CORNELL UNIVERSITY LIBRARY BOUGHT WITH THE INCOME OF THE SAGE ENDOWMENT FUND GIVEN IN 1891 BY HENRY WILLIAMS SAGE Cornell University Library arV14085 The law ot marriaae and famly ^ re^^^^^^^ 3 1924 031 249 687 olin,anx The original of tinis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924031249687 THE LAW OF MARRIAGE AND FAMILY RELATIONS THE LAW MARRIAGE AND FAMILY RELATIONS A MANUAL OF PEACTICAL LAW NEVILL GEAEY, MA. OF THE INNER AND MIDDLE TEMPLE, BARRISTER-AT-LATV, CHRIST CHURCH, OXFORD JOINT EDITOR OF THE 12TH EDITION OF " CHITTY ON CONTRACTS" AUTHOR OF THE "LAW OF THEATRES AND MUSIC HALLS" LONDON AND EDINBURGH ADAM AND CHARLES BLACK 1892 55 CORNELL'^ UNSVEF^SITV oftS^ TO THE EIGHT HONOUKABLE Sir peter O'BRIEN, Bart. LORD CHIEF JUSTICE OF IRELAND THIS "WORK IS BY KIND PERMISSION RESPECTFULLY DEDICATED PREFACE This Law-Book is one of a series, intended as well for laymen as for the profession. For tlie use of legal Practitioners, all the usual author- ities have been always cited, except where a recent judgment of a Court of Appeal reviews the previous decisions, and then it has been thought safe to omit a reference to the earlier cases. On substantive law directly in point, i.e., Marriage and Divorce, the author has endeavoured to make this Manual an exhaustive treatise ; but where the matter discussed is not of direct interest, and is too wide for short treatment, e.g., mar- riage settlements, the author has summarised or quoted and cited the best text-books. Procedure, being outside the object of this series, is not treated at length ; besides, procedure in the Divorce Court is exhaustively treated in the books on Divorce Practice by Mr. W. J. Dixon, and ilessrs. Browne and L. D. Powles. But the subject of Chap. XIX, the thesis discussed in Chap. Ill, s. 5 (d), and the collection, at Chap. VII, s. 5 (&), of rulings on adultery by the Ecclesiastical Judges, whose authority should at least be equal to judicial viii PREFACE interpretations of wills, liave not, so far as the author is aware, been discussed at length by any previous legal writer. For lay readers, the author's plan has been, not to cur- tail, but to explain. He has endeavoured, sometimes by stating the proposition at greater length than is usual, sometimes by giving facts that would be redundant in an ordinary law-book, to make every proposition of law clear to the untrained mind. The author hopes that the public will not be repelled by the citation of cases ; to have omitted them would have rendered the book useless to lawyers, and none the more intelligible to laymen ; and placed as they are in notes, they can hardly embarrass the reading of the text. Having, as above stated, a dual aim in view, the author hopes thus better to hit the mark by (if the conceit may be pardoned) using a double-barrelled gun, than by endeavouring to kill two birds with one stone. The list of chapters at p. xiii, and the tables of contents prefixed to each chapter, show how the subject has been filled up. Marriage is treated of in its successive stages of solemnisation, the relation of husband and wife thereby created, and its legal determination by means of nullity, divorce, or separation. The relation of parent and child is the subject of Chapter XIV. Property and its rights are only slightly touched on ; but in Chapter IV, pp. 192-196, the usual provisions of a marriage settle- ment of personality are sketched. Statistics illustrating the actual working of the law are given in the notes ; PREFACE ix and it may be satisfactory even here to point oui tliat the proportion of divorces to marriage is only 1'30 per 1000. Besides the actual legal, the religious and canonical obligations of marriage are constantly referred to. In Chap. XVI is given a digest of the existing Eoman Catholic Matrimonial Law, explaining the seventeen grounds of nullity. It may be a surprise to know that a conscien- tious Eoman Catholic can apply for and avail himself of divorce, and remarry, if he has previous to the divorce (or even subsequent to it) obtained a decree of nullity from his own Ecclesiastical Court; see pp. 485, 496, 499, 500. In Appendix 2 is given a collection of the opinions of the Fathers, of the Eeformers, and of Bishops of the Church of England, and of the Inquisition and Non- conformists at the present day, as to the remarriage of divorced persons. The form of a Eoman Catholic dispen- sation for a mixed marriage is given in Appendix 3. The author would here respectfully and gratefully express his indebtedness to the many persons who have given him information and assistance, more especially in regard to Appendices 1 and 2. The author has continu- ally applied to strangers for their opinions and their knowledge on matters of grave import, expressly stating that he wrote to them with a view of publishing the answer. To reply at all was granting a favour to the author, and it is his pleasant duty to testify that in almost every case information complete and useful was readily and courteously given. The names of such in- X PREFACE formants are given elsewliere in the pages of tliis Manual, by way not merely of acknowledgment, but also as authority for the information so contributed by them and utilised in this work. In conclusion, the author would direct the attention of the jsrofession, the jjublic, and the Legislature to the following points as seeming to require remedial legisla- tion : — 1. A magistrate's maintenance order, an order in the nature of alimony made by a magistrate on giving a separation for cruelty, and an affiliation order, is not enforceable against the husband's land, stocks, or shares; see pp. 366, 367, 370, 415. 2. A divorced husband frequently succeeds in evading the operation of an alimony order by leaving the juris- diction and removing his property. The old Chancery practice of preventing him absconding by a writ of ne exeat regno, and restraining by injunction removal of property, should be revived ; and if he has repaired to a British Colony, legal machinery should be provided for bringing him back under the Fugitive Offenders Act ; see pp. 381-383. 3. An Irish husband whose wife commits adultery with an Englishman domiciled in England has no legal remedy against the adulterer ; see pp. 567, 568. 4. The issue of a marriage which turns out to be legally invalid, but was contracted bond fide by one or both parties, are illegitimate by the law of England ; but by the law of Scotland, the Canon Law, and the PREFACE xi Code Napoleon, legitimate. It would seem desirable to extend to such issue the benefit of legitimacy; see p. 147. 5. It frequently happens that the marriage of a British subject with a foreigner is invalid abroad by foreign law, but vaUd in England, so that the British subject is bound for life, while the foreign spouse is free to remarry ; see pp. 507, 523, 529. To validate the foreign marriage is beyond the province of domestic legislation, but a corre- sponding relief might be given by enacting that whenever a marriage between a British subject and a foreigner had been annulled by Courts of the foreign country, such a marriage should become voidable in England at the suit of the British subject. 6. Undisclosed pregnancy of a wife at the date of the marriage is not adultery or any other matrimonial offence ; see pp. 27, 155-162, 312, 347. Such conduct by a wife should be declared to be adultery, and a ground of divorce or nullity on proof that there has been no antenuptial intercourse between husband and wife. 7. Einally, it may be suggested that adultery or cruelty proved against a party in the Divorce Court, on which a decree is granted, should be made a statutory five years' disqualification for public office in the same way as bank- ruptcy. Such a legal disqualification would censure misconduct and obviate reiterated personal public dis- cussions. It could be left to the Court to decide, as in bankruptcy, whether in any particular case the dis- qualification might, on account of special extenuating circumstances, be removed. xii PREFACE The author begs to thank Mr. H. L. Ormsby for assisting in compiling the list of cases, and for various suggestions throughout the work; and Mr. C. H. Bromby for reading several of the proof-sheets ; and others of his friends for assistance or advice given. The author also begs to thank the Librarian and Sub-Librarian of the Inner Temple Library, where this work was mainly composed, for their many courtesies. NEVILL GEARY. 2 Tanfield Court, Temple, Nove^nher 1892. TABLE OF CONTENTS Dedication Pbbfaoe . . . . Authorities List or Cases cited . Table of Statutes cited List of Abbkbviatioks PAGES V vii XV xvii XXXV xliii CHAPS. 1. Introduction . . 1-19 2. Validity of Marriage 20-121 3. Proof of Marriage and Legitimacy . . 122-162 4. Rights and Duties of Husband and Wife . 163-202 5. Nullity of Marriage on account of Impotence 203-220 6. Nullity of Marriage (except on account of Impotence) 221-236 7. Dissolution of Marriage .... 237-351 8. Judicial Separation and Protection Order . 352-359 9. Magisterial Separation ... . 360-370 10. Restitution of Conjugal Rights and Jacti- tation ... .... 371-379 11. Incidents of Divorce, Alimony, Variation of Settlements, Custody of Children . . 380-408 12. Breach of Promise of Marriage, Seduction, AND Affiliation Order .... 409-415 13. Effect of Nullity, Divorce, etc. . . . 416-430 14. Infancy . ' 431-469 CONTENTS CHAPS. PAGES 15. Crimes 470-482 16. MoDEEN Roman Catholic Canon Law . 483-514 17. International Law . ... 515-530 18. Scotland . . . . 531-556 19. Ireland . . . . . 557-568 APPENDIX 1. Marriages in Cathedrals and Chapels Royal 569-576 2. Rbliqioits opinions and practice as to Divorce AND the remarriage OF DIVORCED PERSONS 577-590 3. Form of Dispensation for a mixed Marriage BETWEEN a CaTHOLIC AND A NON-CaTHOLIC, used in the Archbishopric of Westminster 591-593 4. Form of Solemnisation of Marriage by Proxy 594, 595 5. The Divorce of Catharine of Arragon . 596-602 6. Powers of the Archbishop of Westminster and other roman catholic bishops in England to dispense with Impediments TO Marriage 603, 604 Index 605-637 AUTHORITIES Only the main authorities are set out. Many others will be found in the Notes. The following does not pretend to be a complete Biblio- graphy of Marriage. Canon and Ecclesiastical Law of Marriage. — Corpus Juris Canonic! ; Sanchez, de Matrinionio ; Reports of the Eota, and books noted in Chapter XVI ; Early Text-Books on English Ecclesiastical Law : Ayliffe's Parergon ; Gibson's Codex ; Lyndwood's Provinciale ; Oughton's Ordo Judiciorum ; Swinburne on Spousals ; Modern Text- Boohs on Ecclesiastical Law : Phillimore's Ecclesiastical Law, etc. Pakliamentabt Eepobts. — The Marriage Laws Commission, 1868 [4059] ; Eeport on Law as to Prohibited Degrees of Affinity, 1847-48 [973] ; Report of Divorce Commission, 1853 [1604] ; Ecclesiastical Courts Commission, 1833 (70) ; Ecclesiastical Courts Commission, 1883 [3760]. Modern Law -Books on Mabriagb and Divorce. — Bishop on Marriage and Divorce (Amer.) ; Browne and Powles on Divorce ; Dixon on Divorce ; Eversley's Domestic Relations ; Hammick on Marriage ; Hubback on Evidence of Succession ; Lush on Husband and Wife ; Macqueen on Divorce ; Macqueen on Husband and Wife ; Nicolas on Adulterine Bastardy ; Oakley's Divorce Practice ; Schoiiler's Domestic Relations (Amer.) ; Shelford on Marriage. Modern Law-Book on Infancy. — Maopherson on Infants ; Simpson on Infants. xvi AUTHORITIES Ireland. — Falcon's Marriage Law of Ireland. It is believed that there is no other Irish text-book. Scotland. — Fraser on Husband and Wife ; Fraser on Parent and Child, etc. Both are works of the very highest authority ; and each contains in the introductory part a Biblicgi'aphy and List of Authorities. GASES CITED A. v. A. (1875), 213, 248, 355 A. V. B., see N— r v. M— c (1853), 206, 209, 210, 217 A. V. B. (1868), 123, 130, 204, 212, 215, 216, 222, 223 A. T. B. (1887), 565 A. V. M. (1884), 214, 400 A's Divorce Bill, 568 Adams v. Adams (1858), 557 Adams v. Adams (1867), 256, 258 Agar V. Blethyn, 419 Agar-EUis, in re, 432, 433, 437, 458 Aliier v. Ahier, 242 Aiscoiigh, ex iMrte, 153 Aiscougli t. Chaplin, 153 Aldridge, ex parte, 362 Aldridge v. Aldridge, 220 Alexander v. Alexander (1860), 316 Alexander v. Alexander (1861), 376 Alexandre v. Alexandre, 265, 273 Alison's Trusts, 78, 113 Allen V. Allen (1842), 465 Allen V. Allen (1860), 270 Allen V. Allen (1885), 251, 405 Alsop V. Bo-wtrell, 154, 155 Ambrosia Gorge's case, 30 Andrews, ex y ode, 429 Andrews v. Ross, 32, 213, 224, 225, 228, 233 Andrews v. Salt, 441 Auesty, Richard de, v. Mabel de Francheville, 3 Anichini v. Anichini, 290, 356, 374 Anon (1 Free, 214), 414 Anon (1537), 417 Anon (1702), 458 Anon (1721), 382 Anon (1741), 382 Anon v. Anon (1856), 155, 156 Anon (1857), 204, 219, 220 Anon (1875), 241 Ansdell v. Ansdell, 396 Anstey v. Manners, 417 Appleby v. Franldin, 415 Argar v. Holdsworth, 58, 59 Argent v. Argent, 525 Armitage v. Armitage, 520 Ash's case, Mrs. , 29 Askew, Doe on the demise of, r. Askew, 428 Astley V. Astley, 308, 318 Atcliinson v. Baker, 413 Athlone's claim. Earl of, 106, 137, 138 Att.-Geu. V. Clements, 54 Att.-Gen. 'b. Lucas, 54 Att.-Gen. n. MuUay (1828), 54 Att.-Geu. 11. MuUay (1844), 54 Att.-Gen. t'. Read, 54 Atwood V. Atwood, 175 Ayerst ■l\ Jenkins, 418 Aylesford Peerage case, 147, 151, 152 B. «. B. (1875), 565 B. alias A. v. B. (1891), 28, 211, 218, 565 B. •». L., 211 B— n V. B— u, 205, 218 b CASES CITED Babbage v. Babbage, 306 Bacon v. Bacon, 396 Bailey v. Bailey, 383 Bailey v. Boyd, 160, 161 Bainv. Att.-Gen., 226 Bain v. Mason, 127, 138 Baker v. Baker (1859) (13 Cal., 87), 160 Baker v. Baker (1880) (5 P. D., 142, 6P. D., 12), 252 Baker v. Cartwright, 412 Balfour v. Carpenter (1810) (1 Phillira., 204), 48 Balfour u. Carpenter (1811) (1 Phillim., 221), 53 Banbury Peerage case, 148, 149 Barford, ex parte, 458 Barker v. Taylor, 455 Barlee v. Barlee, 377, 392 Barnardo v. M'Hugh, 433, 435, 443 Barnes v. Barnes (1867) (L. R., 1 P. &M., 505), 283, 300 Barnes i\ Barnes (1867) (L. R., 1 P. & M., 572), 248, 286, 287, 289 Barnett v. Barnett, 248 Barrow v. Barrow (1774), 27 Barrow v. Barrow (1854), 429 Bartlett, ex parte, 436 Basham r. Lumley, 116 Basing «. Basing, 346 Bates V. Bates, 250, 251 Bathews v. Galindo, 419 Baxtar v. Buckley, 9 Bayard v. Morphew, 127 Baylis v. Baylis, 298, 299 Bazeley v. Forder, 447 Beaohey v. Brown, 34, 412 Beamish v. Beamish, 66, 67, 69, 70, 71, 73, 103, 117, 558 Beasley v, Roney, 190 Beauclerk v. Beauclerk, 294, 295, 332 Beaurain i\ Beaurain, 230, 252 Beauraine c. Scott, 230, 458 Beavan v. Beavan, 252, 297, 299, 349 Beeby v. Beeby, 279, 280, 356 Bell r. Bell (1859) (1 Sw. & Tr., 565), 258 Bell V. Bell (1883), 255 Bellett, e.i:_pffij-te, 153 Bell V. Bird, see Bird v. Bell Bent V. Bent, 407 Beuyou v. Benyon, 397, 401 Berkeley Peerage case, 139 Bernstein v. Bernstein, 256, 273 Berry v. Da Costa, 413 Besant, in re, 440, 443, 454 Best V. Best (1814), 358 Best V. Best (1823), 276, 278, 307, 337 Bethell, in re, 33, 520 Bethune i\ Betliune, 336 Bevani). M'Mabon, 55, 56, 229 Bigwood ». Bigwood, 344, 353, 393 Birchell, exparte, 42 Bird V. Bell, 235, 236, 382, 403 Birt V. Barlow, 138 Birt V. Boutinez, 33, 526 Birtwhistle r. Vardill, 146, 147, 529 Blackbome v. Blaekborne, 375 Blackden's case, 30 Blackniore v. Brider, 32, 231, 350 Blake ®. Blake, .02 Blakemure, in re, 153 Bland D. Bland, 246 Blandford v. Blandford, 280, 281, 293, 343, 405 Blayney v. Savage, 76 Blenkinsop v. Blenkinsop, 382 Bloxam v. Favre, 165 Boardman v. Boardman, 331 Boddington, in re, ill Bodkin v. Case, 378 Bolton, in re, 19 Bolton V. Bolton, 192, 456 Bonaparte ■». Bonaparte, 223, 234, 521, 526, 555 Bond V. Bond (1754), 2 Lee, 45, 142 Bond -0. Bond (I860) (2 Sw. & Tr. 93), 244 Boraine's case, 230, 458 CASES CITED Boreliam v. Boreliam, 293, 297, 303, 354, 357 Bostock V. Bostock, 333 Bostock c. Smith, 427 Bosville D. Att.-Geu., 151, 155 BosviUe r. Bosville, 397, 399 Botnier r. PuUe, 17 Boultiug t). Boiilting, 270 Bourgoise, in re, 452 Bouverie, ui re, 226 Bowen, in re, 188 Bowles V. Bingham, 158 Bowzer v. Ricketts, 224, 229, 234 Boyd V. Boyd, 405 Boyes c. Bedale, 528 Boyle V. Boyle, 133 Bradley v. Bradley, 388, 392 Brady, ex parte, 91 Bramall v. Bramall, 137 Bramwell v. Bramwell, 276, 321, 374 Brauford v. Braiiford, 306 Bray i: Bray, 332 Breadalbane case, the, see Campbell V. Campbell, 140, 142, 541, 543, 545 Brealy r. Reed, 40 Briaiit, in re, 187 Bridgewater v. Cnitchley, 15 Briggs V. Briggs, 521, 52() Briggs r. Morgan, 206, 210 Brinkley D. Att.-Geu., 226, 520 Brisco V. Brlsco, 356 Brocas v. Brocas, 253 Brockbank v. Whitehaven Junction, 183 Bromley v. Bromley, 350 Bromley v. Wallace, 256 Brook V. Brook, 31, 32, 522, 524 Brooke v. Bush, 568 Brookes r. Brookes, 338, 346 Brown, in re, 453 Brown's case, Ethel, 133, 436 Brown, in re, ex parte Wallop, 150 Brown v. Brown (1828), 205, 206 Brown v. Brown (1850) (2 Rob. Ec. 302), 252 Brown i: Brown (L. R., 1 P. & M., 46), 330, 331 Brown v. Brown (L. R., 3 P. & M., 202), 284, 358 Brown v. Brown (L. R., 3 P. & M., 198), 306 Browning v. Reave, 228 Bruce v. Burke, 33, 133, 558, 562 Bryant r. Foot, 72, 77 Buchanan v. Buchanan, 428 Buckmaster v. Buckmaster, 339, 359 Bulmore v. Wynter, 421 Bullock V. Bullock, 397 Bunting l\ Lepingwell, 10, 131 Burgess v. Burgess, 318, 350 Burnaby v. Baillie, 152, 155 Burnaby v. Equitable Reversion So- ciety, 454 Burnard v. Haggis, 466 Burroughs v. Burroughs, 374 Burrows v. Burrows, 384 Burt v. Burt, 116, 349 Burton, re, 455 Burton r. Sturgeon, 421 Bury's case, 204, 216, 217 Butler V. Butler (1885), 164, 199 Butler V. Butler (1889), 265, 267, 282, 283, 385, 402 Butler e. Freeman, 451, 457 C. V. C, 213, 225, 235, 245, 355 Cadogan v, Cadogan, 316 Calcraft v. Lord Harborough, 291, 303 Callaghan, in re, 445 Callwell V. Callwell, 244, 259 Campbell v. Campbell — the Bread- albane case, 140, 142, 641, 543, 645 Campbell v. Corley, 36, 96, 379 Cannam v. Farmer, 128 Capel V. Powell, 420 Capua, Prince of, v, Ludolf, Count of, 48 CASES CITED Cargill v. Cargill, 338, 346, 362 Carnegie v. Caruegie, 285, 326, 075 Carnegie's case, 443 Carter r. Silber, 192, 464 Castleden v. Castleclen, 218 Catherwood v. Caslon, 103, 107 Caton V. Caton, 316, 318, 320, 321 Caterall v. Caterall, 103, 115 Catterall v. Sweetman, 36, 64 Caudrey's case, 2 Cavell V. Prince, 34, 204, 212, 215, 216, 418 Chamberlain v. Hazlewood, 415 Chamberlain r. Williamson, 410 Chambers c. Chambers, 316 Cliambers v. Caulfield, 259 Chambers v. Donaldson, 426 Chancey's case, 310 Chaplin's petition. Ml re, 226, 230 C'hapman v. Bradley, 418, 419 Charles v. Charles, 241, 388 Chesnutt o. Chesnutt, 309, 329, 330 Chettle V. Chettle, 315, 319 Chetwynd v. Chetwynd, 400, 402, 407, 408 Chichester v. Chichester, 374 Chichester v. Donegal, 231, 232 Chichester v. iVIure, 422, 423 Chicli; ('. Ramsdale, 231, 350 Cibber v. Cibber, 268 Ciocci i'. Ciocci, 169, 308, 316, 321, 331 Claridge v. Evelyn, 465 Clarlv V. Clark, 376 Clarke ».,Clarke (1873), 382 Clarke v. Clarke (1891), 251 Cleaver v. Cleaver, 242 Clifford V. Clifford, 397, 399 Clout r. Clout, 407 Clowes V. Clowes, 234, 296, 299, 357 Clowes V. Jones, 27, 55 Cochrane, in re, 167, 174, 175 Cocksedge v. Cocksedge, 320, 323, 357 Coleman v. Coleman, 290 CoUett V. CoUett, 331 Collins V. Collins (9 App. Ca., 205), 276, 280, 282, 554 Collins u. Collins (9 P. D., 231), 292 CoUiss V. Hector, 526 Colvin V. Johnstone, 412 Concha v. Murrietta, 434 Condon v. VoUum, 442 Connelly v. Connelly, 168, 527 Conneniara r. Conneniara, 255 Conradi v. Conradi, 248, 286, 288, 292 Conran v. Lowe, 141, 227, 374 Conway v. Beazely, 521, 526 Conway's, Dr., case, 310 Cook V. Cooper, 427 Cooke V. Cooke, 276, 281, 358 Cooke V. Fuller, 425 Coombs r. Coombs, 384 Cooper V. Crane, 25 Cope V. Burt, 56 Cope r. Cope, 148 Corrance v. Corrance, 396 Costard v. Winder, 66 Coulson r. Allison, 419 Courtenay r. Miles, 560, 561 Gousen v. Consen, 171, 332 Covell V. Covell, 386 Coward and Adam's Purchase, 425 Coxhead v. Mullis, 411, 463 Crabb v. Crabb, 339, 340 Crawford -o. Crawford, 257, 262, 264, 265, 266, 307 Cresswell v. Cosins, 233 Crewe v. Crewe, 268, 269, 282, 309 Cripps V. Cripps, 138 Crisp V. Crisp, 398 Croft r. Croft, 307 Crompton v. Bearcroft, 518 Crosbie v. Hurley, 465 Crothers v. Crothers, 374, 376 Cuckson V. Winter, 465 Culley V, Charman, 181 Cunnington v. Cunuington, 298 OASES CITED Cuno V. Cuno, 208, 218 Curling v. Curling, 254, 255 Curtis V. Curtis, 272, 279, 325, 332, 336 Curtis V. Mundy, 468 Curtis r. Eippon, 453 Daoosta v. Villa Real, 10 Dagg V. Dagg, 340 D'Aguilar v. D'Aguilar, 102, 171, 177, 243, 273, 279, 311, 330, 332, 333, 373 D' Alton V. D' Alton, 406, 408 Dalrymple ■». Dalrymple, 232, 376, 636, 640 D'Arcy ■». D'Arcy, 367, 665 Dasent v. Dasent, 243 Davidson v. Davidson, 315 Davies, in re, 427 Davies v. Davies, 296 Davies, Doe dem, v. Gatacre, 136 Davis V. Black, 58, 471 Davis V. Bomford, 412 Davis V. Davis, 407, 408 Dawson v. Oliver-Massey, 19 Days V. Jarvis, 233 Deane v. Aveling, 205 Deane v. Deane, 321, 322 Debenham v. Mellon, 180 De Francesco ■». Barnum, 461, 468 De Lossy v. De Lossy, 251, 382 De IWanneville v. De Manneville, 432 Dempster v. Dempster, 276 Dennis v. Dennis (1808), 373 Dennis u Dennis (1815), 230 Dennison v. Page, 159 Denny ■». Ashwell, 31 Dent V. Dent (1865) (4 Sw. & Tr, , 105), 274, 280, 354 Dent •!'. Dent (1867), 251 De Eicci v. De Ricci, 530 Dering v. Dering, 248, 250, 253, 264, 265, 286, 302 Des Merces v. Cones, 32 De-Thoren v. Att.-Gen,, 423, 541, 643, 545, 546 D'Etchegoyen v. D'Etcliegoyen, 243 Diddear v. Faucit, 42 Dillon V. Dillon, 276, 278, 298, 322, 357 Ditchfield v. Ditchfleld, 219, 220, 286, 315 Dixon, ill re, 163 Dixson, in re, 418, 521 Dobbyn v. Dobbyn, 276 Doe denr Askew v. Askew, 428 Doe dem Blayney v. Savage, 76 Doe dem Davies v. Gatacre, 136 Doe dem Egremont v. Grazebrook, 56 Doe dem Fleming v. Fleming, 128, 140 Doe dem Wood v. Wilkins, 135 Doglioni ?•. Crispin, 526 Dolby V. Dolby, 248 Dolby v. Powell, 419 Dolphin V. Robins, 521, 625 Donegal v. Donegal, 232 Doneraile v. Doneraile, 428 Don's Estate, in re, 629 Dormer v. Williams, 48 Dover v. Alexander, 19 Draycott ■». Talbot, 137, 138 Drew V. Drew (1842), 318 Drew V. Drew (1888), 341 Droney r. Archer, 16, 52 Drummond v. Drnmmond, 366 Drysdale v. Drysdale, 254, 373 Duberley v. Gunning, 256 Duins ■y. Donovan, 15, 234 Dn Moulin v. Druitt, 104, 114 Dunn V. Dnnn (1817), 278 Dunn V. Dunn (1888), 385 Duplany v. Duplany, 347, 354, 358 Durant 'o. Durant, 279, 280, 281, 316, 317, 332 Durham v. Durham, 28 Du Terreaux v. Du Terreaux, 297, 299, 349 Dyke r. Wallis, 140, 228 CASES CITED Dyke v. Williams, 124, 228 * Dysart v. Dysart, 175, 176, 182, 309, 327, 337 Dysart Peerage, 126, 142, 539, 540, 541, 542 E. u T., 218 Edwards v. Crock, 258 Egreniout, Lord, Doe ou dem of, r. Grazebrook, 56 Elderton, in re, 436 Eldred v. Eldred, 357 EUerton v. Gastrell, 31 Elibank, Lady, v. Moutolieu, 186 Elliott, Goods of Ann, 363, 425 Elliott V. Elliott, 317 Elliott V. Gurr, 32, 222 Ellis V. Ellis (1865), 276 Ellis V. Ellis (1883), 384, 423 EUyatt V. EUyatt, 256 Elsani V. Faucett, 258 Elwes V. Elwes, 277, 315, 316, 317 English V. English, 170 Buticknap v. Rice, 235 Essex, Conutess of, v. Earl of Essex, 204, 206 Este V. Smyth, 529 Eiiston r. Smith, 214, 236 Evaus r. Carrington, 421, 428 Evans v. Evans (1790), 182, 183, 325, 333, 373 Evaus V. Evaus (1843), 171, 182, 277, 329, 330, 378 Evans v. Evans (1858), 248 Evans v. Walton, 414 Ewart V. Chubb, 425 Eyre v. Countess of Shaftesbury, 451 F. <■. D., 171, 204, 208, 210, 211 Faremouth v. Watson, 228, 231 Farmer v. Farmer, 217, 293, 343, 345 Farrington v. Farriiigton, 401 Fausett r. Fausett, 307, 318, 319 Fearon v. Earl of Aylesford, 428 Fellows V. Wood, 468 Fendall v. Goldsmid, 420 Fenton ■». Livingstone, 11, 32, 523, 549 Ferrers v. Ferrers, 273, 280, 368 Field V. Browii, 473 Field -0. Field, 273 Field's Marriage Annulling Bill, 24 Finlay u Chirney, 410. Finney v. Finney, 285 Firebrace v. Firebrace, 374 Fisher v. Fisher, 392 Fitzgerald v. Chapman, 421 Fitzgerald v. Fitzgerald (1869), 339, 342, 343, 344, 345, 347, 354 Fitzgerald v. Fitzgerald (1874), 250 Fitzgerald v. Northcote, 433 Flannagan v. Bishop Wearmouth Overseers, 181 Fleier v. Southcot, 417 Fleming, Doe dem, v. Fleming, 128, 140 Fleming v. Pratt, 454 Fletcher v. Pynsett, 124 Foley V. Lord Peterborough, 256 Foljambe's case, 12 Ford V. De Pontes, 419 Forster r. Forster (1790), 171, 297, 319, 356, 372, 373 Forster v. Forster (1863) (3 Sw. & Tr., 158), 260, 264 Forster v. Forster (1863) (4 B. & S., 187), 243, 255 Forster v. Forster (1872), 537, 547 Forsyth v. Forsyth, 397, 398 Frampton v. Stephens, 420 Fraser c. Eraser, 307, 318, 319, 320 322 Frederick v. Frederick, 453 Freegard v. Freegard, 289 Fry V. Fry, 230, 252 Fryer, ex parte, 261 Fuhvood's case, 24, 474 Fuller D. Alford, 43 Furlonger v. Furlonger, 326 CASES CITED Furness v. Furness, 281 Fust V. Bowermau, 230 G., in re, 441, 450 G. V. G., 169, 207, 208 G. 1'. L., 433 G. V. M., 208, 209, 210, 218, 219, 220, 553 G-s V. T— e, 208, 211, 220 Gale V. Gale, 332 Gallisand r. Kigand, 311 Gandy v. Gandy, 284, 386, 396 Garcia v. Garcia, 343, 345 Gardner ■». Gardner, 157, 158, 550 Gatehouse v. Gatehouse, 342, 345 Geils V. Geils, 170, 173, 332, 351 George v. George, 384 Gifford's Divorce Bill, 568 Gilclirist v. Cator, 429 GUlett V. Gillett, 251, 364, 367 Ginger r. Ginger, 308 Gipps V. Gipps, 259, 268, 270, 277 Gladstone v. Gladstone, 263, 264, 266, 267, 397, 402 Godrich v. Godrich, 408 Goldsmid v. Broraer, 98, 378 Goldsworthy, in re, 436, 437 Gompertz v. Kensit, 39, 40" Goodden v. Goodden, 326, 387 Goodman r. Goodman, 98, 100, 140, 142 Goodman's Trusts, in re, 527, 528 Gorge's, Ambrosia, case, 30 Goulderv.Goulder,243, 244, 526,530 Gower v. Gower, 304, 308, 313 Grange v. Grange, 244, 257 Grant v. Grant (1754), 136, 374 Grant v. Grant (1839), 315, 316, 317, 318, 319, 320, 321 Grant v. Grant (1862) (2 Sw. & Tr,, 522), 253, 397 Graves v. Graves (1842), 271, 298, 312 Graves v. Graves (1864), 346 Greaves v. Greaves, 46, 51 Greedy v. Lavender, 429 Green v. Green, 246, 295, 355 Green's case, 324, 403 Greenley's case, 416 Greenhill v. Greenliill, 404 Greenstreet v. Cumyns, 211 Greenway v. Greeuway, 170, 173 Grey's ease, 30, 123 Griffiths V. Eeed, 350 Grossi V. Grossi, 356 Grove, in. re, 527, 528 Grove v. Grove, 365 Grover v. Grover, 317 Guest V. Shipley, 219 H. V. C, 211 H. V. P., 169, 207, 211 Haddon v. Haddon, 369, 387 Haftey v. Haffey, 382 Haigh r. Haigh, 386, 387 Haines v. Guthrie, 139 Hains v. Jessell, 31 Hake-vvill, in re, 432 Hakewill v. Hakewill, 364 Halfen v. Boddington, 213, 216, 250 Hall, exjMrte, 359 Hall ','. Hall (1749), 454 Hall V. Hall (1849), 303 Hall V. Hall (1864), 328 Hall ». Wright, 84, 167, 204, 412 Hamhlin v. Sheltou, 127 Haraerton v. Hamerton, 315, 318, 321 Hamilton v. Hamilton (1842), 537 Hamilton v. Hamilton (1892), 192, 421, 464 Hanhury v. Bateman, Lord, 54 Hanbury v. Hanbury, 314, 328, 336 Hancock v. Hancock, 250 Hancock v. Peaty, 230 Handley v. Handley, 405, 407 Harding v. Harding, 343, 344, 345, 353, 372, 374, 376, 377, 393 Harford v. Morris, 26, 110, 223, 517 Hargrave v. Hargrave, 151 Harris v. Harris (1829), 271, 297, 307, 318, 319, 320 CASES CITED Harris v. Harris (1862), 283 Harris v. Harris (1870), 322 Harris i: Hiclis, 11, 350 Harrison v. Cage, 410 Harrison v. Harrison, 388, 390, 392, 399 Harrison v. Sontliampton, Mayor, etc., 132, 139 Harroa v. Harrod, 23, 28, 69 Hartley v. Rice, 19 Harvey v. Farnie, 165, 517, 525, 555 Harvey v. Farquliar, 554, 556 Harvey r. Lovekin, 214, 236, 241 Harvey i\ Watson, 259 Harvie v. Inglis, 541 Hastie's Trusts, in re, 19 Haswell v. Haswell, 346, 347 Hanghtou v. Hangliton, 97 Havelocli; v. Havelock, 448 HavUand v. Mortiboy, 127, 129, 235 Haward v. Suffolk, Dulie ot, 165 Hawliie V. Corri, 66, 227, 379 Hawkes i\ Hawkes, 3S5 Hawkins v. Hawkins, 297, 298, 299 Haworth v. Herbert, 428 Ha\vtrey v. Hawtrey, 376 Hay, in re, 420 Hayes v. Watts, 14, 224, 234 Hayward v. Hayward, 375 Head v. Briscoe, 190 Head v. Head, 382, 429 Heath v. Lewis, 420, 525 Hebbletliwaite r. Hebbletliwaite, 306, 308 Hedges v. Tagg, 415 Hemraings v. Smitb, 127, 138 Henderson, ex parte, 3S2 Henry VIII v. Catharine of Arragon, 121, 513, 597 Herbert, Lady, v. Lord Herbert, 518 Hervey r. Hervey, 136, 140, 141 Heseltine v. Lady Augusta Murray, 120, 232, 521 Hetherington v. Hetheringtou, 147, 365, 367 Hethringtou v. Graham, 427, 428 Hewat's Divorce Bill, 568 Heyes v. Heyes, 293, 296, 348 Hill r. Good, 31 Hill r. Turner, 29, 299, 456 Hitchins r. Eardley, 139 Hoar r. Hoar, 278 Hoare v. Allen, 271 Hobbs, in re, 434 Hoblyn r. Hoblyn, 194 Hodges r. Hodges, 268 Hodgkinson v. Wilkie, 53, 54, 228 Hodgson c. Halford, 19 Holcroft V. Dickeson, see Holder v, Dickeson Holden, ex parte, 382 Holden v. Holden, 327, 337 Holden i\ King, 365 Holder or Holcroft v. Dickeson, 19, 30, 410 Holmes v. Brierley, 411, 463 Holmes r. Holmes, 329, 375 Holmes v. Simmons, 41, 82 Holt r. Holt, 384 Holt V. Ward, 411 Honyman v. Campbell, 547 Hooke V. Hooke, 235, 309 Hooper i'. Hooper, 358 Hope r. Hope (1854), 432 Hope V. Hope (1858), 166, 356, 373, 374 Hope V. Hope (1892), 186 Hopewell i\ De Pinna, 145 Horn v. Noel, 98 Home r. Home, 349 Horner v. Horner, 31 Homer v. Liddiard, 15 Houliston V. Smyth, 329, 332, 337, 343, 346, 347 Howarth r. Howarth, 264, 265, 388 Hubbard r. Lees, 138 Hudson V. Hudson, 264 Hughes V. Hughes, 303, 337 Hulrae i: Hulme, 327, 333 Hulse r. Hulse, 256, 265, 288. 310. 313, 323, 423 CASES CITED Hunt t'. Huut (1856), 205, 315 Hunt V. Hunt (1861), 201 Hunt c. Hunt (1883), 386, 404, 406 Hutt V. Hayleybury, 433 Hutton r. Harper, 532 Hyde r. Hyde &Wooclmausee (1866). 33, 520 Hyde v. Hyde (1888), 251, 405 I. C, exjjarte, 53 Ililer, in re, 425 Ilderton v. llderton, 123 Inirie v. Imrie, 537 Insole, in re, 424 Izard V. Izard, 256, 259, 285 Jackman v. Jackman, 289, 306 ■Jackson's case, see K. v. Jackson James v. Biddingtou, 258 Jardine v. Jardine, 390 Jee V. Thurlow, 428 Jeffreys v. Jeffreys, 296 Jenner e. Walker, 460 Jesson c. Collins, 10 Johnson v. Johnson, 188 Johnson v. Lauder, 424 Johnston v. Brown, 29 Johnston v. Johnston, 27 Johnston e. Parker, 75, 234 Johnstone v. Marks, 460 Jolly V. M'Gregor, 533 Jones, ex parte, 464, 468 Jones i', Bougett, 7 Jones J). Jones (1847), 283, 293, 320 Jones v. Jones (1860), 331 Jones V. Jones (1872), 385 Jones V. Robinson, 100 Joseph 1'. Joseph, 289 Jump V. Jump, 397 Jupp, in re, 163 Keats v. Keats, 274, 275, 276 Keech r. Keeoh, 342, 354 Kelly e. Kelly, 176, 333-336, 337 Kempe v. Kempe, 387 Kennedy %\ Kennedy, 27, 155, 312, 347 Kenn's case, 123, 132, 222, 235 Kenrick v. Kenrick, 317, 318 Kent V. Burgess, 107, 519 Kershaw v. Kershaw, 369 Keyse v. Keyse, 258 King, ex parte, 323 King V. Gillett, 412 King V. King, 312, 332 King V. Sansom, 15 Kingsley's Trusts, in re, 425 Kingston's case. Duchess of, 130, 131, 133, 165, 379 Kirkman v. Kirkman, 326 Kirkwall v. Kirkwall, 281 Kirwan r. Kirwan, 558 Kleinert v. Ehlers, 160 Knapp V. Knapp, 247, 293, 343 Knee, Ann, ex parte, 435 Knowles v. Duncan, 413 Knox V. Wells, 421 Kynnaird ■». Leslie, 23 L. u L., 322 L. V. W., 207 Lacon v. Higgins, 113, 519 Lacy V. Dickinson, 519 Lakin v. Lakin, 377 Lampet's case, 417 Lander v. Lander, 391, 392 Lane v. Goodwin, 55 Langworthyii.Langworthy, 148, 214, 216, 225, 236, 249, 250, 381, 405, 406 Lappington v. Lappington, 343 Lapsley ■». Gierson, 146 Latham v. Latham, 249, 423 Lauderdale Peerage, 36, 115, 116, 143, 551 Lautouri). Queen's Proctor, 282, 286 288, 313, 426 . Lautour v. Teesdale, 115 Lawford v. Davies, 223, 535 CASES CITED Lawrence v. Lawrence, 342 Laxon, W., & Co., in re, 465 Leader v. Barry, 140 Lee V. Lee, 429 Leeson v. Fitzmaurice, 142 Le Geyt v. O'Brien, 29 Leigh, in re, 192, 456, 464 Leigh's case, Lord, 174 Lempriere v. Lempriere, 354, 357 Le Sueur r. Le Sueur, 243, 244, 262 Lewin's Trusts, in re, 429 Lewiu V. Lewin, 365 Lewis V. Hayward, 203, 209, 218 Lewis V. Lee, 426 Lewis f . Lewis, 250 Lewis e. Ponsford, 167, 1S3 Limerick v. Limerick, 116 Lindo V. Belsario, 98, 167, 227, 378 Ling V. Ling, 397 Linton v. Linton, 382, 387 Lister v. Lister, 388, 390, 392 Lloyd V. Lloyd (1859) (1 Sw. & Tr., 567), 283 Lloyd V. Lloyd (1866) (L. E., 1 P. & M., 222), 309 Lloyd V. Passingham, 135, 136 Lloyd i;. Petitjean, 107, 519 Lockwood r. Lockwood, 167, 308, 329, 337, 372 Lockyer r. Ferryman, 131, 132 Lodge V. Lodge, 342, 343, 345, 354 Long V. Long (1877), 27 Long V. Long (1890), 248, 256, 314 Lopez V. Lopez, 32 Lovat Peerage, The, 139 Loveden v. Loveden, 315, 317, 318, 321 LoTering v. Levering, 268 Low V. Low, 555 Lyle V. EUwood, 142 Lynch v. Knight, 190 Lynch r. Lynch, 250 Lyons c. Blenkin, 444 M. I, B., 213, 250 M. V. D., 208, 218, 219, 220 « M. r. H., 209 M'Adam v. Walker, 536, 551 Macartney v. Macartney, 305 M'Carthy v. Decaix, 525 Macclesfield's divorce, Earl of, 18 M'Cord V. M'Cord, 245, 287, 289, 290, 291 M'CuUoch V. M'CuUoch, 27 Macdonald v. Macdonald, 341 Macfadyen v. Olivant, 255 M'Grath, in re, 450, 454 M'KeeverD. M'Keever, 567 M'Kinven v. M'Miller, 415 Maclean v. Cristall, 103, 115 Macneill v, Macgregor, 533 Mahoney t. M'Carthy, 344, 359, 362, 364, 426 Mallinson v. Mallinson, 345, 405 Maloy V. M'Adam, 547 Maltass v. Maltass, 110 Mauby v. Scott, 173, 179 Manning v. Manning, 243 Man's case, 31 Mansel r. Att.-Gen., 226 March v. Marcli (1858), 349 March v. March (1867), 401, 406, 408 Margrett, ere parte, re Soltykoff, 456 Harris v. Marris, 270 Marsh v. Loader, 467 Marsh v. Marsh, 330, 405, 407 Marshall v. Marshall, 201, 376 Marshall v. Button, 196 Martin's case, 43 Mason v. Mason, 246, 255, 295, 354, 355 Matthews v. Matthews, 358 Maudslay r. Maudslay, 399 Maule V. Mounsey, 129, 133 Mayhew v. Mayhew, 41, 220, 227 Mayo, Lady, v. Brown, 147 Mayor r. Collins, 468 Meakin j-. Morris, 462 Mear's case, 474 Meddowcraft v. Gregory, 131 CASES CITED MedJowcraft v. Hugiieniu, 131 Medley v. Medk-y, 388, 389, 392 Mendes v. Meudes, 459 Mette r. Mette, 235, 522, 524 Meyeru v. Meyern, 402 Meyeiir v. Meyeur, 260 Michell !•. Michell, 394, 395 Middletou v. Crofts, 9 Middletou r. Jauverin, 112, 519 Midgley !■. Wood, 39 Midland EaUway v. Pye, 425 Midwinter i'. Midwinter, 249, 369, 397, 423 Miles V. Cliilton, 33, 222, 223, 233, 235 Milford V. Milford, 325, 406, 407 Millar v. Millar, 338, 339 Miller v. Anderson, 161 Miller v. Miller, 251 Miller v. Wlieatley, 138 Millington v. Loring, 413 Milne v. Milne, 395, 393, 399, 403 Milward v. Littlewood, 411 Miteliell v. Mitchell, 384 Mogg V. Mogg, 350 Molony v. Molony, 166, 375 Montague r. Montague, 232 Montgomery v. Montgomery, 550 Moore, in re, 19 Moore v. Bull, 214, 236, 397 Moore v. Moore (1737), 429 Moore v. Moore (1840), 375 Moore v. Moore (1887), 284, 340, 358 Moore v. Moore (1892), 280, 289, 423 Moorsom v. Moorsom, 268, 317, 320 Mordaunt v. MoncreiB'f, 245, 252, 310 More r. More, 49, 56, 69, 456 Morgan v. Dillon, 451 Morgan v. Morgan (1841), 252, 296, 299, 357 Morgan v. Morgan (1869) (L. R., 1 P. & M., 644), 287, 289, 290 MoriDhett v. Morphett, 331 Morrall v. Morrall, 284, 390 Morris V. Davies, 148, 149, 150 Morris v. Miller, 127 Morrieson, In re, 421 Mortimer v. Mortimer, 201, 306, 358 Mortimore v. Wright, 448, 449 Moss V. Smith, 98 Moysey v. Hillcoat, 135 Mudge V. Adams, 359, 364, 426 Munro t: Munro, 551 Munro r. Saunders, 651 Murray v. Lord Elihaulc, 186 Myoock V. Mycocli, 354 Mytton r. Myttou, 176, 323, 330, 336 N. ■(.. M., 421 N^r V. M— e, see A. v. B., 206, 209, 217 N. V. N., 173, 331, 332, 351 Nares, in re, 421 Narracott ■<>. Narracott, 248, 260, 286 Needham c. Bremner, 427 Neeld v. Neeld, 177, 277, 328, 378 Nelson v. Stocker, 464 Nepean f. Doe deni Knight, 144 Nevin, in re Violet, 433, 454 Newham v. Eaithhy, 137 Newman v. Newman, 281, 294, 350 Newsome i\ Newsome, 275, 280, 281, 284, 350 Newton v. Newton, 251, 382 Niboyet c. Niboyet, 240, 243, 244 Nicholson v. Drury Estate Co. , 425 Nicholson v. Squire, 42 Nicholson c. Nicholson, 293 Nicol V. Nicol, 424 Noakes v. Noakes, 251, 382, 398 Noble V. Noble, 289, 313, 423 Noblett r. Noblett, 385 Noel V. Noel, 397, 401 Nokes V. Milward, 134, 225, 234 Norfolk's divorce, Dulie of, 18, 484, 578 Norman v. Villiers, 423 Norris v. Norris (1858), 395 CASES CITED Norris r. Norris (1861), 270 Northcote v. Doughty, 411 Northampton's divorce. Lord, 17 Norton v. Seton, 216 Norwood r. Stevenson, 124 Nott V. Nott, 340 Nunneley v. Nunneley, 397 OccLESTO^' V. FuUalove, 19 Gland's case, 416 Oliver v. Oliver, 174, 328, 373 Ornie r. HoUoway, 39, 40, 41 Orme c. Orme, 172, 372, 376 Ottaway v. Hamilton, 403 Otway V. Otway (1812), 333 Otway V. Otway (1888), 256, 329, 354, 356, 403, 404 Ousey V. Ousey, 215, 250, 261, 262, 297, 349, 423 Owen V. Owen, 319, 321, 374 P. I. L., 208 Pagani r. Pagani, 247 Palmer v. Palmer, 281 Pape V. Pape, 368 Parkins v. Scott, 191 Parkinson r. Parkinson, 330, 339, 340 Parsons, in re, 189 Parson's Trusts, in re, 155, 156 Paterson v. Paterson, 325, 551, 555 'Patrick v. Patrick, 303 Patrickson c. Patricksou, 127 Patten r. Castleman, 71 Patterson v. Patterson, 250 Paul ,.. Paul, 402 Pawson (■• Brown, 418. Peacock v. Peacock, 273, 276 Pearman r. Pearmau, 174, 292, 337 Pearne v. Lisle, 382 Perrin v. Perrin, 312, 375 Perry v. Meddowcraft, 132 Pertreis v. Tondear, 63, 106, 224, 525, 530 Peters v. Cowie, 44S Pettifer v. James, 427 Pctts ill i-e, 419 Phillimore v. Machon, 50, 473 PkiUips V. Allen, 160 Phillips r. Bamett, 164, 190, 420, 478 Phillips V. Phmips (1844), 269, 271, 277 Phillips V. Phillips (1869), 353 Phillipson u Hayter, 180 Philp V. Squire, 183 Piers V. Piers, 36, 56, 139, 143, 144 [ Piers V. Piers, ; Pitt '('. Pitt, 166, 525, 526, 530, 555 Plowes V. Bossey, 1 51 Plunkett V. Sharp, 136, 141 Pollard V. Pollard, 258 Pollard V. Wybourn, 170, 204, 211 Pomero v. Poniero, 255, 256, 273 Ponsouby r. Ponsonby, 397, 400 Pool.?-. Pool, 372 Poole V. Poole, 15, 124, 228 Popkin V. Popkin, 281, 327, 331 Porter's case, 12, 239, 324, 426 Portsmouth v, Portsmouth, 26, 230, 235, 383, 403 Post '0. Nedham, 199 Powell r. Powell (1874), 384 Powell V. Powell (1889), 365, 366 Power v. Power, 330 Powes' case. Lady, 165 j Pratt V. Matthews, 419 i Price, in re, 167 Prichard r. Priehard, 326, 3S7 I Pride v. Lord Bath, 11 Priestley r. Lamb, 42 Priestly v. Hughes, 15 Proctor V. Proctor, 349 Prole V. Soady, 420, 423 Prowse r, Spurway, 82, 229 Pryor c. Pryor, 155, 398, 399 Queen's Proctor r. Williams, 228 CASES CITED xxij Race, Alicia, 433, 454 E. V. Craddock, 90, 125 Radewall's case, 152 R. !•. Crawford, 326, 479 Ratcliff r. Eatcliff, 137, 243 R. r. Cresswell, 44, 125 Eatcliff's case, 453 R. /-. Cumberland, 124 Eavenscroft t: Eavenscroft, _! 56 R. r. Curgenwen, 477 Kawlins v. Eawlins, 388 E. I . Dames, 379 Ray V. Slienvood, 228, 22n 231, R. r. Delaval, Sir F., 474 232 R. V. De Manneville, 432 Eead v. Passuv, 140 R. c. Doherty, 323 Eeddall i: Liddiard, 15 R. r. Downes, 446 Redfern r. Eedferu, 213, 214 , 241, R. V. Dunboyne, Lord, 76, 473 252, 309, 311, 468 R. V. Ellis, 67, 471 Eeeve r. Wood, 478 R. V. Fielding, 78 Eeeves v. Eeeves (1813), 277, 299 R. v. Flintan, 181 Eeeves r. Eeeves (1862), 327 R. V. Foster, 473 E. V. AUard, 479 E. V. Godfrey, 321 B. r. Allen (1848), 467 E. I'. Good, 420 E. V. Allen (1872), 475 R. i\ Green, 474, 477 R. V. Allison, 46, 56, 76, 125, 138 R. V. Halifax, 458 11. I. Ayplin, 472 K. V. Harborne, 146 R. u. Lord Audiey, 172 R. ('. Hassall, 128, 420 E. (■. Ajdey, 477 R. L-. Hawes, 83, 85, 86, 91 ,125 K. V. Barnardo (Gossage's case), R. t. Heywood, 473, 474 443 R. V. Howell, 474 R. r. Barnardo (Jones' Case) 433, E. V. Howes, 458 435, 443 R. !. Higgins, 367 R. I. Barnardo (Tye's case), 443 R. ( . Hughes, 480 R. t. Barratt, 475 E. V. Jackson, 167, 169, 175, 177 E. r. Bedell, 148 178, 183, 197, 372 E. c. Birmingham, 53 E. /•. James (1856), 59, 88, 471 E. 1-. BirAvistle, 368, 369 E. V. James (1890), 321 E. I, Blacket, 474, 477 R. V. Jellyman, 173 R. V. Bowen, 61 R. V. Jones, 477 R. c. Brampton, 78, 106 R. r. Jordan, 467 R. V. Brawn, 477 R. V. Kay, 40, 126, 144 E. V. Brighton, 31 E. ■o. Kelly, 478 E. u. Brimilow, 467 E. V. Kennj^, 164 E. £. Brown, 76, 473 E. V. Kingston, Duchess of, 130 E. V. Burke, 562 131, 133, 165, 379 E. V. Chadwick, 31, 32 E. V. Knightley, 148 E. V. Chapman, 50, 473 E. V. Leresche, 344, 368 R. 1. Clarence, 169, 331 E. V. Lines, 480 E. I'. Clark, 125 E. V. Lister, 175 E, V. Clarke (1758), 458 E. V. Lolly, 526 R. 0. Clarke (1857), 433, 454 R. V. London, Lord Mayor of, 480 R. c. Clarke (1867), 45 R. V. Luffe, 156, 158 XXX CASES CITED E. V. Lumley, 146 R. V. Wycheley, 153 R. V. Macdonald, 467 R. V. Wye, 130, 231 R. V. Mackenzie, 337 R. V. Young, 419 R. V. M'Rue, 480 Reibey, ex parte, 53 R. V. Manning, 478 Reid V. Mill, 157, 550 R. r. Mansfield, 151 Reid V. Reid (33 Ch. D., 220), 187 R. V. Manwaring, 138 Reid V. Reid (31 Ch. D., 402, C.A.), R. V. Head (Mrs. Wilko's. case), 189 167, 201 Revel V. Fox, 124 R. V. Mears, 474 Reynolds r. Reynolds, 27 E. V. Middleton, 330 Rhodes v. Swithenbank, 468 R. v. Millis, 3, 13, 66, 67, 78, 97, Rice V. Sheppard, 403 98, 103, 117, 658 Richardson v. Richardson, 317, 3.J8 E. t. Montagu, 433 Ricketts v. Rioketts, 382 R. u. Morby, 446 Riddlesden v. Wogan, 33, 418 n. V. Northtield, 14, 61, 62, 471, Ridley v. Wilson, 54, 476 575, 576 Riggs Miller v. Wheatley, 138 R. V. OrgiU, 562 Ritchie v. Ritchie, 313, 126 R. u. Perry, 44 Roach V. Garvan, 459 R. u. Pierson, 474, 475 Roberts v. Cooper, 187 R. V. Pilkington, 166 Robertson v. Crawford, 539 R. V. Plynionth Justices, etc. , 361 Robertson v. Norris, 185 R. u. Preston, 222 Robertson v. Robertson, 391, 403 R, V. Rea, 82 Robins v. Crutchley, 123 R. V. Read, 467 Robins v. Wolsley, 227 E. V. Rundle, 337 Robinson, e:c parte, 429 R. V. Skreiber, 474, 477 Robinson, in re, 383 R. -0. Seward, 23, 43, 477 Robinson c. Cumming, 414 R. ii. Simijson, 138 Robinson v. Robinson (1858), 257, R. V. Smith (1866), 81, 473 307, 315 R. V. Smith (1866), 332, 478 Eobinson v. Robinson (1887), 285, R. V. Stewart, 549 288 R. V. Taggart, 5 Eobotham v. Robotham, 405, 406 R. v. Thorp, 29, 474, 477 Robson )', Robson, 404 R. V. Torpey, 128 Roebuck v. Roebuck, 382 R. V. Tibshelf, 14 Rogers, in re, 429 R. V. Tolson (186.3), 127, ]38, 323 Rogers v. Halmshaw, 422 R. V. Tolson (1889), 145, 477 Rogers v. Rogers, 268, 269 R. V. Twyniug, 146 Ronier v. Koch, 200 R. T. Verelst, 473 Rooker v. Rooker, 127, 1-38 It. V. Willshire, 126, 145, 476 Roos's divorce, Lord, 18 R. V. Wilmington, 458 Rose V. Rose, 275, 280, 284, 290 R. V. Wilson, 126 Boss -('. Ross, 272, 284, 305, 340, 355 R. v. Wiseman, 315 Rowe V. Rowe, 169, 171 R. i;. Woodward, 128, 141 Rowley v. Rowley, 284 E, V. Wroxton, 39 Ruding V. Smith, 104, 106, 110, 518 CASES CITED Kussell «. Rassell, 402, 404 Rutland's case, Countess of, 165 Eutton r. Button, 316 Kyau V. Ryan, 52ci Ryder v. Ryder, 405 Ryder v. Wonibwell, 460 Kyves v. Ryves, 226 S. V. A., 169, 207, 218 S. l: B., 214, 225, 383, 385 S. V. E., 204, 206 St. Andrew's Uudershaft r. Jacob Meudez de Breta, 448 St. Devereux v. Mucli Dean Church, 129, 140 St. George's c. St. Margaret's, 147 St. Paul t'. St. Paul, 266, 270, 300, 302 Sant c. Sant, 279, 329 Santo Teodoro v. Santo Teodoro, 166, 243, 244 Saunders v. Saunders, 169, 176, 308, 309, 329. 332 Sayer v. Glossop, 138 Scanlan, in re, 433, 454 Scaranianga f . Att.-Gen., 79 Schreiber v. Lateward, 456, 474, 477 Scott, in re, 464 Scott V. Att.-Gen., 424, 425 Scott V. Jones, 170, 174, 204, 209, 373 Scott V. Paguet, 29 Scot V Scott (I860), 326, 330, 348 Scott V. Scott (1863), 325 Scott V. Scott (1865), 375, 377 Scott V. Sebright, 25 Scott V. Tyler, 19 Scribblehill r. Brett, 19 Scrimshire v. Scrinishire, 518, 519 Searle v. Price, 127, 309 Seatel t'. Seatel, 395 Seaver v. Seaver, 374 Seele's case, 477 Seller v. Seller, 356, 374, 426 Seroka v. Kattenburg, 177, 190 Serrel v. Serrel, 208 Sewell, ex parte, 359 Shaw V. Att.-Gen., 521, 526 Shaw V. Gould, 521, 526 Shaw V, Page, 223 Shaw '('. Shaw, 327 Sheddon or Sheddeu r. Patricia, 132, 226, 540, 546, 551 Sheeliy, ex paHe, 373 Shelley r. Westbrook, 439, 440 Sherwood v. Ray, 32 Shiptou V. Hampson, 187 Short V. Short, 295 Sichel V. Lambert, 90, 96, 143 Sidney v. Sidney (1734), 428 Sidney v. Sidney (1865), 390 Simoninu. Mallac, 224, 518, 623, 526 Simmons -i;. Simmons, 281, 306, 307, 330, 376 Sim's case, 174 Sinclair v. Sinclair, 526 Skinner ■». Skinner, 404, 407 Skottowe V. Young, 527, 528 Slator V. Trimble, 464 Smallwood v. Smallwood, 327 Smart v. Smart, 436 Smith, in re, 418 Smith v. Huson, 53, 125 Smith II. Maxwell, 557 Smith V. Smith (1745), 451, 456 Smith V. Smith (1882), 403 Smith V. Smith (1887), 398 Smith V. Smith (1890), 373 Smith V. Tebbitt, 129, 139 Smithe v. Smithe, 397 Smyth V. Smyth, 384 Snow V. Snow, 276, 280 Soilleux V. Soilleux, 307, 319 SoltykofF, in re, 465 Sopwith V. Sopwith, 285, 308, 375 Sottomayer v. De Barros, 262, 264, 265, 522, 524 Southall V. Jones, 418 Sparrow c. Harrison, 208, 211 Spencer c. Spencer, 133 CASES CITED Stalhvood r. Treclger, 64 Stanes i: Staues, 284, 37t) Stanhope v. Baldwin, 14 Stanhope v. Stanhope, 250, 2'i3, 421, 423, 424 State V. Komaine, 161 State r. Shoemaker, 161 Stayte r. Farqxiharson, 14 Steadman r. Powell, 144, ii2S Steeds v. Ofibrd, 183 Stegall V. Stegall, 159 Stephens v. Totty, 426, 427 Stephenson, In the goods of, 426 Steuart v. Robinson, 533, 539 Stewart, re, 26 Stigall V. Stigall, 159 Stoate f. Stoate, 250, 263 Stockhridge v. Quicke, 137, 557 Stoer, ill re, 252 Stoker r. Stoker, 287, 291, 350 Stone V. Stone, 268, 271, 278, 331, 385, 391 Story r. Story, 256, 291, 313 Stowell's case. Lady, 428 Strathmore, Countess of, v. Bowes, 185, 192 Strathmore Peerage ease, the, 551, 652 Strawsby v. Cross, 456 Studdy r. Studdy, 272 Suffolk's case. Duchess of, 165 Suggate I!. Suggate, 324, 329 Sullivan v. Oldacre (181S), 28, 29, 59, 143 Sullivan v. Sullivan (1824), 27, 234, 299, 312 Sumner v. Kingcote, 457 Surtees r. Wothcrspoon, 547 Sussex Peerage, 120, 232, 489, 521 Swatman i: Swatman, 332 Swift V. Kelly, 374, 518 Swift V. Swift, 394 Symington v. Symington, 405, 406, 407, 408, 555 Symonds v. Symonds, 399, 401 Synod Wynton, 29 T. r. M., 211 Tannahill i', Drysdale, 540 Tarfield v. Davenport, 187 Taunton r. Wyborn, 60, 576 Tavernor v. Ditchford, 219 Tayler v. Fisher, 183 Taylor, ex parte, 137 Taylor, in re, 432, 436 Taylor r. Johnston, 464 Taylor r. Taylor (1754), 126, 327 Taylor i\ Taylor (1848), 319, 320 Tempany ;-. M'Hakewill, 347, 363, 426 Tenipleton v. TjTee, 25, 39, 46, 220 Tenneut v. Tennent, 550 Terry v. Hutchinson, 415 Theaker's case, 153, 154 Theobald r. Theobald, 393 Thomas i'. Alsop, 181 Thomas v. Roberts, 441 Thomas v. Thomas (1855), 434 Thomas v. Thomas (I860), 272 Thompson ». Davenport, 71 Thomson v. Rourke, 248, 267, 37S, 379, 383. 404 Thompson v. Thomas, 19, 419 Thompson r. Thompson (1858), 338 Thompson !■. Thompson (1862), 399 Thomson e. Thomson, 555 Thoreu, De, v. The Att.