Marriage license

“ The statutes and the common-law marriage.—The defects in the matrimonial laws of the United States are many and grave; but perhaps the chief obstacle in the way of securing a proper social control is the general recognition of the validity of the so-called "common-law marriage." Almost everywhere the public celebration of wedlock is intended by the statute; and in nearly all the states a license or certificate is required before the solemnization may take place. ”

“ In this country marriage is regulated largely by the states, though a movement has been started to make marriage and divorce a matter of national regulation.
As marriages are of higher character than other contracts relating to the ordinary dealings of men, even those that are prohibited by law are for reasons of public policy not always void. They are therefore not void, simply because the formalities prescribed by statute in obtaining the license and solemnizing the marriage have not been observed, when the parties afterward live together like other married people. ”

“ Upon being advised of any alleged impediment to the marriage, the local civil registrar shall forthwith make an investigation, examining persons under oath. If he is convinced that there is an impediment to the marriage, it shall be his duty to withhold the marriage license, unless he is otherwise ordered by a competent court. ”

“ If no objection be raised within fifteen days, the license may be issued, provided the intended husband execute a bond, with sufficient security, "in a sum proportioned to his fortune, at the discretion of the judge," that there is no legal impediment to the marriage. But there is an important exception to the general rule. In "certain cases," if minors are not concerned, "the judge may dispense with the above mode of publishing marriages, by his special license to that effect, and under his own responsibility." ”

“ The license system is uncertain and complex in many of its features. To guard against the clandestine marriage of [191] minors, an affidavit from either the bride or bridegroom ought to be made obligatory in all cases, instead of leaving its requirement to the discretion of the officer, as is now usually the practice where there is any provision at all regarding the matter. In several instances the age below which parental consent is required is still too low ”

“ 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. ”

“ Unless banns are published a license must be produced for each marriage, and can only be obtained from the proper local authority upon affidavit or declaration of one of the parties to the intended marriage, showing that no legal impediment exists and that the proper consents have been obtained. ”

“ The judge of probate must issue a license without publicity to a "female making application to him, under oath, containing a statement that she is with child, which if born alive before her marriage will become a bastard, or has lived with a man," etc. With consent of parent or guardian, such judge is empowered to marry persons under marriageable age, making such a statement, whenever he believes the marriage "would be a benefit to public morals." ”

“ The person solemnizing, in Colorado, is protected by the duly issued license, if he has no personal knowledge of the incompetency of the parties. [1443] In Ohio, "when the person who solemnized the marriage had no license, it was held that it was to be inferred that the parties openly and mutually consented to a contract of present marriage;" and when they thereafter cohabited as husband and wife, "this consent constituted a legal marriage, and the man having then a wife living might properly be convicted of bigamy." ”

“ Furthermore, when members of a religious society, having as such peculiar rites, are married without a license, as the law permits, they must join in a written declaration of the marriage, which shall be signed by themselves and attested by at least three witnesses. Within thirty days after the wedding this declaration must be filed by the husband with the county recorder, who, after it is duly acknowledged, shall record the same as in grants of real property. ”

“ It provides, that after the 1st of October, 1885, no person shall be joined in marriage within the Commonwealth until a license shall have been obtained from the clerk of the Orphan's Court of the county in which the marriage is to be performed, the fee for which is fifty cents, and the license shall have appended to it two certificates—one an original certificate of the marriage by the minister of the Gospel, or other officer authorized by law to solemnize marriages, which, marked "original," shall be given to the person married ”

“ 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 ”

“ A reasonable term of residence ought always to be required; and, unless in cases of emergency, the license should be issued by, and return made to, the same official in the district where the woman dwells. Even the lack of uniformity in license fees is sometimes the cause of migration to neighboring districts for the sake of cheaper weddings. [672] Finally, a marriage entered into without license, just as without authorized celebration, should be declared null and void by the statute. ”

“ Over one third of brides who were capable of having children were already pregnant when they married. In 1753 a marriage statute required licenses to marry, the consent of parents or guardians for minors to marry, the calling of banns, and four weeks residence in the parish where the license was given by bishop or other authority. ”

“ A marriage ceremony is not void though performed by one outside his jurisdiction, or not having a license obtained at the proper place. Persons who improperly grant licenses and solemnize marriages may themselves suffer legally, but their [139] wrongful action cannot be visited on others. The principle still prevails in most states that a marriage which is good by the common law, though contrary to statutory forms unless there is an express prohibition, is a valid marriage. In a few states a common law marriage is invalid. ”

