of a household. FF 20, 34. The spouses must consent to support each other and any dependents. FF 34-35, 37. The state regulates marriage because marriage creates stable households, which in turn form the basis of a stable, governable populace. FF 35-37. The state respects an individual's choice to build a family with another and protects the relationship because it is so central a part of an individual's life. ”

“ Also by preaching and writing on the obligations of marriage, the blessings which flow from unions which are hallowed by perfect and lifelong fidelity to conjugal and parental duties, and the evils which are the consequence of infidelity and frequent separations. Jurists and statesmen may reform the administration of law in the courts so as to decrease the facility of obtaining divorce, and secure to all parties a thorough protection of all the rights guaranteed to them by the civil law. ”

“ An advance towards the recognition of the true principle of legislative interference in marriage has been made in England, in the new law in which the agreement of marriage is made a civil contract, leaving the religious obligation to the conscience and taste of the parties. ”

“ Consanguinity and Affinity.—The law considers it against public policy and morality, and contrary to the well-being of the parties, that persons closely related by blood or marriage should intermarry. Marriages are therefore prohibited between all ascendants and descendants, legitimate or illegitimate.
[Pg 241] A man is also prohibited from marrying his stepmother, wife’s mother, stepdaughter, daughter-in-law, son’s daughter-in-law, daughter’s daughter-in-law, stepson’s daughter, stepdaughter’s daughter, niece by blood, niece by affinity, or nephew’s wife. ”

“ The civil law has absolutely nothing to say on the marriage question. All this is held in the domain of the Church. In truth, the Divine Family has always regulated this question. If the legality of a marriage is called in question, all that the civil authorities try to determine is whether the marriage ceremony was performed in accordance with the laws of the Divine Family. ”

“ The law is repealed and men are at liberty to marry or not as they please. On the top of this another law is enacted, in effect that every man shall have but one wife, and shall not be permitted to take two or more wives. The women, of course, have to do just as the men say, they cannot compel the men to marry them, but must wait until they are invited to marry. This law suits a great many individuals. Many men say, "I prefer not to have a wife and especially if you will only make a law confining the men to marry but one wife each. ”