-Gen., see De Thoreu Timmings v. Timmings, 277, 278 Tioga County v. South Creek, 160 Todd V. Todd, 283 Toler V. Slater, 186 Tomkins v. Tomkins, 323, 325 Tongue r. Allen, 39, 40 Tooth V. Barrow, 39 Townsend c. Townsend, 341, 342, 348 Trelawuey ■!■. Coleman, 258 Tremain's case, 454 Tress !'. Tress, 376 Tucker l: Bennett, 194, 434 Tucker v. Tucker, 321 Tucknessr. Alexander, 43,49, 58, 59 CASES CITED Turing, exparte, 28, 222 Turner, Miss, case, 26 Turner, in re, 139, 152 Turner v. Felton, 230 Turner v. IVIeyers, 29, 229 Turner r. Thompson, 165, 204, 212, 517, 525, 526 Turton v. Turton, 269, 276, 281, 294, 319 U. V. J., 208 U— n V. F— s, 209, 216 Udny V. Udny, 516, 527, 528, 551 UUee, re, 435, 444, 520 UnderhiU v. Brooke, 426 Unity Joint-Stock Bank, ex parte, Valentin: v. Canali, 464 Vandergucht v. De Blaquiere, 382 Voss, in re, 187 Voysey v. Martin, 41 Waddell r. Waddell, 330, 332 Wakefield v. Mackay, 27 Waldegrave Peerage, 106 Walker, in re, 152 Walker v. Beaucliamp, Countess, 135 Walker v. G. N. Ey., 447 Walker v. Walker, 358 Wall V. Stannish, 434 Walley v. Holt, 466 Waller v. Drakeford, 419 Wallis V. Carr, 183 Wallop, ex parte, in re Brown, 153 Wallscourt v. Wallscourt, 175, 329, 337 Walter v. Everard, 462, 463 Walton V. Eider, 378 Ward V. Day or Dey, 116 Waring u Waring, 167, 177, 337 Warrender v. Warrender, 165, 525, 555 Warter v. Warter, 228, 524 Warter v. Yorke, 42, 43 Watkyns v. Watkyns, 429 Watson V. Watson, 554 Watton V. Watton, 249, 250 Watts V. Shrimpton, 429 Weatherley v. Weatherley, 313 Webb V. Haycock, 129 Webbe and Potter's case, 416 Weir, In the goods of, 426 Weld V. Chamberlaine, 71 Welde V. Welde, 205, 209, 210, 211, 217 Weldon v. Weldon, 171, 372, 377, 392, 393 Weldon v. Winslow, 183, 189, 190 Wellesley v. The Duke of Beaufort, 437, 451 Wellesley v. Wellesley, 437, 451 Wells V. Cottam, 229, 230 Wells V. Fletcher, 419 Wells V. Malbon, 420 West V. West, 319 Westcombe v. Dods, 378 Westmeath v. Westmeath, 278, 279, 281, 309, 312, 326, 328, 329, 373 Westropp's Divorce Bill, 18, 568 Wheeler v. Wheeler, 254, 255 Whitcomb v. Whitcomb, 165 White V. White, 326 Whitniore, exparte, 382 Whitmore v. Whitmore, 267, 385 Whittaker, in re, 164 Wiokham v. Wickham, 289, 313, 423 Wiedeman v. Walpole, 412 Wigney v. Wigney, 398, 399, 401 Wild V. Harris, 411 Wilford V. Berkeley, 259 Wilke's case, Mrs., 167, 201 Wilkinson v. Gibson, 420 Wilkinson v. Gordon, 133, 228 Wilkinson v. Wilkinson, 26, 230 Williams v. Dormer, 166, 427 CASES CITED Williams v. Homfrey, 206, 207, 219, 220 Williams r. Williams (1798), 315, 318, 322 Williams v. Williams (1864), 344 Williams v. Williams (1865), 307 Williamson v. Williamson, 296, 348 Willis V. Bernard, 258 Willougliby's case, 152 Wilson V. Brockley, 228 Wason V. aiossop, 180, 429 Wilson V. Leonard, 567 Wilson i\ Turner, 434 Wilson V. Wilson (1848), 329, 332 Wilson ('. Wilson (1S49), 277, 378 Wilson V. Wilson (1871), 241, 243, 244, 257, 308 Wilton V. Webster, 257, 258 Wilton r. Wilton, 273 Wiltshire v. Prince, 39 Wing V. Taylor, 5, 7, 8, 31, 33, 62, 66, 75, 222 AVinscom v. Winscom, 277, 282 Winter v. Henn, 256 Wiseman v. Wiseman, 228 Witherby i'. Eackkam, 187 Witt V. Witt, 405, 406 Wood, Doe dem, v. Wilkins, 135 Wood V. Wood (1887), 342, 343. 345 Wood V. Wood (1891), 392 Woodgate v. Potts, 141, 142 Woodgate v. Taylor, 252 Woods V. Woods (1840), 31, 134, 138, 230, 350 Woods V. Woods (1884), 365 Woodw'ard v. Dowse, 428 Worsley v. Worsley, 397 Wortesley's case, 31 Wright V. Blwood (1829), 41 Wright V. Ehvood (1836-37), 39, 40, 41, 46 Wright, Admon. of, r. Hicks, 160 Wriglit V. Holdgate, 148 Wriglit V. Suowe, 464 Wright's Trusts, in re, 528 Wyndham c. Wycombe, 256 Wynn r. Dayies, 41 Y. r. Y., 261, 282, 355 Yarrow v. Yarrow, 314 Yeatman r. Yeatman, 296, 338, 341, 346 Yelyerton r. Longworth, 547, 558 Yelverton r. Yelverton, 165, 243, 374 Young V. Biirrill, 414 Zycklinski r. Zycklinski, 241 TABLE OF STATUTES PAGE Anglo-Saxos Laws . . 3, 5 20 Hen. Ill, c. 9, Statute of Merton, Special Bastardy 4, 146 13 Ed. I, Stat. West, sec., c. 34 23, 183, 310, 427 13 Ed. I, Circumspecte Agatis 1, 310, 350 18 Ed. I, Statute of the Writ of Consultation . 25 Ed. I, Magna Carta . 34 Ed. I 25 Ed. Ill, Stat. 1 50 Ed. Ill, c. 4 . 4 Hen. IV, v.. 26 . 9 Hen. VI, c. 11, Bastardy Act of 1503, c. 77, Scotch 3 Hen. VII, c. 2 . 24 Hen. VIII, c 12 25 Hen. VIII, c. 19 25 Hen. VIII, c. 21 27 Hen. VIII, c 15 28 Hen. VIII, c. 7 28 Hen. VIII, c. 16 32 Hen. VIII, c. 25 32 Hen. VIII, c. 38 1 1 2 4, 123 2 23 4 541 27 8, 46, 56 32 Hen. VIII, c. 46 35 Hen. VIII, o. 16 37 Hen. VIII, c. 17 2 & 3 Ed. VI, c. 21 2 & 3 Ed. VI, c. 23 3 & 4 Ed. VI, c. 11 5 & 6 Ed. VI, c. 12 5 & 6 Ed. VI, c. 4 7, 31, 121 7, 8, 31 . 121 7, 8, 31, 33, 222, 223, 485 451 17 54, 475 . 554 6, 7, 8, 310, 485 10, Scotch . 15, Scotch . 16, Scotch , 1, Scotch . 554 7 548, 549 . 549 554 554 553 PAGE 1 P. & M., c. 8 . 6 4&5P. and M., o. 8 Act of 1551, c. 12, Scotch lEliz., c. 1 . Act of 1563, ( 8Eliz., c. 5 Act of 1567, . Act of 1567, . Act of 1573, ( Act of 1581, 0. 7, Scotch Act of 1600, c. 29, Scotch 43 Eliz., c. 2, Poor Relief Act, 1601 1 Jac. I, c. 11 1 Jac. I, c. 25 21 Jac. I, c. 28 12 Car. II, e. 24 12 Car. II, c. 33 13 Car. II, c. 11 19 Car. II, u. Ill , 22 Car. II, c. I 29 Car. II, c. 3, Statute of Frauds 5&6 Will, and Mar., u. 21 6 & 7 Will, and Mar. , c. 6 Act of 1698, c. 6, Scotch 10 Anne, c. 10 10 Anne, c. 19 . 19 Geo. II, c. 13, Ir. . 26 Geo. II, c. 33, Lord Hard- wicke's Act 9, 12-15, 33, 35, 36, 52, 54, 59, 60, 62, 78, 97, 103, 117, 135, 136, 223, 224, 409, 569, 571, 573, 574, 675 . 447 12, 131, 144 23 449, 450, 453 18 18 195 534 532 558 TABLE OF STATUTES 12 Geo. Ill, c. 11, The Royal Marriages Act, 1772 118-121, Sil 21 Geo. Ill, c. 53 . . . 61 21 & 22 Geo. Ill, u. 25, Ir. . 97 27 Geo. Ill, u. 44 . . . 311 44 Geo. Ill, c. 77 . . 61 48 Geo. Ill, 0. 127 . . 61 51 Geo. Ill, u. 37, The Mar- riage of Lunatics Act, 1811 28, 565 52 Geo. Ill, c. 146 . 135,572 53 Geo. Ill, c. 127 . . 350 58 Geo. Ill, c. 48, The Church Building Act, 1818-84 . 43 3 Geo. IV, u. 75 . . . 14, 15 4 Geo. IV, c. 76, The Marriage Act, 1823 13, 16, 33-75, 83, 84, 97, 103, 117, 134, 470-473, 559, 560 S. I 36 S. 2 37, 43, 45, 63, 67 S. 3 43 S. 4 43, 41 S. 5 43 S. 6 38 S. 7 . 38, 41 S. 8 42 S. 9 45 S. 10 46 48, 56, 64 S. 11 . 46, 50 S. 12 . 42, 44 S. 13 44 S. 14 '. 46 49, 52, 53 S. 15 . 46, 50 S. 16 . 46, 52 S. 17 . 46, 52 S. 18 . 46, 47 S. 19 56 S. 20 56 S. 21 . 41, 45, 62, 64, 66, 471 S. 22 . 38 59, 62, 66 S. 23 . 54, 83 S. 24 . 54, 83 S. 25 . 54, 83 S. 26 41 S. 27 33 S. 28 S. 29 S. 30 S. 31 S. 33 75, 135 . 135 37, 117 . 37, 97 37, 103 4 Geo. IV, c. 91, Marriages Validity Act, 1823 . 106, 107, 111, 519 5 Geo. IV, c. 32, The Marriage Act, 1824 .... 44 5 Geo. IV, c. 83, Vagrancy Act, 1824 ... 181 7 & 8 Geo. IV, c. LXVI . 26 9 Geo. IV, e. 31 54, 144, 205, 475, 478 11 Geo. IV, and 1 Will. IV, c. 18, The Marriage Con- firmation Act, 1830 . . 44, 61 11 Geo. IV, and 1 Will. IV, 0. 66 ... 473 11 Geo. IV, and 1 Will. IV, c. 69, Court of Session Act, 1830 552 2 & 3 Will. IV, c. 92 . 7 3 & 4 Will. IV, c. 41 . 7 3 & 4 Will. IV, c. 45 111 3 & 4 Will. IV, c. 74, Fines and Recoveries Act, 1833 186, 429 4 & 5 Will. IV, c. 28 . 532 4 & 5 Will. IV, e. 76 . 366, 447, 448 5 & 6 Will. IV, c. 54, The Marriage Act, 1835 . 10, 11, 32, 222, 418, 523, 549, 550, 565 6 & 7 Will. IV, c. 85, The Marriage Act, 1836 16, 44, 46, 52, 56, 58, 63, 67, 78-103, 108, 117, 471, 561, 664 S. 1 . 46, 56, 58, 67, 88, 94 S. 2 . . .98, 99, 100 S. 4 .... 83 S. 5 . . .84 S. 6 . . .84, 92 S. 7 .87 TABLE OF STATUTES S. 8 S. 9 S. 10 S. 11 S. 13 S. 14 S. 15 S. 18 S. 19 S. 20 S. 21 S. 22 S. 23 S. 26 S. 27 S. 28 S. 29 S. 30 S. 31 S. 32 S. 33 S. 34 S. 36 S. 37 S. 38 S. 39 S. 40 S. 41 S. 42 87 84 . 81, 84 88, 92, 96 85 85 94 89 90 95 91,96 95, 102 96 44 44 44 44 44 44 44 44 44 85 82 86, 90, 94, 95, 99, 100, 471 85, 86, 87, 94, 95, 96, 97, 471 . 80, 81, 82 79, 80, 82, 86, 88, 90, 93, 95, 96 S. 43 . . . . 83 S. 45 . 80, 117 & 7 Will. IV, c. 86, The Births and Deaths Regis- tration Act, 1836 72, 76, 77, 80, 81,83,96,99,100,101,102, 103, 134, 135, 471, 473, 573 S. 30 . . . 76, 99, 101 S. 31 . . 76, 100, 101 S. 35 . 77, 103, 134 S. 37 . 103, 134 S. 38 . 134 S. 40 . . 76, 100, 102 PAGE S. 41 76, 96, 102, 473 S. 42 76, 96, 100, 471 S. 49 . . . . 72 7 Will. IV, antl 1 Vict., c. 22, The Birthsaud Deaths Eeg- istraticu Act, 1837 . 44, 58, 79, 83, 84, 85, 89, 91, 94, 95, 135 S. 1 S. 3 S. 5 S. 12 S. 23 . S. 24 S. 32 S. 33 . . S. 34 . , S. 35 S. 36 7Will. IV, andlVict.,c. 26, Wills Act, 1837 7 Will. IV, and 1 Vict., c. 36 Post Office (Offences) Act, 1837 2&3 Vict., c. 54 3 & 4 Vict, c. 72, The Marriage Act, 1840 . 7 83,85 94,97 85 91 95 84 44 44 44 89 88,91 464 321 436 3&4 Vict., c. 92 4&5 Vict., c. 36 5&5 Viet., u. 113 6&7 Vict., c. 39, , 91, 92, 99, 100 135-137 71 . 558 . 558 7 & 8 Vict., c. 81, Marriages Ireland Act, 1844 658-562, 564, 665 366, 415 366, 415 184, 190 . 97, 98 7&8 Vict, u. 101 8&9 Vict, c. 10 9 & 10 Vict., c. 93 lO&ll Vict, c. 68 12 & 13 Vict., c. 68, Consular Marriage Act, 1849 . 105, 107, 112, 114, 118, 137 14 & 15 Viet., c. 97, Church Building Act, 1851 . . 43, 62 17 & 18 Vict., c. 80, Eegistra- tiou of Births, Deaths, and TABLE OF STATUTES PAGE PAGE Marriages (Scotland) Act, 213, 225, 226, 239-364, 373- 1864 547, 548 379, 383-408, 422-430, 441, 17 & IS Vict., c. 104, Mer- 567, 588 chant Shipping Act, 1854 . 115 S. 2 212, 240, 373, 379 18 & 19 Vict, 0. 43, Infant S. 3 . 240 Settlements Act, 1855 192, 463 S.4 240 18 & 19 Vict, u 81, Places of S. 5 . 240 Worship Registration Act, S. 6 212, 213, 225, 240, 241, 1855 89 352, 353, 373, 379 19 & 20 Vict, c 96, Marriage S. 7 240, 353, 424 (Scotland) Act, 1856 . 535, 548 S. 8 . 242 19 & 20 Vict, c. 119, The S. 9 . 242 Marriage and Registration S. 10 . 242 Act, 1856 79-94, 97, 98, 100- S. 11 . 242 102, 473 S. 16 323, 338, 346, 353 S. 1 84 S. 17 355, 373, 385 S. 2 81, 82, 87, 473 S. 18 . 373 s. 3 80, 84, 92, 102 S. 21 338, 358, 360, 362, 363, s. 4 84, 86, 94, 102 364, 425, 426 s. 5 . 84, 87 S. 22 213 225, 245, 353, 373, s. 6 87 379, 383, 385 s. 7 83 S. 23 353 s. 8 83 S. 24 . 386 s. 9 87, 94, 102 S. 25 . 424 s. 10 88, 102 S. 26' . 424 s. 11 . . 88,91,94 S. 27 244 245, 247, 310, 323, s. U 97 338, 346, 349, 350 s. 13 . 92 S. 28 . 248, 255 s. 14 . 92, 93 S. 29 261, 267, 2G8, 272, 282, s. 16 . 94 310 s. 17 81, 83, 89, 90, 93 S. 30 261, 267, 268, 272, 282, s. 18 81, 82, 85 310 s. 19 83 S. 31 245 261, 267, 268, 272, s. 20 98 282, 286-304, 310 s. 21 . 98, 100 S. 32 384, 385, 387-392 s. 22 . 98, 101 S. 33 . 127, 255, 354 s. 23 . 79 S. 34 . 255, 403 s. 25 . 80 S. 35 236, 404-408, 441 20 Vict, c. 19 Tlie E.\tra- S. 36 . 248 Parochial Places Act, 1S57, S. 37 . 248 13, 44, 569, 570, 575 S. 38 248 20 & 21 Vict., u 57 . 187, 429 S. 39 . 248 20 & 21 Vict. c. 8.1, The S. 40 248 Matrimonial Causes Act, S, 41 . 247 1857 12,18, 59, 1-27, 18.3,212, S. 42 . 247 TABLE OF STATUTES PAGE S. 43 . 305, 309 S. 45 394-396, 400 S. 46 305 S. 47 . 305 S. 48 . 305, 306 S. 49 . . . 305 S. 50 . 305 S. 51 402, 403 S. 52 . 250 S. 53 241 S. 65 . 242 S. 67 . 59, 422 S. 68 59, 422 S. 59 240 S. 66 240 S. 67 . . . . 241 21 & 22 Vict., c. 46 . Ill 21 & 22 Vict., u. 93, Legi- timacy Declaration Act, 1858 124, 129, 132, 225, 226, 520, 545 21 & 22 Vict., c. 108, Matri- monial Causes Act, 1858 240, 257, 358, 360, 363, 373 22 & 23 Vict., c. 61, Matri- monial Cau.ses Act, 1859 . 225, 236, 242, 305, 396-402, 404-408 S. 4 . 236, 404-408 S. 5 . 236, 396^02 S. 6 . . . 305 23 & 24 Vict. , c. 18, Marriage (Society of Friends) Act, 1860 . . .79, 99, 662, 665 23 & 24 Vict., c. 24, Marriage Confirmation Act, 1860 . 44 23 & 24 Vict., c. 85, Regis- tration of Births, Deaths, and Marriages (Scotland) Act, 1860 .... 647 23 & 24 Vict., c. 144, Matri- monial Causes Act, 1860 . 242, 249, 261-267, 312, 313, 396 S. 5 . 262 S. 6 . . . 395 S. 7 249, 263-267 PAGE 24 & 26 Vict., c. 86 6.52, 554, 555 24 & 25 Vict., c. 98 472, 474 24 & 25 Vict, c. 100 27, 145, 205, 312, 313, 315, 365, 445, 474, 475, 480 S. 43 . 365 S. 48 . 313 S. 53 27, 474, 475 S. 64 . 474 S. 66 . . 475 S. 57 145, 475 S. 58 . 446. 479 S. 59 . 446, 479 S. 61 312 S. 62 . 312 S. 63 . 205 , 313, 315, 480 26 & 27 Vict., c. 27, Marriage Law (Ireland) Amendment Act, 1863 659-562, 564 26 & 27 Vict., c. 90 . 565 27 & 28 Vict., c. 44 . 364 28 Vict., c. 43 . 568 29 & 30 Vict., c. 32 Matri- monial Causes Act, 1866 . 249, 234, 389-392 S. 1 389-392 S. 2 . 254 S. 3 249 31 & 32 Vict., c. 20, Legiti- macy Declaration Act (Ire- land), 1868 565 31 & 32 Vict., c. 77 422 31 & 32 Vict., c. 122, Poor Law Amendment Act, 1868 181, 182, 446 32 & 33 Vict., c. 42, Irish Church Act, 1869 563, 566 32 & 33 Vict., c. 62, Debtors Act, 1869 . . 197 32 & 33 Vict., c. 68, Evidence Further Amendment Act, 1869 . 305, 306, 411 33 & 34 Vict., c. 75, Ele- mentary Education Act, 1870 . 449 xl TABLE OF STATUTES 33&34 Vict., c. 93, Married Women's Property Act, 1870 . 187-189, 191, 362, 568 33 & 34 Vict., c. 110, Matri- monial Causes and Mar- riage Law (Ireland) Amend- ment Act, 1870 558-564, 566, 567 34 & 35 Vict., c. 49 559-562, 564, 565, 567 35 & 36 Vict., c. 10, Marriage (Society of Friends) Act, 1872 . . . .79, 99, 562 35 & 36 Vict., u. 65, Bastardy Laws Amendment Act, 1872 . . . 366, 415, 448 36 & 37 Vict., c. 9, Bastardy Laws Amendment Act, 1873 . . . 366, 415 36 & 37 Vict. u. 12 432, 436, 442 36 & 37 Vict., c. 16, Marriage Law (Ireland) Amendment Act, 1873 . . . .559 36 Vict., c. 31, Jlatrimonial Causes Act, 1873 213, 225, 236, 249 36 & 37 Vict., c. 66, Supreme Court of Judicature Act, 1873 . 201, 212, 213, 241, 242 37&38 Vict., c. 50, Married Women's Property Act (1870) Amendment Act, 1874 . . . 191, 362, 568 37 & 38 Vict., c.62, Infants Relief Act, 1874 . 459, 463 37&38 Vict, c. 64 . . 547 37 & 38 Vict., c. 88, Births and Deaths Registration Act, 1874 .... 103 38 & 39 Vict. , c. 77, Supreme Court of Judicature Act, 1875 . . . 241, 305, 306 39&40 Vict, c. 18 . . 262 39 & 40 Vict., c. 79, Elemen- tary Education Act, 1876 449, 462 40 k 41 Vict., c. 18, Settled Estates Act, 1877 . . 186 40&41 Vict, 0. 57 . . 567 41 & 42 Vict., c. 16, Factory and Workshop Act, 1878 198, 463 41 & 42 Vict., c. 19, Matri- monial Causes Act, 1878 . 236, 263, 361, 364-368, 396, 430, 441 S. 2 ... 263 S. 3 . . 236, 396-402 S. 4 . 361, 365-367, 44] 41 & 42 Vict., c. 43, Marriage Notice (Scotland) Act, 1878 532, 533 42 & 43 Vict., c. 19, Habitual Drunkards Act, 1879 330 42&43 Vict, c. 29 . . 144 43 & 44 Vict., c. 23, Ele- mentary Education Act, 1880 462 43 & 44 Vict., c. 42, Em- ployers Liability Act, 1880 184, 190 43&44 Vict, c. 45 . . J82 44 & 45 Vict., c. 21, Married Women's Property (Scot- land) Act, 1881 . . . of.B 44&4o Vict, c. 24 . . 366 44 & 45 Vict. , c. 41, Convey- ancing Act, 1881 . 448, 455 44 & 45 Vict, c. 68, Supreme Court of Judicature Act, 1881 2-12 45 & 46 Vict., c. 38, Settled Laud Act, 1882 . . . ] 86 45 & 46 Vict. , c. 75, Married Women's Property Act, 1882 . 164,181,182,184,185, 188-191, 195, 199, 362, 364, 403, 424, 425, 427, 447, 479 556, 568 S. 1 188, 189, 195, 196, 198 S. 2 . . 189, 198 S. 3 . 199 S. 5 . 189 TABLE OF STATUTES xli S. 11 . . . . 164 S. 12 164, 198, 199, 479 S. 13 . . 197 S. 14 . 191, 197 S. 15 . . . 191, 197 S. 16 . 164, 199, 479 S. 19 . 184, 197 S. 20 . 182 S. 21 229, 447 S. 22 . . 191 S. 25 . . . 188, 189 46 & 47 Vict., u. 53, Factory and Worksliops Act, 1883 198, 463 47&48 Vict., c. 14 . 479,568 47 & 48 Vict., c. 20, Greek Marriages Act, 1884 . . 79 47 & 48 Vict., c. 68, Matri- monial Causes Act, 1884, . 171, 249, 344, 353, 376, 377, 392- 394, 404, 566 48 & 49 Vict., c. 69, Criminal Law Amendment Act, 1885 313, 437, 451, 452, 465, 469, 474, 475, 479-482 49 Vict., c. 3, Tlie Marriages VaUdity Act, 1886 . 42 49 Vict., c. 14, The Marriage Act, 1886 . 64, 95 49 & 50 Viet. , u. 27, Guardian- skip of Infants Act, 1886 . 404, 434, 436, 449, 450, 451 49 & 50 Vict., c. 52, Married Women (Maintenance in case of Desertion) Act, 1886 181, 361, 368-370, 568 49 & 50 Vict., c. 55, Shop Hours Regulation Act, 1886 463 50 & 51 Vict., .;. 12 . . 574 51 & 52 Vict., c. 19, luetriates Act, 1888 . . . 330 51 & 52 Vict., c. 28, Marriage Validation Act, 1888 . 67 51 & 52 Vict., c. 43, County Courts Act, 1888 128,410,414,468 52 & 53 Vict., c. 44, Preven- tion of Cruelty to, and Protection of Children Act, 1889 . 433, 437, 438, 445-447, 452, 462, 465 52 & 53 Vict., c. 56, Poor Law Act, 1889 . 438, 439, 452 52 & 53 Vict., c. 62, Cotton Cloth Factories Act, 1889 . 198, 463 53 & 54 Vict., c. 5, Lunacy Act, 1890 .... 337 53 k 54 Vict., c. 44, Supreme Court of Judicature Act, 1890 .... 212 53 & 54 Vict., u. 47, Marriage Act, 1890 . . 107, 112 53 & 54 Viet., c. 71, Bank- ruptcy Act, 1890 . 261,415 54 & 55 Vict., c. 3, Custody of Children Act, 1891 436, 438, 443 54&55 Vict.,c. 36 105,108,109 54 & 55 Vict., c. 39, Stamp Act, 1891 . . .77, 88, 102 54 & 55 Viet., c. 69, Penal Servitude Act, 1891 . 62, 64, 66, 471 54 & 55 Vict. , u. 75, Factory and Workshop Act, 1891 . 170, 198, 462, 463 55 & 56 Vict., c. 4, Betting and Loans Infants Act, 1891 . . 459, 460, 469, 482 55 & 56 Vict., c. 10, Short Titles Act, 1892 10, 36, 43, 79 55 & 56 Vict., c. 23, Foreign Marriage Act, 1892 . 105-116, 118, 137, 519, 5-30 S. 1 . 108, 110 S. 2 . 109 S. 3 . 109 S. 4 109 S. 5 109 S. 6 . 110 xlii TABLE OF STATUTES s. 7 s. 8 s. 9 s. 10 s. 11 s. 12 s. 13 s 14 s 15 s 16 S. 18 PAGE . 109 . 110 110, 137 110, 137 109, 116 114 110 110 110 110 104, 105 S. 19 S. 20 S. 21 S. 22 S. 23 S. 26 PAGE 108, 530 108, 109, 110 . 108 . 106 108, 112, 118 105, 107, 108, 111 55 & 56 Vict., c. 32, Clergy Discipline Act, 1892 . 311, 359, 361, 430 55 & 56 Vict., c. 62, Shop Hoiira Act, 1892 . ■ 463 LIST OF ABBREVIATIONS When, as in nearly every divorce case, tlie name of the respondent is the same as the petitioner's, the name of the respondent has heen, for the sake of space, indicated by the first letter only ; thus the case of Smith ]■. Smith is referred to in the text as Smith r. S. ; in the table of cases it is printed at length. The name of the co-respondent is always omitted. The ordinary legal abbreviations for reference to Reports, etc., have always been employed, A full list of these abbreviations can be found in Soule's Lawyers' Reference Manual, and a list of the usual abbreviations of the names of the Reports is given in the catalogues of law publishers and booksellers. In any library where the Reports are accessible no difficulty will be experienced in finding the reference from the abbrevia- tions, which are easily intelligible. CHAPTEE I INTRODUCTION 1. History of Law and Legislation, . {a) Pi-evious to the Refor- mation^ (b) Reformation Statutes, (c) Subsequent Legislation and Law of Divorce, . {d) Lord Hardwicke' s Act, 12 (e) The Present Marriage Law, .... 16 2. Citation of Authorities, . 16 3. Legislative Divorce, 17 4. Restraint of Marriage, . 18 Sec. 1. — History op Law and Legislation (a) Previous to the Reformation Marriage was from the earliest times generally regu- lated in England by the Canon Law. There was very little legislation. Matrimonial causes were within the exclusive cognisance of the Ecclesiastical Courts.^ And 1 The rights and privileges of the Church of England were upheld by Magna Carta, couiirnied 25 Ed. I. The jurisdiction of the Church Courts was further protected in 1285 by the statute Circumspecte Agatis,13Ed. I, and by the statute of the writ of Consultation, 18 Ed. I enacting that where an ecclesiastical judge was stopped by a prohibi- tion from the King's Courts in a case where no remedy could be given in the King's Courts, the Chancellor or Chief-Justice, as being satisfied of this by view of the libel, shall write to the ecclesiastical judge and direct him to proceed. This writ of Consultation directing the Ecclesi- astical Court to proceed was the converse of the prohibition stopping them ; and this Consultation ^v^it was the chief protection of the I 2 INTRODUCTION Chap. I besides the Ecclesiastical Courts having original exclu- sive jurisdiction when the establishment or annulment of a marriage vifas directly in issue, and the remedy sought was matrimonial; they had derivative jurisdiction, when an action concerning land was instituted in the King's Courts in which the question of marriage, as in a claim as heir or dowress, arose incidentally. The King's Court would not try the issue of marriage or bastardy, but referred it to the Ecclesiastical Court on an issue of bastardy or ne unque accouple en loyal matrimonie, whereon the bishop gave his certificate in favour or against marriage or legitimacy.^ The decision of an Ecclesiastical Court on a matri- monial question, whether given in a suit within its original jurisdiction or by a certificate on a writ referring the matter as above explained, was accepted by the King's Court as conclusive. It results, therefore, that few or no decisions by King's Courts on matrimonial questions are reported. As to the inherent universal binding authority of the Canon Law, this book is not the place in which to explain and canvass the conflicting theories of Pro- testants, Anglicans, Ultramontanes, Erastians, on such vexed questions as Independence of the Clergy, the Eoyal Supremacy, the Liberty of the Church of England, etc. ; not even is it worth while to more than mention the legal views as embodied in Chief - Justice Coke's phrase of "The King's Ecclesiastical Law."^ These are Ecclesiastical Court against the King's Court. This remedy was en- larged and amended by 34 Ed. I and 50 Ed. Ill, u. 4. For a general account of the history of the jurisdiction of Ecclesiastical Courts, see Eeport of the Commission on Ecclesiastical Courts, 1883 [c. 3760], and Historical App. I, by Canon Stubbs ; and see the Commission on Ecclesiastical Courts, 1831 (70). 1 See^osi, Chap. HI, s. 1 (a) ; VI, s. 1 (6). s Caudery's case (1586), 5 Co. Eep. , 1. Sec. 1 M HISTORY OF LAW AND LEGISLATION 3 matters of "general controversy."! But on a question of marriage the following points are clear law. On the one hand, in all matrimonial matters within the jurisdiction of the Ecclesiastical Courts there was an ajD- peal to the Papal Courts atKome.^ This appeal, although it is said that the Papal Court took notice of local particular customs, must have tended to assimilate the matrimonial law administered in England with, and to aim to eliminate exceptions from the general body of the Canon Law, and so to enforce that law in England. On the other hand, there are three distinct points as to legitimacy on which the Canon Law was not accepted or recognised by the law of England. First, that by the law of England a ceremony before a priest was necessary to the validity of the marriage, in order that the wife might have dower of her husband's land and the children be heirs ; ^ whereas by the Pre-Tridentine Canon Law which still prevails, where the decrees of the Council of Trent are not published, simple consent of the parties, ^ The curious on such points will fiud much informatiou contained iu the Eeport of the Commission on Ecclesiastical Courts, 1883, and the historical appendices thereto hy Canon Stubbs [c. 3760]. -See an early instance of an appeal to Rome, 1158-63, in a case of nullity by reason of a precontract, Richard de Aiiesty v. Mabel de Francheville, Placita Auglo-Norniana, p. 311. The name of the Court that sits at Rome is the "Rota." For its present pro- cedure and jurisdiction, see post, Chap. XVI. The reports of the cases before the Rota began to be published from the middle of the fifteenth century. Possibly if these were read through and the Vatican Records searched, some other traces of English appeals might be found. 3 The House of Lords decided that this had ever been the Common Law of England, R. v. Millis (1843), 10 CI. & F., 534 ; resting their decision on a string of decisions, and citing a Saxon law of King Edmund, "At the nuptials there shall be a mass-priest by law." Ancient Laws of England, Record Series, Laws of King Ednnmd, p. 109. But in case of a contract to marry, the party could sue on it in the Ecclesiastical Court ; see post, p. 9. i INTRODUCTION Chap. I exchanged secretly and without any ceremony, either jjer ve7-ha de jprxsenti or per verba tie futuro subsequente copula without more, constituted marriage.^ Secondly, the issue of a void marriage contracted bond fide ;'^ and, thirdly, the issue of persons who subsequently to the hirth of issue intermarry^ are legitimate by the Canon Law, but bastards by the Common Law. As this conflict of law regarded legitimacy rather than marriage, i.e. the is-ue rather than the parties, there was no opportunity for the ecclesiastics to enforce the Canon Law by spiritual censures of excommunication which were so hard to resist in the Middle Ages. For if the law of the land declared that James was married to Agnes when the Canon Law declared he -was married to Julia, the Canon Law would order him to restore conjugal rights to and cohabit with Julia ; and in default of his doing so would excommunicate him, which, as a matter of fact, happened in case of Henry VIII. But if, for instance, the Common Law of England declared that George Todd, James' son by Agnes, was legitimate, and heir to the land, and that Agnes was his widow, and entitled to dower of his land, because Charles, the elder brother of George, was born of James Todd and Agnes previous to marriage, and Geoffrey, another 1 Decretal, 4. 1, ], and see yosi , Cliap. XVI, s. 3 (ji). To the same effect is the present law of Scotland, Chap. XVIII, s. 2. - See Introduction to Year Book, 11 & 12 Ed. Ill, Record Series, pp . XX. and xxiv. ; and see old Abridgments, Brooke, Fitz-Herbert, Viner, tit. Bastard ; at an earlier date such issue were legitimate, see Braeton bk. ii., c. 29. 2 This was termed "special bastardy." This point was further established by the Statute of Merton, 20 Hen. Ill, s. 9, declaratory of the Common Law, where, notwithstanding the petition of the bishop to alter the law, the lay peers exclaimed, " Nohimus leges angliie mutare " ; and see 2.5 Ed. Ill, 9 Hen. VI, e. 11, and Braeton, Book iv. Action for Dower, Book v. on Exceptions, chap. xix. Sec. 1 M HISTORY OF LAW AND LEGISLATION 5 elder half-brother, was born of a marriage between James Todd and Julia that was never celebrated in facie ecdesise, but was merely a matter of contract, and Henry, the eldest of all James Todd's sons, was born of a marriage with Jemima, which was subsequently declared void ; George Todd and his mother Agnes would enter on the land as heir and dowress, and the Canon Law, while recognising Henry, Geoffrey, aiid Charles as legitimate, and Julia as the lawful widow, could not put them in possession of the land, and would not excommunicate George and Agnes, because suits concerning the inherit- ance to land were always outside the cognisance of the Ecclesiastical Court.i However, in the case above given Julia might have sued James Todd in his lifetime on the contract to marry in the Ecclesiastical Court, and on the contract being established by sentence of the Ecclesiastical Court, the subsequent marriage to Agnes would have been void at Common and Ecclesiastical Law, see post, p. 9 ; but in the case above supposed Julia never obtained a sentence during James Todd's life. Still the Canon Law may, with these three exceptions, have been said to be the English matrimonial law in pre- Eeformation days. The prohibited degrees of relationship prescribed by the Canon Law were specially introduced by Saxon legislation.''^ The prohibited degrees extended to the fourth degree from the common ancestor, i.e. including second cousins.' This was altered at the Keformation ; see post , pp. 7, 8. 1 A claim to determine matters of dower was put forward hy Archbishops Bouifaoe and Peclfham, but was never conceded by the Crown, and the claim was tacitly withdrawn ; see Report of Ecclesi- astical Courts Commission, 1883 [c. 3760], p. xxiii. 2 Ancient Laws of England, Eecord Series, pp. 109, 135, 156, cited Wine/ V. Taylor (1861), 2 Sw. & Tr., 278. 3 See post, Chap. XVI. 6 INTRODUCTION Chap, I With tliese reservations it may be said that the present existing English matrimonial law is derived from the Canon Law, and except in so far as it is regulated and altered by statute, the Canon Law is still citable as an authority in English Courts on matrimonial questions. (h) Reformation Statutes The changes brought about at the Eeformation in the law of marriage, the jurisdiction over, and procedure in, ecclesiastical causes, were by Acts of Parliament. Except as altered by statute, the old system prevailed after the Eeformation, and with some very slight changes down to 1857. The old Ecclesiastical Courts, Provincial, Consis- tory, and Peculiar, retained their jurisdiction unimpaired ; it was only the final court of appeal was taken from the Pope and vested in the Crown. The English Eeformation commenced under Henry VIII, in about 1532, and by means of statutes was carried on down to death of Edward VI ; on the accession of Philip and Mary, most of these statutes were repealed by 1 it 2 P. and M., c. 8, but again re-enacted on the accession of Elizabeth by 1 Eliz., c. 1.^ The appeal to Eome was abolished, and persons appeal- ing Avere declared guilty of a premunire." A High Court of Delegates was constituted the sujDreme appellate tribunal. Each appeal was referred to a separate and distinct commission, usually composed of lay peers, bishops, judges, and civilians nominated for the occasion. Their 1 For a general account of ecclesiastical judicature at and after the Reformation, and the changes produced hy the legislation of Henry VIII, and his successors, see Report of the Ecclesiastical Courts Commission, 1883 [c. 3760], pp. xxvii.-xxxvi. !mi\. passim ; and see Historical Appendices, I, III, IV, V, XI, XII. 2 24 Hen. VIII, u. 12 ; 1 Eliz., c. 1, s. 2. Sec. 1 (6) HISTORY OF LAW AND LEGISLATION 7 decision was final, although oocasionally a oomniission of review was granted upon petitions to the king in Council referred to the Chancellor.i In 1833 the appeal on all ecclesiastical suits was transferred to the Judicial Com- mittee of the Privy Council. ^ And in order to secularise the ecclesiastical jurisdiction and establishing the Eoyal supremacy, it was enacted that all foreign spiritual jurisdiction was abolished and annexed to the Crown ; ^ and that doctors of civil law being married, may exercise ecclesiastical jurisdiction.* The principal change in substantive law effected by the Keformation statutes was the alteration of the prohibited degrees of affinity and consanguinity. By Canon Law these extended to those related within the fourth degree, i.e. second cousins who are four degrees from the common ancestor, and further affinity was constituted by mere sexual intercourse; see post, Chap. XVI, s. 3 (I). The Ee- formation statutes ^ greatly narrowed and precisely defined the degree of consanguinity and affinity, and the degrees thereby prescribed are still the law.*^ As a corollary to this legislation, it abolished and annulled all dispensations that would validate marriages within the prohibited 1 25 Hen. VIII, o. 19, s. 4 ; 1 Bliz., c. 1, s. 2 ; 8 Eliz., ^. 5 ; and see Shelford on Marriage and Divorce, p. 543 ; ,/ones v. Bougett (1739), 1 Atk. 298. For an account of the jurisdiction of the Delegates, see Special and General Heport of the Royal Commission on Ecclesiasti- cal Courts, 1831, Pari. Paper (70) ; and see the Report of the Commis- sion on Ecclesiastical Courts, 1883 [c. 3760], pp. xl.-xlv., 1. 2 2 & 3 Will. IV, c. 92 ; 3 & 4 Will. IV, o. 41. ' 1 Eliz., u. 1, ss. 7 and 8. ■' 1 Eliz., v;. 1, s. 12, reviving 37 Hen. VIII, c. 17. 5 32 Hen. VIII, c. 38, revived by 1 Eliz., c. 1, s. 11. In the Revised Statutes, vol. i., 28 Hen. VIII, o. 7, s. 7, and 28 Hen. VIII, c. 16, s. 2, are printed as a note to 32 Hen. VIII, c. 38 ; and see Wing V Taylor (1861), 2 Sw. & Tr., 278. " See post, Chap. II, p. 30 ; and see Report of Commissioners on Law of Marriage, 1847-48 [973]. 8 INTKODUCTION Chap. I degrees.i Therefore " it is further to be understood that many divorces that were in force by the Canon Law when Littleton wrote are not at this day in force." " An Act of Edward VI allowed priests to marry.^ The impediraent of " precontracts " was abolished by an Act of Henry VIII, but subsequently revived and re-enacted.* As to the provincial constitutions and canons (for a collection of these passed by papal legates, archbishops, and provincial councils, see Gibson and Lyndwood), an Act in the time of Henry VIII empowered the king to appoint thirty-two commissioners to approve or repeal them with the king's consent, and that till such review the existing canons and constitutions, but only in so far as they were not contrary to the laws of the realm, should be in force. No new canons and constitutions to be made except in convocation with the king's assent.^ This review was never carried out." Therefore the then exist- 1 28 Hen. VIII, u. 16 ; and see 25 Hen. VIII, c. 21. 2 Co. Lit. 235 ; — citing this it was decided that carnal intercourse does not now constitute affinity, Wing v. Taylor (1861), 2 Sw. &Tr., 278; see Chap. II, p. 31. 3 2 & 3 Ed. VI, c. 21 ; 5 & 6 Ed. VI, c. 12 ; 1 Jac. I, c. 25 ; and see Art. XXXII. 4 32 Hen. VIII, e. 38 ; partly repd. 2 & 3 Ed. VI, c. 23 ; and see 1 Eliz. , c. 1, s. 11 ; and see post, p. 9, as to precontracts. 5 25 Hen. VIII, c. 19 ; 27 Hen. VIII, c. 15 ; 35 Hen. VIII, c. 16 ; 3 & 4 Ed. VI, c. 11. ^ Although a Refofrmatio Legum was composed by Cranmer and a sub-committee of eight, and translated into Latin, yet it never received the Eoyal assent. It is, however, a work of great authority, showing the recognised opinion and sentiment of the Church of England at that time, and containing the views of the first Reformers. In case of adultery by either husband or wife a divorce was allowed, and the innocent party might remarry. Absolute desertion, protracted absence, mortal enmities, and lasting cruelty were allowed as lawful causes of divorce ; see First Report of the Divorce Commission, Pari. Paper, 1852-3 [1604]. Report of the Ecclesiastical Courts Commission, 1883 [c. 3760J, pp. xxxi.-xxxiii., xxxvi. Sec. 1 (6) HISTORY OF LAW AND LEGISLATION 9 ing canons and constitutions remain. In 1603 and at subsequent times canons have been made in convocation. But they do not propria vigore bind the laity except so far as they are in confirmity with the law of the land.^ (c) Subsequent Legislation and Laio of Divorce Except and previous to Lord Hardwicke's Act, there was little or no subsequent matrimonial legislation. During the Commonwealth marriages were solemnised before Justices of the Peace, and at the Restoration statutes were passed to validate them.^ By Acts passed under William and Mary, and Anne, duties on marriage licences were imposed for revenue purposes ; they did not affect the validity of the marriage.^ Lord Hardwicke's Act, so far as it relates to marriage, is subsequently explained ; but it also abolished precontracts by enacting that no suit should be brought in any Ecclesi- astical Court to compel a marriage by reason of any contract, per verba de priesenti or verba de futuro, entered into subsequent to 1754.* Previous to that, where there had been a contract of marriage by words, or a promise of marriage, either party might sue in the Ecclesiastical Courts to compel a marriage in church, which was ordered to be solemnised in sixty days.* The precontract also constituted an impediment to a 1 Middleion v. Cro/ts (1736), 2 Atk., 650. 2 12 Car. II, u. 33 ; IS Car. II, c. 11. 3 5 & 6 Will, and Mar., c. 21 ; 6 & 7 Will, and Mar., u. 6 ; 10 Anne, u. 19. ■• 26 Geo. II, c. 33, s. 13 ; and see 2}ost, p. 33, and as to breach of promise of marriage, Chap. XII. ^ Baxtar v. Buckley (1752), 1 Lee, 42 ; if the respondent refused to obey and solemnise, he was monitioned and then imprisoned ; see Oughton, tit. 203, 204, 209-212, the Clerk's Instructor in the Ecclesiastical Courts, chap. iv. pp. 308-322, giving form of proceedings ; Clarke's Praxis, tits, ccxlvii., cclxxv. , cclxxvi. 10 INTRODUCTION Chap. I second marriage.^ If the contract was per verha de prsesenti, neither party could release the other ;^ and on proof thereof any subsequent marriage by one of the parties to any other person was rendered null and void, and so declared by the Court.^ If the marriage was per verba de futuro, it could be released by either party, and bringing a temporal action for damages waived the remedy in the Spiritual Court.^ If the precontract was per verha de futuro, and no carnal intercourse had taken place, a second marriage to another person would not be annulled.' No change was effected in the substantive law of marriage, either as to what constituted marriage or as to the impediments to marriage, by the Reformation legisla- tion beyond the defining of the prohibited degrees. The Temporal Courts, however, became more prone to interfere with the Ecclesiastical Courts by way of pro- hibition.* And in case of marriage within the degrees of consanguinity and affinity, which, previous to the Marriage Act, 1835, 5 & 6 Will. IV, c. 54,^ were voidable by decree of the Court, but not void, the Temporal Courts always interfered and prohibited the Ecclesi- astical Court annulling the marriage after the death of either of the parties, although the survivor might be proceeded against for incest. So if persons married within the prohibited degrees could escape a suit to ^Bunting y. Lepingwell (1585), 4 Co. Eep., 29a; Swinburne on Spousals, sec. 18, Effect of Spousals ; Clarke's Praxis, tit. cxcix., cc. 2 Jesson V. Collins (1704), 2 Salk. , 437 ; also a sentence against the con- tract in the Spiritual Court barred the action and stopped tlie plaintiff suing for damages in the Temporal Court, Dacosta v. Villa Real (1734), 2 Str., 961. 3 Swinburne on Spousals, sec. 18, Effect of Spousals. ' See Eeport of Ecclesiastical Courts Commission, 1883 [c. 3760], p. lii., and App. VI. 5 Sometimes called Lord Lyndhurst's Act ; the new .short title is by 55 Vict., c. 10. Sec. IW HISTORY OF LAfl' AND LEGISLATION 11 animl the marriage during the joint lives (which suit coukl he instituted hy any one interested, see Chap. VI, s. 2), the marriage would be valid and the issue legitimate. ^ In 1835, the Marriage Act, 1835, made these marriages utterly void in future, and with some reservations validated past marriages within the prohibited degrees of affinity. ^ In 1847 a Eoyal Commission was appointed to take evidence as to prohibited degrees of affinity, and in their report they stated that Lord Lyndhurst's Act did not prevent such unions, and were in favour of an alteration of the law; see jiost, p. 30, n. 3. But no legislation followed. Except after and in respect of the Marriage Acts, Lord Hardwicke's in 1753 and the present Acts in 1824 and 1836, and as regards the prohibited degrees after 1835, the Ecclesiastical Courts, up to the abolition of their jurisdiction in 1857 (and now the Probate and Divorce Division), acted on the same principles and administered the same law as before the Kefoimation in respect of marriage and nullity of marriage.'^ As regards divorce, the rule of the Canon Law was that marriage was indissoluble. A divorce a mensd et tlioro was, under certain conditions, granted for adultery or cruelty, but this did not allow the parties to remarry.* For about fifty years after the Keformation, from 1550 to 1602, the doctrine of indissolubility was repudiated by the Church of England, and a divorce for adultery allowed 1 Pride v. Lcml Bath (1695), 1 Salk., 120 ; Ban-is v. Hicks (1693), 2 Salk., 548 ; Brook, N. C, 12 ; 24 Hen. VIII, p. 12, and tit. Bastardy, Brownl. ; but the marriage did not, because not annulled, become lawful. See Fenton v. Livingstone (1859), 3 Macq. 497; see /josd. Chap. XVII, s. 2 [b) ; and see Chap. II, p. 32. 2 5 & 6 Will. IV, c. 54 ; and see Chap. II, p. 30. 3 For an account of law and Court since the Keformation, see Report of Ecclesiastical Courts Commission, 1883, pp. 36-52, App. XI. * See First Report of the Royal Commission on Divorce, 1853, Pari, Paper, 1852-53 [c. 1604]. 12 mTRODUCTION Chai.. i the parties to remarry.i About 1600 this doctrine was reimposed, and it was declared that a divorce was but a mensd et tlwro, and not a vinculo matrimonii, and that a second marriage by either party was void.^ But it was only in 1641 that the King's Bench on a case reserved, and with great hesitation held that a second marriage, after a sentence of divorce, was bigamy under 1 Jao. I, c. 11.3 And down till 1857 it continued to be the ecclesiastical law of England that marriages were indissoluble.* But Parliament by way of private Bill gave a legislative divorce; &&& post, p. 17. In 1857, after a Commission on Divorce,^ under Lord Palmerston's Government, Sir E. Bethell introduced the new Divorce Act, establishing the Court. The Bill was vehemently opposed by Mr. Gladstone.'' The Bill, how- ever, became law. As to provisions and the statistics of divorces granted under it, see post. Chap. YII. ('?) Lord Hardwicl-e's Act By the Common Law of England, which prevailed down to 1754, the presence of a clergyman in holy orders, either of the Church of England or the Church of Eome, at the time of solemnisation was essential to the valid 1 See Eeport of Commission on Divorce, 1852-53 [1604], pp. 4-6 ; and see ante, p. 8, u. 6, and post, App. 2. 2 lb. p. 6, citing Foljamhe's case (1601), Moore 683, 3 Salk., 138. 3 Porter's case (1641), Cro. Car., 461. * See Eeport of the Commission on Divorce, 1852-53 [16041. = lb., and Select Committee of the Lords, 1856 (181). " See Nash's Life of Lord Westbury, vol. i., pp. 210-254; andHansard, 3rd series, vols. 145-147. Mr. Gladstone, in answer to an application by the author, most kindly and courteously -vvrote the following : — " Dear Sib, — Briefly and promptly^ my opinions on divorce are the same as in 1857 ; while now, as then, I do not disguise the great difli- culties of the subject.— Your faithful and obt., W. E. Gladstone. •'March23, 1892." Sep. 1 ( 3 Geo. IV, c. 75 ; and see BriS,S), 11 App. Cas., 294 ; for procedure on Divorce Bills, see Standing Orders of tlie Lords and Commons. Sk.-. 4 RESTRAIXT OF MARRIAGE 19 A marriage is a legal consideration,' and a settlement in consideration of marriage is valid against creditors.^ So contracts ^ and conditions in a will or settlement in general restraint of marriage are void.* But a contract or condition in a will or settlement not to marry a particular person, or not to marry without consent, is valid. '^ And it is a frequent clause in will or settlement, that if the beneficiary marries without the consent of a designated person, the beneficiary's interest is or may be forfeited ; and such a condition is valid." Marriage brocage contracts, i.e. payment of money to a stranger to procure a marriage, are void, and the money may be recovered back." A condition or limitation iu a bequest to a married woman, that she should live separate from her husband, is unlawful ; and, according to the construction of the will, the legatee either takes absolutely free from the con- dition, or the bequest is void.^ Also a bequest to future illegitimate children, born after the testator's death, is void, and passes into the residue or to the next of kin.' 1 See Solder v. Dickeson (1673), Free., pt. i., p. 96. 2 Chitty on Contracts, 12th ed., p. 287. s n., pp. 683, 684 ; and see e.g. IlwrOey v. Rice (1808), 10 East, 22. 4 See Pollock on Contracts, 6th ed., pp. 334-336. ^ Davidson's Precedents in Conveyancing, 3rd ed. , vol. iv. , p. 38 ; and see Dawson v. Olirer-Massey (1876), 2 Ch. D., 753, C. A. ; so a con- dition in a Jewess's will, forfeiting her daughter's interest if she married a Christian, is valid ; Hodgson v. Halford (1879), 11 Ch. D., 959. <> Davidson's Precedents, 3rd ed., vol. v., p. 72 ; Scott v. Tyler (1787), White & Tudor's L. C. , where all the cases on this clause are collected ; and see Vaizey on Settlements, p. 1231. !■ Chitty on Contracts, 12th ed., p. 684 ; Scribblehill v. Brett (1703), 4 Bro. P. C. 144. 8 In re Moore (1888), 39 Ch. D., 116 C. A. 9 See Dover v. A lexander (1843), 2 Hare, 275 ; Occlesion v. Fullalove (1874), L. R. 9 Ch. 147 ; in re Bolton (1886), 31 Ch. D., 542, C. A. ; Hastie's Trusts (1887), 35 Ch. D., 728 ; Thompsonv. Thomas (1891), 27 L. R. Ir., 457. CHAPTER II VALIDITY OF MAEEIAGE ^ 1. Defiuitious, 21 Affidavit, 49 2. Impediments in Sub- Consent of Parents, . 52 stances, 2.3 False Names, 55 (a) Force or Duress, Fraud Marriage after Licence, 56 and Error, . 23 {d) Special Licence, . 56 {b) Insanity, . 28 (e) Registrar's Certificate, 58 (c) Nonage, 29 (/) Solemnisation of the {d) Relationship, 30 Marriage, 58 (e) Prior Marriage exist- Place of Marriage, . 59 ing, .... 33 Time of Marriage, . 64 (/) Impotence, 34 Service, 66 3. Requirements of Form (g) Registration, 75 for Marriage according {h)Fees, .... 77 to the Church of Eng- 4. Eequiremeuts of Form land, .... 34 for Nonconformist Mar- (a) Generally, . 34 riages, .... 78 Construction of Ads, . 35 (a) Generally, . 78 Presumption in favour {b) Notice of Marriage to of Marriage, . 36 Registrar, . 80 (b) Banns, 37 (c) Licence and Certificate Particulars to be gicen. 38 for Marriage, 85 Publication, 43 {d) Place of Marriage, 88 (c) Licence, 46 In Church, 88 Residence, . 48 Registered Building, . 88 1 In the year 1889, 213,865 marriages were registered in England and Wales, i.e. at the rate of 147 persons married to 1000 living. See the Registrar-General's Report for 1889, pp. v. and vi., xxTiii., Ixv., Lxxvi., tables 2, 3, 4, 39 to 46, where international statistics are given : the report states that as usnal the marriage rate rose with the mean value of exports per head of population, the year 1889 having been the hieheat since 1884, when the rate was 15 per 1000. ° 20 D EFIN ITIONS 21 Registrar's Office, 91 (&) In Foreign Countries, 104 In District of Regis- ^'ithin the Lines of a trar and Residence, 91 British Army, 105 Exceptions, 92 At JEhnbassies and Con- [e) Solemnisation of Mar- sulates, . 106 riage and Registration, 93 Validation, 107 In Church, . 94 Foreign Marriage In Registered Build- Act, 1892, 108 ing,. 94 In Factories, 110 In Registrar's Office, . 96 (c) On the High Seas, 113 if) Quakers and Jews, 97 On Board Men of War, 114 Quakers, 99 On Board Merchant Jews, . 100 Vessels, . 115 {c/)Fees, . . . 102 (d) In Colonies and India, 115 Marriages Abroad, 103 6. Marriages of the Royal (a) Oenerally, . 103 Family, 117 Sec. 1. — Definitions The requirements of a valid marriage are usually defined by describing the impediments. These impediments have been divided by the Canonists and Jurisconsults into dirimitory and impedimental impediments, and by the further division into impediments that make marriage void, and impediments that make it voidable. The follow- ing definition may be taken as being, if not exhaustive, at all events universal : " A valid marriage is constituted when a man and a woman, not within the prohibited degrees of relationship, being both of them sane, unmarried, potent, and of the proper age, do of their free will, mutually and personally, go through the necessary formalities." The definitions of marriage given by theological writers and jurists usually apply to the effect of the legal act of marriage and the status or contract thereby created ; among the best of these is that of Portalis, which is usually cited with approval by all Trench jurists: "La soci^t(^ de I'homme et de la femme qui s'unissent pour perpetuer leur espfece, pour s'aider par des secours mutuels, a porter les poids de la vie et pour partager leur commune destin^e,'' 22 VALIDITY OF ilAKWAGE Chap, tt For such effect, in so far as it imposes definite legal and mutual obligations, see Chap. IV. But to enter upon a discussion as to whether marriage is a status or a contract lies equally outside the scope of this work, as to discuss whether, and under what circum- stances, it is a sacrament.-"- It should be observed that marriage is a personal act, and the parties themselves, and not by proxy, must go through the marriage rites and ceremonies.^ The impediments to marriage were summed up by one of the Canonists thus : — ■ "Error couclitio votuni cognatio crimen Cnltu disparitas, vis, ordo, ligamen honestas Si sis afiuis, si forte coire nequibis Si paroclii, et duplicis desit praasentia testis Rapta vi sit mulier nee parti reddita tiita; Hffic facienda vetant conunbia, facta retractimt." In this chapter, however, impediments have been divided into impediments in substance that appear to the ordinary sense of mankind as to capacity of persons to contract marriage, which is uniform throughout the United Kingdom ; ^ and requirements of positive law, that arise from non-fulfilment of the proper formalities, as e.g. obtaining a licence. Subject to these following conditions or impediments of form and substance, it may be laid down generally that any man niay marry any woman. 1 Marriage is not a sacrament, according to the Articles of the Cliurcli of England, XXV and XXXII. 2 Although the Canon La-w has always permitted marriage Ijy proxy ; see Sanchez, lib. 2, disp. xi.,e.^.,theniarriageofNapoleonI\vithMaricLonise, where the Archduke Charles represented the Emperor as his procurator ; and sea post, Chap. X VI, s. 3 (a) ; and English Eoyal marriages have some- times been by proxy, as Margaret Tudor, on January 27, 1.503, to the King of Scotlaud, represented by tlieEarl of Bothwell; Arthur, Prince of Wales, May 19, 1499, to Catherine of Arragou ; and Charles I, May 1, 1625, by the Due de Chevreuse at Paris ; and see App. 4 as form of marriage by proxy. ■* Report of Royal Commission on Laws of Marriage, 1868 [c. 4059], pp. 5 aud 26. Sec. 1 DEFINITIONS 23 So persons attainted for treason and outlaAved can validly marry abroad and probably inside England.^ Also paupers can marry.^ Dumb persons can marry by giving their assent by signs. ^ Difference in religion is now no obstacle.* Formerly a marriage between a Jew and a Christian was a felony punishable by being burnt alive ; ^ and where a Jew was married to a Jewess, and one of the parties became a Christian, it was anciently adjudged that the marriage was dissolved, and that the Christian spouse might re- marry.^ But the marriages of Jews, either between them- selves or mixed, are now valid ; see post, s. 4 (/), p. 97 and seq. ; and see p. 100, n. 5. Marriages between Englishmen and Welsh women were once subject to same disabilities.^ Now, however, it is only persons of the Koyal Family, descendants of George II, who are subject to any special incapacities to marry; see post, s. 6 ; all other persons are free to marry. Sec. 2. — Impediments in Substance (a) Force or Duress, Fraud and Error ^ As in all other legal acts, force or duress practised on 1 Kymudrd v. Leslie (1866), L. R. 1, C. P., 389. = n. V. Seioard (1834), 1 A. & E., 706. 3 Harrod v. H. (1854), IK. & J., 4; Swinburne on Spousals, 204; Burns, Parish Registers, p. 159 ; and see Note.s and Queries for 1857, 2nd series, vol. iv. , p. 489. ■< Disjxintas cuUus, ordo and votum were canonical impediments ; see 2]0st, Chap. XVI, s. 3 {d) (;. 54 ; R. v. Chadwick (1847), 11 Q. B., 173 ; and see Andrews v. Moss (1888), 14 P. D., 15 ; and post, Chap. VI ; for the discussion on the Bill, see Hansard's Debates, 3rd series, vol. xxxviii., p. 203 ; vol. xl., pp. 792, 948. ' Brook V. B. (1861), 9 II. L. C, 193 ; and see Fenton v. Livingstone (1859), 5 Jur. N. S., 1183 ; and post. Chap. XVII, s. 2 (&). 5 5 & 6 Will. IV, c. 54 ; Sherwood v. Ray (1837), 1 Moo. P. C, 353. 8 Blackmorev. Brider (1816), 2 Phillim., 359; and see post. Chap. VII, s. 5 (h). 1 Canon 109, 113, and seq. Sec. 2 fe) DIPEDIMENTS IN SUBSTANCE— POLYGAMY 33 (e) Prior Marriage existing A marriage when a former husband or wife is alive is null, as well by the Spiritual as by the Common Law, and they are not husband and wife de facto} For polygamy and poly- andry are forbidden by Christianity, and the law of England and every other civilised country ;2 and the law of England will not recognise a Mormon or polygamous marriage.^ So even though one spouse has been absent for twenty years, so that a marriage could not be punished for bigamy (see Chap. XV, s. 3), yet such second marriage, if at the date the first spouse was living, is void. And in such a case the remarried spouse and the returned absentee should mutually take in church a solemn vow of forgiveness and fidelity.* As to the presumption of the death of the first spouse, who is absent at the time of the second marriage, and is never again heard of, see post, Chap. Ill, s. 4 {d). But a previous promise or precontract to marry another person, which now cannot be enforced, creates no dis- ability.^ 1 Riddlesden v. Wogan (1602), Cro. Eliz., 858 ; Yin. Abr., tit. Earoii & Feme, A ; Bastard, A 2 & F ; and see Bruce v. Burke (1825), 2 Add., 471 ; ililes v. Chilton (1849), 6 N. of C, 636 ; Birt v. Bmitinez (1868), L. R., 1 P. & M., 487 ; a decree of nullity after a bigamous marriage is common; see Dixon on Divorce, 2nd ed., pp. 322-24; and s&e post, Cbap. Ill, s. 2 (e), 4 (d), and Chap. YI, s. 1. For the practice in the Ecclesiastical Court, seethe Clerlf's Instructor, chap, iv., pp. 351-368. 2 Wharton's Conflict of Laws, 2nd ed., § 132; Sanchez, bk. vii., disp. 80. 3 Re Bethell (1888), 38 Ch. D., 220 ; Hyde v. H. (1866), L. E., 1 P. & M., 130 ; and see Chap. XYII, a. 2. ^ Bums, Parish Registers, p. 180, citing Bermondsey Parish Register, ann. 1604. ^ i Geo. lY, c. 76, s. 27, re-enacting 26 Geo. II, c. 33, s. 13 ; and as to previous legislature on precontracts, see 32 Hen. YIII, c. 38, in vol. i.. Revised Statutes ; and iVing v. Taylor (1861), 2 Sw. & Tr., 278 ; Beachey v. Bro^on (1860), E. B. & E., 796; and see ante, Chap. 1, pp. 8-10 ; and as to breach of promise of marriages, see Chap. XII. 34 VALIDITY OF MARRIAGE CHAr. II Persons divorced ^ may marry again after the decree absolute, see post, Chap. VIII, s. 1 (h) (e), and Chap. XIII, s. 3 [b); but a clergyman can refuse to remarry the guilty respondent, see Chap. XIII, s. 3 (5) and App. 2. A list of decrees absolute is kept at the Divorce Registry, Somerset House, arranged alphabetically year by year, which may be consulted on payment of a fee of two shillings and sixpence ; and by searching there it may be ascertained whether or not the person is actually divorced and free to marry. As to foreign divorces, see post, Chap. XVII, s. 4. Lastly, a prior marriage is only an impediment to the validity of a subsequent marriage, if such prior marriage is valid ; for if the prior marriage is actually void (see (h) (c) (d) and Chap. VI), or voidable (see {b) (/) and Chap. V), and a decree of nullity has been obtained, the subse- quent marriage (even prior to such decree) will become valid. (/) Impotence Impotent persons may, if they please, marry ; ^ but im- potence is cause of nullity, making the marriage voidable but not void; see Chap. V, s. 1 (a) (c). Sec. 3. — Eequirements of Form for Maeriage ACCORDING TO THE ChURCH OF ENGLAND ^ (a) Generally The form of marriage has been regulated by statutes dealing separately with marriages according to the Church ^ In 1889, 150 divorced persons — 75 men and 75 women— married, Reg.-Gen.'s Report for 1889, p. 7 ; as to the number of divorces (1887), there were 390 divorces granted, making 780 divorced persons, Pari. Paper, 1889, 80. 2 EoM V. Wright (1858), E. B. & E., 746 ; Camll v. Prince (1866), L. R., 1 Ex., 246. ' The number of marriages according to the rites of the Church of Sec. 3 (a) REQUIREMENTS OF FORM 35 of England, and with Nonconformists' or Civil marriages ; as to whicli, see post, s. 4. Some, however, of these provisions are merely directory, i.e. their breach or neglect does not render the marriage void, although the minister or official should insist on their observance, and in default of their observance can decUne to proceed with the marriage, and the offending party may be besides liable to penalties. Rule of Construction. — And as to this, there is a special rule of interpretation for statutes dealing with marriages. Previous to Lord Hardwicke's Act there had been no statutable nullity, i.e. no statute regarding marriages contained any clause directing the marriage to be null and void if certain rules were not complied with, although there were several statutes for regulation of marriage wherein punishment for disobediences was prescribed. Then Lord Hardwicke's Act, 26 Geo. II, c. 33, for pre- venting clandestine marriages, laid down by certain words certain statutable nullities, see ante, Chap. I, p. 12; and nulhties were created by 4 Geo. IV, c. 76, s. 22, see p. 36. On the rules of interpreting this. Dr. Lushing- ton laid down, that "there has never been a decision that any words in a statute, as to viarriage, though prohibitory and negative, have been held to infer a nullity, unless that nullity was declared in the Act. That viewing the successive Marriage Acts, it appears that prohibitory words without a declaration of nullity were not considered by the Legislature as creating a nullity, and that this is a legislative interpretation of Acts relative to marriage . . . and not only is all legal presumption in favour of the validity and against the England is by far the most numerous, being for the year 1889, 149,356 out of a total of 213,865, i.e. at the rate of 698 per 1000 ; see the Registrar-General's Report for 1889, pp. 6 and 30, table 5. 36 VALIDITY OK MARKIAGE Chap. II nullity of marriage, — as to that presumption, see post, — but it is so on this principle ; and a legislative enactment to annul a marriage de facto is a penal enactment, and not only penal to the parties, but highly penal to innocent offspring, and therefore to be construed according to the acknowledged rule most strictly." ^ Pre&uraption in favour of Marriage. — The presumption above referred to, which is most useful in cases where it is doubtful or difficult to prove that some of the necessary formalities, e.g. banns, have been comjslied with, has been laid down in two important cases by the House of Lords, as that when a marriage is proved to have been solemnised de, facto by people who intended that it should be a good marriage, and it is done liona fide and openly, the maxim omina 7'ite esse acta applies.^ The present general Act dealing with Church of England marriage is the Marriage Act, 1823,' which provides a statutable nullity by enacting "That if any pereons shall knowingly and wilfully intermarry in any other place than a church or such public chapel wherein banns may be lawfully published, unless by special licence as aforesaid, or shall knowingly and wilfully intermarry without due publication of banns or licence from a person or persons having authority to grant the .same, first had and obtained, or shall knowingly and wilfully consent to acquiesce in the solemnisation of such marriage by any person not being 1 Catterall v. Sweettiian (1845), 1 Eob., 304, 317, 580; Campbell v. Corley (1856), 28 L. T., 0. S., 109. The same canon of interpretation obtains in the United States ; see Eneyclopsedia Britannica, tit. Marriage. - The Lauderdale Peerage (1885), 10 App. Cas., 692; Piers v. P. (1849), 2 H. L. C, 331 ; and see post, Chap. Ill, s. 4 (a) (c), pp. 139, 142. ''■ 4 Geo. IV, c. 76. The short title is given by 55 Vict,, c. 10. The Marriage Act, 1823, s. 1, repeals and replaces Lord Hardwioke's Act, 26 Geo. II, c. 33. The present Act was framed by a Committee of the Lords, and moved by the Archbishop of Canterbury. Lord Campbell states that he assisted in passing it, and considered it quite perfect ; Lives of the Chancellors, vol. v., pp. 127, 128, n. See Walpole, History of England from 1815, vol. ii., p. 76 ; Hansard and the Annual Register for 1823. Sec. 3 (a) REQUIREMENTS OF FORM. 37 in holy orders, the marriages of such persons sliall be null and void to all intents and purposes Avhatsoever."i But this Act does not apply to Jews and Quakers,^ or to marriages of the Eoyal Family, ^ and only to England and Wales.* The general scheme of the Legislature is to require for Church of England marriages a public ceremony according to the rubric in the Church, preceded either by banns or licence from bishop or archbishop, a special licence from the archbishop, or a registrar's certificate. This Legisla- tion requires to be considered in detail as follows : — (6) Banns ^ The Act of 1823 directs Uhat " All banns of niatrimouy shall be published in an audible manner in ' the parish church or in some public chapel, in which chapel banns of matrimouy may now or may hereafter be lawfully published, of or belonging to such parish or chapelry wherein the parties may be married shall dwell, according to the form of words prescribed by the rubric prefixed to the office of matrimony in the Book of Conuuon Prayer, upon three Sundays preceding the solemnisation of the marriage, during the time of morning service or of evening service (if there shall be no morning service in such church or chapel, upon the Sunday upon which such banns shall be so published), immediately after the morning lesson, or whensoever it shall happen that the parties to be married shall dwell in diverse parishes or chapelries ; the banns shall in like manner be published in the church or in any such chapel as aforesaid belonging to such parish or chapelry wherein such parties shall dwell, and that all rules prescribed by the rubrick concerning the publication of banns . . and not hereby altered, shall be duly observed ; " 1 S. 22. ■•= 4 Geo. IV, 0. 76, s. 31 ; as to marriages of Quakers and Jews, see post, s. 4 {/). ■* lb., s. SO ; as to these, see^os^, s. 6. '* lb. , s. 33 ; as to marriages abroad, see post, s. 5. ^ Marriages by banns are by far the most numerous ; for out of 698 marriages (the rate per 1000 of those celebrated according to the rites of the Established Church, see ante, p. 34, u. 3), 632 are by banns ; see the Registrar-General's Report for 1889, pp. 6 and 30, table 6, i.e. of church marriages over ninety per cent, are after banns. 6 4 Geo. IV, c. 76, ^. 2. 38 VALIDITY OF MARRIAGE Chap, ii And further creates a statutable nullity if persons -will- ingly and wilfully intermarry without due publication of banns.'- This leads us to consider what is due publica- tion of banns. ParticulaTS to lie given. — The clergyman can require the persons intending to be married to deliver to him, seven days before the first publication of banns, a notice in writing, dated, and giving the particulars of their names, house of residence in his parish, and the time they have lived in such a house.^ This is not under oath, and a false statement of any of these particulars does not expose the parties to penalties. These particulars are to be inserted in a bann book "from which the banns are to be published." 3 But if the names are misstated in the publication with the knowledge of both parties, the marriage will be void. So where Edward Croxall Tongue, usually known as Croxall Tongue, and never as Edward Tongue, born in 1815, son of Edward Tongue, a gentleman of considerable landed property in Staffordshire, being at school at Keyn- shaw, became engaged to the schoolmaster's widowed sister, Mrs. Allen, aged thirty-five, and she put up the banns as of Edward Tongue and Mary Ann Allen, in February 1833, and they then intermarried, but he returned co school as a pupil and went home for the holidays alone, the wedding being kept a secret, the Court of Arches declared the marriage void ; and this was affirmed by the Judicial Committee of the Privy Council. It was con- tended that the minor Tongue was ignorant of the misdescription ; but as the parties were residing in the same house in daily intercourse, and it was deisosed to by the sextoness that the banns were shown by her to the parties, and inquiry made if the description was correct, 1 4 Geo. IV, c. 76, s. 22. " lb., s. 7. ' lb., s. 6. Sec. 3 (« REQUIREMENTS OF FORM— BANNS 39 and further, the marriage was celebrated in the name of Edward, and he signed the register as Edward, both Courts held that the minor's knowledge of the misdescrip- tion must be assumed. ^ But where James Carpenter prevailed on Susannah Spencer to marry him, and told her he would see the banns properly published, and afterwards informed her that they had been published, she taking no steps in the matter, and he had the banns published in the names of James Carpenter and Agnes Watts, which latter name she had never borne, and during the service the clergyman addressed her as Agnes, till which time she believed she was going to be married in her own name, and she did not know until after the marriage that the banns had been published in a wrong name, the Court of King's Bench upheld the marriage.^ But as parties sometimes change their baptismal or true name and acquire others by repute, it is sufficient if their banns are published in the name they are best known by ; and if the original name is lost and a new name acquired, putting up the banns in the original name with a fraudu- lent intention will amount to an undue publication, and void the marriage.' But if knowledge of the misnomer can oidy be brought home to one of the parties, the marriage will be valid.* 1 Tongue v. Allen (1835), 1 Curt. Ec, 38 ; 1 Moore P. C. C, 90 ; and f.ee Midgley y. TFooci (I860), 30 L. J., P. & M., p. 57, where Bower Wood.9 had his hanns published as John Wood; and Wiltshire V, Prince (1830), 3 Hag. Ec, 332 ; Ormev. Holloway (1847), 5 N. of C, 267. ■' R. V. Wroxton (1833), 4 B. & Ad., 640 ; and see Wright v. Elwood (1837), 1 Curt. 49 and 662, and Gompertz v. Kensit (1872), L. E., 13 Eq., 369, where the wife requested the husband to put up the banns and left it entirely to him, and he for brevity's sake left out one Christian name of hers ; but the marriage was upheld. 3 Tooth V. Barrow (1854), 1 Spinks, Ec. & Ad., 371. * Gompertz v. Kensit, ubi sup. ; Templeton v. Tyree, ubi sup. ; Wright v. Elwood, ubi sup. 40 VALIDITY OF MARRIAGE Chap. II As usually one only of the parties is active in putting up the banns by giving in the notice in writing (see ante, p. 38), or otherwise communicating with and instructing the clergyman or parish clerk, it is somewhat difficult to bring home knowledge of the misnomer to the other party; but where the party putting up the banns has knowingly misstated, not only her own, but also the other party's name, the said other party, by hearing him or herself misdescribed at the marriage ceremony, and answer- ing and signing the register in the wrong name, thereby adopts the fraud. ^ If the party putting up the banns misstates in fact the name of the other party, but believing such misstated name to be the true name, still such marriage will be valid, notwithstanding the other party knew of the mis- description, for there was no common and privy purpose. ^ If the party putting up the banns misstates only his or her own name, 2)i'oof of common fraud and purpose is, of course, more difficult. However, where the party putting up the bamis misstated his own name, on a concerted ]Aa,u arranged with his intended father-in- law in the presence of the intended wife, in order to conceal the marriage from his own father, it was held that knowledge of the undue publication was brought home to both, and the marriage was therefore declared void.-* As to the fraudulent purpose of the misdescription, although it is not necessary that there should be positive and direct proof that the false publication was with a 1 Orme v. RoUowutj, uU sup. , Tongue v. Allen (1837), 1 Moore P. C, 90 ; but iu O'ouijiertz v. Kensit, ubi siop., this evidence of knowledge by the other party of the misdescription was disregarded ; and see R. v, Evy (1887), 16 Cox C. C, 292. - Wright V. Elwood, iihi sup. ; li. v. Kaij. ! Brealy v. Reed (1841), 2 Curt., 833. Sec. 3 (« REQUIREMENTS OF FORM— BAKNS 41 view to fraud, there must be some evidence of concert between the parties. ^ If there is no parent or guardian having a right to dissent, it has been questioned whether a marriage coukl be declared void on account of the banns being proclaimed in wrong names. ^ A misdescription of status, as of a widow or a married woman being described as a spinster, is im- material ; neither the Act of Parliament nor the rubric require a description of the status of the parties.^ As to a misdescription of the parties' residence, not only does s. 7 (previously cited, p. 38) direct that the parties shall declare their place of abode, hut further, s. 2 directs that the banns shall be published in the parish church or chapel in which the parties dwell, or if they dwell in diverse parishes, then in each parish ; but this is merely directory, for s. 26 expressly provides that after solemnisation of marriage, under publication of banns, evidence to prove that the parties had not resided shall not be received in any suit touching the validity of such marriage. However, a clergyman who puts up banns of parties not residing in his parish is liable to ecclesiastical censures, amounting to three years' suspension,* and in addition to the penalties under s. 21 of the Marriage Act, 1823, 4 Geo. IV, c. 76. 1 Orme v. Hollmvay (1847), 5 N. of C, 267. 2 Holmes v. Simmons (1868), L. E., 1 P. & M., 523, p. 530. 3 Wright V. Mwood (1829), 2 Hag. Be, 598; Wright v. Elwood (1837), 1 Curt., 662 ; in this case the -woman was described as a spinster, whereas her first husband died between the publication of the banns and the marriage ; and see Mayhew v. Mayhew (1812), 3 M. & S., 266, note. * Canon 62 ; and see Wynn v. Dacies (1835), 1 Curt., 69 ; Yuysey v. Martin, reported in Stephen's Book of Common Prayer, vol. iii., p. 1548 ; and see post, pp. 42, 43. 42 VALIDITY OF MARRIAGE Chap, ii If the parties live in an extra-parochial place, they are to be married in the next adjoining parish.^ As to person having no place of residence properly so- called, such as canal-boat persons and seafaring men, by Canon Law a traveller is a parishioner of every parish he comes to,2 and it must be remembered that the necessary period of residence is only fifteen days for the three Sundays of publication, in addition to the seven days' notice if required by the parson. But if one of the parties is resident in Scotland, a publication in Scotland is sufficient.' As to marriage of minors * by banns, the consent of the parents is presumed in the absence of dissent.^ And it is provided that no person shall be punishable for marrying minors without consent of parents or guardian, unless such parent or guardian shall publicly forbid the banns, when the publication shall be void.^ Nevertheless it is the clergyman's duty to make the proper inquiries. He has a right to make such inquiries as to age and residence ; and in default of doing so, if he marries a ward of Court, he may be guilty of contempt, and punishable therefor.'^ 1 See 4 Geo. IV, u. 76, s. 12 ; and see post, p. 44. ^ Lyndwood, bk. 3, tit. 115c, Altissimus v. Peregrinates ; and see Wheatly on the Common Prayer, Matrimony, sec. 1, pj). 340 and 341. » The Marriages Validity Act, 1886, 49 & 50 Vict., c. 3. •^ As to the number of persons marrying nnder age, the Registrar- General's Report for 1889 states that in that year tlie jiroiiortion was, out of every 1000 persons marrying 260 were minors, i.e. 61 men and 199 women ; see. pp. vii. and xxxii., table 7. ^ Per Lord Hardwicke in exparte Birchell (1754), 3 Atk., 812 ; and per Lord Stowell in Diddear v. Famit (1821), 3 Phillim., 580, 581. " 4 Geo. IV, c. 76, s. 8 ; apparently this overrules Canon 62, forbid- ding a parson to marry a minor unless the parents have signified their consent ; and see Canons 100 and 104. 7 Per Lord Eldon, L. C, in Priestley v. Lamb (1801), 6 Ves., 421 ; XicJmlsuit V. Squire (1809), 16 Ves., 259 a ; and see Warier v. I'or/cc Sec. 3 to) RKQUIREMENTS OF FORM— BANNS 43 The parents or guardian can prevent such marriage by forbidding it publicly, see above ; probably an illegitimate parent (■who has no right to " consent " to a marriage by Hcenoe, see post, p. 52) cannot forbid banns. But strangers, such as churchwardens, cannot forbid the banns on the grounds that the parties are poor, and may become a charge to the parish.^ As to fees, see post (h), p. 77. Publication. — As to the place of publication, not only must it be in the parish church or chapel belonging to such parish or chapelry wherein the parties dwell respect- ively, but it must be " in the parish church, or some public chapel in which banns of matrimony may now, or may hereafter, be lawfully published."^ As to old parish churches and public chapels in which banns can be published as of old right without any authorisation, see post (/), p. 59. New parishes can be created under the Church Building Acts, 1818-84,^ or by a special Act of Parlia- ment, private or public. Further, the bishop may, on certain conditions, and under various powers given by several Acts, licence chapels for marriage, either in case of a public chapel with a chapelry annexed, or in the case of a chapel in an extra-parochial place,* or in a chapel without a chapelry (1815), 19 Ves., 451 ; and see a proceeding against a clergyman, the Rev. G. Martin, in 1843, reported in notes to Stephen's Book of Common Prayer, vol. iii., p. 1548 ; and see ante, p. 41. ' Wheatly's Common Prayer, Marriage, sec. 1, p. 340 ; persnading paupers to marry is not an indictable oitence, R. v. Seward (1834), 1 A. &E., 706. 2 4 Geo. IV, c. 76, s. 2. 3 See a list of them in second schedule to 55 Vict., c. 10 ; and see Tuckness v. Alexander (1863), 9 Jur. N. S., 1026; Ftiller v. Alford (1883), 10 Q. B. D., 418. •1 4 Geo. IV, c. 76, ss. 3, 4, and 5 ; and 20 Vict., c. 19, ss. 9, 10. 44 VALIDITY OF MARRIAGE Chap. II annexed, but on assigning a distriot.i But under these Acts one of the parties must be resident in the parish or district. There must be written up in the interior of the chapel, " Banns may be pubhshed and marriages solemn- ised in this chapel." ^ Still parties have an option to be married in the parish church.^ As to extra-parochial places, they are to be deemed to belong to next adjoining parish,* or there may be a chapel therein licensed by the bishop as above, or under 20 Vict., c. 19, and 23 & 24 Vict., c. 24. But the legislation or the division of parishes is some- what intricate, and is not here further set out.'' Where the church is under repair, the parishioners may be married and banns published in an adjoining church, or in a place in the parish licensed by the bishop for divine service.^ As to the manner of publication, the Act of Parliament declares that they should be published immediately after the second lesson, although the old rubric declared that after the Nicene Creed, before the sentences for the offer- tory, during the communion service, was the proper time.' 1 6 & 7 Will. IV, c. 85, ss. 26-34 ; 7 Will. IV, and 1 Vict., ^. 22, ss. 32-34 ; R. v. Perry (1861), 3 E. & B., 640. 2 4 Geo. IV, c. 76, s. 4 ; 6 & 7 Will. IV, c. 85, s. 29 ; 7 Will. IV, audi Vict., c. 22, s. 33. 3 6 & 7 Will. IV, c. 85, s. 31. ^ 4 Geo. IV, c. 76, s. 12. ^ See also Index to Statutes, tit. Ecclesiastical Commission, 4, Division of Parishes ; Index to London Gazette, 1830-83, tit. Ecclesiastical Parishes. « 4 Geo. IV, c. 76, s. 13 ; 5 Geo. IV, c. 32 ; 11 Geo. IV, and 1 Will. IV, c. 18 ; and see K. v. CrcssweU (1876), 1 Q. B. D., 446, deciding that where under such circumstances divine services had been several times performed hy the minister in a private room, it was presumed that such place was properly licensed ; and see post, Chap. Ill, s. 4, p. 142. ' See Phillimore'.s Ecclesiastical Law, vol. i. , p. 760. Sec. 3 ft) REQUIREMENTS OF FORM— BANNS 45 The Act 4 Geo. IV, c. 76, s. 2, also declared that the publication is to be during morning service ; but that if there is no morning service, then at evening service. And as to the number of times of publication, it must be on three Sundays preceding the marriage. Further, the Act enjoins the observance of all rules prescribed by the rubric concerning the publication of banns not thereby altered. ^ At the publication of the banns of a minor, the parent or guardian can publicly declare his dissent in the church to the marriage, and then the publication is void ; and see ante, pp. 42, 44. If the marriage does not take place within three months after the complete publication, then there must be re- publication for three Sundays.^ Lastly, after the publication of banns, the marriage must be solemnised in one of the parish churches in which the banns were published, and in no other place ; ^ as to the form of marriage, see post (/), p. 58 and seq. By way of penalty on the clergyman it is enacted,* that a person knowingly and wilfully solemnising marriage without due publication of the banns, unless licence of marriage be first had and obtained from some person or persons having authority to grant the same, is guilty of felony, and shall be transported as a felon for fourteen years. 1 The form prescribed by the rubric is: "I publish the banns of marriage between ... in the parisli . . and of . . . this parish (or both of this parish). If any of you know of any cause or just impedi- ment why these two persons should not be joined in holy matrimony, ye are to declare it. This is the first (second or third) time of asking." 2 4 Geo. IV, u. 76, s. 9 ; and see 7?. v. Clarke (1867), 10 Cox's C. C, 474. 3 lb., s. 2, and see ^0.9^, p. 63. » lb., s. 21; see Chap. XV. 46 VALIDITY OF MARRIAGE Chap. II If the parties marry without any banns at all, the marriage will still be good, unless it was omitted wil- fully, i Further, where a ceremony of marriage has taken place, prior publication of banns will be presumed even in bigamy.^ ((•) Licence^ Marriage may be by the licence of the archbishop, bishop, or ordinary. For from early days, by Canon Law, bishops were accustomed to grant these licences, and their rights in that behalf is recognised and confiTmed by 25 Hen. VIII, c. 21, s. 9, in all cases in which they were wont to issue dispensations, such dispensation not being contrary to law ; and they are now governed by Canons of 1603, Nos. 101-104, and 4 Geo. IV, c. 76, ss. 10, 11, 14, 15, 16, 17, 18.* Such licences are issued by the bishops through their chancellors or surrogates, or by the Archbishop of Can- terbury ^ for any place in his province through his Vicars- General.^ 1 Wright v. Elwood (1837), 1 Curt., 662 ; Templeton v. Tyree (1872), L. R., 2 P. & M., 420 ; Grea-oes v. Greaves (1872), L. R., 2 P. & M., 423 ; but see opinion given in Report of Royal Commission on Marriage Law, 1868 [4059], at p. x. 2 iJ. V. Allison (1806), R. & R., 109; and Cliap. Ill and Chap. XV. ^ Marriages by licence are not so numerous as by banns ; for out of 698 marriages (the number per 1000, according to the rites of the Established Church), but 48 were by licence. Tlie Registrar-General's Report for 1889, pp. vi. and xxx. , table 5. i And see, too, 6 & 7 Will. IV, c. 85, s. 1. ^ The Archbishop of York can only issue licences for marriages in his diocese. s The following is a reprint of the official notice issued by the Archbishop of Canterbury's Vicar-General, from whose office the licence can be obtained for anywhere throughout the southern province, includ- ing London : — Sec. 3 (c) REQUIREltENTS OF FORM— LICENCE 47 The surrogate must take an oath before he can grant licences. 1 A licence cannot be granted for marriage "Archbishop of Canterbury's Licences for Marriage THE VICAR-GENERAL'S OFFICE is removed from Bell Yard to 5 Dean's Court, Doctors' Common, B. C. (First floor.) {Immediately opposite the Deanery.) Marriage Licences Issued from this Ojfice are available for London and throughout the whole Province of Canterbury Applications for Marriage Licences mu'st be made in the Registry, by one of tlie parties to be married ; and no other application, either verbal or in writing, can be received as instructions for a Marriage Licence. No Agent will be allowed to interfere in any manner whatsoever in obtaining or procuring a Marriage Licence, or paying for the same. Affidavits for Marriage Licences are prepared from the instructions of one of the parties to be married personally appearing in the Registry, and The Licence is to be delivered to the party upon payment of the sum of Thirty Shillings over and above the amount paid for Stamps. Fees and Charges for the Affidavit and Licence, . . £1 10 Stamps, 12 6 £2 2 6 By order of the Archbishop of Canterbury. Note. — By the 4th George IV, c. 76, it is enacted that, in order to avoid fraud and collusion in obtaining Licences for Marriage, before any such Licence be granted, one of the parties shall make an affidavit, on oath, that there is no legal impediment to the intending marriage ; and cdso thai one of such parties hath had his or her usual place of abode, for the space of fifteen days immediately preceding the issuing of the Licence, within the boundary or district assigned to the parish church or the district parish in the church of which the Marriage is to be solemnised. Vioae-General's Office, 5 Dean's Court, Doctors* Commons, B. C. Office Hours, 10 to 4. Saturdays, 10 to 2. Holidays — Good Friday, Christmas Day, and Bank Holidays." 1 4 Geo. IV, c. 76, s. 18, iS VALIDITY OF MARRIAGE Chap. II outside the district, diocese, or province from whose office the licence is issued, for the archbishop or bishop would have no jurisdiction ; but if so issued, the marriage fol- lowing thereon will not be invalid unless both parties knowingly and wilfully so intermarry, i The issue of licences is discretionary, and a matter of grace and favour, so the ordinary or surrogate may refuse it, although there is no legal impediment. So where the Prince of Capua, brother of the King of the Two Sicilies, applied for a licence to marry Miss Penelope Smith, and the Count de Ludolf, Envoy Extra- ordinary and Minister Plenipotentiary of the King of the Two Sicilies entered a caveat, and the cause came on to be heard in the Court of the Faculties, the licence was refused by Dr. JSTichoU, Master of the Faculties, though no legal impediment existed, because the issue of the licence was a matter of discretion.^ Aiid at the present day, in the diocese of Lichfield, it is the practice not to grant licences for the remarriage of divorced persons ; see App. 2. Residence. — No licence can be granted unless there has been a residence for fifteen days by one of the parties to be married in the parish where the marriage is to be celebrated. Such a residence, although it need not be continuous, must be bond fide ; and though living at an hotel or lodging is sufficient, the merely hiring a room and only living in it one day, or not living there, will not satisfy the statute.^ But if a licence is granted in due form for a marriage in a particular church, the 1 Dormer v. Williams (1838), 1 Curt. , 870 ; Balfour v. Carpenter (1810), 1 Phillim., 204. 2 The Prince of Capua v. the Count of Ludolf (1836), 30 L. J. & M., 71, u. ; see App. 2. ^ 4 Geo. IV, c. 76, s. 10 ; but iu the office of the vicar-general of the Archbishop of Canterbury it is the practice to relax the requirements of residence in favour of sailors returning from a voyage and wishing to Sec. 3 (c) REQUIREMENTS Of form -Licence 49 incumbent is under no obligation to inquire Avhether there has been a suifioient residence to justify the grant- ing of the licence. His proper course is to assume the regularity of the licence, and solemnise the marriage, i Affidavit. — Before the licence is granted, one of the parties to be married must swear before the surrogate that there is no lawful impediment of kindred, and that there has been fifteen days' residence ; and if either party is a minor, and not previously married, then that the consent of the parent or guardian has been obtained.^ This is usually put in the form of affidavit ; ^ but if the be instantly married. For illustrations of laxity of practice, the canons being habitnally disregarded previous to Lord Hardwicke's Act, see More v. M. (1741), 2 Atk., 157. 1 Tmkness v. Alexander (1863), 2 Dr. & Sm., 614. 2 4 Geo. IV, c. 76, s. 14. The oath making applicant need not necessarily be the resident party, so long as the applicant can swear to such other parties' residence. 3 The form of the affidavit used in the office of the Vicar-Seneral of the Archbishop of Canterbury is as follows : — " Vicar-General's Office, ) -^gg Appeared Personally of the of and prayed a Licence for the Solemnisation of Matrimony in the Church of between h and of the ^ and made oath that he believeth that there is no impedi- I ment of Kindred or Alliance, or of any other lawful Cause, inor any suit commenced in any Ecclesiastical Court to bar or hinder the Proceeding of the said Matrimony, according to the Tenor of such Licence. And he further made Oath, that he the said hath had usual place of Abode within the said of for the space of Fifteen Days last past Sworn before me. It is the practice of this office to enter the original affidavits in books year by year ; these books are from time to time, as the office space becomes filled up, removed to Lambeth Palace Library. The author 4 50 VALIDITY OF MARKIAGE Chap, ii defendant swears falsely it is not perjury, and only misdemeanour,! and the Spiritual Court lias no jurisdiction to punish for such false oath.- There is a fee payable, varying from £2 to £3, or even £4, see jjos^, p. 77 (in the province of Canterhury the fee is £2, 2s. 6d., see ante, pp. 46 n. 6, 47), but no caution or security by bond need be now given by the applicant.^ A caveat may be entered against the grant of the licence ; and if so, the licence is not to be issued until the caveat is withdrawn, and the judge has certified to the registrar that he has examined into the matter of the caveat, and that he is satisfied that it ought not to obstruct the grant of the licence.'' As, however, there is little or no interval of time between the application for the grant of a licence (in the Vicar-General's Office, in Doctors' Commons, the licence is issued at once ; from a commis- sary it is sent by return of post after the personal application) and no necessary interval between the grant of the licence and the marriage, the best way is to enter a caveat beforehand, ex majore cautelu, as is the practice in the office of the Vicar - General of the Archbishop) of Canterbury, where a book is kept for the purpose. The form of the licence is given below.^ derived much information and was given these forms by Sir J. Hassard, K.B., principal registrar of the province and diocese of Cauterbnry, whom he hereby thanks. 1 R. V. Chapman (1849), 1 Den., 432. 2 Phillimore v. Machon (1876), 1 P. D., 481. 3 4 Geo. IV, c. 76, s. 15, thus abolishing the provision of Canons 101, 102, as to taking security. 4 4 Geo. IV,'c. 76, s. 11 ; the parent of an illegitimate child who had no right to consent caunot enter a caveat and oppose, see p. 52, n. 3. = "Edward White, by Divine Providence, Archbishop of Canter- bury, Primate of all England, and Metropolitan, to our well-beloved iu Christ, Grace aud Health. Whereas ye are, as it is alleged, resolved to proceed Sec. 3 (c) REQUIREMENTS OF FORM— LICENCE 51 Particulars of the licences granted are, according to the practice of the Vicar-General of the Archbishop of Canter- bury, entered day by day in books, but there is no index. At the marriage the licence should be produced to, and retained by, the solemnising clergyman, as it is his authority for marrying without banns. If the parties marry without licence, the licence being only issued after the marriage took place, still the mar- riage will be valid unless both parties knew at the time of the ceremony there was no licence.^ to the Solenmisalion of true and lawful Matrimony and that you greatly desire that the same may be solemnised in the Face of the Church : We being willing that these your honest Desires may the more speedily obtain a due Effect, and to the end therefore that this Marriage may be publicly and lawfully solemnised in the Church of by the Rector, Vicar, or Curate thereof, without the Publication or Proclamation of the Banns of Matrimony, jirovided there shall appear no Impediment of Kindred or Alliance, or of any other lawful Cause, nor any suit conmienced iu any Ecclesiastical Court, to bar or hinder the Proceeding of the said Matrimony, according to the tenor of this Licence ; And likewise, That the Celebration of this Marriage be had and done publicly in the aforesaid Church between the Hours of Eight in the forenoon and Three iu the afternoon. We, for lawful Causes, graciously grant this our Licence and Faculty, as well to you the Parties contracting, as to the Rector, Vicar, Curate, or Minister of the aforesaid who is designed to solenmise the Marriage between you, in the Manner and Form above specified, according to the Rites of the Book of Common Prayer, set forth for that purpose, by the Authority of Parliament. — Given under the seal of Our Vicar-General this Day of in the Year of our Lord One Thousand Eight Hundred and Ninety-one and of our Translation the Eighth. Vioar-General's Office, No. 5 Dean's Court, Doctors' Commons. By Stat. 4 Geo. IV, c. 76, this Licence to continue in force only Three Months from the date hereof." i Gi-eaus v. Grmves (1872), L. R., 2 P. & M., -123. 52 VALIDITY OF MARRIAGE Chap. II Consent of Parents. — As to marriage of minors i by licence, the Act directs that unless the minor is a widow or a widower, the consent of the person whose consent is required must be obtained.^ The persons to consent are the father,^ if living (unless he has been deprived of his parental rights ; as to when this can be done, see Chap. XIV, s. 1 (c)) ; or if he is dead, then the guardian lawfully appointed (as to appoint- ment of guardians, see Chap. XIV, s. 3 {a)); or if there are no guardians, then the mother^ (the mother is now necessarily a joint guardian, see post, Chap. XIV, s. 3 (a)) ; if unmarried ; or if there be no mother, then the guardians appointed by the Court of Chancery, whose consent is expressly made requisite unless there is no person authorised to give consent.* If the father is non compos mentis; or the guardian or mother Tion compos mentis or beyond the seas, or un- reasonably, and for undue motives, refuse their consent, the parties desiring to marry can apply to the Court of Chancery, which is empowered to declare the marriage proper ; and such judicial declaration takes the place of the consent by the father, guardian, or mother. ^ But the declaration by the Court can only supply the father's consent when such father is actually non compos, and not 1 As to proportion of marriages by minors, see ante, p. 42, n. 4. = 4 Geo. IV, c. 76, s. 14 ; see, too, Canons 62 and 100-104. 3 This means the legitimate father or mother. In the case of illegitim- ate minor (unless a guardian has been appointed by the Court, see Chap. XIV, s. 3 (a)), there is no person authorised to give consent, and the minor in swearing this can obtain a licence of his own will, 4 Geo. I V, c. 76, s. 14, the natural father or mother having no right to obstruct. Under Lord Hardwicke's Act, 26 Geo. II, c. 33, s. 11, marriage of illegitimate minor by licence with the consent of his natural parents, but without the con- sent of a guardian appointed by the Court of Chancery, was absolutely void ; Droney v. Archer (1815), 2 Phillun., 327 ; see ante, p. 15. 4 4 Geo. IV, c. 76, s. 16. ■> 4 Geo. IV, ^. 76, =.. 17 ; see Blake v. B. (1772), 2 Dick,, 159, Sec. 3 W RE(iUIRE]VIEjSrTS OF FORM— LICENCE 53 when he is beyond the seas or refuses. ^ If there is no person having authority to consent, the minor on swearing this can obtain a licence without consent.- The consent need not be formal and in writing, but it may be implied and presumed from surrounding circum- stances, but once given is presumed to continue, although it may be subsequently retracted ; but if so, such dissent must be unequivocally expressed.^ But if the father after consenting dies before the marriage takes place, the con- sent of the guardian or the Court must be obtained.* But this p)oint as to the consent of parents is now less important; for, as regards the obtaining of the licence, the practice in the office of the Vicar -General of the Arch- bishop of Canterbury is to accept the oath of the party applying that the consent of the minor's parents has been obtained, without any other evidence of consent imless such minor is under sixteen years of age ; if the minor is under sixteen, then a letter from such minor's parent or guardian must be produced, although it is believed that in other diocesan registries and among some surrogates it is the practice to require further evidence of the parents' consent than the oath of the parties. Further, the provision of the Act requiring the obtain- ing such consent is merely directory ; and if, either by swearing falsely that the minor is of age, or that a con- sent, not in fact given, has been obtained, or in any other way a licence is obtained without the parents' consent for the marriage of a minor, and such marriage takes place, the marriage is valid. ^ 1 Ex parte I. C. (1838), 3 My. & Cr., 471. ^ 4 Geo. IV, c. 76, s. 14, and see p. 52, n. 3. ■! Ilodgkinson v. Wilkie {1795), 1 Hag. Con., 262; Balfour v. Car- pmUr (1811), 1 Phillim., 221 ; Smith v. Hiiscyn (1811), 1 ih., p. 287. 4 Ex parte Rdbey (1843) 12 L. J. Ch., 436. 5 R. V. Birmingham (1828), 8 B. & C, 29 ; a.s to the marriage to 54 VALIDITY OF MARRIAGE CnAr. 11 But in case such a valid marriage of a minor without consent of parents, whether after Hcence of banns, takes place by a false oath or a fraud of the party, such party so offending may be deprived of all benefits under the marriage, the Court being empowered to declare a for- feiture of all such offending party's interests, and to settle it on the innocent party or the issue; but if both parties are guilty, the settlement is to be for the issue, with pro- visions for maintenance of the offending isarties, but with regard to the benefit of the issue during the life of the parents of the offending parties. Such forfeiture to be prosecuted by way of information by the Attorney- General at the relation of the parent or guardian whose consent was not given, within three months after such parent or guardian is cognisant of the marriage ; and the information must be filed within a year after the marriage. The forfeiture and settlement pronounced by the Court on such information is to override any previous settlement by the parties, which is declared absolutely void.i The parent or guardian can prevent the issue of a licence for a minor's marriage by the entering of a caveat; as to how this is done, see ante, p. 50. Further, even if the licence has been issued, information conveyed to the Nonconformists, it is sijecially enacted that the absence of consent does not invalidate ; se^ post, p. 81. Under Lord Hardwicke's Act absence of consent of parents was a ground of nullity, see ante, pp. 14, 15. As to the Canon Law on the necessity of consent of parents which varied, see Uodgkinsoii v. Willde (1795), 1 Hag. Con., 262, n. 1 4 Geo. IV, c. 76, ss. 23-25 ; and see A.G.y. Clements (1871), L. R., 12 Eq., 32 ; A. O. v. Read, ib., p. 38 ; A. G. v. Lums (1848), 2 Phill., 753 ; A. G. V. Mullay (1828), 4 Russ., 329 ; A. O. v. Midlay (1844), 7 Beav., 351. By an early statute, 4 & 5 P. and M., c. 8, a woman marrying between twelve and si.xteen without consent forfeited her lands to the benefit of the next of kin ; see Hanbury v. Lord Bateman (1740), 2 Atk., 63 ; Ridley v. Wilson (1749), Amb., 73 ; and this statute was not repealed till 1829 by 9 Geo. IV, c. 31 ; this was independent of proceedings in Chancery ; see j^ost, Chap. XIV, s. 3 (S). Sep. 3 (d REQUIREMEJTTS OF FORM— LICEXCE 55 clergyman that the licence has been wrongly obtained would justify such clergyman in refusing to marry; see post (/), p. 59. If the minor is a ward of Chancery, the approval of Court, even though the minor's parents may be alive and consenting, should be obtained; for in default of such approval the party marrying the ward will be in contempt, and liable to punishment by way of committal. But this jurisdiction of the Court over its ward is entirely independ- ent of and apart from the Marriage Acts, and is not here further treated of; but see also jMst, Chap. XIV, s. 3 (b). Further, it is a frequent clause in a will and settlement that a minor marrying without consent shall forfeit all benefits thereunder, see ante, p. 19 ; but the absence of such consent in no way affects the validity of the marriage, and the granting of and presumption of such consent is dealt with on diiferent principles. False Names. — As to a licence in a false name, a wilful, fraixdulent misdescription in the licence known to both parties, such as if occurring in banns would have invali- dated the marriage, will not invalidate a marriage follow- ing such misdescriptive licence, for in a licence identity is the main object. ^ For in a case where a Liverpool omnibus conductor persuaded Margaret Lea Bevan, who had been suffering under a disappointment, but was the daughter of a gentle- man of means and position, to marry him, and she, with a view of concealing the marriage, allowed him to get the licence as for Margaret Bevan, and her address was further misdescribed and the parties were thereafter married, but they never cohabited nor consummated, still the full Court upheld the marriage.^ However, if a licence pro- ' Bevan V. jl/'il/cAoH (1861), SOL. J., P. & JI.,61 ; and iajie v. Good- win (1843), 3 G. &D., 610; and see Clowes v. /owes (1842), 3 Curt., 185. 56 VALIDITY OF MARRIAGE Chap, ii cured for one person is transferred to another, that might be- such a fraud as would invahdate.^ Marriage after Licence. — Whenever a marriage shall not be had for three months after the grant of the licence, no minister shall proceed to solemnise such marriage until a new licence shall have been obtained or banns published. 2 The marriage must take place in the church of the parish of residence mentioned in the licence as required.^ But when an actual marriage ceremony has been per- formed and proved, the Courts, even in bigamy, will presume that a licence was issued.* (rf) Special Licence '■' The power of the Archbishop of Canterbury to grant special ' licences to marry, vested in him by 25 Hen. VIII, c. 21, ss. 2, 3, on the abolition of papal supremacy, is specially preserved by 4 Geo. IV, c. 76, s. 20." This power extends all over England. The Bishop of Sodor and Man has also, it appears, power to grant special licences within his diocese." The special licence must be applied for on affidavit at 1 Co2M V. Burt (1809), 1 Hag.'.s Con. Eeports, 434 ; approved, Bevan V. M'Mahon, uli sup. 2 4 Geo. IV, c. 76, s. 19. 3 4 Geo. IV, c. 76, s. 10. PrevioiLS to Lord Hardwicke's Act it was usual to insert in the licence three churches as competent wherein to .solemnise the marriage ; see More v. More (1741), 2 Atk., 167. 4 R. V. Allison (1806), E. & R., 109 ; and see Chap. Ill, s. 4. ^ There are no recent .statistics as to the number of special licences issued, but the Report of Commissioners on the Marriage Laws, Pari. Paper, 1867-68 [c. 4059], states that on the average about twelve per annum are issued, ib., ji. vii. " See, too, 6 & 7 Will. IV, o. 85, s. 1 ; and see Doe clem Ec/remont v. Orazebrook (1843), 3 G. & D., 331. 1 Piers V. P. (1819), 2 H. L. C, 331; here the grant of a special licenc.e was presnnjed, Si^f. 3 (rf) KEQUIREMEN"TS OF FORM— SPECIAL LICENCE 57 the Vicar- General's Office, but it is issued from the Faculty Office, 23 Knightrider Street. Special licences are granted as of course, but on pay- ment, to peers, peeresses in their own right and their children, dowager peeresses, baronets and their eldest sons, judges, knights, members of Parliament, and on good cause shown to other persons at the discretion of the Archbishop. But in all cases a fee of about £30 is payable. A special licence can authorise marriage without resi- dence at any hour of the day or night, and in any place, whether consecrated or not. There is no limit of time within which the marriage must take jplace ; — in one instance, owing to continued illness, the marriage was not solemnised till two years after the special licence was issued.! A form of the special licence is given in the note.^ 1 This information was kindly communicated to the author by Sir John Hassard, K.B. , principal registrar of the province and diocese of Canterbury, and by Mr.W. P. Moore, registrar of the Court of Faculties, and their officials. ®2 " Edwahd White, by Divine Providence, Archbishop of Canterbury, Primate of all England, and Metropolitan, by Authority of Parliament lawfully empowered for the purposes herein written, To our beloved in Christ, N'ames, Parishes, etc., of the parties. Health. Whereas, as it is alleged, ye have purposed to proceed to the solemnisation of a true, pure, and lawful marriage, Clause of con- sent if either party is a ™'"°''- earnestly desiring the same to be solemnised with all the speed that may be : That such your reasonable desires may more readily talie due effect, We for certain causes Us hereunto especially moving do so far as in Us lies, and the Laws of this Realm allow, by these presents gra- ciously give and grant our Licence and Faculty, as well to yon the parties contracting as to all Christian People 58 VALIDITY OF MARRIAGE (e) Registry's Cer'tificate ^ Lastly, persons can be married in church on a registrar's certificate. 2 (/) Solemnisation of the Marriage The marriage must be solemnised within three months after the last publication of banns or grant of the licence. See ante, pp. 45, 56. A clergyman refusing to marry after licence and (it would seem) banns, can be proceeded against in the Spiritual Court ; ^ for on the licence being produced to the clergyman, directing him to marry the persons in his church, his canonical obedience requires him to perform that marriage according to that licence;* but there appears much doubt whether he can be civilly sued at law ^ or willing to be present at the solemnisation of the said mar- riage, to celebrate and solemnise such marriage between This is the old you the said contracting parties, at any time and in form, seldom ^^^y Qjiu^ji or Chapel, or other meet and convenient use now , ey ^^^^g^ jjy g^,^y jjigjmp of this Realm, or by the Rector, made out for a Yicar, Curate, or Chaplain of such Church or Chapel, or particular ^7 ^'^Y other Minister in Holy Orders of the Church of church, and England, provided there be no lawful let or impediment between certain to hinder the said Marriage.— Given under the Seal of hours, and in our Office of Faculties, at Doctors' Commons, this some special ^^^ pf ^ j^ ^j^g yg„ cases for a ^^ ^^^^ -^^^^ q^^ thousand eight hundred and private dwell- i ■ i-u ji m i i- .. ins-house ^ ''^ y'^^'' " "^'^ Translation. 1 Out of 698 marriages (that being the proportion per 1000 of mar- riages according to the rites of the Established Church), sixteen were by superintendent-registrar's certificate. Registrar-General's Report for 1889, pp. vi. and xxx., table 5. 2 6 & 7 Will. IV, c. 85, s. 1 ; 7 Will. IV, and 1 Vict., c. 22, s. 36 ; and see post, pp. 80, 85, as to how certificate is obtained. See also pp. 88, 94, 3 Argar v. Holdsioorth (1758), 2 Lee, 515. ■1 Tuckness v. Alexander (1863), 2 Dr. & Sni., 614. 5 Davis V. Black (1841), 1 Q. B., 900. Sec. 3 (/) REQUIREMENTS OF FORM— SOLEMNISATION 59 indicted criminally, i As to divorced persons, the Divorce Act, 20 & 21 Vict., c. 85, ty ss. 57, 58, enables the clergyman to refuse to marry them, but in such case he must allow some other person to marry them ; see post, Chap. XIII, s. 3 (6), and App. 2. Further, if a clergy- man perceives some irregularity or misdescription or fraud in the banns or licence, he may, nay, it is his duty, to refuse to proceed.^ Place of Mairiage. — As to the place, the Act of 1823^ creates a statutable nullity if any persons "know- ingly and wilfuUy intermarry in any other place than a church or such public chapel wherein banns may be lawfully published, unless by such special licence as aforesaid." Marriage after special licence can be solemn- ised in any chapel, or even an unconsecrated place or private room ; but the real test whether marriage can take place in any particular church or chapel is, " Can banns be published there 1 " for an ordinary marriage licence gives no right to marry in any church in which banns cannot be published. This leads to the inquiry as to where banns can be published. And a church or chapel is authorised for publication of banns either by immemorial and ancient use, or by some special authorisation, as by private Act of Parliament, or by being constituted into a district parish or chapelry, or by licence of the bishop. These latter special authorisa- tions are, so far as is material, discussed (ante, p. 43) 1 E. v.- James (1850), 3 C. & K., 167. "-Sullivan V. Oldacre (1818), 2 Hag. Con., 238, p. 253; Arrjar v. Holdsworth, uhi sup. ; but such clergyman so refusing acts at his peril, for the responsibility for ascertaining the truth of the matters leading to the licence is on the ordinary ; Tuckness v. Alexander^ uhi sup. 3 4 Geo. IV, c. 76, s. 22, re-enacting 26 Geo. 11, c. 33, s. 8, as to which see note, p. 13. 60 VALIDITY OF MARRIAGE Chap. II under Publication of Banns. It is proposed here to show how and in what right, in the absence of any such special authorisation, banns can be published and mar- riage solemnised in a church or chapel. The old Marriage Act of 1753, Lord Hardwioke's Act, authorised marriages and publication of banns in the parish church, or in some public chapel where banns have been usually published. i So all the parish churches existing and being parish churches in 1753 are authorised ; this will include generally all ancient parish churches. It further authorised banns and marriages in a place not being a parish church, but a public chapel where banns have been usually published. So in the case of the Chapel Eoyal in the Tower of London, where a register of marriages was produced going back to and continuing from 1578, and a bann book beginning in 1754, in which year a bann book was first required by statute. Lord Ellenborough laid down that the evidence raised a jimwa facie presumption that banns were previously published ; and in the absence of evidence rebutting the presumption that the chapel was one in which banns might be solemnised,^ so any public chapel with a bann book going back to 1754 may be taken to be one in which banns and marriages are authorised. But this enactment only authorised banns and marriages in a public chapel existing at the date of the Act 1753 ; so where a person was married in Buerlyhill Chapel, "erected in 1765 and then duly consecrated, and in which divine service had been publicly and regularly celebrated ever since, and wherein banns of marriage had been often published and marriages celebrated previous to the 1 26 Geo. II, c. 33, ss. 1, 8 ; see ante, pp. 12 and seq. 2 Taunton v. Wyborn (1809), 2 Camp., 297. Sec. 3 (/■) REQUIREMENTS OF FORM— SOLEMNISATION 61 marriage in question," still the marriage was declared void.i In consequence of this decision various Acts were passed, the last of which validates all marriages previous to August 23, 1808, solemnised in any public conse- crated chapel ; - and a later Act validated such marriages down to 1830, and even although the consecration of such chapel might be doubtful ; ^ but none of these Acts authorised future marriage in such chapel. But another Act,* besides validating authorised future marriages in church or chapel erected since 26 Geo. II, c. 33 {i.e. 1753), and consecrated, in which it has been customary and usual previous to the passing of the Act (July 5, 1825) to solemnise marriages, and all marriages hereafter solemnised therein shall be now valid in law. To sum up, therefore, marriages may take place — \st. In all parish churches existing at or prior to 1753. 1ml. In all public chapels where banns were usually published in 1753, it being taken to be presumptive priind facie evidence of such usual publication that there exists a register of marriages solemnised in such chapel dating back prior to 1753, and a bann book commencing in 1754. Znl. In all consecrated churches or chapels erected since 1753, in which at and prior to July 5, 1825, it was customary and usual to solemnise marriages. It is pre- sumed that a continuous and regular register of marriages not by special licence would be evidence of such usual and customary solemnisation. 1 R. V. Sorthfidd (1781), 2 Douglas, 658. 2 21 Geo. Ill, 0. 53 ; 44 Geo. Ill, u. 77 ; 48 Geo. Ill, u. 127. ' The Marriage Confirmation Act, 1830, 11 Geo. IV, and 1 Will. IV, G. 18. * 6 Geo. IV, c, 92 ; and see R. v. Brmen (1846), 2 C. & K., 227. 62 VALIDITY OF MARRIAGE CnAp. ii As to licensing new churches for marriages, see ante, p. 43. As to marriages in cathedrals, sua post, App. 1. But marriage in a vestry is taken as being a marriage in a church. 1 As to when a church is under repair, see ante, p. 44. In practice, however, it frequently occurs that marriages are celebrated in churches or chapels not authorised therefor ; in consequence of which it has become a con- stitutional parliamentary usage to pass almost annually Acts to confirm and validate such marriages.^ A special licence may entitle the parties to marry in a church not authorised in that behalf, or unconsecrated, or in a private room ; but of late years the practice has always been to specify in the special licence that the marriage should be in a church, or at least in a consecrated chapel or building in which divine service is habitually said, or in a gentleman's private chapel ; 'see pp. 57, 58, n. And by way of penalty on the clergyman it is enacted,'^ "That if any person shall solemnise matrimony in any other than in a church or such public chapel wherein banns may be lawfully published . . . unless by special licence from the Archbishop of Canterbury . . . every person knowingly and wilfully so oiTending, and being lawfully convicted thereof, shall be deemed and adjudged guilty of felony, and shall be transported for the space of fourteen years, according to the laws in force for transportation of felons ; provided that all prosecutions for such felony shall be commenced within the space of three years after the offence is committed." 1 Wing V. Taylor (1861), 2 Sw. & Tr., 278. 2 See Index to Statutes, App. XI ; and .see a, general Act validating marriages down to 1851, 14 & 15 Vict., c. 97, s. 25. ' 4 Geo. IV, c. 76, o. 21 ; under similar section in 26 Geo. IV, c. 33, the minister of the Savoy was indicted ; see per Lord Mansfield, C. J., in R. V. Northfield (1781), 2 Douglas, 658 ; and see 54 & 55 Vict., u. 69, s. 1, aaipost, Chap. XV. Sec, 3 (/■) REQUIREMENTS OF FORM— SOLEMNISATION 63 It is also alleged, although with little exact authority, that marriages may he solemnised m ambassadors' chapels, i.e. the chapel of a foreign ambassador accredited to Her Majesty is in a consulate ; but this would appear doubtful if one, or, still more, if both the parties were not of the ambassador's country, particularly if they were both domiciled British subjects. i The validity of such marriage would depend entirely on the principles of international law, i.e. the extent to which the law of England, which recognises international law, would recognise such marriage as valid, because and if it conformed to the principles of international law. Such a marriage could not be valid according to the English Marriage Acts, except in the almost impossible case that the ambassador's chapel of the consulate, etc., was licensed for marriages by the bishop (see ante), or registered as a Nonconformist place of worship under the Marriage Act, 1836, see^jos^, s. 4 {d), p. 88. Except in such case banns could not be published, nor could a bishop's licence be granted for marriage there; and "no notice by civil process can be given of, no superintendent-registrar can issue a licence or certifi- cate for, and no registrar of marriages can attend, a marriage at the chapel of a foreign ambassador, or at a foreign consulate, in England, unless any such building should ever by any chance be registered in the ordinary way for marriage."^ Lastly, the marriage must take place, if after banns, in one of the places where such banns have been published, and in no other place ; ^ or if after licence, in the place 1 Pertreis v. Tondear (1790), 1 Hag. Con., 136 ; and Marriage Com- mission, 1868 [c. 4059], p. xxxviii. ; and see post, Chap. XVII, s. 6. 2 Kindly oommnnicated to the author from the GeneralRegister Office, Somerset House, July 13, 1892, hy B. Whitaker, chief clerk. ^4 Geo. IV, c. 76, s. 2; and if the parties are not "both of the parish," then "not without a certificate of the banns being thrice 64 VALIDITY OF MARRIAGE Chap, ii therein specified.^ But this provision is not enforced hy any statutable nullity ; and so where the church was under repair and the banns had been published in an adjoining parish, but the marriage was solemnised in the church under repair, it was held good; and the judge observed that if banns were published at York, and the parties came to London and married there (the whole proceeding being iond fide), he would not say that it would be void.- Time of Marriage. — It must be solemnised between the hours of eight o'clock in the forenoon and three in the afternoon,^ unless it is by special licence, see ante, p. 56 ; and a person wilfully solemnising marriage without such hours is guilty of felony, and punishable by fourteen years' penal servitude ;* but the Act does not expressly invalidate by a statutable nullity marriages celebrated outside these hours, and so according to the canon of con- struction above quoted (p. 35) they are (it seems) valid. As to the time of year, marriage, it appears, may be solemnised at any time. Still, according to the Romish Canon Law, at certain times of the year marriage cannot be celebrated without dispensations. ^ But it seems asked from the curate of the other parish ; " see the rubriok of the marriage service. See also ante^ p. 45. 1 See 4 Geo. IV, c. 76, s. 10 ; see ante, p. 66. •'Stalhoood v. Tredger (1815), 2 Phillim., 287; ancUsee Catterall v. Sweetman (1845), 1 Rob. Ec, 304 ; as to licensing another place while the church is under repair, see ante, p. 44. 3 49 & 50 Vict. c. 14, thus repealing 4 Geo. IV, c. 76, s. 21, and overruling Canons 62 and 102 of 1603. The object of this canon was that the parties .should not be drunk when going to be married ; see Synod Winton, 1308, Spelnian, 448, where, too, it is enjoined that they should be fasting. ^ 4 Geo. IV, c. 76, s. 21, and see the Penal Servitude Act, 1891, 54 & 55 Vict., c. 69, s. 1. ^ The rule was first laid down in the rescript of Clement III, " Capel- lauus," c. X. 2. 9. 4. But the exact period of prohibited times is somewhat undetined, and has been further altered by the Council of Trent ; see Sanchez, lib. 7, disp. 7. Sec. 3 (/) REQUIREMENTS OF FORM 65 vmcertain how far this prohibition ever obtained in England ; there is no constitution on it or notice thereon except a gloss in Lyndwood ; ^ this is cited in Gibson,^ who states that after the Eeformation the question arose as to marriage at prohibited times. But the Protestant Ayliffe^ observes that, admitting that banns are never published in Lent, yet by licence marriages are then solemnised, "hut as for the time of Advent, which was never observed in our Church as a fast, there is no foundation for such a prohibition with us " . . and "Easter and Whitsun weeks are usually times of mirth and jollity, therefore marriages at those times ought not to be forbidden, and they are not with iis." And the reason of this prohibition at fasting season is, that "even those who have wives ought at those times to be as those who have none, and therefore those who have none ought not then to change the condition." * As a matter of fact, since 1838 up till the end of April 1889, it has been invariable that most marriages have taken place in the last quarter of the year, October, November, December, and the fewest in the first quarter, January, February, March.s 1 Lib. i¥., tit. 3, p. 274, n. (i), specifying from the first Sunday in Advent till the octaves of Epiphany exclusive ; from Septuagesima Sunday till the first Sunday after Easter inclusive ; from the first day of Rogations to the seventh day after the Feast of Pentecost inclus- ive ; but other authorities give different seasons. 5 P. 430. ' Pp. 364, 365 ; and see Wheatly, Rational Illustration of the Book of Common Prayer, note to the form for solemnisation of marriage, p. 342, alleging that Lent is the only prohibited season, and then only for marriages by banns ; and see A. J. Stephen's notes to the Book of Common Prayer, vol. iii., notes at pp. 1554-56 ; and see verses on pro- hibited times mentioned in registers, Bum's Parish Registers, p. 158. * Wheatly on Common Prayer, sec. 1 ; and see Sanchez, bk. ix., disp. 12, 15 ; and se&post, Chap. IV, s. 1 (S), p. 170. 5 Registrar-General's Report for 1889, p. xxix., table 4. 66 VALIDITY OF MARRIAGE Chap, ii It must be solemnised according to the statute in the presence of two or more credible witnesses besides the minister who shall celebrate the same ; i but the presence of only one witness will not make the marriage void.^ Service. — The marriage must be solemnised, both at Common Law 2, and by statute/ by a clergyman in orders, who must not be the bridegroom.^ As to marriages by sham clergymen, it is the law that if a person not in orders has been inducted as rector or vicar into a benefice, allmarriages solemnised by him as parson de facto are good, notwithstanding that he may be subsequently deprived quia mere laicusfi And, further, as to marriages by a person ostensibly in orders, and acting as a curate or locum ienens, or if beneficed outside his parish, it appears to be the more accepted and correcter opinion that such marriage would be valid unless the parties knew or suspected that the seeming minister was an impostor J Any person, falsely pretending to be in holy orders, who shall solemnise marriage according to the rites of the Church of England, knowingly and wilfully so offending, shall be guilty of felony, and shall receive fourteen years' penal servitude, the prosecution to be commenced in three years after the oilence.^ 1 4 Geo. IV, c. 76, s. 28 ; the same was also prescribed by the canon, see post, pp. 68, 75. 2 Wing V. Taylor (1861), 2 Sw. & Tr., 278. 3 iJ. V. mUis (1844), 10 Gl. & F., 534. 4 4 Geo. IV, c. 76, ss. 21, 22. » Beamish v. B. (1861), 9 H. L. C, 274. ^ Costard y. IFradcr (1590), Cro. Bliz., 775. ' The authority of this is Lord Stowell's dicta in Hawke v. Corri (1820), 2 Hag. Con., 280, p. 288. * 4 Geo. IV, u. 76, o. 21 ; 54 & 55 Vict., c. 69 ; and see post, Chap. XV ; and see the prosecution of G. F. W. Ellis, who, by means of forged letters of ordination, became inducted, in 1883, Eector of Wetheruigsett with Brockford, Stonham, Suffolk, and after, in the course of three or four Sec. 3 (/) REQUIREJIEXTS OF FORM 67 A deacon can solemnise matrimony, i At the solemn- isation the Act declares that all the rules prescribed by the rubrick concerning the solemnisation of marriage and not thereby altered should be duly observed.^ It thus becomes material to see what is the rubrick, and the Canons of the Church of England, and the words of the service in the Book of Common Prayer and prescribed by statutes, canon and rubrick to be followed, and what part of it is essential.' Canon 62 orders that marriage shall be "in the time of divine service,"* but there is no regulation as to at what time of service it should be celebrated ; but Bishop Wren — and this is the most correct view — lays down that it should be after morning service. The rubrick directs that " at the day and time appointed for solemnisation of matrimony, the persons to be married shall come into the body ^ of the church with their friends years' incumbency, celebrating several marriages, was convicted therefor ; R. 7. Ellis (1888), 16 Cox's C. C, 469, and see 51 & 52 Vict., c. 28. 1 Watson, chap, xiv., p. 146 ; and see the reasons given by Lord Lyndhurst, L. C, in R. v. MilUs (1844), 10 CI. & F., 534, pp. 859, 860. 2 4 Geo. IV, 0. 76, s. 2 ; and see 6 & 7 Will. IV, c. 85, s. 1. ' See the origin of the marriage service and rubrick considered and explained by Willes, J. , delivering opinions of the judges to the House of Lords in Beamish v. B. (1861), 9 H. L. C, 274; p. 325 and seq., where it is stated the two oldest forms of service are the uses of Sarum and Yorls, agreeing in substance but difiering in detail, which are to be found in Selden's Uxon Ebraica and Palmer's Origines Liturgicae. * However, this is now almost universally disregarded ; see Wheatly on Common Prayer, sec. 2 ; Hammick on Marriage, pp. 99, 213. 5 I.e., the nave ; later in the service they go into the choir, see^os^, p. 74 ; in ancient times a great part of the service was performed at the church door. Originally marriages were at the church door, and there the bride was endowed with dos ad ostium eccUsioe ; but the rubrick was altered at the time of the Reformation ; see Wheatly's notes to the Book of Common Prayer, Form of Solemnisation of Marriage, sec. 2, p. 344 ; and see post, p. 70, n. 2. 68 VALIDITY OF MARRIAGE Chap, ii and neighbours; ^ and there standing together, the man on the right hand,^ and the women on the left, the priest shall say," — and here follows the preface explaining the object and duties of marriage ; and then comes the charge, first to the congregation and then in more solemn words to the persons to be married, to disclose impediments.^ The rubrick then prescribes that if an impediment is alleged, the person making it must give security to prove his allega- tions, but meanwhile the ceremony must be deferred. In default of any impediment being alleged, there then follows the "espousal;"* the minister asking each party in turn, first the husband and then the wife, " Will thou have this man (or woman) to be thy wedded husband (or wife), to live together after God's ordinance in the holy estate of matrimony ? " and then expounding the respective duties of husband and wife, so that each party may mutually consent ; for without consent there is no marriage, and the enumeration of the duties is to tell each to what they respectively consent. The respective duties of husband and wife so explained are, that he should "love her, comfort her.'' She should " obey him, serve him, love him ; " their mutual duties are, "honour and keep her (or him) in sickness or in health; 1 This is probatly a survival of the bridemen or paranyraphs in use among tlie .Jews; see "Wheatly on the Book of Common Prayer, Marriage, sec. 2, s. 3, p. 344. A. J. Stephens on Common Prayer, notes, pp. 1, 556. Now by 4 Geo. IV, c. 76, s. 28, two credible witnesses must be present, see post, p. 75. 2 I.e., of the woman. The positions are thus, because the right is the more honourable place, and which iu all Christian Churches is assigned to the man as being the head of the wife. 3 As to what are the impediments, see ante, p. 23 and seq. ■^ These declarations of consent are the remains of the old form of espousal, i.e., a present consent to a future marriage, and so is couched in the future tense, as opposed to the plighting of the troth in the present tense, "I do talte;" see Wheatly on the Common Prayer, Marriage, sec. 4. Sec. 3 (/) REQUIREMENTS OF FORM 69 and forsaking all other, keep thee only to her (or him), so long as ye both shall live." Each party having respectfully signified their consent by saying 1 "I will," the minister asks, "Who giveth this woman to be married to this man 1 " ^ After this the parties plight their troth, the rubrick saying, "Then shall they give their troth to each other in this manner. The minister, receiving at her father's or friend's hands, shall cause the man with his right hand to take the woman by her right hand, and to say ^ after him as foUoweth." The words ^ of the stipulation which the man then repeats after the minister run in the Prayer Book : "I M. take* thee N. to my wedded wife, to have and to hold from this day forward, for better for worse, ^ for richer for poorer, in sickness and in health, to love and to cherish, till death us do part, according to God's holy ordinance ;•> and thereto I plight thee my troth." 1 " It lias never been held that the actual repetition of the words of the marriage .service is necessary. I have certainly known cases of complete marriages, where perhaps it was improper that the marriage should be celebrated, in which the parties, being of the poorer classes, have wilfully abstained from making the responses, especially that of obedience on the part of the woman," per Wood, V. C, Harrod v. H. (1854), 1 K. & J. 4. - " The want of a person to give away the bride is not visited by the rubrick or by the general law with any consequences," per Willes, J., delivering opinion of all the judges to the House of Lords, Beamish v. B. (1866), 9 H. L. C, 274, pp. 330, 331. The person to give away the bride should be the parent, or in default, a guardian or near relation. But Lord Hardwicke, L. C, committed for contempt a person who "gave away" a ward of Court ; More v. M. (1741), 2 Atk., 157. 3 These words were always, even in p)re-Reformation times, said in English. For form of words in a marriage by proxy, see App. 4, and see ante, p. 22. * These are verba de prceseiiti. 5 The York Manual, used in the northern province previous to the Reformation, here inserted, "for fairer, for fouler." 6 The office of Sarum used in the south province had in lieu of the 70 VALIDITY OF MARRIAGE Chap, ii The rubriok then proceeds — "Then shall they loose their hands; and the woman, with her right hand taking the man by his right hand, shall likewise say after the minister ; " and the Prayer Book words are : "IN. take thee M. to he my wedded husband, to have and to hold from this day forward, for better for worse, for richer for poorer, in sickness and in health, to love, cherish, and to obey,! ^]]i fieath us do part, according to God's holy ordinance ; and thereto I give thee my troth." When these words have been said by the wife the marriage is knit between husband and wife ; " the subsequent giving of the ring, and joining of hands, and publication of the fact of marriage by the minister, are in their nature, and are stated to be, symbolical and declaratory of a marriage which has already taken place by the consent of the parties. The blessing is as of persons who have already consented together in wedlock ; and anciently, as well in English as abroad, the nuptial benediction was given only at a first marriage. The rest of the service consists of thanksgiving, exhortation, and prayer. But it is neither wise nor right to leave out any part of the service. Still the omission of the giving of the ring and the sub- sequent part of the ceremony may ... be considered for civil purposes non-essential." ^ words, "according to God's holy ordinance," the words, "if lioly Cliurch will it permit." 1 Instead of the words ' ' to love, cherish, and to obey, " the office of Sarum ran, " to be tonair and buxom in bedde and at borde." 2 Per Willes, J., delivering the answer of all the judges to the House of Lords, Beamish v. B. (1861), 9 H. L. C, 274, at pp. 329-331. " Anciently up to this point the marriages were celebrated at the door of the churcli ad ostium ecclesiaj. The parties then entered the church, and after the thanksgiving and prayer the Eucharist was celebrated, and the solemn benediction given ; " and see ante, p. 67, u. 5. Sec. 8 (/) REQUIREMENTS OF FORM 71 The rubriok continues : "Then shall they again loose their hands ; and the man shall give unto the woman a ring/ laying the same upon the book with the accustomed duty to the priest^ and clerk. And the priest, taking 1 The omission of the giving of the ring may he considered for civil purposes non-essential, per Willes, J., delivering opinions of jndges, 1 Beamish v. B. (1861), 9 H. L. C, 274, p. 329 ; and see Weld V. Chamberlaine (1684), 2 Shower (300), 307. The giving of the ring "was in reality part of the ceremony of espousals (p. 68) as opposed to marriage; and the former rubrick ran, "and other tokens of spousage as gold and silver. " But the use of the ring in marriage is very ancient, obtaining in pre-Christian times among Romans and Jews. In the order of Sarum there was formal benediction of the ring by two solemn prayers, after which it was sprinkled with holy water. At the Reformation the Puritan ministers objected to the enjoining of the use of the ring as tending to superstition ; but the bishops declared that it was only of human institution always given as a token and a pledge of fidelity and constant love, see the subsequent prayer ; and the reasons mentioned by the Roman ritualists are not given in the Common Prayer Book. The metal of the ring is immaterial ; see generally as to the ring, Swinburne on Spousals, sec. 15, and see Hudibras thereon ; and see History, etc., of Wedding Ring, by Maskell ; and see Hooker's Ecclesiastical Polity, bk. 5, sec. 73. 2 As to marriage fees, a canon of Archbishop Laytou, given in Lyndwood, p. 278, declares, "We do firmly enjoin that no sacrament of the Church shall be denied (or delayed) to any one upon account of any sum of money, nor shall matrimony be hindered therefor ; because if anything hath been accustomed to be given by the pious devotion of the faithful, we will that justice be done thereupon to the churches by the ordinary of the place afterward." It appears, therefore, to be the law of the Church that notwithstanding the husband omits or refuses to pay the due, still the minister must proceed with the service, and for recovering the dues have recourse to a subsequent legal proceeding, which, if for a sum under £10, must be before two justices, see 4 & 5 Vict., c. 36, and Acts there referred to ; and if above £10, in the Ecclesiastical Court. But marriage fees are not due of common right ; but by immemorial custom in a parish a reasonable fee may be due there. In three cases, as in parish of Blinton, Derby, Thompson v. Davenport (1701) ; Lutwyche, 1059, Birmingham (1740, circa), 1 Lee, 387, 398 ; South Pethertou, Somerset, Patten v. C'astleirum (1753), 1 Lee, 387, the parson sued in the Ecclesiastical Court for marriage fees, relying on a custom that a female inhabitant marrying by licence out of the parish should pay by 72 VALIDITY OF MARRIAGE Cdap. ii the ring, shall deliver it unto the man, to put it upon the fourth finger of the woman's left hand.^ And the man holding the ring there, and taught by the priest, shall say." The Prayer Book words to be then said by the man run : "With this ring I thee wed,^ with my body I thee worship,^ and with all my worldly goods I thee endow : In the name of the Father, and of the Son, and of the Holy Ghost.* Amen." their husband at the marriage, or soou after, five shillings ; but in the two former cases the Court of Common Pleas gave a prohibition, on the ground the custom was unreasonable ; and in the third case Sir George Lee, the ecclesiastical judge, in a suit brought for a fee on a like custom, declared the custom unreasonable both by Ecclesiastical and Common Law, as no fee could be due where no service was done. In a recent case a custom was set up in the parish of Horton, Bucks, to pay thirteen shillings for every marriage by banns in the parish church ; but the Exchequer Chamber held the fee too large, and, therefore, the custom bad, Bryant v. Foot (1868), L. E., 3 Q. B., 497. The right to receive such marriage fees (if due) is saved by 6 & 7 Will. IV, u. 86, s. 49 ; and when parishes are divided, provision is made for apportionment and distribution of fees. But this will not create a right if not previously existing, or validate an unreasonable and there- fore illegal custom, see post, p. 77. The actual laying on the book is nearly obsolete. Hooker spealcs of this custom as "in a manner already worn out," Ecclesiastical Polity, bk. 5, sec. 73. 1 The rubrick in the usage of Sarum explained that the reason of the ring being put on the fourth finger of the left hand was that a particular vein proceeds thence to the heart. This, though once believed, is now contradicted. " In the first Prayer Book of Ed. VI .there here were inserted, "This gold and silver I thee give," at the repetition of which words it was customary to give the woman a purse of money ; see Cardwell's two liturgies ; Wheatly on Common Prayer Book, Matrimony, sec. 5 ; and see 2 Bl. Com., 134. 3 The use of this word was objected to by the Puritan ministers ; but it was explained by James I that it only signified honour, and at the restoration of Charles II it was promised to be altered thereto. And so this signified that the wife was not a concubine, but shared her husband's rank ; see Hoolier, Ecclesiastical Polity. ■* These words were objected to by the Puritan ministers as seeming to favour those who count matrimony a sacrament, which Skc. 3 (/) REQUIREMENTS OF FORM 73 The rubrick continues: "Then the man leaving the ring upon the fourth finger of the woman's left hand, the minister shall say," — and here follows the prayer for a blessing, not on the ring, as in the Komish Church, but on the parties. After which the rubrick directs : " Then shall the priest join their right hands together, and say,'' in the words of the Prayer Book, the ratification, " Those whom God hath joined together let no man put asunder ; '' and the rubrick enjoins, " Then shall the minister speak unto the people," the publication and proclamation running in the Prayer Book — "Forasmuch as M. and N. have consented together in holy wedlock, and have witnessed the same before God and this company, and thereto have given and pledged their troth either to other, and have declared the same by giving and receiving of a ring, and by joining of hands ; I pronounce that they be man and wife together in the name of the Father, and of the Son, and of the Holy Ghost.i Amen." Then follows the blessing, which is a very ancient form, appearing in the Sarum and York manuals.^ After signification the bishop disclaimed ; justifying these as solemn words of ratification, as in mils and other solemn and weighty Acts, documents, or oaths. See Wheatly and Stephens on the Common Prayer, Matrimony. 1 This rubrick, and the ratification and publication, is very ancient, and perhaps peculiar to the Church of England. " It is observable that the authors of this form appear to have carefully avoided the style, ego vos conjimgo, adopted at the Council of Trent," per Willes, J., delivering the opinion of the judges to the House of Lords in Beamish v. B. (1861), 9 H. L. C, 274, p. 329, citing Palmer's Origines Liturgicae. In fact the words of the priest, "I join you in marriage," are of quite recent origin ; see Addis and Arnold's Catholic Dictionary, Marriage. In the first Prayer Book of Edward VI, in lieu of the words, " of a ring," there stood " gold and silver." 2 Palmer's Origines Liturgicie ; in the Romish Church the blessing was not to be said over a second or reiterated marriage ; see 74 VALIDITY OF MARRIAGE Chap. II this the rubrick directs, "Then the minister or clerks, going to the Lord's Table, shall say or sing this psalm following." Then follow two alternate psalms, and the' rubrick continues : " The psalm ended, and the man and the woman kneeling before the Lord's Table, the priest standing at the table, and turning his face towards them, shall say.''^ Then follow certain prayers and a blessing. Then the rubrick directs : " After which, if there be no sermon declaring the duties of husband and wife, the minister shall read as followeth," ^ — and the Prayer Book address explains the duties of married life. This finished, the concluding rubrick runs ; "It is convenient that the new-married persons should receive Holy Communion at the time of their marriage, or at the first opportunity after their marriage." ^ Further, in the usage of York, Corpus Juri Canonioi, C, lib. iv., tit. 21, de secundis nuptiis, " Capellanum " and " Vir autem.'' The present rubrick of tbe Romisli Cliurcli permits the nuptial benediction, except when the woman has been married before. 1 In the first Prayer Book of Edward VI, the first rubrick ran : "Then they shall go into the choir, and the ministers and clerks shall say," etc. The Puritan ministers objected to the change of position mentioned in the two rubricks ; to which the bishop answered, "They go to the Lord's Table because the communion is to follow." The rubrick enjoining Communion is now altered {see infra^ n. 3), but the advance to the rails is still maintained. " The rubrick of the first Prayer Book of Edward VI ran: "Then shall be said after the Gospel a sermon, wherein ordinarily (so often as there is any marriage) the ofBce of man and wife shall be declared according to Holy Scripture. Or, if there be no sermon, the ndnister," etc. The Prayer Book of 1552 ran : " Then shall begin the communion, and after the Gospel shall be said a sermon," etc. The intent of both these forms of the rubrick were alike to enjoin the Communion service, the obligation in which respect is now abolished. When the Communion is said with the marriage service, it begins here after the blessing and before the exhortation. * The former rubrick in both the Prayer Books of Edward VI ran : ' ' The new-married persons (the same day of their marriage) must receive the Holy Communion;" but the former rubrick was altered, Sec. 3 (/) REQUIREMENTS OF FORM 75 tile rubrick ran, that after the mass the man shall receive the pax from the priest, and then the husband shall kiss the wife ; and no one else shall kiss her, or she any one else ; but this rubrick was omitted at the Eeformation. And in both the usages of York and Sarum there was an office for the priest coming that night into the marriage chamber to bless it and the bed, and sprinkle holy water. i But the usage still exists to sing the marriage Psalm cxxviii. on the first Sunday of the couple's appearance ~in church.^ The marriage must be celebrated in the presence of two or more credible witnesses.^ ((/) Registration * The marriage, after the service, must be registered and the positive requiremeut to receire Communion the same day- abolished to oblige the Puritans, who alleged, firstly, that it compelled persons to come to the Lord's Table though they felt themselves unprepared, or else to forbear marriage ; and, secondly, that marriage festivals were accompanied with divertisements unsuitable to the Christian duties that should precede and follow the receiving that holy sacrament. Further, in pre-Reformation times it was laid down that the new-married couple should abstain from each other two or three days in honour of the benediction ; yet the non-observance of this precept is not olficially declared a sin ; Johnson's Eccle.=;. Law, a.d. 1343, sec. 11, n. (g) ; Lyndwood, note, 278] (g), on Archbishop Strafford's Constitution, based on "Aliter legitimum," " Nostrates," and "Sponsus et Sponsa," c. 1, 3, 6, C. xxx. q. 5. In the Church of England the observ- ance of this rule is obsolete, and rightly, for marriage is not a sacrament, see Article XXV; if, however, as is now sometimes done, the Communion is actually administered with or on the day of marriage, the reason of the prohibition will still apply ; and see post, Chap. IV, s. 1 (6), p. 170, n. 4. 1 See A. J. Stephen's Book of Common Prayer, vol. iii., pp. 1622, 1623, where the form of the office is given. The usages of York and Sarum may be consulted in Selden's Uxor Bbraica. The marriage bed of Prince Arthur and Catharine of Arragon was blessed ; see 1 St. Tr. , 326. 