“ But the party "approved innocent" and "ignorant of the other's wicked fraud" may recover damages against the "nocent," and is permitted to contract a new marriage as if nothing had happened. [838] For the marriage of any "Daughter, Maid, or Servant" the "known consent" of the parent, master, or dame is required; and for celebration without such consent, [287] or without preceding banns or other legal notice, or the governor's license in place of notice, the minister or justice is to "forfeit twenty pounds and be put out of his office." ”

“ The minister is forbidden to "ioyne any persons soe licensed in marriage at any unreasonable tymes, but only betweene the howers of eight and twelve in the forenoone." If the marriage is after publication of banns without license, and the persons are under twenty-one years of age, the consent of parents is required before legal celebration. ”

“ Earle further shows by an extract from Holt's New York Gazette and Post-boy for December 6, 1765:
"As no Licenses for Marriage could be obtained since the first of November for Want of Stamped Paper, we can assure the Publick several Genteel Couple were publish'd in the different Churches of this City last Week; and we hear that the young Ladies of this Place are determined to Join Hands with none but such as will to the utmost endeavour to abolish the Custom of marrying with License which Amounts to many Hundred per annum which might be saved." ”

“ Banns or license, parental consent, certificate, and registration are all soon introduced. Marriage becomes in effect a [229] civil contract long before it is squarely acknowledged to be such by the law.
The brief act of 7 Charles I., 1632, provides that "no mynister shall celebrate matrimony betweene any persons without a facultie or lycense graunted by the Governor, except the baynes of matrimony have beene first published three severall Sundays or holydays in the time of devyne service in the parish churches where the sayd persons dwell, accordinge to the booke of common prayer." ”

“ All marriage licenses are to be lodged with the prothonotaries and justices of the peace of the respective counties, or with such of them as the secretary may think fit for convenience of the people, and these officers are required to submit a report every six months. ”

“ Does any lawyer doubt my statement of the legal status of married women? I will remind him of the fact that the old common law of England prevails in every State in this Union, except where the Legislature has enacted special laws annulling it. And I am ashamed that not one State has yet blotted from its statute books the old common law of marriage, by which Blackstone, summed up in the fewest words possible, is made to say: "Husband and wife are one, and that one is the husband." ”

“ No one can legally claim the status of husband or wife, or the effects and privileges resulting by law from marriage, without the production of a certificate of the marriage celebration, except in the cases provided for by Article 46 of the code, namely, when no records have ever existed, or the same have been lost or destroyed. ”

“ 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. ”

“ There are only a few exceptional cases where the married woman can legally act independently of her husband. Our code so recognizes the paramount control of the husband that when a widow, who is the tutor of her minor children, wishes to marry, and gets the consent of a family meeting to be retained in the tutorship, the code, article 255, says: Her second husband becomes of necessity the co-tutor, and, for the administration of the property subsequently to his marriage, becomes bound in solido with his wife. ”

“ 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. ”

“ 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. ”

“ In the District the right of any married woman to any property, personal or real, belonging to her at the time of marriage, or acquired during marriage in any other way than by gift or conveyance from her husband, shall be as absolute as if she were unmarried, and shall not be subject to the disposal of her husband, nor be liable for his debts. ”

“ Among a number of peoples she is free to marry again, if she likes, even when she is responsible for the separation. [815] Generally, however, her freedom is restricted in this regard; and this is especially apt to be the case where wife-purchase exists; for then the legal rights of the husband in the woman are by no means extinguished by the dissolution of marriage. Her status as a wife must thus be distinguished from her position as property or as the object of contract. ”

“ The legality of a marriage begins in the eyes of the law only when a proper form of it is filled at the office of the registry of "l'état civil." It is desirable that a marriage should be reported in the form thus filed and duly registered as soon as possible after the ceremony. ”

“ 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. ”

“ 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 laws of Montana, South Dakota, and formerly those of Idaho and California, contain a peculiar definition of matrimony and a provision for contract by "declaration," which, taken together, in effect allow persons to solemnize their own marriage, and to do so clandestinely, if they see fit. So by the California statute, as it stood from 1873 to 1895, marriage is defined as a "personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage ”