Marriage law

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The law of 1848, when the marriage bond is dissolved on account of infidelity, authorizes the court in its discretion to allow both parties to remarry or only the injured person, as may seem just. [271] Such substantially is the present law. "In granting [80] a divorce for adultery, the court may decree that the guilty party shall not marry again; in which case the bond of matrimony shall be deemed not to be dissolved as to any future marriage of such party, or in any prosecution on account thereof. ”

“ 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.... ”

“ The law of 1872, however, is somewhat conservative. "In all cases where a divorce a vinculo matrimonii is decreed for adultery or abandonment, the court may, in its discretion," forbid the guilty party to "contract marriage with any other person during the lifetime" of the injured spouse, the bond of marriage not being dissolved, but remaining in full force with respect to such offender. ”

“ In this State, and I believe it to be American law, marriage is a civil contract, requiring neither license, priest, ceremony, nor certificate—and in some cases witnesses are not even necessary to give it validity. Of old, the modes of getting a wife were the same as those of acquiring any other species of property, and they are not materially changed at the present time. It is enough that the man and woman say to each other, ‘From this time we are married,’ or, ‘You are now my wife,’ or, ‘my husband,’ as the case may be. ”

“ 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 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. ”

“ 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. ”

“ Of course, such a marriage could be declared null, leaving both parties free to marry again.
It must be always carried in mind that to constitute a valid marriage under French law which cannot be impugned by anyone all the statutory conditions imposed by the Civil Code must be complied with.
Husband and Wife.—Married persons owe each other fidelity, support and assistance. A husband owes protection to his wife. A wife owes obedience to her husband. ”

“ It does not seem to me that an order developing the common law, as ordered by the majority in the Supreme Court of Appeal, coupled with an order reading in the words “or spouse” to the relevant provisions of the Marriage Act would undermine the institution of marriage at all. This Court has noted on several occasions the important role that institution plays in our society. [11] Permitting those who have been excluded from marrying to marry can only foster a society based on respect for human dignity and human difference. ”

“ The argument before us has ranged over a wider field and has raised the question whether there is any basis for the principle, long supposed to be part of the common law, that a wife does by the fact of marriage give any implied consent in advance for the husband to have sexual intercourse with her ”

“ 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 ”

“ 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. ”

“ 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. ”

“ There is no subject on which more dangerous nonsense is talked and thought than marriage. If the mischief stopped at talking and thinking it would be bad enough; but it goes further, into disastrous anarchical action. Because our marriage law is inhuman and unreasonable to the point of downright abomination, the bolder and more rebellious spirits form illicit unions, defiantly sending cards round to their friends announcing what they have done. Young women come to me and ask me whether I think they ought to consent to marry the man they have decided to live with; ”

“ It only remains for us to express the satisfaction with which we have learned that Friends in many of our meetings have concluded to petition the legislature for the repeal of what we cannot but consider an unauthorized restriction of the law of marriage. ”

“ A marriage contract was necessary to make a marriage legal. In some cases peculiar conditions were made, such as the bride’s being required to wait upon the mother-in-law, or even upon another wife. If it was stipulated that the man should not take a second wife, the woman could secure a divorce in case her husband broke the agreement. ”

“ Prior to January 1, 1876, when the present federal law went into effect, the different cantons had individual laws regulating divorce.
Qualifications for Marriage.—1. Age. A man must be at least eighteen years of age and a woman at least sixteen in order to contract a valid marriage.
2. Mental capacity. Lunatics and idiots are prohibited from marrying.
3. Free consent. No marriage is valid without the free consent of the parties. Duress, fraud or error in the person precludes the presumption of consent. ”

“ 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 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. ”

“ 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. ”

“ Less strictly, divorce is commonly understood to include judicial declarations of nullity of marriage, which, while practically terminating the marriage relation, proceed in law on the basis of the marriage never having been legally established. ”

“ It is still at work revising the marriage laws. The task is not completed. But there are important sections of the new code ready: they have taken the "obey" out of the marriage service; they have stipulated for divorce by mutual consent, that is by request of the parties interested, who are to be let out of wedlock as simply and as easily as they were let in. ”

“ That among the poorer classes a prohibition so much at variance with natural impulses has a direct immoral tendency, by inducing some parties to cohabit together without marriage, and leaving it in the power of others, who go through the ceremony of marriage, to deny its validity when it suits their purpose.
Your petitioners, therefore, humbly pray that your Lordships will take the subject of the existing law relating to marriage into your early consideration, with a view to such an alteration thereof as to your Lordships shall seem meet. ”

“ It was most unfortunate for civilization that the Christian conception of the nature of marriage should have sprung from asceticism, and that the verbal subtlety of the schoolmen should have produced the cardinal definitions upon which the validity of marriage contracts, and therefore the practical administration of matrimonial law, were made to depend. ”

“ 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. ”

“ 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. ”

“ The marriage institution cannot exist among slaves, and one-sixth of the population of democratic America is denied its privileges by the law of the land. What is to be thought of a nation boasting of its liberty, boasting of its humanity, boasting of its Christianity, boasting of its love of justice and purity, and yet having within its own borders three millions of persons denied by law the right of marriage?—what must be the condition of that people? ”