2 Burn's Parish Registers, p. 158, n. (2). ^ 4 Geo. IV, c. 76, s. 28 ; but this is merely directory, and a marriage in the presence of one witness is valid ; Wing v. Taylor (1861), 2 Sw. & Tr., 278. The presence of witnesses is also a canonical and rubrickal requirement, see ante, p. 68. * And see post, Chap. Ill, s. 3. 76 VALIDITY OF MARRIAGE Chap, ii according to the Births and Deaths Eegistration Act, 1836, which provides that the Eegistrar-General shall furnish to every rector, etc., of every church in England marriage register books and forms for certified copies ; ^ and — "That every clergyman, immediately after every office of marriage solemnised by him, shall register in dnplicate, in two of the marriage register books, the several particulars relating to that marriage according to the form of the said schedule (c),2 . . . and every such entry . . . shall be signed by the clergyman . and by the parties married . . . and by two witnesses ;"3 and "it shall be lawful for every clergyman of the Church of England who shall solemnise any marriage in England . . . to ask of the parties married the several particulars herein required to be registered touching such marriage;"* and "that every person who shall wilfully make or cause to be made, for the purpose of being inserted in any register of . . . marriage, any false statement touching any of the particulars herein required to be known and registered, shall be subject to the same pains and penalties as if he were guilty of perjury."^ If the clergyman refuses, or without reasonable cause omits to register, he is liable to a penalty of £50.® Eegistration is not necessary to the validity of a marriage ; and a marriage may be proved aliunde than from registers, as by proof of actual ceremony by a person present^ Fees. — If a person wishes to search the parish register for a marriage, the fee payable to the clergyman is Is. to cover a search over the entries for one year, and 6d. for every subsequent year. For a certified copy of an entry 1 6 & 7 Will. IV, c. 86, s. 30. 2 As to stating the age, see post, p. 81. ' S. 31 ; yet, if only signed by one witness, it is admissible as evidence ; Doe on the demise of Blayney v. Savage (1844), 1 C. & K., 487. •• S. 40 ; as to stating the age, see post, p. 81. = S. 41; and see R. v. Brovm (1848), 2 C. & K., 504. The prosecution is to be commenced within three years after the offence ; R. V. Lord Duriboyne (1850), 3 C. & K., 1. 6 S. 42. 7 R. V Allison (1806), R. & R., 109 ; and senpost. Chap. Ill, s. 3 (a) (c). Seo. 3 (g) REQUIREMENTS OF FORM 77 in th.6 register, a fee of 2s. 6d. is payable.^ For searching the duplicate register (which is legal evidence) at Somerset House, the fee is Is. for a five years', and £1 for a general search, 2s. 6d. for a certified copy.^ (h) Fees As to fees payable to a clergyman for publishing banns and solemnising marriage, " Of common right no fee is due to the minister for performing such branches of his duty, and it can only be supported by a special custom." ^ Still, in nearly every parish, in case of banns, "fees of inconsiderable amount (as compared with the payments required for licences), though varying in different places, and often of doubtful legality, are by custom payable." * But such fee must be of a reasonable amount ; and it has been decided by the Exchequer Chamber that a fee of 13s., 10s. to the minister and 3s. to the clerk, for banns and marriage was unreasonably high and "rank," and therefore illegal. 5 It should be understood, however, that this deci- sion as to the legal fee only applies to the bare perform- ance of the ceremony ; and if the parties wish to be married with a full choral service and in a church decorated with flowers and red baize, etc., they must pay accordingly. In case of a marriage licence, fees of varying amount in different diocese are payable to the bishop or his surrogates.'' In the province of Canterbiiry, the fee for the Archbishop's common licence is £2, 2s. 6d. (see ante, p. 46 and seq.), inclu- sive of a 10s. dutyunder the Stamp Act, 1 891. For a special licence (see ante, p. 56), a £5 duty is payable thereunder. 1 6 & 7 WUl. IV, c. 86, s. 35. 2 lb., s. 31-34, 36-38. 2 3 Bl. Com., 90; and see the Proviueial Constitution, Lyndwood, 278, and Phillimore'a Ecclesiastical Law, p. 814. * Marriage Laws Commission, 1868 [4059], p. vi. ^ Bryant V. Foot (1868), L. R., 3 Q. B., 497 ; ani see ante, p. 71, u. 2. ^ Marriage Laws Commission, 1868 [4059J, p. vii. 78 VALIDITY OF MARRIAGE Chap, ll Sec. 4. — Ebquibbments for Nonconpobmists' jSIarriages (a) Generally Prior to 1836, Nonconformists, in order to be validly married, had to fulfil the rites of the Church of England ; and if after marriage in a conventicle the parties assumed to cohabit, their marriage was at Common Law invalid ; ^ and after 1753, by Lord Hardwicke's Act, 26 Geo. II, c. 33, s. 8, such marriages were expressly declared null and void. But there are three exceptions to the Common Law and Statutory rule which each stand on different grounds, — marriages by Roman Catholic priests, and Jewish and Quaker marriages, — and must be separately considered. It appears that at Common I^aw a marriage by a Roman Catholic priest was valid, ^ but not after Lord Hardwicke's Act, 26 Geo. II, c. 33 ; at the present day they are treated like other Nonconformists, with a small exception stated jsosf, p. 89, n. 1. As to marriages according to the Greek Church, it appears from 1836 to 1857 there was a belief that marriages according to the rites and ceremonies of the Greek Church constituted a compliance with the laws of England ; and under this belief many marriages within such period were solemnised in the church, or in private houses of members of the Church, in accordance 1 R. V. MilUs (1844), 10 CI. &F., 534. There are very few records of Nonconformist marriages previous to 1753. See Report of Com- mission, in New Parocliial Registers in 1838, pp. 10, 11. 2 ii. V. Millis (1844), uM sup., jjer Lord Lyndhurst, L. C, pp. 861, 867 ; R. V. Bi-oiiipton (1808), 10 East, 282, p. 289 ; R. v. Feilding (1705), 14 State Trials, 1327 ; but e Alison's Trusts (1874), 31 L. T., 638. Tlie Roman Catholics decline to deposit their registers, see Com- mission of 18-37-1867 • Sko. 4 (a) NONCONFORMISTS' MARRIAGES 79 with the rites and ceremonies of that Church ; but a special Act (the Greek Marriage Act, 1884) was passed to enable the parties or their issue to apply to the Court, which was hereby empowered under certain circumstances and conditions to declare the marriage valid. i As to Quakers and Jews, see jjost, p. 97. But apart from these excep- tions of Papists, Jews, and Quakers, the marriages of Nonconformists in general, according to their own rites, was first provided for by the Marriage Act, 1836,^ and marriage under this Act and the amending Acts is as good and cognisable in like manner as previous marriages according to the rites of the Church of England. ^ The general scheme of the Legislation is to require a notice to the registrar, after which either a certificate or a licence is given to the parties ; and then the marriages can take place according to their own rites in a regis- tered place of worship in the presence of the registrar, or at the registry office, without any religious service, in the presence of the superintendent-registrar, using a certain form of words. A statutory nullity is created by enacting — " That if any persons shall knowingly and wilfully intermarry, . . . under the provisions of this Act, in any other place than the church, 1 47 & 48 Vict., c. 20 ; and see Scarariianrja v. The Attiyrney-General (1889), 14 P. D., 83, rule 213 ; and see Dixon on Divorce, 1st ed., pp. 199-201. = 6 & 7 Will. IV, 0. 85, the short title was given by 55 Vict., c. 10. The Marriage Act, 1836, was subsequently amended by the Births and Deaths Registration Act, 1837, 7 Will. IV, and 1 Vict., c. 22 ; the Marriage Act, 1840, 3 & 4 Vict., o. 72 ; the Marriage and Registration Act, 1856, 19 & 20 Vict., c. 119 ; the Marriage Society of Friends Acts, 1860 and 1862, 23 Vict., c. 18, 35 Vict., c. 10 ; the Marriage Act, 1886, 49 Vict., c. 14. Under these Acts in 1889, 64,509 Nonconformist, out of a total number of 213,866, marriages were solemnised, i.e. at the rate of 302 per 1000 ; see the Eegistrar-General's Report for 1889, pp. vi., xxx., xxxi. , table 6. 3 19 & 20 Vict, c. 119, s. 23. 80 VALIDITY OF MARRIAGE Chat. II chapel, or registBi-ed building, or ofBce, or other place speciiied in the notice or certificate as aforesaid, or without due notice to the superin- tendent-registrar, or without certiiicate of notice duly issued, or without licence in case a licence is necessary under this Act, or in absence of a registrar or superintendent-registrar where the presence of a registrar shall be necessary under this Act, the marriage of such persons, except in any case hereinafter excepted, shall be null and void." ^ As to the canon of the interpretation of Marriage Acts, and the distinction between statutable nullities and provisions merely prohibitory and directory, and as to the presumption of omnia rite esse acta, see ante, p. 35, and post. Chap. Ill, s. 4 (a) (c). All prosecutions under the Act are to be commenced within three years after the offence.^ This legislation only applies to England, and not to the marriage of any of the Eoyal Family.^ (b) Notice of Marriage to the Registrar The notice of marriage must be given * by one of the parties, under his or her hand, in a certain form.* This form must contain the full Christian names and surnames, their condition, as bachelor, widower, spinster, widow, or unmarried (which is the proper description of a divorced woman, see Chap. XIII), rank, age last birthday, dwelling place ; time of residence being not less than seven days, or if more than a month it may be so stated ; name of church or building in which the marriage is to be solemn- ised.^ 1 6 & 7 Will. IV, c. 85, s. 42. " ij., d. 41. 3 lb., a. 45 ; as to the Eoyal Family, see post, s. 6; and see 19 & 20 Vict., u. 119, ». 25. •* Either personally or by post ; see Hammick on Marriage. " 19 & 20 Vict., c. 119, s. 3, and Schedule A, where the form is given. 8 6 & 7 Will. IV, c. 85, s. 4 ; as to age, none of the sections of 6 & 7 Wm. IV, u. 85, 6 & 7 Will. IV, u. 86, or 19 & 20 Vict., c 119, expressly require the exact ages of the parties to be stated ; although it must be Sec. 4 ») NONCONFORMISTS' MARRIAGES 81 As to marriage of minors, the like consent is required to a marriage by registrar's licence or certificate as was previously required for a churcli marriage ;i as to forbidding a marriage, see post, p. 84 ; and as to false declaration and notice, see infra, and pp. 82, 83 ; and as to forfeiture thereby incurred, see post, p. 83. After the marriage it is expressly enacted that it shall not be necessary to give evidence of consent of parent or guardian, nor shall such evidence be received in any suit touching the validity.^ As to proportionate number of marriages by minors, see ante, p. 29. The knowingly and wilfully signing a false notice for the purpose of procuring a marriage is perjury.' Further, at the time of giving notice, the party giving stated whether or not the parties are adults or miuors. In the form of the notice of marriage to and tlie certificate for marriage by n superintendent-registrar, given in Schedule A and B to 19 & 20 Vict. , c. 119, under the age column, the exact age of the parties, as, e.g., 25 and 19 is given. In the form for registration of a marriage in church, given in Schedule C to 6 & 7 Will. IV, c. 86, under the column for age, the exact age is not given, but it is filled up, " of full age" and '■minor." On this point, therefore, it is doubtful whether persons marrying can be compelled to give their exact ages for insertion in the notice on the register book ; but the matter is of so much importance for statistical purposes that every effort is made both by the clergy and registrars to learn and record exact ages, and only in a very small percentage of cases is the attempt to secure them unsuccessful. As to statistics of age, see ante, p. 29. The residence required is previous to giving notice, not subsequent, during the period of publication, see p. 86, n. 1. 1 6 & 7 Will. IV, u. 85, s. 10 ; and see ante, p. 51, as to whose con- sent was necessary. It is believed that in case of minor's marriages it is the practice of the superintendent-registrars to require some further evidence of the parents' consent than the oath of the party. 2 19 & 20 Vict., c. 119, s. 17. ' 19 & 20 Vict., c- 119, ss. 2, 18. By 6 & 7 Will. IV, c. 85, s. 41, the proseoution must be commenced within three years. But as a man may change his surname and adopt a new one by use and reputation, the giving such new name is not an offence if the new name have been so acquired, R. v. Smith (1865), i Foster & Mnlason, 1099. 82 VALIDITY OF MARRIAGE Chap. II the notice shall sign a solemn declaration in writing that there is no impediment of kindred ; that they have resided for seven days, or if the marriage is to be by licence, for fifteen days, within the superintendent- registrar's district ; and when either of the parties, not being a widow or widower, is under twenty-one, that the consent required by law for such marriage has been given. And every such declaration is to be signed by the party making it, and attested by the registrar ; and the knowingly making a false declaration is perjury.i A statutable nullity declared by its being enacted "that if any person shall knowingly and wilfully intermarry without due notice to the superintendent-registrar, the marriage shall be null and void." ^ But a notice to a registrar is not analogous to a marriage by banns, there- fore a marriage solemnised after a notice to a registrar in which the particulars were wilfully misstated will not be declared void on the ground that the parties "know- ingly and wilfully intermarried without due notice."' So where a minor, aged fifteen, residing, as well as the other party, at Kidlington, gave notice to the Oxford superintendent - registrar, who was not the registrar of the district, stating his age as fifteen, his residence as Oxford, and misstating the Christian names, marriage was declared good.' But after marriage it is not necessary to give proof of residence within the district, or of consent of persons whose consent was necessary ; nor shall such evidence be received in a suit touching the validity of 1 19 & 20 Vict., c. 119, ss. 2, 18, and Schedule A, re-enacting s. 38 of 6 & 7 Will. IV, c. 85. 2 6 & 7 Will. IV, c. 8.5, s. 42. 3 Holmes v. Simmons (1868), L. R. 1, P. & M. 523 ; Browse v. Sjnir- way (1877), 46 L. J., P. & JI. 49 ; and .see R. v. Rea (1872), L. R. 1, C. C. R., 365. Sec. 4 ft) XONCONFORMISTS' MARRIAGES 83 such marriage.i Further, on proof of actual marriage it will be presumed that due notice was given. ^ But if a marriage is had by a false declaration, the party so offending forfeits all interest in property accruing to him under the marriage on suit by the Attorney-General, as under Geo. IV, c. 76. ^ The notice must be given by one of the parties to the superintendent-registrar of the district in which they dwell, or if they dwell in different districts (unless the marriage is to be by licence, as to which see pod, p. 87) to the superintendent- registrars of each's respective district ; * and if one of the parties lives in Ireland, he can, if intending to be married in England without a licence, give notice to the registrar of his district in Ireland ; if resident in Scstland, and intending to be married in England without a licence, he may obtain a certificate of proclamation of banns from the session-clerk ; and such production of Irish registrar's certificate or Scotch certificate of proclamation of banns is equal to the production of the certificate of a super- intendent-registrar in England.^ But if such Scotch or 1 19 & 20 Vict., ^;. 119, .s. 17. = R. v. Ilmoes (1847), 1 Den., 270. n9 & 20 Vict., c. 119, s. 19, re-eimotiug 6 & 7 Will. IV, u. 85, s. 43 ; and see 7 Will. IV, and 1 Vict. , c. 22, s. 1 ; and see ante, p. 54. •• 6 & 7 Will. IV, u. 85, s. 4 ; the district of the superintendent- registrar is usually coextensive with the Union, and such district is usually divided into registrar's sub-districts ; but the Registrar- General has power to alter the districts and sub-districts ; for the pro- visions of the law in this respect, and on appointment of registrars and superintendent-registers, see 6 & 7 Will. IV, cc. 85, 86, 7 Will. IV, and 1 Vict., o. 22, 19 & 20 Vict., c. 119, all well detailed in Hammick on Marriage ; for actual districts and sub-districts, and the orders thereon, consult Index to London Gazette, 1830-1883, tit. Registrar- General ; and the Registrar-General's Annual Report, which is published as a Parliamentary paper, where particulars are given by a list of districts, and of the annual changes, see p. 91, u. 4. ^ 19 & 20 Vict., c. 119, ss. 7 and 8. As to notices in Ireland and Scotland to the registrar or session-clerk, see post. Chaps. XVIII and XIX. If the marriage is by licence, residence by one party is sufficient ; see^osi, p. 87. 84 VALIDITY OF JIARRIAGE Chap, ii Irish resident wishes to be niarried by licence in England, he must be described as of an English dwelling-place, see p. 87. This notice of particulars is to be entered by the superintendent-registrar in a marriage notice book, and for such entry he is entitled to a fee of one shilling ; and such marriage notice book is open at all reasonable times, without fee, to persons desirous of inspecting the same.^ The notice of marriage, besides being inserted in the marriage notice book, must, unless the marriage be by licence (as to which, see post, p. 87), also be suspended or affixed in some conspicuous place in the office of the superintendent-registrar for twenty-one days after the entry of the notice, before any marriage shall be solemnised in pursuance thereof. ^ The marriage may be stopped in two ways, either by a person authorised^ in that behalf writing "forbidden" opposite the entry of notice in the marriage notice book, signing his name, address, and authority to forbid, whereon the issue of the certificate is forbidden, and all proceed- ings thereon utterly void ; * or any person on paying five shillings may enter a caveat signed by or on behalf of the opposer, with the opposer's residence and his grounds of his objection, and on such caveat being entered no certificate shall issue until the caveat is withdrawn, or the superin- tendent - registrar has inquired into the matter of the caveat, and is satisfied that it ought not to obstruct the 1 6 & 7 Will. IV, c. 85, s. 5 ; 19 & 20 Vict., c. 119, s. 3. 2 19 & 20 Vict., c. 119, ss. 1, 4, and 5 ; once it liaj to be read at the meeting of the Guardians, 6 & 7 Will. IV, c. 85, s. 6 ; but this was repealed by 7 Will. IV, and 1 Vict., c. 22, s. 24. 3 Person authorised to forbid marriage by licence, under 4 Geo. IV, c. 76(seeaKte, pp.50, .52), can forbid the issue of the certificate, 6&7 Will. IV, c. 85, s. 10 ; but probably other persons than the parents or guardian, e.g., a deserted wife, would be entitled to forbid the issue of the certificate, but an illegitimate parent cannot ; see ante, p. 50 u. 4. 1 6 & 7 Will. IV, u. 85, s. 9. Sec. 4 (« NONCOWFORmSTS' MARRIAGES 8S issue of the certificate ; and in case of doubt the superin- tendent-registrar may refer the matter to the Registrar- General ; or if the superintendent-registrar refuses the certificate, the person who applies for the certificate can appeal to the Registrar-General.^ But a vexatious and frivolous attempt to prevent a marriage is guarded against, firstly, as to writing "for- bidden " by a provision that "Any person who shall forbid the granting by any superintendent - registrar of a certificate for marriage, by falsely representing himself or herself to be a person whose consent to such marriage is required by law, knowing such representation to be false, shall suffer the penalties of perjury." 2 And, secondly, as to the caveat, when entered on a ground that the Registrar-General declares to be frivolous, the objector shall be liable for costs and damages in action by the party against whose marriage a caveat was entered.^ If a superintendent-registrar knowingly and wilfully issues a certificate, the issue of which has been forbidden as above, he is guilty of felony.* On proof of actual marriage it will be presumed that due notice has been given. ^ (c) Licence and Certificate for Marriage After the entry of the notice, the next step is to obtain the licence or certificate. And it is expressly provided that where the marriage is not by licence, twenty-one days from the entry of the notice must elapse before the issue of the certificate for marriage ; "^ and if any one solemnises marriage before the 1 6 & 7 Will. IV, c. 8.5, s. 13. = 19 & 20 Vict., t. 119, s. 18. ' 6 & 7 Will. IV, c. 85, s. 37 ; 7 Will. IV, and 1 Vict., c. 22, s. 5. * 6 & 7 Will. IV, c. 85, s. 40. ° R. v. Hawes (1847), 1 Den., 270. " 6 & 7 Will. IV, c. 85, ». 14 ; and see 7 Will. IV, and 1 Vict. , c. 22, s. 1. 86 VALIDITY OF MARRIAGE Chat, ii expiration of twenty-one days,i or the superintendent- registrar knowingly and wilfully issues the certificate before twenty-one days, he is guilty of felony. '^ This brings us to the consideration of the licence and the certificate, and the difference between them ; of which it may he said generally, that the licence, in consideration of larger payment, enables the parties to more speedily and easily marry. Certificate. — After the expiration of twenty-one days next after the day of the entry of the notice in the marriage notice hook, the superintendent shall issue under his hand, upon request of the party giving notice, a certificate in the form in Schedule B, provided that no lawful impediment to the issue of the certificate has been shown, or the issue of the certificate forbidden ; and for such certificate the superintendent-registrar is entitled to a fee of one shilling.^ If the parties live in different districts, certificates must be obtained from the superintendent-registrar of each, and the one shilling fee paid for each ; aliter for licences, see post, p. 87. If the parties knowingly and wilfully intermarry without certificate of notice duly issued, marriage is void,* but on proof of actual marriage it will he presumed that the testamentary certificate was duly issued.^ Licence. — It should he noted that with and previous to the issue of the licence, they nuist also issue the certificate.'' 1 6 & 7 Will. IV, u. 85, s. 39. Resilience is not required during the period of pnljlication. Kindly communicated to the author by the General Registry Office, Somer.set House, July 13, 1892. 2 n., s. 40. 8 19 & 20"vict., c. 119, s. 4. ^ 6 & 7 Will. IV, c. 85, s. 42. » R. v. Haivets (1847), 1 Den., 270. 8 But such certificate for marriage hy licence is different from the other certificate, being, e.rj., j^rinted in red ink, besides other differences ; see 6 & 7 Will. IV, c. 85, s. 8. Sec. 4 (c) NONCONFORMISTS' MARRIAGES 87 The same notice must be given, and declaration sworn for a marriage by licence as for a marriage without licence (see ante, p. 80), and the same particulars stated and entered in the same way in the marriage^ notice book ; but instead of a residence of seven days, as in the case of marriage with- out licence, see ante, p. 80. One of the parties must have "For the space of fifteen days immediately preceding the giving of notice, had his or lier usual place of abode or residence "within the district of the superintendent-registrar to where such notice shall be so given. " ^ Residence by the other party is unnecessary, but at time of the notice he should be described as of some dwelling- place in England. Further, if the parties li\e in different districts, notice need not be given to more than one superintendent- registrar ; but notice must be given to the superintendent registrar of the district within which one of the parties has resided for the fifteen days ; ^ aliter as to marriages without licence, see ante, p. 86. Also if the marriage is to be by licence, and the party giving notice states this, notice of the marriage need not be suspended in the office of the superintendent-registrar ; ^ if without licence, see ante, p. 84. On such notice being duly given, it is provided that " Every superintendent - registrar receiving notice of an intended marriage to be solemnised by licence as aforesaid, shall, after the expiration of one whole day-i next after the day of the entry of such notice in his marriage notice book, issue under his hand, from the request of the party giving such notice, a certificate in the form or to the effect of the certificate set forth in the said Schedule B to this Act annexed, and also a licence to marry, provided no lawful impediment is shown, or the issue of the certificate forbidden. The fee for such certificate is one shilling. " ^ 1 19 & 20 Vict., c. 119, s. 2. Subsequent residence during the period of publication is not required, see p. 86, n. 1. 2 7S.,s. 6. 3/6., s. 5. ■• Under 6 & 7 Will. IV, c. 85, ss. 7 and 40, seven days had to elapse. 6 19 & 20 Vict., c. 119, o. 9 ; and see 6 & 7 Will. IV, c. 85, s. 11. 88 VALIDITY OF MARRIAGE Chap. II The form of the licence is to be in the form or to the effect of the said Schedule C ; to and for every such licence the registrar is entitled to a fee of thirty shillings over and above the amount paid for stamps necessary on the granting of such licence. ^ If any person shall knowingly and wiKully marry without licence, in case a licence is necessary under the Act, the marriage of such person is void.^ (d) Place of Maniage As to the building in -which the marriage must take place, whether it be with or without a licence. In Ghurch. — Firstly, the marriage may be solemnised after certificate (which takes the place of proclamation of banns) in any church or chapel of the Church of England within the district of the superintendent-registrar who has issued the certificate ; ^ but it is optional for the clergyman to marry on the registrar's certificate, for it is provided that such marriage must be by consent of the minister of the church, and further, it must be solemnised by an ordained clergyman of the Church of England, and according to the rites and ceremonies of the Church of England.* But a marriage after the superintendent- registrar's licence cannot be solemnised according to the Church of England.* Registered Building. — Secondly, marriage may be 1 19 & 20 Vict. , o. 119, s. 10 ; the stamp duty on a licence to marry is ten shillings ; see the Stamp Act, 1891, schedule, tit. Licence ; and see post (g), p. 102. 2 6 & 7 Will. IV, c. 85, s. 42. 3 6 & 7 Will. IV, 0. 85, s. 1 ; 7 Will. IV, and 1 Vict., c. 22, s. 36. 4 19 & 20 Vict., c. 119, s. 11 ; and see R. v. James (1851), 3 C. &K., 167, where a clergyman was indicted for refusing to marry on a registrar's certificate; but the prisoner had judgment in his favour, and pp. 58, 97. 5 6 & 7 Will. IV, c. 85, s. 11. Sec. 4(d) NONCONFORMISTS' MARRIAGES 89 solemnised in any building that is a place of worship registered for solemnising marriages. ' ' For any proprietor or trustee of a, separate i building certified according to law - as a place of religious worship, may apply to the superintendent-registrar of the district in order that such building may be registered for solemnising marriages therein, and in such case shall deliver to the superintendent-registrar a certificate signed in duplicate by twenty householders at least, that such building has been used by them during one year at least as their usual place of religious worship, and that they are desirous that such place should be registered as aforesaid. Each certificate shall be countersigned by the proprietor or trustee by whom the same shall be delivered." ' "Whereon the superintendent-registrar receiving with the certificate a fee of three pounds, transmits the certificates to the Registrar-General, who must register such building in a book kept for the purpose, endorse the date of registry on the back of both certificates, keep one certificate and re- turn the other to the superintendent-registrar, who thereon enters the date of registry in a book, gives a certificate of registry to the proprietor or trustee, and advertises the registration in a local paper and the London Gazette.^ If the building is disused, the registration is to be cancelled ; but if the congregation have removed to some other building for religious worship, such new and 1 However, a Roman Catholic Chapel used during one year previously for public religious worship may be registered although under the same roof with anotlier building, or part only of a building, 7 Will. IV, and 1 Vict., c. 22, s. 35. '^ Such certification was required under the Toleration Acts, and without it the assembling is unlawful. The certifying authority is now the Registrar-General ; but certifying is now optional, 18 & 19 Vict., c. 81 ; further, the absence of certificate is immaterial to the validity of the marriage, 18 & 19 Vict., c. 81, s. 13 ; 19 & 20 Vict., ... 119, s. 17. It seems that only a Christian or Unitarian place of worship could be certified and therefore registered. So a Mussulman mosque or a pagan temple could not be registered for marriages. The mosque at Liverpool — as is kindly communicated (April 26, 1892) to the author by the General Register OfSce, through E. Whitaker, chief clerk — is not registered for marriages. 3 6 & 7 Will. IV, c. 85, s. 18. 90 VALIDITY OF MAERIAGE Chaj.. ii substituted building may, on payment of three pounds, be registered, although not used for a year, and on such cancellation or substitution it becomes unlawful to solemnise marriages in the disused building ; ^ but as regards the validity of the marriage so long as it takes place in a registered building, it is immaterial that such registered building has not been certified according to law as a place of worship, or is not the usual place of worship of either of the parties.- But a statutable nullity as to the necessity of marriage in a registered building is created by it being enacted ^ "That if any persons should knowingly and wilfully intermarry . . . under the proyisions of this Act, in any other place than the church, chapel, registered building, or office specified in the notice and certificate as aforesaid, the marriage of such persons shall be null and void." But in favour of marriage there is a presumption that a building is registered if a marriage in all other respects valid has been there solemnised, for otherwise the minister would be guilty of felony.* But as to the minister, by way of penalty it is enacted that any person knowingly and wilfully solemnising marriage in any other place than a church or chapel, registered huUding or office specified in the notice and certificate, shall lie guilty of felony, except in the case of Quakers and Jews.'' Under these provisions there were 10,335 buildings registered for solemnisation of marriage hy other rites than those of the Established Church standing on the register at the end of 1889." 1 6 & 7 Will. IV, c. 85, .1. 19. 2 19 & 20 Vict., c. 119, s. 17. 3 6 & 7 Will. IV, c. 8.5, s. 42. "" Siclielv. Lambert (1864), 15 C. B. N. S., 781 ; R. v. Cradoch (1863), 3 F. & F., 837. 5 6 & 7 Will. IV, c. 85, s. 39 ; as to Quakers and Jews, see post (/), P- 97. s The Registrar-General's Annual Report, 1889, pp. vii. and xxxiv., table 9. A list of buildings so registered for marriage may be found in Seu. 4 (rf) NONCONFORMISTS' MARRIAGES 91 It will be also presumed on proof of actual marriage tliat the marriage took placxe in the registered building specified in the certificate and notice.^ But no marriage can be solemnised in any such registered building without the consent of the minister, of one of the trustees, owners, deacons, or managers thereof ; nor in -any registered building of the Church of Eome without the consent of the officiating minister thereof.- But Jews' and Quakers' marriages, so long as they are solemnised according to their own usages, and after notice and certificate, do not require to be in a registered building.^ Regidrar's Office. — Lastly, persons can be married after due notice and certificate at the office and in the presence of the superintendent-registrar and some regis- trar of the district.* In District of Registrar. — Next, the building in which the persons are to be married must, with some exceptions, be in the district of the residence of one of the parties. For in 1840 it was decided that a superintendent- registrar had no jurisdiction to grant a certificate for marriage where it is proposed that the marriage shall take place outside his district;* and it is expressly the Index to the London Gazette, 1830-83, under the name of each town or place ; or if in the Metropolitan area, under the title, London Metropolis Marriage, p. 1079. 1 R. V. Hawes (1847), 1 Den., 270 ; and see post, p. 93. = 19 & 20 Vict., c. 119, s. 11. 3 Seepost (/), p. 96. ■i 6 & 7 Will. IV, c. 85, s. 21 ; such oflice is to be taken as within the district, although not locally situate therein, 7 Will. IV, and 1 Viet., c. 22, s. 12 ; the office is often at the workhouse. For offices in the metropolis, see London Directory, "Official" section ; and see ante, p. 83, n. 4. 5 £0: parte Brady (1840), 8 Dowl., 332 ; and see 3 & 4 Vict., c. 72, s. 1 ; this restriction was previously specially enacted as to Church of England marriages after a registrar's certificate out of his district. See 7 Will. IV, and 1 Vict., c. 22, ». 36. 92 VALIDITY OF MARRIAGE Chap. II provided that no superintendent-registrar shall give alicence for marriage in a church, or building outside his district. ^ Exceptions. — This often caused inconvenience, as in the case cited (p. 81, n. 5), where both parties were Eoman Catholics, and there being no Eoman Catholic chapel in the district (Salford Union) of the superintendent-regis- trar in which they resided, they wished to be married at Manchester. So the same year an Act was passed enabling parties at the time of giving notice of marriage (see ante, p. 80) to further give notice of declarant's own religion, and of the religion according to whose rites the parties propose to be married, and that there be not, to the best of the deponent's knowledge, any regis- tered building of the religion by which they wish to be married within the district, and what is the nearest district in which there is a building, and what is the registered building in that district in which the parties wish to be married; and the superintendent-registrar shall issue his certificate, or certificate and licence, and the same shall be as valid as if issued by the superintendent- registrar of the district within which such registered building is situate.^ Such notice. is to be given according to the form in the schedule;^ and if the party knowingly and wilfully makes ' 6 & 7 Will. IV, c. 85, s. 11 ; there is an exception to thi.s, as by s. 6 of 19 & 20 Vict., c. 119, that where the parties intending to be married by licence live in different districts, notice to one superinteudent- regi.strar is sufficient. On this the General Registry Office observes, *' In cases where parties to a marriage reside in two districts, the notice being given and the licence issued in the district in which the pre- liminary residence has been fulfilled, the place of marriage may be in either district of residence, as well as out of both, under 3 & 4 Vict., c. 72, or 19 & 20 Vict., c. 119, s. 14." Kindly communicated to the author by the Department on July 13, 1892, through E. Whitaker, chief clerk. 2 3 & 4 Vict., c. 72, ». 2 ; 19 & 20 Vict., c. 119, ss. 3 and 13. 83 & 4 Vict., c. 72, s. 3. Sec. 4 irf) NONCONFORMISTS' MARRIAGES 93 a false declaration, he is guilty of perjury ; but the prose- cution must be commenced within eighteen months after the marriage.i However, the marriage is in any case valid.2 Further, if the marriage is intended to be solemnised in the usual place of worship of one or both of the parties, but such place of worship is not of the district of residence, the superintendent-registrar on receiving notice and declaration stating these facts, can give a certificate or licence for such marriage in a registered place of worship out of his district, provided it is not more than two miles out of his district ; ^ but if such marriage has been solemnised, it shall not be necessary to prove in support of the marriage that such registered building was " the usual place of worship of either of the parties, nor shall such evidence be received in any suit touching the validity."* But such limitation as to marriage within the district of the superintendent-registrar who has given the licence or certificate does not apply to Jews or Quakers, who may be married in a place or building outside the district.-^ Further, in every case the marriage must take place in the church, registered building, or office specified in the notice and certificate ; and if they knowingly and wilfully intermarry in any other place, the marriage is void.^ (e) Solemnisation of the Marriage, and Registration In all cases such marriage must take place at some time within three calendar months next after the day of the entry of the notice, whether such marriage is by 1 3 & 4 Vict., c. 72, s. 4, aud schedule. 2 75.^ g. 2. 3 19 & 20 Vict., c. 119, s. 14. ^ lb., s. 17. 6 3 & 4 Vict., c. 72, s. 5 ; and see ante, p. 90, auipost (/). « 6 & 7 Will. IV, c. 85, s. 42. But it will be presumed that the solemnisation was in the place specified, see ante, p. 91. 94 ^VALIDITY OF MARRIAGE Chap. II licence and certificate ^ or by certificate without licence.^ If a marriage is not had within three months, the notice, certificate, and licence is void, and a new notice must be given; 8 and any one solemnising marriage after such three months is guilty of felony ; ■* and any registrar or super- intendent-registrar who shall knowingly and wilfully issue certificates or licence for marrying three months after entry of notice, is guilty of felony.^ In Cliurch. — Firstly, according to the Established Church, such marriage can only take place by consent of the minister of the church.'' This consent obtained, the superintendent's certificate, or in case the parties live in different districts, the certificate of each superintendent- registrar, is to be delivered to the ofiiciating minister." The marriage can then be solemnised by a duly ordained clergyman of the Church of England, and according to its forms aiid ceremonies.^ In registered Building. — Secondly, by jSTonconformist rites in a registered building. As to registration, see a7ite, p. 88. As to marriage at a foreign embassy, see ante, p. 63. Such marriage can only take place in such registered building by consent of the minister, or one of the trustees, owners, or managers thereof ; or if in a registered building of the Church of Rome, by the consent of the officiating minister thereof." This consent obtained, the superintendent-registrar's licence or certifi- cate, or the certificate of each superintendent-registrar, is to be delivered to the registrar present at the marriage.^" 1 19 & 20 Vkt., c. 119, s. 9. 2 Ih., s. 4. 3 6 & 7 Will. IV, c. 85, t,. 15. * lb., s. 39. = lb., s. 40 ; 7 Will. IV, and 1 Vict., c. 22, s. 3. 8 19 & 20 Vict., c. 119, s. 11 ; and see p. 88. 7 6 & 7 Will. IV, c. 85, b. 16. 8 19 & 20 Vict., c. 119, c. 11 ; and see 6 & 7 Will. IV, c. 85, 6. 1. As to what are these forms, see ante, ji. 64 and seq. 9 19 & 20 Vict., c. 119, f.. 11. w 6 & 7 Will. IV, c. 85, s. 16. Sec. 4 fe) NONCONFORMISTS' MARRIAGES 95 Then ' ' the marriage may be solemnised in the registered building stated as aforesaid in the notice of such marriage between and by the parties described in the notice and certificate according to such form of matri- mony as they may see fit to adopt. Provided, nevertheless, that every such marriage shall l)e solemnised, with open doors between eight in the forenoon and three in the afternoon, in the presence of some registrar of the district in which such registered building is situate, and of two or more credible witnesses : provided also that in some part of the ceremony, and in the presence of such registrar and witnesses, each of the parties shall declare, ' I do solemnly declare, that I know not of any lawful impediment why I, A. B., should not be joined in matrimony to c. d: "And each of the parties shall say to the other, 'I call ^ipon these persons here present to witness that I, A. B., do take thee, C. D., to be ray lawful wife (or husband).' " Provided also there is no lawful impediment to the marriage of such parties." 1 The registrar is entitled for every marriage they solemnise in his presence to a fee of ten shillings if the marriage is by licence, or five shillings if without licence.^ The presence of the registrar is important, as it is expressly enacted that if any person shall knowingly and wilfully intermarry in the absence of a registrar or super- intendent-registrar, where the presence of a registrar or superintendent -registrar is necessary under the Act, the marriage of such persons should be null and void ; ' and further, that every person who in any such registered building shall knowingly and wilfully solemnise any marriage in the absence of a registrar of the district in which such registered building is situate, should be guilty of felony; but the prosecution must be commenced within three years.* But in favour of marriage, the presence of the registrar at a marriage seemingly otherwise legal is 1 6 & 7 Will. IV, 0. 85, s. 20 ; 49 Vict., c. 14. The form of words in the ceremony was directed to be translated into Welsh, and that such translation might be lawfully used by 7 Will. IV, and 1 Vict., c. 22, ». 23. 2 6 & 7 Will. IV, 0. 85, .,. 22 ; and sen post (g), p. 102. 3i6.,s. 42. * /5., ss. 39, 40. 96 VALIDITY OF MARRIAGE Chap. II presumed in the absence of evidence to the contrary.^ The registrar is then to register such marriage in a marriage register boolv, the entry to be signed by the person solemnising the marriage, by the registrar, by the parties, and by the two witnesses.^ The registrar may ask of the parties to be married the particulars required to be registered;^ and for any false statement made or caused to be made for the purpose of being inserted in the register, they are subject to the same pains and penalties as if guilty of perjury.* If the registrar omits to register, he is liable to a penalty of £50 ; ^ and if he knowingly and ■wilfully register a marriage by the Act 6 & 7 Will. TV, c. 85, declared to be void, he is guilty of felony." In Registrar's Office. — Persons objecting to marry in a registered building can, after duo notice and certificate or licence as aforesaid, contract and solemnise marriage at the office, and in the presence of the superintendent-registrar and some registrar of the district, and in the presence of two "witnesses, with open doors, and between the hours aforesaid, making the declaration, and using the form of words afore- said, as in a registered building; see ante, p. 95.' As ante, p. 95, and^os?; {g), p. 102, the registrar is entitled to a fee of ten shillings or five shillings, though the superintendent- registrar receives nothing, and the marriage must be regis- tered. A registrar or superintendent-registrar who shall knowingly and wilfully solemnise in his office any marriage 1 Sichd V. Lambert (1864), 15 C. B., N. S., 781. 2 6 & 7 Wm. IV, c. 85, s. 23. ^Ib.,s.?,Q. 4 6 & 7 Will. IV, c. 86, s. 41. 5 lb., ». 42. « 6 & 7 Will. IV, c. 85, s. 40. ' 76. , ss. 11 and 21 ; but even if the marriage took place privately, and with closed doors, the marriage is not therefore void, for provision as to open doors is not included in the clause of the Act, s. 42, relating to nullities, and is therefore merely directory. Campbell v. Corley (1856), 4 W. R., 675. Sec. 4 fe) NONCONFORMISTS' jrARRIAGES 97 declared by the Act 6 * 7 Will. IV, c. 85, null and void, is guilty of felony, i No religious service can be used at the registry office ; but if the parties please they can afterwards superadd a religious service according to the Church of England, or any Nonconformist rite ; and on production to the clergy- man or minister of the certificate of marriage before the registrar, such clergyman or minister may remarry them ; but such celebration shall not invalidate the previous marriage, nor is it to be registered in the parish register. - (/) Quakers and Jews The marriages of Jews and Quakers were specially exempted from Lord Hardwicke's and the subsequent Marriage Acts providing that nothing in the Act shall extend to Jews or Quakers, provided both parties to such marriages shaU be Jews or Quakers respectively.^ As to Quakers' marriages, since 1753, Lord Hardwicke's Act, the Legislature thereby acknowledged the validity of their marriages ; ■* but previous to that Act it seems that, like other marriages per verha de prsesenti, they were invalid.* But such Quakers' marriages, previous to 1837, are now expressly validated.'^ As to Jews, that people stood for many centuries in a peculiar and autonomous condition. Ceremonies according to their own peculiar forms were regarded as constituting legal marriage ; and the matrimonial law of England for 1 6 & 7 Wm. IV, c. 85, s. 40 ; 7 Will. IV, and 1 Vict., c. 22, s. 3. ii 19 & 20 Vict., c. 119, s. 12. 3 26 Geo. II, c. 33, s. 18, and 4 Geo. IV, c. 76, s. 31. " R. V. Millis (1844), 10 CI. & F., 534, pp. 671, 745, 791, 866 ; and see HaugUon v. H. (1824), 1 Moll, 611, decided on the Irish Act, 21 & 22 Geo. Ill, c. 25. 5 R. V. Millis, uU sup., pp. 671, 791, 864, 901. 6 10 & 11 Vict., u. 58. 7 98 VALIDITY OF MARRIAGE Chap. II Jews is their own matrimonial law,'' and tlie judges must receive evidence on Jewish law as on a foreign law, and then apply the principles of that law. As in a curious case where a Jewess had married a Jew by the Kedushim, or giving of the ring in the presence of two witnesses, but without the Hupa, i.e., the formal ceremony and contract signed and registered, the marriage was held invalid ; ^ and again, a Jewish marriage was declared invalid because the celebration was not conformable to the law of the Jews on account of the two necessary witnesses being disqualified, one by reason of nonconformity and the other by relationship.