Legal marriage

“ In regard to marriage it is noteworthy that the "prohibited degrees of relationship are the same as those in England"—including the deceased wife's sister. "The minimum age for legal marriage is seventeen in the case of a man and fifteen in the case of a woman, and marriage takes effect on notification to the registrar, being thus a purely civil contract. As to divorce, it is provided that the husband and wife may effect it by mutual consent, and its legal recognition takes the form of an entry by the registrar, no reference being necessary to the judicial authorities. ”

“ 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. ”

“ The legal position of married women to-day represents as many different views of woman's legal rights in marriage as there are States in our Union. But all those States recognize that she has some rights of independent action, not only when her husband is bad or imbecile, but when he is good or competent. The confusing varieties of legislation on this point make summarizing extremely difficult. No generally received principle respecting the just legal relation between husband and wife has controlled the sweeping changes which the legislation of the last thirty years records. ”

“ Persons of color living together as husband and wife, March 9, 1866, are to sustain that legal relation to each other, unless a man then had two or more reputed wives, or a woman two or more reputed husbands. In such event the man shall immediately select one of his reputed wives, with her consent, or the woman one of her reputed husbands, with his consent; and the ceremony of marriage between these two shall be performed, under severe penalty for refusal. ”

“ 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. ”

“ In 1849, the year following the attainment of statehood, was adopted a new statute by which the foundation of the present system was laid. By it, as under the present law, a marriage is declared absolutely dissolved without any decree of divorce or legal process whenever either spouse is sentenced to imprisonment for life ”

“ As soon as a dispute arises, the divorce has already been accomplished, and it is only legalized by the judicial decree of divorce.
VII.
The conception of marriage involves the most unlimited subjection of the woman to the will of the husband; not from legal, but from moral reasons. She must subject herself for the sake of her own honor. The woman does not belong to herself, but to the man. The state, by recognizing marriage, that is, by recognizing a relation based upon something far higher than itself, abandons all claims to consider the woman as a legal person. ”

“ This legal recognition by the highest judicial authorities, alike in Great Britain and the United States, that marriage is essentially a fact, and that no evidence of any form or ceremony of marriage is required for the most complete legal recognition of marriage, undoubtedly carries with it highly important implications. It became clear that the reform of marriage is possible even without change in the law, and that honorable sexual relationships, even when entered into without any legal forms, are already entitled to full legal recognition and protection. ”

“ The legal battle in this case has been waged over one overarching issue -- the right to marry. A civil marriage license entitles those wedded to a vast array of economic and social benefits and privileges -- the rights of marriage.
7Unlike the Appellate Division, we will not rely on policy justifications disavowed by the State, even though vigorously advanced by amici curiae. ”

“ If courts create their own arbitrary definition of marriage as a mere legal contract, and cut marriage off from its cultural, religious and natural roots, then the meaning of marriage is lost, and the institution is weakened. The Massachusetts court, for example, has called marriage "an evolving paradigm." ”

“ The officers of the bureau should be especially charged to impress upon the freedmen the sacredness of the family relation and the duty of parents to take care of their children, and of the aged and infirm of their race. Where a man and woman have lived together as husband and wife, the relation should be declared legitimate, and all parties, after contracting such relations, should be compelled to legal marriage by severe laws against concubinage. ”

“ Love is moral even without legal marriage, but marriage is immoral without love. ”

“ 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. ”

“ Thus, a man, by contracting a second marriage, pending the first marriage, commits a felony; and the crime, according to its legal description, consists in marrying, or contracting a marriage—though what he does is no more a marriage than that of the Heir-Apparent would be under the circumstances in question. ”

“ If there are neither descendants nor kin of husband, she gets the entire real estate for her life, and all the personal estate absolutely. Father is legal guardian of children and he alone may appoint a guardian at his death. Husband must support family.
DIVORCE: Absolute divorce for adultery, desertion for three years, habitual drunkenness, impotence, extreme cruelty, conviction for felony, procurement of marriage by fraud for want of age, wilful neglect to provide for three years. ”

“ Marriage is the only actual bondage known to our law. There remain no legal slaves, except the mistress of every house. ”

“ Upon the granting of a divorce decree in the wife’s favour the court has power to grant the wife permanent alimony, the amount of which depends on all such facts as the husband’s fortune and income, the wife’s income and needs and the social status of the parties.
If there are children under full age, the issue of the marriage, the court will in the exercise of its discretion make such order concerning their custody, support and education as the ends of justice may require. ”

“ 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. ”

“ The cohabitation of the parties coupled with the general reputation of being husband and wife is, however, at the best prima facie evidence sufficient for the purposes of a civil suit. In criminal prosecutions for adultery or bigamy, marriage is a necessary ingredient of the offence, and must be directly established. ”

“ Is not the prohibition perpetual too in regard to a father's wife? in regard to an aunt, the wife of a father's brother? in regard to a son's wife? Can any form of marriage cover the iniquity of intercourse between such near relations? Is not sexual commerce forever forbidden between a man and such females, as well when they are widows, as while their husbands are living? Do not these statutes prohibit even the thought of such intimacy, under any circumstances?
8. The Puritan asks, Why the term marriage was not used, if the Lawgiver intended by these statutes to prohibit marriage? ”

“ The husband is required by law to support his family and, on his failure to do so, the court may make such orders as are necessary. If living separate from him, the wife may sue for alimony without divorce if legal cause exist. ”

“ The facts are to be tried by a "special or foreign" jury at some circuit court or sittings, to be held by a justice of the supreme court; and the person convicted is prohibited from further marriage only during the lifetime of the other spouse. But the most important innovation made by this act is the provision for partial divorce in favor of the wife. ”

“ 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. ”

“ It cannot enforce conjugal rights. Therefore it cannot divorce two spouses. They divorce themselves. The state can say what civil and property right shall be affected by the divorce, and how the force of the state shall enforce the consequences. The marriage relation is domestic and private, where the wills of the individuals prevail and where the police cannot act. ”

“ 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. ”

“ The law concerning divorce, however, would seem to lack that fairness which characterizes many other regulations of social life. A man might divorce his wife by the payment of a pecuniary consideration; but if a woman undertook the initiative in annulling the marriage contract, she might be condemned to death by drowning. ”

“ The only consequence of this requirement is, that husband and wife are obliged to make their marriage publicly known, which, indeed, is necessary also for moral purposes, to prevent the annoyance illegal, or supposedly illegal, connections might give rise to ”

“ 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 wife is bound to live with the husband wherever he may fix his residence.
A wife cannot, without her husband’s permission, go to law, make any contract, or acquire goods, nor alienate or pledge goods without such permission. The wife may, of course, in certain cases, such as divorce, acquire judicial authorization for prosecuting or defending a suit in the courts. ”

“ It may be shown by what is called habit or repute. Referring to marriage at common law, Kent says: 'The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation and reputation as husband and wife, except in cases of civil actions for adultery, or in public prosecutions for bigamy or adultery, when actual proof of the marriage is required.' 2 Kent, Com. ”

“ To decree the necessary measures to prevent the husband, who may have given cause for divorce, or against whom the petition for nullity of the marriage has been instituted, from interfering with the wife in the administration of her separate property.
Husband and Wife.—The spouses are under mutual obligation to live together, to be faithful to, [Pg 116] and help each other. The husband is bound to protect his wife and the wife to obey her husband.
The wife is required to follow her husband wherever he may establish his residence. ”

“ 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. ”

“ I turn from the subject of divorce, to the subject of divorceless separation; full of the same difficulty of obtaining justice.
The Legislature, which very properly discourages and discountenances separation between man and wife, acknowledges no legal change in the position of an undivorced woman. To stand the brunt of a vile and indecent action at law, and afterwards reside apart from her husband for ten, fifteen, twenty years,—with every human circumstance, except death, that can put division between them,—does not affect the legal fiction which assumes that a married couple are one. ”