^ Now all Jewish marriages previously to 1837 are by a special Act expressly validated.* At Common Law it anciently appeared that a marriage between a Jew and a Christian was void, see ante, p. 23; also by Jewish law, intermarriage between Jews and Christians are forbidden.^ And since 1837, Jews and Quakers, both parties being Jews or Quakers, can marry according to their own usages, provided notice to the registrar shall have been given, and the registrar's certificate issued ^ or licence given ; ' as to the certificate and the licence, see ante, pp. 80, 8-5. But both Quakers and Jews still enjoy certain special privileges, such as being enabled to marry out of the district in which they reside, and not in a registered building, and without the registrar's presence, which privileges are best considered in detail separately. 1 R. V. MUUs, libisup., pp. 672, 864, 900. 2 Lindo V. Belisario (1796), 1 Hag. Con., 216, and App., p. 7. 5 Ooldsmid v. Bromer (1798), 1 Hag. Con. , 324 ; and see fforn v. AWl (1807), 1 Camp., 61 ; and AIoss v. Smith (1840), 1 M. & G., 228. ■> 10 & 11 Vict., u. 58. 6 See Goodmun v. G. (1859), 5 Jur., N. S., 902 ; and see^os/, p. 139, 11.3. 6 6 & 7 Will. IV, u. 85, s. 2. M9 & 20 Vict., c. 119, ss. 20-22. Sec. 4 (/; NONCONFORMISTS' MARRIAGES 99 First, As to Quakers. — It was originally expressly provided that the parties to a Quaker marriage must be both of the said Society.^ Bat now it is provided that in case one or both parties are not members of the Society, they must, on giving notice to a superin- tendent-registrar, produce a certificate signed by some registering officer of the said Society (as to who is a registering officer, see infra) that each party is authorised by the rules of the Society to proceed to a marriage according to the usages of such Society, this certificate to be conclusive evidence that the party or parties are so authorised ; and after the marriage the register, or a copy thereof, to be conclusive evidence that the certificate was provided ; but no such certificate is to be required if the party giving notice declares that both parties are members of the said Society, or in profession with or members thereof.^ The marriage need not take place in a registered build- ing, or in the district of the superintendent-registrar.^ As to the registration, the Eegistrar-General is to furnish marriage register books and forms for certified copies thereof to every person whom the recording clerk of the Society of Friends, commonly called Quakers, at their central office in London shall from time to time certify in writing under his hand to the Eegistrar-General to be a registering officer in England of the said Society.'' And every such registering officer of the Quakers, as soon as 1 6 & 7 Will. IV, 0. 85, s. 2. 2 23 & 24 Vict., c. 18 ; 35 & 36 Vict., c. 10. 3 6 & 7 Will. IV, u. 85, s. 39 ; 3 & 4 Vict., c. 72, s. 5. « 6 & 7 Will. IV, u. 86, s. 30. lu 1853, 124 marriage register books of the Quakers were delivered to the Commission on Non-Parochial Registers, see Report, Pari. Paper, 1857-58 [2331] ; a list of registers is also contained in Schedule P to the Commission of 1837 in Non- Parochial Registers' Report, published in 1838, see p. 12 of Report ; and seepos^, p. 135, u. 4. 100 VALIDITY OF MARRIAGE Cuap. ii conveniently may be after the solemnisation of any marriage between Quakers in the district for which he is register- ing officer, shall register the marriage. And every such registering officer, whether he shall or shall not be present at such marriage, shall satisfy himself that the proceed- ings in relation thereto have been conformable to the usage of the said Society ; and the entry in the register is to be signed by the registering officer, by the parties, and by two witnesses.! Such registering officer may ask the parties married the several particulars required to be registered ; ^ and if he re- fuses or omits to register, he is liable to a penalty of £50.^ Secondly, As to Jeios.^ — Both ^ parties must be Jews, and must obtain the superintendent-registrar's certificate " or licence.' The marriage need not take place in a registered build- ing, or in the superintendent-registrar's district.^ But it must be according to their own rites, as to the observance of which the secretary of the synagogue must satisfy himself, see post, p. 101 ; as to what are these rules, see ante, pp. 97, 98. As to the registration, it is provided that the Registrar-General shall furnish marriage register books and forms for certified copies thereof to every person whom the president, for the time being, of the London 1 6 & 7 Will. IV, I.-. 86, s. 31. 2 /j.^ 5. 40. 3 yj,_ ,,, 42. * See Jewish Law of Marriage and Divorce, by Wielziemer. Not only the Act of Parliament, but also the Jewish law forbid a marriage between a Jew and a female of another faith, and also the solemnisation of the same; Goodman v. G. (1889), 6 Jur., N. S., 902, Apji. But such a marriage may be presumed, see^osi, Chap. Ill, s. 4, p. 139, n. 3. * At Common Law, marriage between Jew and Christian was illegal, see ante, p. 23 ; but now a Jew and Christian or two Jews can marry according to Christian forms, which, however, they must then observe, see Jones V. Robinson {1815), 2Phillim., 285, but not according to Jewish forms. 6 6 & 7 Will. IV, ^. 85, s. 2. ' 19 & 20 Vict., c. 119, s. 21. 8 6 & 7 Will. IV, c. 85, s. 39 ; 3 & 4 Vict., u. 72, ». 5. Sec. 4 (/) XOXCOXFORJHISTS' iMARRIAGES 101 Committee of Deputies of the British Jews shall from time to time certify in writing under his hand to the Eegistrar-General to be the secretary of a synagogue in England of persons professing the Jewish religion/ and to the person whom twenty householders professing the Jewish religion, and being members of the West London Synagogue of British Jews, shall certify in writing under their hands to the Eegistrar-General to be the West London Synagogue of British Jews, and also to every person whom such secretary shall in like manner certify to be the secretary of some other synagogue of not less than twenty householders professing the Jewish religion, and being in connection with the West London Synagogue, and having been established for not less than one year.^ And every secretary of a synagogue, immediately after every marriage solemnised between any two persons pro- fessing the Jewish religion, of whom the husband shall belong to the synagogue of which he is member, shall register the same in the marriage register books; and every such secretary, whether he shall or shall not be present at such marriage, shall satisfy himself that the proceedings in relation thereto have been conformable to the usages of the persons professing the Jewish religion ; and such entry in register shall be signed by the secretary, by the parties, and by two witnesses.^ Such secretary of a synagogue is to perform similar duties in registering as a registrar.'' And it is lawful for every secretary of a synagogue to ask the parties married the several particulars required to 1 6 & 7 Will. IV, c. 86, s. 30. ' 19 & 20 Vict., 0. 119, a. 22. 3 6 & 7 Will. IV, c. 86, s. 31. The Jews refused to deliver up their registers ; see Commission on Non-Parochial Registers, Pari. Paper, 1837- 38 [148], p. 12 ; and later C'ommissiou, Pari. Paper, 1857-58 [2331]. •• 19 & 20 Vict., u. 119, ». 22. 102 VALIDITY OF MARRIAGE Chap, ii be registered ; i and if such secretary refuses or omits to register, he incurs a penalty of £50.^ Jews standing in the relation of husband and wife have a claim to relief from the Courts on the violation of any matrimonial duty.^ {g) Fees The fees for the preliminaries to and for the attendance of the registrar at a Nonconformist marriage are altogether fixed by the statute, the Marriage Act, 1836; the Marriage and Eegistration Act, 1856; and the Stamp Act, 1891.* For registrar's licence the total fee is £2, 4s. 6d., pay- able to the superintendent-registrar, of which Is. is payable for the entry of the notice ; Is. for the issue of the certificate; £1, 10s. for the licence; and 12s. 6d. under the Stamp Act, 1891.^ If the marriage is by certificate without licence, there is payable to the superintendent-registrar 2s. ; Is. for entering the notice, and Is. for issuing his certificate. If the parties live in different districts, this 2s. must be paid to the superintendent-registrar of each district.*' At the marriage, there is payable to the registrar for his presence 10s., if the marriage is by licence ; 5s., if without licence by certificate.^ These fees are due whether the marriages take place in the registrar's office or at a registered building. The presence of the registrar is not needed at, and therefore this fee is not payable for, a Quaker or Jewish marriage. 1 6 & 7 Will. IV, G. 86, s. 40. .2 lb., s. 41. 3 D'Aguilarv. D'A. (1794), 1 Hag. Ec, 773. 4 19 & 20 Vict., u. 119 ; 54 & 55 Vict., c. 39. « 19 & 20 Vict., c. 119, ss. 3, 9, 10 ; and see schedule to Stamp Act, 1891, tit. Affidavit and Licence. 5 19 & 20 Vict., c. 119, ss. 3 and 4. ' 6 & 7 Will. IV, c. 85, s. 22. Sk.-. 4(!7) NONCONFORMISTS' MARRIAGES 103 The fee payable to the Nonconformist minister is a matter of private arrangement. The register may be searched at the local office or at Somerset House, and certified copies obtained.^ Sec. 5. — Marriages Abroad (a) Generally The Marriage Acts, both Lord Hardwicke's, 26 Geo. II, c. 33, s. 18, and the present Acts, 4 Geo. IV, c. 76, by s. 33, and 6 & 7 Will. IV, c. 85, by s. 45, only apply to England and Wales. Outside these limits the old English Common Law applies, except in so far as in the British Dominions it is modified by local law ; and in foreign countries, according as the English Courts apply the principles of International Law. The Common Law requires that the marriage should take place in the presence and with the assent of an ordained clergymen, who must be a third person ; but the House of Lords left it an open question whether this applies to the case of marriages of necessity entered into where the presence of a minister in holy orders may be impossible.^ And in two cases in remote districts — up country in India, and in Australia — where there were no chaplains available, marriages per verba de prxsenti were held good, and these cases were not disapproved by the House of Lords ; ^ but in two others, a marriage in foreign parts at Smyrna,* and a marriage on board a transport at sea by a 1 6 & 7 Will. IV, c. 86, ss. 35, 37 ; and see 37 & 38 Vict., c. 88. 2 R. V. Millis (1843), 10 CI. & P., 534; Beamish v. B. (1861), 9 H. L. C. , 274 ; as to marriages by a Roman Catholic priest, see ante, p. 78, u. 2. 3 Gatterall v. C. (1847), 6 N. of C, 466; 1 Rob., 580; Maclean V. Cristall (1849), 7 N. of C, Sup. XVII. 4 Catherwood v. Ca,slon (1844), 13 Meeson & Welsby, 261. 104 VALIDITY OF MARRIAGE Chap, ii commanding officer, marriages per verba de prxsenti -were lield void.i The subject here discussed is a marriage outside Eng- land according to English forms ; in Chap. XVII is dis- cussed the result of the marriage of English persons in foreign countries, either in accordance with or violating the English or Foreign Law, and what effect that has on the validity of the marriage in England ; and see pod, 112, n. 4. {h) In Foreign Countries ^ As a general rule British subjects marrying abroad can marry validly according to the law of the country. Lord Stowell laid down, "That English decisions have estab- lished this rule, that a foreign marriage, valid according to the law of the place where celebrated, is good everywhere else ; but they have not e converso established that marri- ages of British subjects not good according to the general law of the place where celebrated, are universally and under all circumstances to be regarded as invalid in England. It is therefore certainly to be advised that the safest course is always to be married according to the law of the country, for then no question can be stirred." ^ However, such marriage would not be valid if in contravention of English law, e.g. a marriage with deceased wife's sister ; see post, Chap. XVII, s. 2 (6). 1 Du Moulin v Druitt (1860), 13 Ir. C. L.,512. ' For a synopsis of the law of all countries on marriage and divorce, see Calvo, Le Droit International, 4 ed., 1888, bk. x. ; Conflit des Lois Civiles, vol. ii. pp. 234-289 ; and see subsequent legislation in the Periodical Annuaire de Legislation Etrangere. 3 Sudinff V. Smith (1821), 2 Hag. Con., 371, pp. 390, 391 ; and see Hubback on Succession, pt. 2, chap. iv. , sec. 3, pp. 329-377 ; a marriage solemnised in accordance with the local law can be registered by the Britisli consul, 55 & 56 Vict., c. 23, s. 18.' This question is further discussed under International Law, Chap. XVII. Sec. 5 (6) MARRIAGES ABROAD 105 If a British, subject marries abroad according to the local law, such British subject on paying the proper fee (£1 ) to the consul can require the personal attendance at the marriage of the British consul. The consul on being satisfied that the marriage is duly solemnised in accord- ance with the local law, may register it.^ As to marrying in a foreign country by English forms, certain exceptions, depending on the doctrine of exterritori- ality, to the necessity of conforming to the lex loci have been recognised, whereby such marriage will be recognised as valid in England whether or not it be valid by the lex loci. As to past marriages, the Consular Marriage Act, 1849, expressly validates "all marriages, both or one of the parties being subjects or subject of this realm, which before the passing of this Act have been solemnised in any foreign country or place ... by a minister in holy orders, according to the rites and ceremonies of the Church of England ... or by an ordained minister of the Church of Scotland,-" unless the marriage has been previously d-eclared invalid, or either of the parties have intermarried with any other person. ^ But this does not touch the question of whether such foreign country would recognise the validity of such marriage not conforming to its own law although it might be valid according to the law of England. ^ It is now proposed to discuss these exceptions. Firstly, Within the lines of a British Army of Occupa- tion. — A British force in occupation of a foreign country carries with it the law of England, and marriage can be 1 Foreign Marriage Act 1892, 55 & 56 Vict., c. 23, s. 18 ; and see s. 10 of the Order in Council, Nov. 24, 1891, under the Foreign Marriage Acts, 1890, 1891, and s. 26 of the Foreign Marriage Act, 1892 ; published In the Statutory Rules and Orders, 1891, p. 518 ; and see The Consular Fees (General) Order in Council, 1892, Loudon Gazette, Aug. 23, 1892, pp. 4802-3. 2 12 & 13 Vict., c. 68, s. 20. ^ See Chap. XVII, s. 6. 106 VALIDITY OF MARRIAGE Chap. U celebrated, at all events if one of tlie parties is a soldier in such British force, either by the chaplain or some person in orders.! So when the army under the Duke of Wel- lington was occupying Paris, and Lord Waldegrave, an officer quartered there, was married by the chaplain, the son of that marriage established his claim to the earldom;^ and a marriage was held valid so solemnised during the occupation of the Cape.^ And marriages " solemnised within the British lines by any chaplain or officer, or other person officiating under orders of the Commanding Officer of a British army serving abroad," are by the Marriages Validity Act, 1823, and by the Foreign Mar- riage Act, 1892, declared to be valid.* Secondly, At Emhassies and Consulates. — By the comity of International Law, embassies are considered extra- territorial of the country in which they are locally situate, and to be a part of the country which the ambassador represents ; and applying this principle, a marriage may be celebrated within such ambassador's house or chapel according to the law of the country which such ambas- sador represents, — at all events if one or both of the parties married are subjects of such ambassador's sovereign or State.* So at Common Law it would appear that a British subject might contract a valid marriage abroad in the house or chapel of the British ambassador, and according to the rites of the Church of England. 1 Ruding v. Smith (1821), 2 Hag. Con., 371 ; and see 4 Geo. IV, c. 91 ; R. f. Brampton (1808), 10 East, 282. 2 The Waldegrave Peerage (1837), 4 01. & F., 649. 3 Ruding v. Smith, uhi sup. •< 4 Geo. IV, 0. 91 ; 55 & 56 Vict., c. 23, s. 22. 5 Per Lord Stowell in Ruding v. Smith (1821), 2 Hag. Con., 371, p. 386 ; and see Pertreisv. Tondear (1790), 1 ib., 137; Jiarl of Athlone's case (1841), 8 CI. & F., 262. As to the converse case of marriages in Eng- land in the chapel of a foreign ambassador or in a foreign consulate, see a7ite, p. 63, and post, Cha]). XVII, s. 6. Sec. c ft) MARRIAGES ABROAD 107 But the validity of a marriage per verba de prmaenti in the Beyi'out consulate, in the presence of the consul, was held not proved in an action for criminal conversa- tion.^ Validaf ion.— The Marriages Validity Act, 1823, 4 Geo. IV, c. 91, validated all marriages solemnised by a minister of the Church of England in an ambassador's or minister's house or chapel ; ^ and this even though one only of the parties was a British subject. ^ But this Act is repealed by the Marriage Acts, 1890 and 1892.* As to past mar- riages, the Consular Marriage Act, 1849, specially validates all marriages of which one or both the parties are British subjects, solemnised according to any religious ceremonies, or per verba de preesenti, either in the presence of the ambassador, consul, etc., exercising his functions, or re- gistered by the consul, unless the marriage has been previously declared invalid by a Court of competent juris- diction, or either of the parties has subsequently inter- married.' The Consular Marriage Act, 1849,'' provides for mar- riages before a consul after notices, preliminaries, and pro- cedure, i.e. in a form somewhat similar to that provided 1 Catherwood v. Caslon (1844), 13 M. & W. , 261 ; this marriage would, however, be validated by 12 & 13 Vict., u. 68, s. 20, quoted supra. 2 The presence of the consul will not suffice. So a marriage at Ant- werp, where there was no consulate or factory, in the presence of the consul, solemnised by a minister of the Church of England, was not validated by 4 Geo. IV, c. 91, and being void by the law loci, was held invalid in England ; Kent v. Burgess (1840), 11 Sim, 361. Such mar- riage would be validated by 12 & 13 Vict., c. 68, s. 20 ; see supra. 3 Lloyd V. Petitjean (1839), 2 Curteis, 251. " 53 & 54 Vict., c. 47, s. 12 ; 55 & 56 Vict., c. 23, s. 26. = 12 & 13 Vict., u. 68, s. 20. » 12 & 13 Vict. , c. 68. By s. 11 a copy of the register was by that Act directed to be sent back to the Registrar-General, and a large number of registers of marriages previous to the Act are now deposited with the Registrar-General ; s&& post, Chap. Ill, s. 3 (a), pp. 135, 137. 108 VALIDITY OF MARRIAGE Chap, ii by 6 & 7 Will. IV, c. 85, see ante, s. 4, pp. 78-97, for marriages before a registrar. Foreign Marriage Act, 1892. — This Act repeals ^ the Consular ISIarriage Act, 1849, with its amending Acts, and forms the present code for marriages of British subjects abroad. It does not extend to the marriage of any of the Eoyal Family.- The Foreign Marriage Act, 1892, applies to cases where one only of the parties is a British subject.^ But as to mixed marriages between British subjects and aliens, the Order in Council made previously, but confirmed by that Act,* directs that if one of the parties is a subject of the State within whose territories the marriage is to be solemnised, and a marriage according to the local laws of that State would be valid in England, and there exist sufficient facilities for marriage according to the local law, then the marriage officer may refuse to solemnise according to the Foreign Marriage Act. Also, if the woman intend- ing marriage is a British subject, and the man is an alien, and it appears to the marriage officer that the marriage would not be recognised by the law of the alien husband's country, he shall not proceed to solemnise the marriage. If both the parties are British subjects, or one a British subject and the other an alien, not a subject of the country in whose territory the marriage is solemnised, but subject to the condition of validity according to the law of the alien husband's country, then a marriage can take place under the Foreign Marriage Act, 1892.^ The Foreign Marriage Act, 1892, empowers the 1 55 & 56 Vict., u. 23, s. 26. » lb., s. 23. 3 n., s. 1. ■> lb., s. 26, ami sees. 21. " Order in Council of November 24, 1891, ss. 6, 7, published in the Statutory Rules and Orders, 1891, p. 518 ; and see 55 & ft6 Vict., c. 23, s. 19. For the foreign view of consular marriages between British Sec. 5 (6) MARRIAGES ABROAD 109 Secretary of State, by a " marriage warrant," to consti- tute a British ambassador, consul, governor, etc., a " marriage officer," and assign to him a district.^ Notice by one of the parties must be given to a marriage officer, stating name, surname, profession, con- dition, residence of each of the parties, and whether or not they are minors. The notice must be given to the marriage officer within whose district both ^ of the parties have resided seven days previous.^ The notice must be filed and posted up in the office of the marriage officer.* The like persons as in case of a marriage in England (see ante, p. 52) have a right to forbid, or consent, or is.sue a caveat.^ After this, hotlt the parties must appear before the marriage officer, and subscribe with an oath that there is no impediment, that they are not minors, or that consent has been obtained, and that both for three weeks preceding had their usual residence in the district.^ Then, after fourteen days from the ending of the notice, and within three months after, the marriage can take place between 8 a.m. and 3 p.m., at the official house, and in the presence of the marriage officer, and with open doors. Subject to these conditions, the marriage may be solemnised either according to the rites of the Established Church or according to any other rites the parties choose, or by the marriage officer himself. If the marriage is not according to the rites of the Estab- lished Church, the prescribed words (see ante, p. 95) subjects and aliens, see post, Chap. -XVII, s. 6 ; and for the converse case, see ante, p. 63. 1 55 & 56 Vict., c. 23, s. 11 ; and see the Order in Council. 2 A modification as to this is contained in s. 8 of the Order In Council of November 24, 1891, published in the Statutory Rules and Orders, 1891, p. 518. 3 55 & 56 Vict., c. 23, ». 2. ^ lb., s. 3. = 76., ss. 3, 4, and 5. ^ /*., s. 7. no VALIDITY OF MARRIAGE Chap, ii must be said.i The marriage is then to be registered. ^ The cost of such marriage is 10s. for the notice and 10s. lor the marriage, i.e. £1 altogether.^ Lack of formalities is not to annul the marriage,* al- though the parties may be punished therefor.^ A marriage under the Act is to be as valid as if solemnised in England." Thirdly, In Factories. — And this principle of extra- territoriality has been extended beyond embassies and consulate to factories situated in certain foreign countries, which enjoy special privileges by virtue of treaties, con- ventions, and capitulations, so that British subjects can therein contract valid marriages according to the English Common Law. Such factories formerly existed at Lisbon, Leghorn, Oporto, Cadiz, St. Petersburg, Hamburg, and throughout the East at Smyrna, Aleppo, and elsewhere,' but are now much diminished in number. The St. Petersburg factory was abolished in 1807 ; but a special Act was passed in 1823, 4 Geo. IV, c. 67, validating marriages where one or both of the parties is a British subject, celebrated since 1807 at St. Peters- burg, by the chaplain of the Eussia Company, or a minister of the Church of England officiating instead of the chaplain, either in the chapel or in any other place, before witnesses, previous to the Act, and author- ising them in the future. But as to marriages after January 1, 1891, this Act is repealed by the Marriage 1 55 & 56 Vict., u. 23, ss. 6, 8. 2 jb., ss. 9, 10. 3 lb., ss. 9, 20 ; and see the Order in Council, 2nd schedule ; and The Consular Fees (General) Order in Council, 1892, London Gazette, Aug. 23, 1892, pp. 4802-3. ■> lb., s. 13. = lb., ss. 14-16. <■' lb., s. 1. ' Per Lord Stowell Ruding v. Smith, ubi sup. , pp. 385, 386 ; and per Sir George Hay in Harford v. Morris (1776), 2 Hag. Con., 423, p. 432; and see Maltass v. M. (1844), 3 N. C, 257. As to the re- gisters, see p. 135, u. 4. Sec. 6 (6) MARRIAGES ABROAD 111 Act, 1890,' and future marriages at St. Petersburg must be solemnised according to the Foreign Marriage Act, 1892 (see ante, pp. 108-110), but with a certain exemp- tion as to requirements as to notice and residence.^ The Hamburg factory was abolished in 1808; but an Act was passed in 1833 3 validating past marriages between parties, one of whom is a British subject, solemnised by the chaplain, or a minister of the Church of England officiating instead of the chaplain, in the Episcopal Chapel of the city of Hamburg, or in any other place, before witnesses, according to the rites of the Church of England. And marriages at Moscow, in the chapel there belonging to the Russian Company, solemnised by the chaplain or a minister of the Church of England, were validated by an Act passed in 1858.* And a general Act,^ passed in 1823, validates marriages solemnised by a minister of the Church of England in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory ; but this Act is repealed by the Foreign Marriage Acts, 1890 and 1892.6 So, in future, marriage at a British factory abroad, if any such still exist, enjoy no special privileges, and must be governed by the ordinary law applying to marriages abroad ; see in Foreign Countries, ante, p. 104 and seq. And there remains on the question as to past marriages previous to the Act above cited, and not coming within the validating clause, and as to such subsequent marriages not conforming to the provisions of the Foreign Marriage 1 53 &. 54 Vict., c. 47, s. 12. 2 See Order in Council of May 9, 1891, published in the Statutory Kules and Orders, 1891, p. 517. 3 3 & 4 Will. IV, c. 45. 4 21 & 22 Viet., c. 46. 5 4 Geo. IV, c. 91. 6 53 & 54 Vict., c. 47, s. 12 ; 55 & 56 Vict., c. 23, s. 26. 112 VALIDITY OF MARRIAGE CnAi>. ii Acts, — e.ij., previous to 1849 a marriage j^ec verlii de prie- senti, not in the presence of, or registered by, the consul ; as to marriages since 1849, either per verbi de pnesenti, or according to the rites of the Church of England in, say, an hotel chapel, — whether such marriages will be valid if not conforming to the lex loci?- And as to the effect of the Foreign Marriage Acts, 1849-1891, and the Foreign Marriage Act, 1892, therein it should be noticed, firstly, that they do not contain any statutory nullity as to the effect of this, see ante, p. 35, imA post, p. 115 ; and further, it is expressly provided by them, that nothing in this Act contained shall confirm or impair, or in any wise effect, or be construed to affirm or impair, or in any wise effect, the validity in law of any marriage solemnised beyond the sea, otherwise than is herein provided. ^ But, according to principles of International Law, the English Court will consider invalid any marriage cele- brated in a foreign country outside an embassy, consulate, or factory which is invalid by the law of the country.^ But an exception has been set up, that if the law of the country sets up an unreasonable restraint by fixing the age of majority at thirty, or a religious bar, by not allowing Protestants to marry, then it might be that a marriage of a British subject — good according to the Common Law, but invalid by the lex loci — would be recognised as good in England.* 1 Continental chaplains are in tlie diocese of London, and by dele- gation of the Bishop of London they are under the pastoral charge of Bishop Wilkinson. Bishop Wilkinson kindly informed the author that he has issued a direction to such chaplains, that in celebrating marriages the lex loci must, of course, be always complied with. 2 12 & 13 Vict., c. 68, s, 21 ; 55 & 56 Vict., c. 23, s. 23. ' See post, Chap. XVII, s. 2 ; and see note, supra. * Middlelon v. Janveiin (1802), 2 Hag. Con., 437; and see Hub- Sec. 5 ft) MARRIAGES ABROAD 113 As to marriages in barbarous and uncivilised countries, there is no doubt tliat, in such, a marriage according to the rites of the Church of England will be valid, see ante, p. 103 ; but it seems more doubtful whether a marriage in such barbarous and uncivilised country, celebrated either per verhi de pireesenti or according to the local customs, will be valid, especially if such barbarous and uncivilised country recognises polygamy ; see ante, p. 33, Polygamy, a,nd post, Chap. XA^II, s. 2 (a), International Law. (c) On High Seas The Marriage Acts, as before explained, oidy applying to England, and no municipal law, no lex loci, either foreign or colonial, being in force on the High Sea, marriages at sea on board British ships, whether men-of- war or merchantmen, are regulated by the old Common Law previously explained, see p. 103. Therefore a marriage at sea on such British man-of-war or merchantman, solemnised by a minister of the Church of England, seems to be certainly valid at Common Law, though no actual case has so decided it. As to marriages per verba de prsesenti, sucli, according to the case previously cited, are said at Common Law to be valid in case no minister of the Church of England is available, see ante (a), p. 103 ; and therefore, applying this principle, a marriage at sea per verba de prxsenti, as, e.g., back on Successiou, vM svp. , and cases collected in Waddilove's Digest, tit. Marriage, xii. ; Shelford in Marriage and Divorce, tit. Foreign Marriages, ss. 6, 7, and 8. Lamn v. Higgins (1822), 2D. & E., Appendix 38, where a marriage in a hotel at Versailles, according to the rites of the Church of England, by a clergyman, was held invalid as nonconforming to the lex loci j and see in re Alison's Trusts (1874), 31 L. T., 638, where a marriage of two Protestants in Persia by a Eoman Catholic priest was held invalid because contrary to lex loci ; and see ante, p. 78. 114 VALIDITY OF MARRIAGE Chap. II sometime happens by the captain reading over the mar- riage service, or by the parties exchanging consent other- wise, privately or publicly, vcoiild seem to be valid, whether such marriage be on a man-of-war or a merchantman.^ And by statute, the Consular Marriage Act, 1849, expressly validates " all marriages, both or one of the parties being subjects of this realm, which before the passing of this Act have been solemnised ... on board a British vessel of war on any foreign station by a minister in holy orders according to the rites and cere- monies of the Church of England . . . or by an ordained minister of the Church of Scotland . . . and all marriages of the like parties solemnised according to any religious rites and ceremonies, or contracted per verba de prxsenti ... on board a British vessel of war on any foreign station in the presence of the officer commanding such vessel," unless such marriage had been previous to that Act declared invalid by a Court of competent jurisdiction, or either of the parties has intermarried with any other person.^ And another Act, passed in 1879, validates marriages solemnised previous to the Act on board Her Majesty's vessels on a foreign station in the presence of the officer commanding, whether according to any religious ceremony or per verba de prxsenti ; but both of the parties must have been British subjects.^ And the Foreign Marriage Act, 1892, provides for future marriages between parties, one of whom, at least, is a British subject, on board Her Majesty's vessels on a foreign station.* 1 But one Irish case has decided that a marriage on board a transport by the civil commander between a soldier and a woman was invalid ; see Du Moulin v. Druitt (1860),-13 Ir. C. L., 212. 2 12 & 13 Vict., c. 68, s. 20. 3 42 & 43 Vict., c. 29. * 55 & 56 Vict., c. 23, s. 12; and seethe Order in Council, ». VZ, Sec. 5 (c) MARRIAGES ABROAD 115 As to marriages on board British merchant vessels, the Merchant Shipping Act, 1854, provides, s. 282 (8), that the master shall enter in the official log-book every mar- riage taking place on board, with the names and ages of the parties; and by s. 273 (10), shall send in those parti- culars of the marriage, with the date, to the Board of Trade.i {d) In the Colonies ami India ^ The Colonists took out with them the Common Law of England as regards marriages, and such law is in force in the Colonies in so far as it is not altered by their own municipal law. And a marriage good at Common Law will be valid although contravening such local law, unless such local law creates an express statutory nullity.' So, as regards India, a marriage in 1808 by a Eoman Catholic priest at Madras in a private house, without the Governor's licence, was held good ;* and in 1834, when an officer married at Surat, in the Bombay Presidency, per verba de prxsentt, it was held good.^ And in Australia, when a man married at Sydney, per vei'ba de prxsenti, in 1835, it was held good.^ made November 24, 1891, published in Statutory Rule.? and Orders, p. 518. 1 17 & 18 Vict., e. 104. - For local and colonial law, see Hammick on Marriage, App. XIII. As to India, see Second Report of Commissioners on the Law of Mar- riage, Pari. Paper, 1850 [1203]. Marriages in India are now regulated by two Indian Acts of 1872, cc. 3, 15. As to English Acts applying to India, see "Collection of Statutes Relating to India," 2 vols, and sup.; and for English and Indian Acts, see " Index to Enactment Relating to India ; " and see ante, p. 32. As to registers, sn^post, p. 137. 3 Caterall v. C. (1847), 4 N. of C, 222 ; ib., 466; 1 Rob., 304, 580 ; Lautour v. Teesdale (1816), 8 Taunton, 830. The Lauderdale Peerage (1885), 10 App. Ca. , 692. * LawUmr v. Teesdale, uii sup. 5 Maclean v. Cristall (1849), 7 N. of C, Sup. XVII. ^ Caterall v. C. , uti sup. 116 VALIDITY OF MARRIAGE Chap, n Also in the Colony of New York, in the case of an officer on service there being married in 1772 by an ordained clergyman, but without banns or licence, it was held good, and the issue of that marriage entitled to the peerage;'' and a marriage at Norfolk Island in 1842 by a clergyman in a room was held good.^ It seems that the governor of a Colony has the ecclesi- astical power of an ordinary, and can grant marriage licences.^ It does not seem certain whether it is incumbent to prove the colonial law, or whether the Court will take judicial notice that the Common Law exists in that Colony, unless the contrary is proved.* It is beyond the scope of this work to further discuss colonial marriages ;^ as to the validity in England of marriages in Australia, or with a deceased wife's sister, see post, Chap. XVII, s. 2 (6). By the Foreign Marriages Act, 1892, a Governor or High Commissioner of a Colony may be constituted by a Secretary of State a marriage officer, to solemnise marriages under that Act.'' ' The Lauderdale Peerage, ubi sup. 2 Limerick v. L. (1863), 4 Sw. & Tr., 252. 3 Basham v. Luinley (1829), 3 C. & P., 489 ; and see Ward v. Day (1849), 7 N. of C.,96. * Burt V. B. (1860), 29 L. J., P. & M., 133; Limerick, Countess of, V. Limerick, Earl of (1863), 4 Sw. & Tr., 252; Ward v. Day (1846), 5 N. of C, 66. ^ For a collection of Imperial Acts dealing with regulations and vali- dating marriages in particular Colonies, see Shelford on Marriage, pp. 43-62 ; for a collection of Colonial Acts, see Hammiok on Marriage, App. XIII. " 55 & 56 Vict., c. 23, s. 11 (2) c ; and see the Order in Council there under s. 11, published in the Statutory Rules and Orders, 1891, p. 518. MARRIAGES OF THE ROYAL FAMILY 117 Sec. 6. — Marriages op the Eoyal Family i The marriages of any of the Eoyal Family are specially exempted from the old Marriage (Lord Hardwioke's) Act,^ and from the present Act regulating Church of England marriages,' and also from the Nonconformist Marriage Act;* and so it is not possible for "any of the Eoyal Family " to be validly married according to the Noncon- formist rites, or in the office of a superintendent-registrar. Therefore their marriages are regulated by old Common and Canon Law in force previous to Lord Hardwicke's Act, ■which practically so far as validity required only the Church of England marriage service, or rather that part of it that was essential to be said before and by an ordained clergyman.^ They are therefore free from the requirements laid down by the jMarriage Acts, and, as a matter of fact, the marriage of the Princess Louise, Marchioness of Lome, the Duke of Connaught, the Duke of Albany, were solemnised after twelve o'clock ;^ and so it seems they can validly intermarry without banns or licence, and in a place where marriages could not otherwise be solemnised, i.e. a private room or chapel not licensed for marriages ; but a prudent clergyman would refuse, unless a special licence '' had been obtained, to marry such Eoyal person 1 Charles II was married at Portsmouth, and his marriage entered on the register ; see Bum's Parochial Registers, p. 161. As to Royal marriages by proxy, see ante, p. 22, u. 2, and App. 4. ^ 26 Geo. II, c. 33, s. 17 ; see ante, p. 12. 3 4 Geo. IV, c. 76, s. 30. ■> 6 & 7 Will. IV, c. 85, s. 45. 5 R. V. 3iaUs (1844), 10 CI. & F., 534 ; Beamish v. B. (1861), 9 H. L. C, 274, where the old Common Law previous to Lord Hardwicke's Act is explained. 6 London Gazette (1871), March 24, p. 1587 ; (1879), March 17, p. 2219 ; (1882), May 2, p. 1971. ' It is believed, however, that it is the invariable practice to obtain 118 VALIDITY OF MARRIAGE Chap. 11 without banns or licence, or outside a cliurcli, or he might run the risk of suspension "per triennium ipso facto," imposed on a clergyman for such a breach of ecclesiastical law.i The Foreign Marriage Acts, 1849-1891, and the Foreign Marriage Act, 1892 (as to its provisions, see ante, pp. 108-110), do not apply to the marriage of any of the Eoyal Family. 2 The exemption from the Marriage and Foreign ]\Iar- riage Acts clearly applies though only one of the parties is Eoyal. As to registration of Royal marriages, the Royal Mar- riages Act, 1772, 12 Geo. Ill, c. 11, see infra, provides for the consent being set out in the register of marriage. There is a Royal Register kept in the Lord Chamber- lain's Office, and utilised vphenever a marriage takes place in the Royal Family. The entries are not drawn up in specific form, and the signatures appended to a single entry extend over two or three pages.^ And in practice the marriages of Princess Louise, Marchioness of Lornc, the Duke of Connaught, and the Duke of Albany, were entered in the register, signed, and attested.* The old registry of Royal marriages at the Chapel Royal, St. James', is in the custody of the Bishoj) of London, as Dean of the Chapel Royal.^ a special licence for marriages of the Eoyal Family ; and the Royal Marriage Act, 12 Geo. Ill, c. 11, directs that the consent therein referred to shall be set out in the licence of marriage. 1 See Canons 61, 62. = 12 & 13 Vict., c. 68, s. 21, and 55 & 56 Vict., u. 23, s. 23. 3 Communicated to the author by The Very Rev. Randall Davidson, Dean of Windsor ; and see App. 1, as to St. George's Chapel, Windsor, where most Royal marriages take place ; and see the account in the London Gazette of persons signing the register, detailed in note 4, p. 117. ■■ London Gazette, see note 4, p. 117. ^ Burn's Parish Registers, p. 148. Sec. 6 MARRIAGES OF THE ROYAL FAMILY 119 lu 1772, in order to hinder disparaging alliances, there was passed the Eoyal Marriages Act,i providing "that no descendant of the body of his late Majesty, King George the Second, male or female (other than the issue of princesses who have married or may marry into foreign families), shall be capable of contracting marriage without the previous consent of his Majesty, his heirs or successors, signified under the Great Seal and declared in Council^ (which consent to preserve the memory thereof is hereby directed to be set out in the licence and register of marriage, and to be entered in the books of the Privy Council) ; and that every marriage or matri- monial contract of any such descendant without such consent shall be null and void to all intents and purposes whatever." This Act applies whether the marriage takes place in England or elsewhere. For in 1793 the Duke ^ 12 Geo. Ill, c. 11. At Comniou Law and by the prerogative of the sovereign there appertains to the sovereign the right of disposing in marriage of his own descendants, as was stated in 1718 by ten ont of the twelve judges, 14 State Trials, 1295 ; and apparently the sovereign conld control the marriages of other branches of the Royal Family ; and so Charles II gave Princess Mary, his niece, in marriage to the Prince of Orange without the consent or knowledge, and against the will, of her father, the Duke of York ; and the Countess of Shrewsbury was proceeded against for assisting Lady Arabella Stewart, one of the Eoyal Family, to marry Lord Hertford's son without the consent of James I ; see 12 Coke's Reports, 94. But when the Royal Marriage Act was introduced into Parliament, it was stoutly opposed in both Houses. Cobbett's Parliamentary History, vol. xvii., pp. 383-424, 447 ; and see the Lords' Protests, Annual Register, 1772. The Act was probably occasioned by the mai-riage in 1771 of the King's brother, the Duke of Cumberland, with Mrs. Horton, widow of Christopher Horton, and daugher of Lord Irnham. The Duke of Gloucester had previously, in 1766, married the Countess of Waldegrave, and announced it in 1771. 2 These consents to marriages of members of the Royal Family are published in the Gazette, but have not been indexed ; see index to London Gazette, 1830-1833, tit. Royal Family. 120 A^ALIDITY OF MARRIAGE Chap. II of Sussex went through, at Eome, a form of marriage according to the rites of the Church of England, which, but for the Royal Marriage Act would have been valid, with Lady Augusta Murray, daughter of Lord Dunmore ; but a suit having been brought in the Arches Court by the King's Proctor, the Dean declared the marriage null and void ; i and when, after the Duke's death, a son of that marriage claimed to succeed to the peerage, the Committee of Privileges held the marriage void, and the claim not made out.^ The Act further provides,^ " That in case any such descendant of the body of his late Majesty, King George the Second, being above the age of twenty-five years, shall persist in his or her resolution to contract a marriage disapproved of or dissented from by the king, his heirs or successors, that then such descendant upon giving notice to the King's Privy Council, which notice is hereby directed to be entered in the books thereof, may, at any time after the expiration of twelve calendar months after such notice given to the Privy Council as aforesaid, contract such marriage : And his or her marriage with the person before proposed and rejected may be duly solemnised without the previous consent of his Majesty, his heirs or successors, and such marriage shall be good, as if this Act had never been made, unless both Houses of Parlia- ment shall, before the expiration of twelve calendar months, expressly declare their disapprobation of such intended marriage." Further, by way of punishment, it is enacted that * " every person who shall knowingly and wilfully presume to solemnise, or to assist, or to be present at the celebration of any marriage with any such 1 Heseltine v. Murray (1794), 2 Adams, 400, n. 2 The Sussex Peerage (1844), 11 CI. & F., 85, and App. 3 S. 2. 4 s. ,3. Sec. e MARRIAGES OF THE ROYAL FAMILY 121 descendant, or at his or her making any matrimonial contract, without such consent as aforesaid first had or obtained except in tlie case above-mentioned, shall, being duly convicted thereof, incur and suffer the pains and penalties obtained and provided by the Statute of Provision and PrEemunire made in the sixteenth year of the reign of Eichard the Second." This Act, it will be seen, does not apply to the issue of princesses married into foreign families, e.g. the Empress Frederick of Germany, but applies to all other descendants of George II, includ- ing, therefore, the issue of the late King of Hanover, i.e. Princess Frederica and her issue, and the Duke of Cumberland and his issue,i and, of course, to the Duchess of Fife's issue. Even the Sovereign and all other Royal persons are bound by the Common Law of Marriage, e.g., as regards monogamy.2 1 The consent of the Queeu in Council was given on Nov. 27, 1878, to the marriage of the Duke of Cumberland with the Prince.ss Thyra of Denmark, London Gazette, 1878, Dec. 6, p. 6987. 2 So Henry VllI obtained a legal decree of nullity of marriage from Catherine of Aragon, 1 State Trials, 299, 28 Hen. VIII, e. 7, s. 9, see App. 5 ; from Anne Boleine, see 28 Hen. VIII, c. 7, ss. 3, 8, 10 ; from Anne of Cleves, 32 Hen. VIII, c. 25. George IV. in 1820 pro- uioted a bill for a Parliamentary Divorce from Queen Caroline. CHAPTEE III PROOF OF MAERIAGE AND LEGITIMACY' 1. Proving Marriages, . . 123 {a) Jurisdiction, . 123 (b) Burden of Proof, 124 (c) Strict Proof when necessary, . . . 125 Bigamy Prosecutions, 125 Two confi-ictinfi Jfrtr- riac/es, 126 Dirorcc, 127 Coverture, . . 128 Pedigree Cases, . . 128 Settlement Cases, . 129 2. Judgment and Estoppel, 129 («) Generally, . . . 129 Judgment in Rem, 129 ib) Order of Sessions, . 130 (c) Judgment of Ecclesi- astical or JJivorce Court, . . .130 Impeachable for Fra ud or Collusion, . . 131 {d} Decree under Jjcgiti- vmcy Declaration Act, 132 (e) Concictionfor Bigamy, 132 (/) Other Judgments, . 133 3. Evidence of Marriage, 133 (a) Registers, . . . ' 133 Parish and Registrar's Registers, . . 134 Transcripts in Dupli- cate, . . . 135 Non-Parochial Regis- ters, . . 135 Fleet Registers, . 135 Foreign Registers, . 137 (6) Identity of Parties, . 137 (c) Proof of Ceremony by Witness, . . 138 {d) Statement of deceased Relative, . . 138 4. Presumption in favour of Marriage, . . 139 (a) Generally, . . .139 (&) Presumption of Mar- riage from Cohabita- tion and Repute, . . 140 (c) Presumption omnia rite esse acta, . . 142 {d) Presumption of Death of former absent Spouse, . . . 144 After Seven Years' Absence, . . 144 Previous to Sei'en Years* Absence, . 145 5. Legitimacy and Adulter- ine Bastardy, . . 146 (a) Generally, . 146 1 And see post. Chaps. V and VI, Nullity of Marriage. 122 Skc. 1 (a) PROVING MARRIAGES 123 (&) Proof of Son-Access, . 148 Writ cle ventre inspici- Parent cannot be Wit- endo. 152 ness to Bctstardise Ultimmn teinpns. 154 Issue, 151 (d) Birth soon after iVar- [c) Postkumoas Birth and riage, . 155 Birth long after Inter- American Law, . 159 coursi; 152 Canon Laic, llil Sec. 1. — Proving Marriages (a) Jurisdiction Originally the lawfulness of marriage was a matter of ecclesiastical cognisance.^ And therefore in real actions, i.e. actions relating to land, when a question of validity of marriage is raised by a plea of " ni' unque accouple in loyal matrimony," or of general (but not special) bastardy, a return had to be made where and in what diocese the marriage took place, and then the Temporal Court would not try the matter itself, but a writ issued to the bishop of the diocese requiring him to try the matter, and certify the lawful- ness of the marriage to the King's Court. But if the marriage took place outside England, the lawfulness of the marriage would be tried in the Temporal (Jourts with a jury. There were also certain other exceptions, particularly special bastardy, in which the marriage was triable by the country and not by the bishop. ^ 1 See ante. Chap. I, p. 1. 2 Eoscoe's Eeal Actions, vol. 1., p. 220; Gray's case (1572), 3 Dy., 305, p. 313a, h, 368J; P^oUns v. Crutchley (1760), 2 Wilson, 127 ; Ilderton v. /. (1793), 2 H. Bl., 145 ; Kenn's case (1607), 7 Co. Eep., 42&. Year Book, 11 & 12 Ed. Ill, Rolls Series, p. xxiv. ; and see Law Dictionaries by Bouvier, Burrill, and Wharton, tit. Ne unqiie accouple: Chitty on "Pleading," 7th ed., vol. iii., p. 579 ; Britton, by NichoUs, tit. Marriage ; and see per Lord Penzance, A. V. B. (1868), L. R., 1 P. & M., 559, and quoted post, Cliap. VI, Nullity of Marriage, s. 1 (b) ; and see 25 Ed. Ill, Stat. 1. 124 PROOF OF MARRIAGE AND LEGITIMACY Chap, hi But in personal actions the fact of coverture is triable at common law.^ But real actions are now either abolished or the procedure assimilated to ordinary actions ; in practice, the fact of marriage is always triable and tried in the Court in which it arises, and every (Jourt is competent. And so in a bill for dower, where there was a plea of ne unque aacouple, the issue was tried before the full Court ; ^ and the old practice usual in the Court of Chancery, of directing issue to be tried at law before a jury, is now obsolete.^ In fact, in settlement cases the question of validity of marriages is continually tried by Justices of the Peace ; and in a case of disputed and difficult law which Justices, acting on the advice of their clerk, refused to try, mandamus went to compel them to try it.* When legitimacy or validity of marriage is the direct object of the suit, the jurisdiction is the Probate and Divorce Division in a suit for nullity or for a declaration under the Legitimacy Declaration Act. The Court has jurisdiction wherever the marriage took place, whether in England or abroad ; see Chap. VI, s. 1 (h) (c), and post, pp. 132, 224, 225. (6) Burden of Proof Every person setting up a marriage is bound to prove it; he is subject to "the burden of proof." So where a party set up relationship to a deceased intestate as against the Crown claiming on an intestacy, the burden of proof is on the claimant setting up the relationship. ^ But this 1 Fletcher v. Pynsett (1606), Cro. Jac, 102; Nonoood v. Stevenson (1738), Andrews, 227. ^ p^oZe v. P. (1831), Younge, 331. = Revel V. Fox (1751), 2 Ves., 269, and Smith, Chancery Practice, 1st ed. , vol. ii., p. 67 ; but now see Annual Practice, Ord. xxx. r. 1, notes. ■» S. V. /. J. Cumberland (1836), 4 A. & E., 695. ' Z>i/fe; V. m7/tams(1862), 2 Sw. & Tr., 491; (1871), L. R., 2 P. & M., 239; but the claimant is entitled to the benefit of the presumption, pp. 139, 140. Sue. 1 ft) PROVING MARRIAGES 125 proof of marriage is much aided by the legal presump- tions that have been ostalalished. One of these is that when it has once been proved that a marriage de facto has been gone through, a very strong presumption arises, omnia rite esse acta, — a presumption that requires very strong evidence to disprove it, see post, p. 142 ; and the other, a vfeaker presumption, that when man and woman cohabit as, and are reputed husband and wife, they are married; see jpos^, pp. 139-142. Where a presumption arises, the burden of proof shifts, and it is for the other side to rebut the presumption. (c) Strict Proof lohen necessary In some cases, however, strict proof is required. Bigamy Prosecutions} — Here the proof of the first marriage is strictissimi juris.^ So a marriage in fact must be proved ; neither acknowledgment nor cohabitation nor reputation are sufficient. It will not be presumed.^ But if once a marriage de facto be proved, then the presumption omnia rite esse acta will apply ; so if a cere- mony be proved by witness or registration, it is unneces- sary to prove that banns or licence for the mai'riage had been published or obtained, or that the church or chapel in which the marriage took place was duly registered or licensed for marriages, for this will be presumed.* If, however, a " wilful knowing " undue publication of banns by one party is proved, the burden of proof is then on the 1 See post, Chap. XV, s. 3. 2 Smith V. Huson (1811), 1 Phillim., 287, p. 314. ' Hawkins' Pleas of the Crown, vol. i., p. 323 ; Archhold & Roscoe, tit. Bigamy. * R. V. Allison (1806), R. & K., 109; Jl. v. Cltn-k (1847), 2 Co.x C. C, 183 ; R. V. Eawes (1847), 1 Den., 270 ; R. v. Cradock (1863), 3 F. & F., 837 ; R. V. Creswell (1876), 1 Q. B. D., 446 ; and see ante, pp. 36, 44, 46, 56, 83, 86, 86, 90, 91, s.ni post, s. 4 (a) (c). 126 PROOF OF MARRIAGE AND LEGITIMACY Cbap. hi prosecution to show that the other party was ignorant of such undue publication, in order that a valid marriage may he proved.^ But in favour of the prisoner, he will be allowed to set up a prior marriage by cohabitation and repute, so as to invalidate that charged against him as the first ; and the prisoner will be here allowed the benefit of presumption, and is not held to strict proof.^ Also in favour of the prisoner if previous to the first marriage which the prosecution set up as valid, e.g. a marriage with Charlotte Georgina Sawers in 1879, after which the prisoner married, in 1880, Edith Maria Miller, the prisoner sets up an existing marriage prior to that in 1879, being a marriage in 1864 to Ellen Earle, and it is proved Ellen Earle was alive in 1868, but there is no further evidence as to her existence, then it is an open question for the jury whether Ellen Earle was alive in 1879, and therefore the marriage in 1879 invalid. 2 Two conflicting Marriages. — Where marriage is set up to invalidate a second actual marriage, strict proof is necessary, and presumption cannot by law be made in favour of the first marriage ; * but once the first marriage is proved prima facie, as by production of certificate of marriage, the burden of proof shifts on those setting up the second marriage to invalidate the first by rebutting 1 R. V. Kay (1887), 16 Cox C. C, 292 ; see ante, pp. 38-41. 2 R. V. Wilson (1862), 3 F. & F., 119 ; this rule, however good in favorem libertatis, interferes with the rule as to two conflictiug marriages above stated ; as to this presumption, see post, s. 4 (a) (b). 3 R. \. Wiltshire (1881), 6 Q. B. D., 366 ; as to this presumption, see post, s. 4 {d). ■< Taylor V. T. (1754), 1 Lee, 571, 2 ib., 274 ; and see Lord Black- burn's judgment in Dysarl Peerage case (1881), 6 App. Ca., 489, p. 510, that there is a presumption a man would not commit bigamy. Sec. 1 os<, Chaps. V aucl VI, pp. 217, 219, 234, 285. * As to an estoppel by deed, see a case where next of kin of a deceased after admitting by deed that the defendant administratrix was the intestate's widow, were yet enabled subsequently to prove that she was not his wife because she was already married ; Haviland v. Mortihoy (1858), 4 Jur., N. S., 842. 9 130 PROOF OF MARRIAGE AND LEGITBIAGY Chap. Ill personam or inter partes is only conclusive upon parties and privies. But in either case it must be the judgment of a competent Court, and is only conclusive on what is in issue and material. ^ ip) Order of Sessions As to what are Judgments in rem. — An order of sessions in a settlement case where the pauper's settlement depends on the validity of her marriage, or on his or her legitimacy, is a judgment iii rem, and conclusive as to the validity of that marriage, not only as between the unions or parishes litigating, but as against the issue and all the world. ^ (c) Judgment of Ecclesiastical or Divorce Court Also the judgment in favour of the validity of a marriage by the Ecclesiastical Court, and therefore it would appear by its successors, the Divorce Court and the Probate and the Divorce Division of the High Court, is, except in a suit for jactitation,^ a judgment in rem, and therefore conclusive against all the world.* 1 Though estoppels are described by Lord Coke, C. J., as "a curious and excellent sort of learning," and defined as "where a man is con- cluded by his own act or acceptance to say the truth," they are a highly technical branch of the law, and not here further treated of ; but the reader is referred to the Duchess of Kingston's case, Sm. L. C. ; and see, too, Chitty on Contracts, 12th ed. , tit. Judgment and Estoppel ; Broom'.s Legal Maxims and the Law Dictionaries ; as to the effect of foreign judgments, see post, Chap. XVII, s. 4. * Per Lord Denman, C. J., in R. v. Wye (inhabitants of) (1838), 7 Adolphus & Ellis, 761 ; and see cases there cited. ' Duchess of Kingston's case (1776), 20 State Trials, 355 ; actions for jactitation lie where a person boasts that he or she is married to another whereby a reputation of their marriage may ensue, and the suitor claim that perpetual silence may be enjoined on the boaster ; and see post, Chap. X, s. 2. * lb., and per Sir J. P. Wilde, now Lord Penzance, A.y. B. (1868), L. R., 1 P. & M., 559, quoted post. Chap. VI, Nullity of Marriage, ss. 1 and 3 (c) ; and see ante, p. 2 ; post, pp. 217, 219, 234, 285. Sec. 2 W JUDCtJIENT AND ESTOPPEL 131 So a sentence of nullity and a sentence on affirmance of marriage has been received as conclusive evidence in a question of legitimacy arising incidentally upon a claim to real estate ; and a sentence of nullity is equally evi- dence in a personal action against a defence founded upon a supposed coverture.^ But such sentence in affirmance of marriage is not conclusive in a criminal proceeding either as against or in favour of the Crown in criminal proceedings for, e.f/,, bigamy ; ^ however, a sentence of divorce is by statute, 1 James I, c. 11, conclusive in jsrosecution for bigamy;^ as effect of conviction for bigamy, see jjost, p. 132. Collusion. — Such sentence may be impeached on the ground of collusion between the parties and fraud on the Court.* So where Lord Stowell had in 1816 pronounced a marriage null and void because of the banns being fraudulently published in the wrong names,' and in 1842 the issue born in 1817 of the marriage declared void, applied on the footing that the marriage was valid not- withstanding the sentence, which it was alleged was obtained by witnesses being withheld or not produced, the Privy Council decided that such allegation was not sufficient to impeach the sentence, collusion therein not being set up or proved ; ^ and the matter being re-tried in the Court of Chancery upon exceptions to a Master's report, the Master of the EoUs, Lord Langdale, held that the issue of the marriage was bound by the sentence, 1 Per Sir W. de Grey, C. J., the Duchess of Kingston's case, ubi sup.; Bunting v. Lepingwell (1585), 4 Co. Eep. 29a; see Lockyer v. Ferryman (1877), 2 App. Ca., 519. 2 Ih., see ante, p. 130. s Bunting's case, 4 Coke 29a, (m) B ; mpost, Chap. XV, s. 3. « lb., and Meddowcraft v. Hugiienin (1844), 4 Moore P. C, 386, per Lord Brougham. = Meddowcroft v. Gregory (1816), 2 Hag. Con., 207. " Meddowcroft v. Iluguenin, ubi sup. 132 PROOF OF MARRIAGE AND LEGITIMACY Csap. tii because matters amounting to fraud on the Court and collusion between the parties was not alleged. ^ But where the suit was fraudulently and collusively insti- tuted (a declaration of intention to appeal appended to the end of the sentence being characterised by the Lord Justices as the double hatching of a fraud), on which suit the Bishop of Winchester's Court in 1802 annulled the marriage, in 1853 the Lords Justices in Chancery declared the marriage good and the issue legitimate, so as to claim as next of kin.^ But it ap23ears that short of pro^'ing fraud on the Court and collusion between the parties, the issue of such marriage bastardised by the eifect of the sentence has no means of showing that the sentence is erroneous,' and the old doctrine, senfentia contra inatrimonium nim- quam transit in rem jndicatam,'^ is not now law. {(i) Decree under Legitimacy Declaration Act A decree under the Legitimacy Declaration Act, 1858,^ declaring the validity of a marriage, only binds parties cited and those claiming under parties cited, and does not prejudice any one if proved to have been obtained by fraud and collusion ; and in any case is without prejudice to any prior judgment or decree by a competent Court.^ (e) Conviction for Bigamy A conviction for bigamy does not, it appears, make the 1 Perrii v. Meddowcroft (1846), 10 Beav., 122. 2 Harrison v. Mayor of Sadthampton (1853), 4 De Gex, M. & G., 137. •* Perry v. J/eddowcroft, uhi si'p. * See Kenn's case (1617), 7 Coke, 426; and see post, Cliap. VI, Nullity of Marriage, s. 3 (c); but see Lockyer v. Ferryman (1877), 2 App. Ca., 519, 521, n. 5 21 & 22 Vict., L. 93; for proceedings under this Act, see Chap. VI, ,. 1 (c), p. 225. Ih., ss. 1, 8, and 10; ami see Shedden v. Patrick (1860), 2 Sw. & Tr., 170. Sec, 2 M JUDGMENT AND ESTOPPEL 133 second marriage conclusively void, but is only evidence against it; and even in case of the convicted prisoner suing for administration of tlie second spouse's effects, the validity of such second marriage can be set up.^ And if the second spouse brings nullity, the defendant may still set up as a defence the invalidity of the first marriage, notwithstanding he may have been convicted of bigamy therefor. ^ (./') Other Judgments But all other judgments are merely in 2Jerfonam, and bind the parties only. So in an administrative suit in Chancery, the certificate as to the next of kin only bind the parties and those actually classed under; and other parties can reopen the litigation.' The verdict of a jury of a manor is not evidence.* As to the effect of foreign judgments, see pod, Chap. XVII, on International Law, s. 4. Sbi.'. 3. — Evidence op Marriage (a) Registers It is a principle of the Common Law of Evidence that official registers required by law to bo kept for the public benefit are admissible as evidence of the truth of the relevant facts stated therein, without the person who 1 Per Sir Jolin NichoU in Wilkinson v. Gordon (1824), 2 Add., 152 ; and see Boyle, v. B. (1688), 3 Mod., 164; and see per Sir W. de Grey, laying down in tlie Duchess of Kingston's case, nhi snp., that on a con- viction for felony, yet a purchaser from a felon may traverse the felony; and see, too, in re Ethel Brown (1884), 13 Q. B. D., 614; a cnrions illustration of tliis point is given in Anthony Trollope's novel of John Caldigate ; and see Dixon on Divorce, 2nd ed., pp. -322-324. 2 Bruce v. Biu-ke (1824), 2 Ad., 471. 3 Spencer v. S. (1871), L. E., 2 P & M., 230. « Maule V. Alounsey (1844), 1 Rob., 40. 134 PROOF OF MARRIAGE AND LEGITIMACY Chap, hi made tlie entry swearing to it. It remains to consider what documents the law recognises as such official registers, and next, when the original itself must be produced, or when the entry can he proved, either hy an examined copy, i.e. by a copy of the original made by the witness who swears to it in Court as being an exact copy of the original, or a certified copy, i.e. a copy taken from the original by the person in whose custody the original is, certified under his hand and seal as exact, he not coming into Court, but the certified copy being accepted. As to the latter point, although sometimes, as in peerage cases, the original register must be produced, yet usually a certified copy of the register from the minister of the parish in charge of it, or from the General Registry Office, is legal evidence.-' But a certificate of marriage is not evidence unless it be shown as, and purports to be, a copy from the register, for a certificate is not evidence of a mere fact.^ But register of a marriage is not the best or necessary evidence of the marriage, because, " first, that registration is not necessar3' for the marriage itself ; secondly, that no error or blunder in the register would affect the validity of the marriage ; and, thirdly, that registration is not like an agreement or deed in writing, and the contents of which cannot be proved by viva voce evidence, but it is a mere record afterwards of what has been done, and no doubt a very important record to those who enter into the contract; but it is a mere memorandum of the compact they enter into, not the compact itself.' Parish and Registrars' Registers. — The law recognises as such official documents, parish registers which were first 1 6 & 7 Will. IV, c. 86, ss. 35, 37, 38 ; and see Taylor on Evideuce. - Xalcs V. Milirnrd (1S24), 2 Add., 386, p. 391. 3 Woods V. W. (1840), 2 Curt., 616, p. 522, per Dr. Lusliington. Sec. 3 (a) EVIDENCE OF MARRIAGE 135 kept in accordance with Canon 70, and subsequently by- statute, the present Act in force being 6 & 7 Will. IV, c. 86,1 g^gQ (;[jQ register of Nonconformist marriages solemn- ised by or in the presence of the registrar, and registered in accordance with that Act. As to how registration is effected, see atite, pp. 75-77, 93-97, 99-102. Transcripts on DujiUcate. — Further, originally by the canon and now by the 6 & 7 Will. IV, c. 86, ajid 7 Will. IV, and 1 Vict., c. 22, the parochial and registrars' registers are to be kept in duplicate, the duplicate being by the canon transmitted to the bishop, and by statute to the superintendent - registrar, and by them to the Eegistrar - General. These duplicates are also official documents within the above cited rule of evidence.^ Non-Parochial Registers. — These are such as registers in Church of England chapels, where it was not legal to solemnise marriages,^ e.g. the Fleet registers ; and regis- ters kept by the ministers of marriages in Nonconformist chapels. These registers were examined into by a Com- mission appointed in 1837,* and such registers as were 1 Previously regulated by Lord Hardwicke's Act, 26 Geo. IV, c. 33, ss. 14, 15 ; 4 Geo. IV, u. 76, ss. 28, 29, and s. 52 Geo. Ill, l-. 146 ; and see Shelford on Marriage and Divorce, cliap. ix., p. 806 ; and Burn's History of Parish Registers. 2 They are now at the General Registry, under 3 & 4 Vict., c. 92 ; see Reports of Commission of 1837, pp. 11 and 16, and Schedule M thereto, and are admissible, as evidence ; and see Burn's Parish Registers, chap. \x., pp. 199-211, on Bishops' Transcripts ; and see Doe on the demise of Wood V. Wilkins (1846), 2 C^ & K., 328 ; and Lloyd v. Passingkam (1809), 16 Vesey, 59-; Walker v. Countess Beauchamp (1834), 6 C. & P., 552. = Moysey v. liillcoat (1828), 2 Hag. Eoc. Gas., 30, p. 51. A list of chapels in which marriages were so celebrated, some of whose registers still exist, is given in Burns' Parish Registers, pp. 146-152. ^ See Report of this Commission on Non-Parochial Registers, Pari. Paper, 1837-38 [148], and Report of another Commission to the same object in 1857, published as a Pari. Paper, 1857-58 R. [233]. About 7000 registers were deposited in 1838, but few of the Nonconformist registers contained any marriages, as such marriages were by Lord 136 PROOF OF MARRIAGE AND LEGITIMACY Chap. Ill approved by tliem were deposited with the Eegistrar- General under the authority of 3 & 4 Vict., c. 92, and by that Act deemed to be in legal custody and receivable in evidence. But the marriage registers in the Fleet and King's Bench Prisons, at the Mayfair Chapel, and at the j\Iint in Southwark, dating from 1686 to 1754, which had been bought by the Government in 1821 and deposited in the Registry of the Bishop of London, and transferred by 3 & 4 Vict., c. 92, to the custody of the Registrar- General, were not receivable as evidence,^ although Fleet marriages before Lord Hardwicke's Act were, if proved, clearly valid ;^ and the register, though not evidence as an official document, might be received as a declaration made at the time under the hand of the party ; ^ and a Hardwicke's Act specially prohibited. A large number of marriage registers were transmitted to the Bishop of London's registry ; these consisted of registers of marriages of British subjects beyond the sea in embassies and factories, and of transcripts from the original parish registers certified by the ministers, see pp. 11 and 16, Schedule M ; and of the registers of the Fleet and King's Bench Prison, and Mayfair Chapel, not admissible, see pp. Ill, 116, and Schedule N and 0. In 1858 a further number of 292 registers were received, of which 124 were transmitted by the Quakers, who had refused to deliver them to the previous Commission, although Schedule P to that Commission gives an account of these registers. 1 See the Eegister of Baptisms and Marriages at St. George's Chapel, Mayfair, edited by George J. Armitage, P.S.A., published by the Harleian Society, 1889. The marriages were celebrated by the Rev. Alexander Keith, and after he was sent to gaol, April 1743, by his assistants. Here were married the Duke of Hamilton and Miss Gunning, also the Duke of Cleveland ; and see also history of the Fleet Marriages, by John Sotherndou Burn, and the Report of the Com- mission of 1838, pp. 11 and 16, and Schedule 0, containing the Mayfair Chapel registers, and Schedule N, containing the Fleet registers, some of which are, however, outstanding. One is in the Bodleian. ■^ Heriiey v. H. (1773), 2 W. Bl., 877; Ch-ant v. Grant (1754), 1 Lee, 592, a suit for restitution, where marriage must be clearly proved : and see Plunkett v. Sharp (1754), 2 Lee, 35. 3 Per Lord Eldon, L. C, Lloyd v. Passingham (1809), 16 Vesey, 59 ; Doe on the demise oi Davies v. Gatacre (1838), 8 C. & P., 578. Sec. 3 (a) EVIDENCE OF MARRIAGE 137 Nonconformist register not deposited under the last cited Act is not evidence.! Also registers of marriages abroad under tlie Consular Marriage Act, 1849, are evidence, and also registers of certain other marriages abroad deposited at the Eegistrar- General's Office iinder 3 & i Vict., c. 92, and mentioned in Schedule M to the Eeport of the Commission of 1838. As to registers of marriages abroad not so de- posited, the Committee of Privileges refused to admit the register at the British Ambassador's Chapel in Paris ;^ but the fidl Court of Divorce admitted the copy of register of marriages in India, transmitted to the East India House, from the original kept by the secretary of the Company in India.3 The Foreign Marriage Act, 1892, directs that marriages solemnised thereunder shall be registered, and a copy sent to England.* As to Scotch and Irish marriages and their registration, see 2'otost, Chap. XV, s. .3. Sec. 5. — Legitimacy and Adulterine Bastardy (a) Generally Every child born of the wife after lawful wedlock is presumed begotten of lawful intercourse, and therefore legitimate.* Children born before marriage are by our law bastards, though by the Canon and Civil Law they become legiti- mate after the marriage of the parents.' 1 R. V. Lumley (1869), L. B., 1 C. C, 196. 2 R. V. Twyning (1819), 2 B. & Aid., 386 ; and see Lapsley v. Grier- M«(1848), IH. L. C, 498. = R. V. Harborne (1835), 2 A. & E., 540. ■* See authorities cited, post {h), p. 148 and seq. ; for French Law, see Code Civil, tit. 17, ss. 312-330. The reason given by the Canonists is, "quicunque semen apposuit, marito acquiritur quia est dominus ventris," Bac. Abr., vol. i., p. 749 ; and see Mascardus de Probationibus, vol. ii., ss. 787-806. 5 Statute of Merton, 20 Hen. Ill, c. 9 ; and see Coke upon Littleton, 245«; Coke's Institutes, vol. i., p. 97 ; and see Birtwhistle v. Vardill Sec, 5 te) LEGITIMACY AND ADULTERINE BASTARDY 147 When the exact date of the birth of the wife's child is uncertain, it is presumed to have been born after marriage.^ But if husband and wife have been divorced a mensa et thoro, or judicially separated, or authorised to live apart by a police magistrate, from that moment all the presumption which exists in the case of married persons as to access and legitimacy of children is reversed ; and her children begotten on her during the separation are not presumed legitimate, for it is deemed that husband and wife will obey the sentence of divorce.^ AwA in a recent case where Lord Aylesford petitioned for divorce owing to Lady Aylesford's adultery with Lord Blandford, which was proved, but no decree was made owing to the petitioner. Lord Aylesford, being also found guilty of adultery, and Lady Aylesford continued cohabiting with Lord Blandford, there was no presumption of legitimacy as to a child born of her.^ The issue bom of a null and void marriage (as to what these are, see }iost, Chaps. V, VI) are illegitimate ; * but by Canon, Civil, and Scotch Law,^ and also by the Code Napoleon,'' the issue of such marriage, if one of the parents entered into such marriage hond fide, are held legitimate. However, under the provisions of the Divorce Act, the Court can, after declaring such reputed marriage void, (1840), 7 Ca. & F., 895 ; for French Law, see Code Civil Act, 331-342 ; and see post. Chap. XVIII. 1 Lady Mayo v. Brown (1757), 2 Lee, 391. " St. Ueorije's v. St. JIargaret's (1707), 1 Salk., 123 ; Hetherington V. H. (1887), 12 P. D., 112. 3 The Aylesford Peerage case (1885), 11 App. Ca., 1. ^ See RoUe & Vlner'.s Aljridgment, tit. Bastard ; originally the English Law was in accordance with the Canon Law, see RoUe's Series, Y. B., 11 & 12 Ed. Ill, Preface, pp. 20-23. '^ Fraser on Parent and Child, 2nd ed., chap, i., pp. 22 and seq. ; Sanchez, Ijk. iii., disp. 42, 43 ; and se& post, Chap. XVIIl, s. 5 (a). 6 Articles 201, 202 of C'wlc Civil. 148 PROOF OF MARRIAGE AND LEGITIMACY Chap. Ill order maintenance for tlie children of it thereby bastard- ised. ^ Tliis presumption of legitimacy depends on the pre- sumption of sexual intercourse between husband and wife, and as such it may be rebutted on proof of non-access. After proof of sexual intercourse, evidence will not be admitted except to disprove that fact. Once sexual inter- course is established between husband and wife at the time of the child being conceived, no question further can be raised as to illegitimacy ; for even if the wife is shown to have had sexual intercourse with other men, the law will not allow a balance of evidence as to wlio is the father. ^ (&) Proof of Non-Access ^ From the earliest dates the presumjjtion of legitimacy could be rebutted, and special bastardy proved by show- ing that the husband was impotent, or under fourteen years of age.* The old rule of law was that if the husband was within the four seas, the wife's child was conclusively legitimate, and could not by any means be bastardised ; ^ but in the eighteenth century this rule was regarded as exploded.^ 1 LangworthyY. L. (1886), 11 P. D., 85, C. A. 2 Answers of the judges iu the third and fourth questions in the Banbury Peerage case (1811), 1 Sim& St., 153 ; Cope v. 0. (1833), 1 M. & Robb, 269 ; and per Lord Cottenhani, L. C. , in Morris v. Dairies (1837), 5 CI. & F., 163 ; and see Wright v. Holdgate (1850), 3 C. & K., 158. s " Non-access " bet%veen husband and wife is used as equivalent for the "non-existence of sexual intercourse," see the last paragraph of the judge's answers in" the Banbury Peerage case; and see per Lord Cottenham, L. C, in Morris v. Davies (1837), 5 CI. & P., 163, p. 247, explaining "access." It is not used in the sense of husband and wife being in the same place or house. 4 Viner's Abridgment, tit. Bastard, A 2 & B. ' See Eolle & Viner's Abridgment, tit. Bastard ; R. v. Enighlley (1695), Sett. Cas. 1, Holt, 93. 6 See R. V. Bedell (17-37), Andr., 9. Sec. 5 ft) LEGITIMACY AND ADULTERHSTE BASTARDY 149 The law of adulterine bastardy has during the present century been very thoroughly discussed in the Banbury Peerage case. The Earl of Banbury having married in 1605, aged iifty-eight, Lady Elizabeth Howard, aged nineteen, she gave birth to two sons in 1627 and 1631 respectively, the Earl, her husband, being aged eighty and eighty-four respectively. The legitimacy of these sons was con- tinually disputed, but was not finally decided till 1813, when, on a claim by General Knollys, the House of Lords, after hearing the answers by the judges to questions of law put by the House, finally decided against the legi- timacy of this issue, and disallowed the claim, i The law was again discussed in the House of Lords in 1837 in the important appeal Morris v. Davies,"^ when the answers of the judges in the Banbury Peerage ease were discussed and approved, and the burden, admissibility, and weight of evidence necessary to establish non-access and illegitimacy explained at great length. The answers of the judges in the Banbury Peerage case are epitomised by Lord Cottenham, L. C, in Morris V. Dairies as follows : — "First, that when husband and wife have opportunities of access, the presumption of legitimacy may he rebutted by circumstances inducing a contrary presumption. Secondly, that non-access or non- generating access may he proved by means of such legal ei'ideuee as is admissible in every other case in which it is necessary to prove a physical fact. Thirdly, that after proof of sexual intercourse, evidence will not be admitted except to disprove the fact. Fourthly, that sexual intercourse is presumed, unless met by such evidence as satisfies those who are to decide that it did not take place. Then in terms 1 See a long history of the case in Nicholas on Adulterine Bastardy. There is a monument to a so-called Earl of Banbury in Winchester Cathedral ; see Diet. Nat. Biog., vol. xxxi., Knollys' William Earl of Banbury, j.p. 286-289. = See 5 CI. & F., 163. 150 PROOF OF MARRIAGE AND LEGITIMACY Chm.. hi tliey state, that by access they mean sexual intercourse and not such intercourse as is iniderstood by being in the same place or lionse." ^ And in Morris v. Davies,^ the Lord Chancellor, Lord Cottenham, further decided that there is no rule of intra quatuor muros to the effect that if husband and wife have opportunity of intercourse by being in the same town, house, or room, no evidence is admissible to dis- prove sexual intercourse. "Some facts are so strong as to offer irresistible evidence of sexnal intercourse having taken place, as the husband and wife sleeping to- gether, there being no natural impediment to sexiial intercourse ; but in the absence of such irresistible evidence, tlie fact of sexual inter- course must be tried like every other fact to which no direct evidence is applicable. Proof that husband and wife were living in the same town, and so had opportunities of meeting, and therefore of sexual intercourse, would in the absence of any proof raising a presumption to the contrary, be sufficient to establish the legitimacy of a child born of the wife. Proof that they had been in the same room or in the same house together would be much stronger evidence of the fact ; the strength of which, however, would vary witli the circumstances ; and as neither would be direct proof of sexual intercourse, but of facts from which sexual intercourse would be inferred, such inference must, as in all other cases, be capable of being repelled hy the proof of facts tending to raise a contrary presujnptiou. " "The parties may be fol- lowed within these four walls, and the fact of sexual intercourse not only disproved by direct testimony, but by circumstantial evidence raising a strong presumption against the fact. " Nor is such circumstantial evidence to be confined to the particular period of the imputed act (the question being whether husband or wife had on the occasion sexual intercourse), and the subsequent acts and conduct of the parties are to be looked at and considered for the purpose of establishing or repelling the jjresumption of sexnal intercourse. And among such evidence of con- duct would be that the wife was living in adultery, that the birth of the child was concealed from the husband, that the husband disclaimed all knowledge of or respon- 1 (1837) 5 CI. & F., 163. Sec. oft) LEGITIMACY AND ADULTERINE BASTARDY 151 sibilitj for the child, and that the wife's paramour treated it as his own and paid for it.i But in three subsequent cases, Lord Langdale, M. E., Kindersley, V. C, and Butt, J., have emphatically laid down that the presumption in favour of legitimacy is a strong one, and can only be rebutted by evidence clear and conclusive, and not merely resting on a balance of probabilities, and till this evidence is "in," there is no onus on the person whose legitimacy is in question to show opportunities of access.^ So where a husband was confined in a lunatic asylum, and his wife visited him, the attendants having strict orders not to leave them alone, but she deposed that while visiting they eluded the vigilance of the attendants and got out of the grounds, and went to the house of a friend and intercourse followed, and the lunatic and his mother recognised the child subsequently born of the wife, the Court lield such child legitimate, notwithstanding the wife had been accused of adultery with a farm labourer.^ Adulterous cohabitation by the wife will not justify a conclusion of illegitimacy against the child unless there is proof of non-access by the husband.* Parent's Evidence inadmissible to bastardise Issue. — It remains to mention a very important rule of evidence on the proof of non-access, viz., neither husband nor wife can be called as witnesses to prove or disprove sexual intercourse, or to give any testimony tending to bastardise or affect the legitimacy of their putative issue.^ 1 And see, too, the Aylesford Peerage (1885), 11 App. Ca., 1. 2 HargraveY. H. (1846), 9 Beav., 552; Ploioes v. Bossey (1862), 31 L. J. Ch., p. 681 ; BosiriUe y. The Attorney-General (1887), 12 P. D., 177. ^ Plowes V. Bossey, ubi sup. 4 R. V. Mmisfield (1841), 1 G. & D., 7. 5 See Taylor on Evidence, vol. i., 8tli ed., p. 817; and see Code Civil,^ articles 312, 313. 152 PROOF OF MARRIAGE AND LEGITIMACY Chap, hi But statements and declarations by either parent may be given in evidence proving conduct leading to the conclusion that the child is illegitimate, as a letter by the wife (though still alive and not called or admissible as a witness) to her paramour/ or a statement by the bastard's father in the baptismal register that the child was his.2 (c) Posthumous Birth and Birth long after Intercourse Writ de ventre inspiciendo. — "For the benefit and safety of right heirs against supposititious children, the law hath provided remedie by the writ de venire inspiciendo."^ The writ lies in case of a man owning land and marrying, and then dying without an heir of his body, and so that his land should descend to his brother or more remote heir, in that case the brother or heir can have the writ de venire inspiciendo. The writ is available, not merely to the heir, but also to a tenant in tail, or devisee ; but not to an heir- apparent. Except in case the widow remarries after the death of the first husband, the writ cannot usually be sued out in the life of the husband, but then the heir, etc., of the first husband can sue out the writ. But in one case where land was devised by H. A. Fellows to the issue of Martha Brown and in default to the petitioner, Newton Wallop, and Martha Brown's 1 Aylesford Peerage case (1885), 11 App. Ca., 1 ; and see Burnahy V. Baillie (1889) 42 Ch. D., 282; and re Walker (1885), 53 Law Times, 660. 2 Re Turner (1885), 29 Ch. D., 985. 3 Coke upon Littleton, &b, wliere a long account of tlie writ is given, and 123i; and see Willoughby's case (1597), Cro. Bliz., 566; and also Rolle's Abridgment, 356, where a case, John de Radewall, was referred to as tried in the Lord's Court in whicli the widow stripped herself to her shift and so allowed herself to be inspected in open Court. Seo. 5 (c) LEGITIirACY AND ADULTERINE BASTARDY 153 liusband was an officer on service in the East Indies, where lie had been for ten years, and Martha Brown, the wife, had remained apart in England, but being a person of ill fame, had from time to time pretended herself to be pregnant, the Lords Commissioners of the Groat Seal gave a -writ de ventre inspiciendo to Newton Wallop, the devisee, although Ulysses Erown, the husband, was alive. 1 The writ is of common right ; the procedure is that the first writ issues to see whether the widow be with child, and quando paritura , and if the jury ^ find, and the Sheriff return, that she is with child, then the widow ' is removed by a second writ issuing out of the Common Bench to a castle where the Sheriff is to keep her safely.'* But no pregnant woman, not even her own mother, must be with the widow, though such pregnant mother may be allowed to visit her.^ The writ must always be applied for by petition.'' The last time this writ is reported to have been sued out is in 1847, when it was granted by Knight Bruce, V. C. ; '^ and apparently it is still available. From the above cases it will be noticed that by English Law a widow may remarry as soon as she pleases after her husband's death, and such also is the Scotch Law ; yet by 1 Re Brown, ex parte Wallop (1792), 4 Bro. C. C, 90. - The jury is to be composed of men aud women, but the search was to be made by the latter only, Co. Lit., 1236, u. (1) ; as to proceedings by a jury of matrons in a criminal case where the prisoner says she is pregnant, see R. v. WycherUy (1838), 8 C. & P., 262. '^ If the woman has remarried she may be left in her second husband's custody, he giving security not to remove her from a house, and to let her be inspected by women sent by the Sheriff ; Tiwulier's case (1625), Cro. Jac, 686. * Ex parte Aiscough (1731), 2 P. Wm., 591. 5 Aischough v. Chaplin (1730), Cooke, 93. Ex parte Bellett (1786), 1 Cox, 297. 7 In re Blalcemore (1845), 14 L. J. Ch., 336. 154 PROOF OF MARRIAGE AND LEGITIMACY Chap, m the Civil Law she has the annus ludus, and by the Code Napoleon 1 ten months during which she must remain single ; ^ hut by Canon Law a woman is free to marry at onoe.5 If the widow, having remarried, has a child less than nine months after her husband's death, according to some authorities it is the child of the first husband ; according to others, the circumstances of the case should determine who is the father ; but others, again, say that the child, when arrived at years of discretion, may choose his father.* As regards the second husband, it is suggested that if the child is held to be at law the issue of the first husband, it ipso fado cannot be the child of the second husband, otherwise the child might have two legal fathers ; this thesis is also discussed later, see post, p. 161. Ultimum tempus. — The thesis here discussed is, admit- ting that sexual intercourse has taken place, yet such having ceased by death or absence, how long a period of gestation will be allowed by the law so that a child born thereafter may be considered legitimate. The law has not fixed any ultimum tempus, though, by common practice, forty weeks is regarded as an extreme time ; ^ but in each case medical evidence is taken, and it 1 Articles 228 and 296. 2 1 Blackstone's Commentaries, 457 ; in Theaker's case (1625), Cro. Jac, 686, tlie mdow remarried a weelc after the first husband's death. 3 Sanchez, de Matrinionio, bk. vii., disp. 87, Nos. 21-33; but in view of this contingency the Canonist refers in the same dis- putation to tlie practice of testators forbidding tlieir widows to marry during the annus luclus on pain of forfeiting the benefits under the will, such prohibition being, it appears, canonically valid. •"Cok. Lit., 8a, 1236; RoUe's Abridgment, tit. Bastard, 357; Theaker's case, uhi sup. * For old eases as to time, see Alsop v. Bowtrell (1620), Cro. Jac, Sec, 5 (c) LEGITIMACY AND ADULTERINE BASTARDY 155 is considered whether the child is full-grown. In a recent case where a child was born two hundred and seventy-six or two hundred and seventy-seven days after a wife eloped from her husband, and at the time of her elopement she was under menstruation, and she over since cohabited with an adulterer, the jury found the child a bastard, and the Divisional Court upheld the verdict ; i and in another case where a period of two hundred and seventy-nine days had elapsed since inter- course, a Chancery judge decided on this and other grounds that the child was illegitimate.^ (d) Birth soon after Marriage By the old law, "If a man marries a woman grossly big by another, and within three days after she is delivered, in our law the issue is a mulier (legitimate), and by the Spiritual Law a bastard." ^ Only two reported English cases exist * in which this question has, 541 ; and Viner's Abridgment, tit. Bastard, A ; and see Taylor's Medical Jurisprudence, tit. Gestation ; Coke upon Littleton, 8«, 1235. The French Law fixes three hundred days, Code Civil, article 315. 1 Bosville V. The Attmmey-General (1887), 12 P. D., 177 ; and see Piyar v. P. (1887), 12 P. D ., 165. 2 Burnahy v. Baillie (1889), 42 Ch. D., 282. ■' Viner's Abridgment, tit. Bastard (B) & (E), citing the Year Books ; Coke upon Littleton, 244a; and see EoUe's Abridgment, tit. Bastard (E). In Bacon's Abridgment, tit. Bastardy, p. 752, 'the reason given is, " If a woman marry grossment enseint it is the child of the husband ; for when they testify their consent by a public marriage before the birth of the child, it is a public acknowledgment that the child is his ; for at that time the child is one with the mother, and, therefore, in taking the mother, he takes the child with her ; " and see Best on Presumption, p. 70, where stress is laid on the fact that the mother is visibly pregnant at date of the marriage. For French Law, see Code Civil, article 314. J A7WU V. Anon (1856), 22 Beav., 481 ; 23 ib., 273 ; Parsons' Trusts (1868), 18 L. T., 704; for antenuptial pregnancy considered as adultery, see Kennedy v. K. (1890), 62 L. P., 705, discussed. Chap. VII, s. 5 (6). 156 PROOF OF itARRIAGE AND LEGITIJtACY Cdap. in subsequent to the above cited authorities, been discussed, in one of which the child was born three months and in the other three weeks after marriage. In the former easel gij. j^ Komilly, ]M. E., laid down, "Though I do not entirely adopt to its full extent the proposition that a husband admits liy his marriage that the child subse- quently born is his, yet 1 think the presumption is that he does so admit it if he takes no step to repudiate it, but adopts toward it exactly the same course as if it were his own child, making no complaint of the premature birth of the child, or of his having married a woman not fit to be his wife." The Master of the Eolls further ruled that the privilege which enables a husband or wife to decline answering questions to access or non-access in case of dispu.ted legitimacy ^ applies to a case where a child is born three months after marriage. And the ju-dge further said, " I will allow you if you cross- examine her to ask her this question, ' When did you first know this gentleman 1 ' For as at present advised I should say that you are entitled to know when she first knew him. Further than that I cannot allow you to go." In the latter case,^ Stuart, V. C, recognised, as a rule, that in such a case there is a legal presumption, but a rebuttable presumption in favour of legitimacy. In a previous case * there is an obiter dictum of Lord EUenborough, C. J., " AYith respect to the case where the parents have married so recently before the birth of the child that it could not have been begotten in wedlock, it stands upon its own peculiar ground. The marriage of the parties is the criterion adopted by the law, in cases of antenuptial generation, for ascertaining parentage of the 1 Ancm V. Anon, icbi sup. 2 gge ante, p. 151. '^Parsons' Trusts, ubi'sup. 4 R. V. Luffe (1807), 8 East, 193, p. 207. Sec. 5 (d) LEGITIMACY AND ADULTERINE BASTARDY 157 child. For this purpose it will not examine when the gestation began, looking only to the recognition of it by the husband in the subsequent act of marriage." In a Scotch case i before the House of Lords, where the child was born seven weeks after marriage, and the husband knew of the antenuptial pregnancy, Lord Blackburn said, "I do not think the presumption of parentage is nearly so strong in such a case as it would be, or ought to be, if the time when the child was begotten was after the parties were married, and were husband and wife." And in that case both the Lord Chancellor, Lord Cairns, and Lord Blackburn adopted the judgment of Lord Gifford, the Scotch Lord of Session. "Where, as in the present case, a man marries a woman who, at the time of marriage, is in a state of pregnancy, the presumption of paternity from that mere fact is very strong, and is, perhaps in most cases, in entire accordance with the truth. Still, further, where the pregnancy is far advanced, obvious to the eye, or actually confessed or announced, as in the present case, to the intended husband, a presump- tion is reared up which, according to universal feeling, and giving due weight to what may be called the ordinary instincts of humanity, it will be very difficult indeed to overcome . . . wherever an avowed and open courtship has taken place, and there have been opportunities of access, and thereafter the man marries the woman in an advanced state of pregnancy, knowing that she is so, and hurrying on the marriage, as it happened here, for that very reason, I do not say the presumption of legitimacy is absolutely conclusive, but I do say it is almost as strong as such a presumption can be." And, further, in this case the Lord Chancellor spoke of " the much stricter presumption which, in the case of English Law, would be drawn from these circumstances." And in this case, notwithstanding the evidence of husband and wife to the effect that the child was not the husband's, the law held it legitimate and by the husband. 1 Gardner v. Gardner (1S77) 2 App. Ca., 723 ; and see J!eidv. Mill Feb. 8, 1879), 6 Court of Session Cases, Bettie, 4th series, 659. 158 PROOF OF MARRIAGE AND LEGITIMACY Chap. Ill A hustand's and mother's declarations that a child born in wedlock is not his, are not sufficient to prove it ille- gitimate, though it was born only three months after marriage.! In this state of the authorities the law seems doubtful and unsatisfactory. However, it appears certain law that the old rule, if it ever existed, that the legitimacy of such a child so born was conclusive and indisputable, is as obsolete as the quatuor maria doctrine, see ante, p. 148. At most there is a presumption of legitimacy, and probably a presumption that is weaker, as Lord Blackburn observed (see ante, p. 157), than in case the child was conceived after marriage. And Lawrence, J.,- considered it only a presumption, and says the reason of it depends on the man knoioing the woman to be pregnant, for then by marrying her he may be considered as acknowledging, by a most solemn act, that the child is his ; and in the same case Le Blanc, J., spoke of marriage " recew^Zv/ before the birth of the child," and therefore as of manifest pregnancy. ^Vnd some at least of the earlier authorities (see ante, ]>. 155) refer to a state of circumstances where either the husband had express knowledge of the pregnancy, or else it was so far advanced, grossment enseint^^ that the husband must be taken to have known of the pregnancy. And this, it may be suggested, is the most satisfactory ground for the presumption that such a child is legitimate, viz., as depending on recognition by the father arising from his knowing the woman he marries to be pregnant, 1 Gardner -v. (/. (1877), 2 App. Ca., 723; and see same point, Bowles T. Bingham (1812, circa), 2 Mun. Vir., 442, 3 ib., 599; as to inadmissibility of parents' evidence to bastardise, see ante, p. 151. 2 In R. V. Lvge (1807), 8 East, 193, p. 210. 2 Eolle's Abridgment, tit. Bastard, pp. 358, 359 ; Bacon's Abridg- ment, tit. Bastard, 7tli ed., p. 752. Sec. 5 (d) LEGITIMACY AND ADULTERINE BASTARDY 159 and especially if this recognition is strengthened by his subsequent treating the child as his. For it would not be satisfactory to base it on the presumption of ante- nuptial intercourse, which between husband and wife is rightly presumed ; but why should the law presume ante- nuptial intercourse between the woman and her future husband rather than with any other person, when such intercourse is in any case illicit, and in some cases may be adulterous. If, as the author suggests, this is the reason of the rule of law, then in cases where the husband has, at the date of the marriage, no knowledge, express or implied, of the wife's pregnancy, as if, e.g., there are several months to run so that the pregnancy is not manifest, and there is no subsequent recognition as in case the husband dies before the child was born, in such case there will be, it is sug- gested, no presumption of legitimacy, and the filiation must be proved, and the case will be a fortiori where the husband is not only ignorant of the wife's pregnancy at the date of the marriage, but further, as soon as he per- ceives the pregnancy, and at and after the birth of the child, repudiates the paternity. In this uncertain state of the law it is material to examine the American and Canon Law. American Laio. — In a United States Circuit Court,i Chief Justice Marshall laid down — " If one marries a woman in such an advanced state of pregnancy that he must have known her situation, it must be considered as a recognition of the child afterwards born as his o^vn ; and any conduct of his after the birth indicating a belief that the child is his is decisive. But if, at the time of marriage, the pregnancy is probably unknown, where tlie parties' acquaintance couimeneed too late for the husband to be the father of the child afterwards born, where the common opinion 1 Stiffall OT Stegallv. S. (1820, circa), 2 Brock., 256; and see Dni- nison v. Page (1857), 29 Peun., 6 Carey, 420. 160 PROOF OF JIARRIAGE AND LEGITIMACY Chap. HI assigns the cliild to another man, when the child grows up not In the husband's house, nor looking upon him as a father, nor being considered as his child, and where the woman's reputation is not good, — the pre- sumption of legitimacy is strongly repelled." Mr. Justice Lumpkin laid down ^ — '' While the law presumes every child legitimate which is born within wedlocli, still in a question of this sort there is and should be a differ- ence between post and antenuptial conceptions. In the later much slighter proof should be required to repel the presumption of legitimacy arising from marriage. For here it is the marriage only, and not the presumed sexual intercourse resulting from marriage, which creates the presumption. Every child begotten and born within wedlock is rightly presumed to be the offspring of the husband. But such presumption does not necessarily arise where the child is begotten hefon marriage. Another man may as likely be the father as the future husband, as no one is entitled to sexual intercourse." And this was cited with approval in a later Californian case,^ where the wife produced a fully-developed child four months and nineteen days after marriage, the husband being ignorant of the pregnancy even until the birth of the child, and then immediately repudiated the paternity and returned the wife to her relations, and she confessed her guilt. Here the Court laid down that "The marriage is an acknowledgment by the husband that the child is his ; but to be effective there must be knowledge at the time of the fact admitted. Hence when a man marries a, woman with child, the law presumes the child is his ; but the presumption Is based upon the fact that he knew at the time of his marriage the situation of the woman." In this case the Court granted a divorce. Later American cases ^ have given more weight to 1 yVrUjU, Administrator of, v. Jliclfs (18.52, circa), 15 Geo., 160. = flal^er V. B. (1859), 13 Cal., Harman, 87. 3 Phillips V. Alien (1861), 84 Mass., 2 Allen, 453 ; Kleincrt v. Ehlers (1861), 38 Penn., 2 Wright, 439, where it is laid down that when the future husband and wife might have had antenuptial sexual intercourse it will be presumed they did h.ave ; Tioga County v. South Creek Town- ship (1874), 75 ; ib., 25 Smith, 433 ; Bailey v. Boyd (1877), 59 lud., 6 Sec. s id) LEGITIMACY AND ADULTERINE BASTARDY 161 the strong presumption in favour of legitimacy; but the Courts have laid down that though a man marrying a woman, knowing her to be pregnant, cannot charge another man in bastardy proceedings, as he conclusively adopts the jDaternity, yet this does not apply in cases of heirship. 1 Canon Lain. — The rule of the Canon Law is that children born se-\'en months and more after marriage are presumptively reckoned the husband's children ; but if born less than seven months after marriage filiation must be proved.^ As to children born less than seven months after marriage, the Canon Law legitimises them on the same principle as it legitimises per subsequens matiimonium children born previous to marriage, i.e., filiation must be proved. And previous to allowing proof of filiation, the Canon Law requires they should be the result of intercourse between unmarried persons ex solutd cum soluto conceived at a time when the parents might have lawfully intermarried.^ If the English Law does not insist on this, it would admit the possibility of a child having two legal fathers ; see ante, p. 154. Further, assuming the generation is ex soluta cum soluto, filiation must next be proved ; and the evidence of filiation the Canon Law most regards is recognition by the father. If this is once done it can only be overthrown Martin, 292, on a local Act ; Stale v. Romaine (1882), 58 Iowa, 46 ; in all these American cases English authorities were cited. And see Bishop on Marriage and Divorce, vol. i., ss. 187, 548. 1 State V. Shoemaker (1883), 49 Amer. Bep., 146 ; Miller v. Ander- son (1885), 64 Amer. Eep., 823. - Rota Roniana, Recent Decisions collected hy J. B. Compagno, vol. xix., pt. i., p. 83; Decision 75, on May 22, 1677; ib., More Recent Decisions, collected by Cardinal Luca, bk. i., Decision 23, No. 6. 3 Rota Romana, Recent Decisions collected by Paul Rubseus, vol. ix., pt. i., p. 224, Decision 105, n. 13, June 23, 1642. II 162 PROOF OF MARRIAGE AND LEGITIMACY Chap, hi by very strong conclusive evidence, and it is not necessary to prove that no one but the future husband could have had access to her.i i See Rota Eoniaua, More Recent Decisions collected by Cardinal Luca, vol. ii., bk. x., Decision 23, No. 3 ; blc. xiv. , Decision 6, vol. iv., p. 170, Monday, Jan. 11, 1704. OHAPTEE IV RIGHTS AND DUTIES OF HUSBAND AND WIFE 1. Personal Rights, 163 (c) The Married Women's (a) Cohabitation and Property Act, 1882, . 188 Unity, .... 163 (d) Husband's Liability (6) Marital Intercourse, . 167 for Wife's Torts, Debts, (c) Chastisement, 173 and Engagements, 190 [d) Control, . 174 3. Settlements, . 191 (e) Maintenance, 178 4. Married Women's Con- During Cohabitation, . 178 tracts, 196 During Separation , 179 (a) Generally, 196 Necessaries, 180 (b) Separate Trading, 198 (/) Household Manacje- (c) Contracts between Hus- inent, . 182 band and Wife, . 199 (g) Injuries to Wife, 183 (d) Mutual Agency of 2. Eights of Property, 184 Husband and Wife, 199 (a) Generally, . 184 5. Separation Deeds, . 200 (b) Prior to 1883, . 185 Sec. 1. — Personal Eights (a) Gohahitation and Unity By marriage husband and wife become in law, for many- purposes, one person. 1 So husband and wife could not in Common Law be guilty of stealing one another's goods,^ and therefore the ^ Blackstone's Commentaries, vol. i. , chap. xv. , 444 ; Stephen's Commentaries, bli. iii., chap. ii. ; and see in re Jupp (1888), 39 Ch. D., 148 ; and in re Dixon (1889), 42 Ch. D., 306. 2 Hawkins' Pleas of the Grown, bk. i., ehaji. xxxiii., see. 32 ; Hale's Pleas of the Grown, vol. i., pp. 513, 544. 164 DUTIES OF HUSBAND AND WIFE Chap. IV adulterer receiviug from her the goods which she had taken from her husband, could not be guilty of receiving them ; i but now by the Married Women's Property Act, 1882, 45 & 46 Vict., c. 75, criminal proceedings may be taken as between husband and wife when either party leaves or deserts, or is about to leave or desert the other.^ Originally, therefore, at Common Law husband and wife could not make gifts to one another ; but in equity a married woman, not restrained from anticipation (as to which see jiost, 193, 196), could transfer her separate property to her husband ; and a husband could by a gift to a wife make it her separate property and be a trustee for her, 5 although such gifts would be subject to the claim of his creditors. This equitable right is confirmed and enlarged by the Married Women's Property Act, 1882. Eurther, husband and wife could not sue one another ; but in equity the wife could sue and be sued with regard to her separate property ; and this is now confirmed by the Married Women's Property Act, 1882, ss. 11 and 12, except as regards torts, for which (see s. 12 of the Act) neither husband nor wife can sue one another for acts done while cohabiting. Therefore even if the wife sub- sequently obtains a divorce, she cannot sue the husband civilly in damages for an assault during cohabitation.* So now husband and wife can contract one with another, but marriage renders void antenuptial contract.^ So husband and wife could not give evidence in civil or criminal proceedings for or against each other ; but this 1 R. V. Kenny (1877), 2 Q. B. D., 307. ° SS. 12 and 16 ; and see post, Chap. XV. 3 Re Whittaker (1882), 21 Ch. D., 657. * Philips V. Barnett (1876), 1 Q. B. D., 436 ; she may, however, in certain cases prosecute her husband criminally or ask for articles of the peace against him ; see Chap. XV, s. 5. ■- Butler V. B. (1885), 14 Q. B. D., 831. Sec. 1 fa) PERSOKAL EIGHTS 165 rule now is altered by legislation, and applies only to criminal proceedings.^ But in crimes between husband and wife either can e.v necesitate rei give evidence against the prisoner; see post, Cliap. XV, s. 5. Further, when the wife acts with her husband in crime she is, except in cases of treason, murder, brothel-keeping, or certain misdemeanours, protected from prosecution by its being presumed that she acted under the coercion of her husband ; but this presumption may be rebutted.^ The wife takes her husband's rank ; ^ but if a duchess or other peeress by marriage remarries a gentleman or esquire, she loses her previous name and dignity, as in the case of Lady Powes, who married K. Howard, and the Duchess of Suffolk, who married Adrian Stokes, the writs abated in their cases ; but a woman, noble by birth or descent, whosoever she married, remains noble.* She also takes his domicile and nationality,'' and she is con- sidered as constructively resident with him, whether she may actually be abiding or living apart. ^ And the husband has the right to fix the domicile where he pleases, and the wife must follow him through the world." But where the wife has obtained a divorce a viensa et 1 See Steplieu'.s Conimeutaries, 8tli ed., vol. ii., p. 260. - Taylor on Evideuce, 8th ed., p. 209 ; and see Roscoe's Criminal Evidence, lltli ed., ]>p. 95.5-957 ; Hale's Plea.s of the Crown, vol. i., pp. 44-48, 51-3, 544 ; Hawkin.s' Pleas of the Crown, blc. i., ehap. i., .sees. 9-13. ^ Duchess of Kingston's ease (1776), 20 State Trials, 355 ; Countess of Rutland's case (1606), 6 Coke's Reports, 626. ■* Brooke's New Cases, 4 Mar., 1, 153, and tit. Nosme, 137 ; Countess of Rutland's case, uhi sup.; Haward v. Duke of Suffolk (1553), 1 Dy,, 79S. s //araeyv. i^'a-j-Bif (1882), SApp. Ca., 43; TtirnerY. Thomson {1S8S), 13 P. D., 37 ; Bloxam v. Favre (1884), 8 P. D., 101 ; 9 P. D., 130, C. A. 6 Warrenderv. W. (1835), 2 CI. & P., 488; Whitoomb v. W. (1840), 2 Curt., 351 ; Yelverton v. Y. (1859), 1 Sw. & Tr., 574. '■ Schonler's Domestic Relation, chap. ii. 166 DUTIES OF HUSBAND AND WIFE CnAP. IV thoro for the husband's adultery, the ordinary presumption that the wife is domiciled where the wife is fails.^ And if the husband is banished the realm or imprisoned, the wife need not follow him, and in these cases she becomes s. feme sole.'^ Further, it seems an antenuptial contract to live in England is valid, and gives the Court jurisdiction;' and if the place selected by the husband, as in the case cited. County Dublin, would be injurious to the wife's health, that may be an excuse.* Still, Lord Westbury expressed a doubt whether the domicile of the husband is to be regarded as the domicile of the wife, either by construction or attraction, so as to compel the wife to become subject, for the purposes of divorce, to the juris- diction of the tribunals of any country in which the husband may choose to acquire a domicile.^ The law enforces cohabitation and a common residence. If either party desert the other, there arises a right to enforce renewed cohabitation by action for restitution of conjugal rights ; complaininij, that the other party has withdrawn from cohabitation without lawful cause. The lawful cause of withdrawal is adultery or cruelty, either of which may be pleaded in bar.^ Further, a separation deed will estop the petitioner; s,6q post, Chap. X, s. 1 {h). But besides the husband's remedy by suit for restitu- tion, or in execution of such decree, it was generally 1 WaUams V. Donner (1852), 2 Rob. Ec, 505. 2 See note above, and refer Blaekstone's Commentaries, bk. i. , p. 443 ; R. v. Pilkincjtun (1853), 2 E. & B., 546. ' Santo Teodoro v. S. T. (1876), 6 P. D., 79 ; and aw post, Chap. VII, s. 1 (c). 4 Mnlonij V. M. (1824), 2 Add., 249. 5 Pitt V. /'. (1864), 4 Macqueeu, 627, p. 640. * Corpus Juris Canouici Decretum, bk. iv. , tit. 19, cap. 4 ; Ougliton, tit. 215 ; Hope v. H. (1858), 1 Sw. & Tr., 94 ; and see post. Chap. X, h. 1, as to the action for restitution. Sec. 1 fo) PERSONAL RIGHTS 167 believed among lawyers, previous to 1891, that a husband had a right to seize his wife if he could catch her out of doors, and confine her to the house while contumacious ; but in that year the Court of Ajjpeal, consisting of Lord Halsbury, L. C, Lord Esher, M. E., and Fry, L. J., decided, that -vvheji a wife refuses to live with her husband, he is not entitled to keep her in confinement, or to seize her in order to enforce restitution of conjugal rights.^ Neither has a wife any right to imprison a liusband by locking him up in his own house, even if she suspects he is going to visit a mistress. ^ As to "Desertion,"' see post, Chap. VII, s. 5 (d). (b) Marital Intercourse. It is a maxim of the Civil as well as the Ecclesiastical Law, that consensus non concubitus facit inatrimonlum ; and so where parties intermarrying give their consent accord- ing to the law, perfect marriage is constituted, and con- summation adds nothing to it.^ Therefore, if two parties marrying mutually consent and agree to abstain from intercourse, their marriage would be for all intents and jjurposes good, and they 1 R. V. Jaxkson (1891), 1 Q. B. , 671, C, A. , thus overruling Lord Mans- field, G. J.'s dictum ; I{. v. Mead (1758), 2 Ken., 279, the decision of Coleridge, J., re Cochrane (1840), 8 DowL, 630, and of Wilde, B., re Price (1860), 2 F. & F., 263; the only authorities in favour of their decision are the dicta of Dr. Lushington in Lockwood v. L. (1839), 2 Curt., 281, p. 301 ; and see post, p. 173, n. 3. After this decision it would seem that the old action for harbouring a wife against a hus- band's will is obselete ; for an instance of this action see Lewis v. Ponsforcl (1838), 8 C. & P., 687 ; swpost, p. 183. 2 Waring, v II'. (1813), 2 Phillim., 132, p. 142 ; and see pp. 190, 255. - Bishop on Marriage and Divorce, 6th ed., vol. i., s. 228 ; Swinburne on Spousals, sec. iv., s. 3, quoting the instance of the .Virgin Mary, who, though not known by Joseph, was termed wife ; see Lord Stowell's judgment, Lindo v. Belisario (1793), 1 Hagg. Con., 216, p. 232 ; and see Hall V. W light (1858), B. B. & E., 746. 168 DUTIES OF HUSBAND AND WIFE Chap, iv would, in the eye of the law, be husband and wife, and entitled to all rights as such. If such mutual consent and agreement was entered into previous to the marriage, to the effect that the parties would not consummate the marriage, it seems to be law that it could not be enforced if one party subsequently, changing his or her mind, and wishing to consummate, was refused, and that he or she would not be debarred and estopped from enforcing his or her rights by an action for restitution of conjugal rights (see post, Chap. X, s. 1 ) ; or if still defrauded, he or she could sue for nullity of marriage (see pod, Chap. V, s. 1 (a) ) ; for an agreement for future separation is bad and void (see post, s. 5, p. 201). But if such mutual consent and agreement for abstinence was made after marriage, and still more after consummation, it might, if amounting to a present separation, be good. So, in a case of "profession," Pierce Connelly, a clergy- man of the Protestant Episcopal Church in the United States, agreed and consented verbally with his wife, to whom he had been married in Pennsylvania, that as they both became Eoman Catholics, and he wished to become a Roman Catholic priest, that they should live in constant and perfect chastity, abstaining from sexual intercourse with one another ; and then she became a nun and he a priest. She subsequently entered a religious house at Hastings, and he was chaplain to Lord Shrewsbury. Then he changed his mind and wished to see her, and to have intercourse with her ; but she by the rules of her convent refused. He then sued for restitution of con- jugal rights ; and it was held, that by the law of England it was no defence, but the wife was allowed to state what was the law of Pennsylvania. No decree was made.^ 1 Connelly v. C. (18-50), 2 Rotertson, 201. At that time separation deeds were deemed contrary to law and void, but now tliey are enforced ; Sec, 1 (W PERSONAL RIGHTS 169 So on marriage (refraining, perhaps, for the three days after the ceremony, see ante, p. 74, n. 3), it is the husband's right, nay, his duty (as to which see post, p. 170), to consummate the marriage. If the wife refuses to siibmit to consummation, the husband may, but is not legally bound to, resort to such brute force as, but for the marriage would be rape, to oblige his wife to submit to connection ; for if she so persistently refuses he may sue for nullity.i But if he resort to main force to effect consummation, he is not guilty of rape, even if the marriage turn out void.- If, at the time of marriage, the husband is suffering from disease, his attempting while in this state to consummate the marriage is wrong and cruelty.^ But even if lie, while suffering from a venereal disease, wilfiilly infects his wife, he cannot be convicted of assault in inflicting bodily harm,* though it is matrimonial cruelty (see post, Chap. VII, s. 5 (c) ). And it is clear law, fortified by the oi)inion of St. Paul, that after consummation the husband has a general right to have from time to time intercourse at pleasure with the wife.^ If a wife, even without good cause, occasionally withdraws herself from her husband's bed, it will not justify cruelty and insult on his part.'' Several American cases have ruled that a gross abuse see post, s. 5, p. 200. Under the present state of the law, Mr. and Mr.s. Connelly's agreement might be valid and enforceable, especially after R. v. Jackson (1891), 1 Q. B., 671, C. A., see ante, 167 ; see, too, 1 Cor. vii. 5, and post, p. 172, Chap. X, s. 1. 1 O. V. a. (1871), L. R., 2 P. &M., 287 ; H. v. P. (1873), L. R., 3 P. & M., 126 ; .S'. V. A. (1878), 3 P. D., 72 ; and see post, Chap. V, p. 207. ^ 1 Hale, P. C, 629. ' Giocci V. C. (1853), 1 Ecc. k Ad., 121, p. 131. 1 R. V. Clarence (1888), 22 Q. B. D., 23. '' 1 Cor. vii. 3, 4. 6 Saunders v. S. (1847), 5 N. of C, 408, p. 421 ; Rome v. R. (1865), 4Sw. &Tr., 162. 170 DUTIES OF HUSBAND AND WIFE Cuip. iv of marital rights, i.e. persistently insisting in continuous marital intercourse with a knowledge that it will injure the wife's health, is cruelty ; i and in an English case it was admitted as an allegation of cruelty, that the hushand insisted on consummation too soon after childbirth, ^ and that he insisted on sleeping with his wife while suffering from smallpox.5 Further, this right of the husband to marital intercourse was limited by the rule of the Canon Law, that marital intercourse is sinful on fast days, or after receiving the Host, or in a public or consecrated place.* As to the husband's duties in affording, or what is the same thing, the wife's right to, the matrimonial inter- course, it is the husband's duty to consummate the marriage. In default of consummation she can sue for nullity (see jjosiJ, Chap. V, p. 203). In such suits medical men have frequently given evidence that marital cohab- itation without intercourse was injurious to the wife's health. 5 1 English v. Ji. (1876), 27 N. J. Eq. (17 C. E. Green), 579, where the earlier cases are citeJ. s Geih V. G. (1848), 6 N. of C, 97, pp. 100, 146, 147 ; and see Sanchez, hk. ix., disp. 21, 22, as to sexual intercourse during the period of pregnancy or menstruation. By the Factory and Workshop Act, 1891, there is a prohibition on employing a woman within four weeks after childbirth, 54 & 55 Vict. , c. 75, s. 17. 3 Greenway v. G. (1S4S), 6 N. of C, 221, p. 227. ■• See Sanchez, bk. vii., disp. 7 or 21, and bk. ix,, disp. 12 and 13 ; and see the rubrick at the end of the Missa pro sjjonso et sponsa. Sanchez devotes the whole of blc. ix., of 147 folio pages double columns, to writing de debito conjugali; the treatment of the subject, replete with absurd obscenities, affords an argument against the practice of the Confession. St. Alphonso de Liguori honestly laments the extreme indecency of the topic, but declares that it is so frequently referred to in the confessional that he feels obliged to discuss it at length. Gury approves and follows Sanchez's doctrines thereon ; and see ante, p. 74, n. 3. 5 Polhu-d V. Wyhoiwii (1828), 1 Hag. Ec, 725 ; Ficoti v. ././»«■ (1842), Siic. 1 (6) PERSONAL RIGHTS 171 And further, after consummation throughout the sub- sequent married life, slie has a right to marital inter- course. If the husband makes default in affording marital intercourse, it is not cruelty,^ though, it may be given in evidence as a recriminatory plea, alleging neglect and misconduct conducing to an adultery in bar to an action for divorce instituted by such a husband on the ground of tlie wife's adultery ; for, as Lord Stowell says, if a wife is without her consent deprived of her lawful pleasures, the husband should not feel surprised if she resorts to unlawful pleasures j^ still, though far from immaterial and proper to be given in evidence, such default will not, standing alone, constitute in itself a bar to an action of divorce. ^ Nor is it desertion so as to entitle the wife to the remedy of restitution of conjugal right, for though it is not sufficient com- pliance with an order for restitution of conjugal rights that a husband has provided his wife with a suitable establishment and sufficient income,* yet if the par- ties are living together in the same ' house, the Court does not, for obvious reasons, pretend to enforce marital intercourse ; and so where a wife sued, alleging that though allowed by her husband to reside in the same house with him, "She was denied access to his person and "bed," 2 N. of C, 36 ; F. v. U. (1865), 4 Sw. & Tr., 86 ; and see the evidence of the celebrated Dr. Brouardel in a Canon Law case in France, Jnne 15, 1890, Acta S. S., vol. xxiii., pp. 156-164 ; and sua post, p. 203. 1 D'Acjidlar v. D'A. (1794), 1 Hag. Ec. R., 773; Cousen v. G. (1865), 4 Sw. & Tr., 164; Jioans v. E. (1843), 2 N. of C, 470, p. 474. - Forsterv. F. (1790), Hag. Con., 145, p. 154. 3 Roiue V. R. (1865), 4 Sw. & Tr., 162. " Wddon V. W. (1883), 9 P. D., 52 ; and see 47 & 48 Vicl., c. 68 : anil see post, Chap. X, s. 1. 172 DUTIES OF HUSBAND AND WIFE Chap, IV the Court decline to interpose and register the libel, saying— "The precedent sought to he estahlished would lead to an infinity of suits, in no one of which the Court could embark with any reasonable proposal of satisfying or doing justice between the parties." i As to the proper frequency with -which the husband should afford marital intercourse, the Koman Law, the Talmud, and other systems contain minute rules on the subject.^ The New Testament declares, " Let the husband render unto the wife due benevolence, and likewise also the wife unto the husband." ^ The binding efficacy of vows of abstinence is much discussed in Sanchez.* When it is said that a husband has a right of inter- course with his wife, it is meant that it is a personal right, and cannot be delegated. And if, without her consent, he helps or permits another man to have inter- course with his wife, it is rape, or conspiracy to rape. So when Lord Audlcy incited his servants to have inter- course with his wife, and held Lady Audley while a servant, Brodway, had intercourse with her, his wife was allowed to be witness against him, and he was convicted by the House of Lords of rape on his wife in two counts as principal and agent, and being sentenced to death, was beheaded.^ If, with her consent, he allows another person to have intercourse with her, it is connivance (see post, Chap. VII, s. 3) ; and if he " procures " her to have intercourse with some other person, it is a criminal offence (see Chap. XV, s. 5). 1 Orme v. 0. (1824), 2 Ad. Ec., 382. 2 Mishna, 21 (Ketuboth), chap, v., sec. 6, translated by Sola k Raphall ; Selden's Uxor Ebraica, bk. iii., chaps, vi., vii. ; Gibbon's Decline and Fall, chap. xliv. 3 1 Cor. vii. 3. ■" Bk. ix., De Debito Conjngali ; see ante, p. 74, n. 3, and p. 170, n. 4. > R. V. Lord Audley (1631), 3 St. Tr., 401 ; and see Chap. XV. Sec. 1 ») PERSONAL RIGHTS 173 Further, the husband is only entitled to have inter- course with the wife in a natural way, and not unnaturally ; and if he do so without her consent it is a cause of divorce. 1 It is her duty to resist to the utmost, and he may be convicted criminally.^ And further, he and she ought not to use unnatural means for preventing con- ception ; and where a husband compelled his wife to submit to using " certain coverings " on sexual intercourse, this was admitted as an allegation of cruelty. ^ This subject of preventing conception is treated of at length as a moral sin by the Canonists.* (c) Gliastisement A husband was never allowed to kill his wife, for that was murder ; '^ but by the old law a husband may beat her, but not in a violent and cruel manner;" and in the writ available to a wife asking for the peace against her husband for excessive correction, this right of reasonable chastisement was recognised." However, in the time of Charles II this began to be doubted, and Chief Justice 1 Geils V. G. (1848), 6 N. of C, 97, pp. 101 and 148-164 ; J. V. X. (1862), 3 Sw. & Tr. , 234. The Canon Law considers it a lighter offence than adultery (Sanchez, bk. ix., chap, xviii.), and in certain cases even permissible (ib. , disp. xvii. ). 2 R. V. Jellyman (1838), 8 C. & P., 604. s Oreenwayy. G. (1848), 6 N. of C, 221, 231. * Sanchez, bk. ix., disp. 18-20. There is a recent pronoimcement by the Vatican, in answer to an inquiry on this point by a French bishop on behalf of a married couple in his diocese, in which the practice is condemned. This declaration is reported in the Acta S. Sedis ; but the author, although he has read it, has unfortunately lost the reference ; he would be obliged if one of his readers would furnish him with it. = Per Cur. in Manby v. Scott (1660), 2 Sm. L. C. " Bacon's Abridgment, tit. Baron & Feme. '' Fitzherbert, Natura Brevium, 80 ; but even then on excessive chastisement the wife might either have a writ of supplicavit in Chancery, or swear the peace against her husband, who thereupon might be bound to good behavioiir, but not removed from tlie wife; see 174 DUTIES OF HUSBAND AND WIFE Chav. iv Hale laid it down that the chastisement alluded to in the writ was at the most but one of admonition and confine- ment to the house i (but now a husband cannot even confine his wife to the house, see ante, p. 167) ; and so the legal right for a luisband to chastise his wife is obsolete, even if she be drnnk.^ "Yet tlie lower rank of people, who were always fond of the old Common Law, still claim and exert their ancient privilege." ■* A wife has no right to beat her husband ; if she does it, it is cruelty (see Chap. VII, s. 5 (c) ), and he may swear the peace against her.* {d) Control It is the law of religion and the law of the country that the husband is entrusted with authority over his wife. 5 He is to practise tenderness and affection, and obedience is her duty. "For the happiness and honour of hotli parties it places the wife under the guardianship of the liusband, and entitles him for the sake of both to protect her from the danger of unrestrained intercourse with the world. " ^ The husband hath by law power and dominion over his wife. " ^ There is general right of the husband to the control and custody of his wife.^ "A husband is not to be deprived of his marital rights because a wife pertinaciously resists them." '' But when she submits to her husband, restraint is illegal,^ for — Shelford, Marriage and Divorce, pp. 671-676. Fitzherbert, Natura Brevium, 235, 239. ■ Lord Leigh's case (1684), 3 Keble, 433. 2 Pearman v. P. (1860), 1 Sw. & Tr., 601. 3 Blackstone, Com., bk. i., 444, Husband and Wife. •* Sim's case (1734), 2 Str., 1208 ; and see Chap. XV, s. 5. 5 Per Lord Stowell, Oliver v. 0. (1801), 1 Hag. Con., 361, pp. 363, 372. « Per Coleridge, J., in re Cochrane (1840), 8 Dowl., 630. '' Bacon's Abridgment, tit. Baron & Feme. Sec. 1 (rf) PERSONAL RIGHTS— CONTROL 175 ' ' By the law of England she is entitled to all reasonable liberty, if her conduct is nothing bad ; but where the wife will malce an undue use of her liberty, either by squandering her husband's estate or going into lewd company, it is lawful for the Imsbaud, iu order to preserve his honour, to lay such wife under a restraint." i Of what is tlie proper conduct and behaviour of a wife, the husband is the sole judge ; but if the husband attempts to abuse his marital power by any wanton and excessive exercise of it, the Courts will interpose ; ^ and further, it is cruelty. " The husband is the person to direct the expenditure as well as to control the establishment and direct its management."^ And "if a wife violates the rules and regulations of her husband, provided they are not absolutely absurd and irrational, he has a right to comj)lain of it."* And generally it is the duty of a wife to conform to the tastes and habits of her husband, to sacrifice much of her own comfort and convenience to his whims and caprices, to submit to his commands, and " ensure her own safety by lawful obedience and by proper self- command." But this rule can only apply where there is no actual ill-treatment to life or health. Mere want of affection, coarseness of language, abuse, is not cruelty. But where a Lord Dysart, a person of very peculiar and extraordinary habits, had continually disregarded his Countess's wishes and comfort, forcing her to submit to unnecessary privations and hardships totally inconsistent with their respective rank and fortune, merely in order to annoy her, and openly avowing his dislike to her, the Court refused to compel her to return home to a husband who, in order to gain his end, has recourse to any kind of 1 a. v. Lister (1721), 8 Mod., 22 ; 1 Str., 477 ; and see Ahoood v. A. (1718), Pr. in Ch., 492; but this is not now the law after M. v. Jackson. (1891), 1 Q. B., 671, C. A. ; see ante, p. 167. 2 Per Coleridge, J., in re Cochrane (1840), 8 Dowl., 630. ■' Dysart r. D. (lUl), 1 Rob. Eec, 106, 470. ■1 Wallscourt v. W. (1844), 5 N. of C, 121, pp. 133, 134. 176 DUTIES OF HUSBAND AND "WIFE Cn^p. IV ill-treatment short of thrasliing her, and imagined in so doing he has legal authority.^ Still, "without disparaging the just and paramount authority of a husband, it may be safely asserted that a wife is not a domestic slave, to be driven at all cost short of personal violence into compliance with her husband's demands." " A man who sets about to achieve this end by purposely rendering a woman's daily life unhappy, is in danger of overstepping his rights, as he is pretty sure to fall short of his duties." - For instance, a clergyman, saying it was "affectionate discipline," adopted a deliberate system of conduct towards his wife, which resembled the solitary prison system. He refused to associate himself or speak to her except for the purpose of putting her sin (which was imaginary) before her in strong, coarse, and abusive terms, using the same language as would be applicable to an adulteress, while her conduct had been perfectly innocent, submissive, and unprovocative. The result of this treat- ment was that her health was not only seriously imperilled, but she was exposed to the highly probable consequence of paralysis and madness. Her husband, however, declared it was the duty of a Christian wife to say — " It is not necessary for me to improve in health, or even to live." The Court declared such conduct to be cruelty, and decreed a judicial separation.' In this case the Court laid down that if force, physical or moral, is systematically exerted to compel the submission of a wife to such a degree and during such a length of time as to injure her 1 Dysarl v. D. (1847), 1 Rob. Eco., 100, 470. 2 Kelly V. K. (1869), L. R., 2 P. & M., 31, 59 ; and see per Sir Herbert Jenner Fust in Saunders v. S. (1847), 5 N. of C, 408, pp. 419, 420, 421 : " For those who are resolved to go to the edge of the law are the most likely to overstep the bounds which their fear, not their sense of duty, prescribes to them ; " and see Dysart. v. D., ubi sup., p. 630 ; and Mytlon v. M. (1886), 11 P. D., 141. 3 Kelly V. K. (1869), L. R., 2 P. & M., 31, 59 ; and see this case quoted at greater length, post, Chap. VII, s. 5 (c). Sec. 1 (rf) PERSONAL RIGHTS— CONTROL 177 health and render a serious malady imminent, although there is -no actual physical violence, it is legal cruelty ; for many acts which are venial in themselves become reprehensible -when they take their places as parts of a system. Others justifiable on occasions lose their justi- fication when continuously and purposely repeated. A husband has a right to interdict his wife's inter- course with her own family, either by forbidding her to visit them, or forbidding them to come to his house, or both. It is a harsh exercise of marital authority, yet standing alone it is not cruelty. Further, he may be justified ; for though a wife may be very amiable, yet her connections may not be so, and there may be many reasons which may justify such exclusion. Still, as it might tend to illustrate the husband's conduct, especially if part of a system (see anfe, p. 176), it may be pleaded in a suit for cruelty, and the Court will consider if the husband exerted his right in a proper manner.^ And there is good reason for such power of control by the husband, for the law makes him civilly liable in damages to third parties for her torts, i.e., wrongs committed since marriage.^ A husband has a right to all his wife's time and services, and it is on this account he has a right of action for torts committed against her (see j>ost, p. 183). But after the decision in R. v. Jaclison^ explained above, it would appear that the husband's right of control is merely a moral right ; that if she either elope from the ^ IfArjuilar v. T)' A. (1794), 1 Hag. Ecc, 773; Waring y. W. (1813), 2 Hag. Con., 153 ; and XeeU v. N. (1831), 4 Hag. Ecc, 263, p. 269. 2 Seroha v. Kattenburg (1886), 17 Q. B. D., 177. '■> (1891), 1 Q. B., 671, C. A. (see ante, p. 167) ; the correctness and policy of this decision, and the way in which it was delivered, were at the time mnch qnestioned ; see inter alia, L. J., vol. xxvi., pp. 416, 433. 12 178 DUTIES OF HUSBAND AND WIFE Chap, iv house altogether, or go out at times and hehave in a manner displeasing to him, he has no remedy at law, and cannot right himself by his own hand. Such conduct, however, if sufficiently continued, may result in her being guilty of the matrimonial offence of desertion (see post, Chap. VII, s. 5 (cZ) ) ; and if he suspects her of adultery, it is the husband's right, nay, his duty, to separate from her ; but if, without committing adultery, the wife elects to use the matrimonial domicil as a hotel, coming and going at her own pleasure, it does not seem that (short of locking her out, and his right to do this is doubtful) a husband has any remedy ; and this is the result of R. v. Jaclison. For further instances, see " Cruelty'' and "Desertion," Chap. VII, s. 5 (c) (d). As to right to custody of a lunatic wife, see Chap. A'll, s. 5 (c), and refer index tit., " Lunatic,'' "Lunacy." (e) Maintenance Correlatively to the rights of the husband, previously explained, it is the husband's duty to support and keep the wife, supplying her with necessaries, i.e., food, drink, lodging, fuel, washing, clothing, medical attendance, suit- able to the position of the husband." The cases illustrating this duty usually, if not invari- ably, arise in actions by tradesmen seeking to render the husband liable for goods ordered by the wife, of which the most famous is the leading case of Manhy v. Scotf.^ Different principles apply in the case when the husband and wife are cohabiting, to when they be living apart. Firsthj, when husband and wife are cohabiting there 1 Bacon's Abridgment, tit. Baron & Feme (h) ; and see Salkeld, ib 2 See Sniitli, Leading Cases, vol. ii., "where the principal cases follow- ing this are given. Sec. 1 (c) PERSONAL RIGHTS— 11 AINTEXANCE 179 is -A. prima facie presumption tliat slie has his authority as his agent to pledge his credit for household supplies and necessaries for herself, and the presumption is stronger if she has heen previously permitted by him to purchase household articles; and this remains even though the wife be guilty of adultery during cohabitation. But this pre- sumptive authority may be rebutted by proof that the husband had forbidden the wife to pledge his credit even though the tradesman did not know of the prohibition, and it may further be shown that she was already suffi- ciently provided with these goods, so that there is no implied authority to order them. Secondly, as to when they be living apart, and here the liability varies according to whose fault it was that occasioned the separation. When husband and wife live separate, it is incumbent on any tradesman with whom the wife deals to make inquiries ; and if necessaries are supplied, mere proof of the fact of separation is not sufficient, the tradesman must prove that the separation occuiTed under such cir- cumstances as give the wife an implied authority to bind the husband, i.e., that it amounted to a desertion by the husband. In case the separation arose by the husband's default, either because he turned her out of the house or made it impossible for her to live there from his cruelty or misconduct, by, e.g., bringing a mistress into the house, he will be liable for necessaries supplied to her even though he has given a notice not to trust her. But if he makes and pays her a suitable allowance, he will not be liable. In case the wife elope from the husband, being guilty of adultery, or is expelled by him on that account, or leaves him of her own will causelessly without his being guilty of adultery or cruelty, he will not be liable ; except that if after conniving at the adultery he should 180 DUTIES OF HUSBAND AND WIFE Chap, iv expel her, lie will be liable. If they separate by mutual consent and agree on the allowance, and it is paid, the tradesmen cannot dispute its sufficiency, and render the husband liable by alleging it is too small. Necessaries. — As to what goods the husband will be liable for (if at all) during separation, he can only be liable for necessaries, including therein necessaries for children lawfully in her custody ; during cohabitation he may be liable for goods not necessaries, but in such cases more special proof of authority than the general prima facie presumption above mentioned is required to render the husband liable for luxuries. Generally what are necessaries is a' question for the jury, though it is for the Court to say if there is no evidence on which the jury could properly find the goods supplied were necessaries, and if so to refuse to leave the case to the jury. As an instance, it may be mentioned that jewellery to the extent of £85 is not a necessary for the wife of a special pleader ; but in all cases necessaries vary according to the station and means of the husband and the style in which he lives. Lastly, money lent to the wife to purchase necessaries is recoverable in the same way as necessaries, but only if the necessaries bought therewith would be chargeable against the husband.^ It may be, however, that the husband has no credit, and it is impossible for the wife to be so supplied. In 1 The law on this .subject is entirely judge-made, depending on a great number of cases, most of them decided more than fifty years ago. The above summary of the law is taken from Cliitty on Contracts, 12th ed., chap, viii,, sec. 2, pp. 272-86, to which the professional reader is referred. The most recent cases on this subject are Phillipson v. I-Iayter (1870), L. R., 6 C. P., 38 ; Debenham v. Mellon (1880), 6 App. Ca. 24 ; Wihon v. Glossop (1888), 20 Q. B. D., 354, C. A. Sen: 1 fe) PERSONAL RIGHTS— MAI XTENANCE 181 such case, either because she is starving or deserted, she may, however, apply for poorhouse relief; and on her becoming chargeable, the Guardians can summon her husband before Petty Sessions, and an order for payment to be enforced by imprisonment may be made against him,i as he may be convicted of being a rogue and a vagabond.^ If he force her to leave him owing to his ill-treatment, and she becomes chargeable, he may be compelled to contribute to her support, ■' but cannot be convicted as a rogue of deserting her.* Further, by a recent Act, a wife deserted by her husband can, without going into the workhouse, summon her husband before the Petty Sessions, and the Court may then order him to pay the wife a weekly sum not exceeding £2, and enforce their order by imprisonment.^ P)Ut in no case, if tlie wife has committed adultery, can the husband be convicted for deserting as a rogue,^ or ordered to contribute to her maintenance in the Union,' or pay her maintenance. ^ It was further the practice of the Court of Chancery, in case a husband deserted or ill-used his wife or became insolvent, to allow her maintenance out of property coming to him in her right ; but owing to the operation of the Married Women's Property Act, vesting such property in the wife solely and separately (seepost, p. 188), the oppor- tunities for the exercise of this power will become rare.^ 1 31 & 32 Vict., c. 122, s. 33. - 5 Geo. IV, c. 83, s. 3. 3 Thomas v. Alsop (1870), L. R., 6 Q. B., 151. *> Flannarjaii v. Bishop Wearniouth Overseers (1857), 8 E. & B., 451. M9 & 50 Vict., c. 62 ; see post. Chap. IX, s. 4. 6 R. V. FUntan (1830), 1 B. & Ad., 227. ' Culley V. Charmiin (1881), 7 Q. B. D., 89. " 49 & 50 Vict., c. 62, .s. 1 (2) ; see Chap. IX, s. 4. " See for the old cases. Roper on Husband and Wife, vol. i., chap, vii., sec. 2 ; this was on the doctrine of her equity to a settlement ; see post, pp. 186, 189. 182 DUTIES OF HUSBA^'D AK"D WIFE Chap. IY Questions as to insufficient maintenance of a wife by a liusband may also arise under a charge of cruelty, on wliich it has been decided that the supply of inferior qu.ality of food is not cruelty.i It is not the duty of a wife to maintain her husband out of her separate property, and when she buys house- hold supplies and necessaries it is not assumed that she makes her separate estate liable.^ But if her husband becomes chargeable to the Union, and she has separate property, she may, by the Married Women's Property Act, 1882, be made to contribute to his maintenance in the way in which he may be made, under 31 & 32 Vict., c. 122 (see ante, p. 181), to contribute to her maintenance.^ (/) Household Mcminjeinent And though it is usual for a wife to manage the house- hold by hiring servants, ordering meats, etc., and paying bills, yet she has no right thereto, and the husband can him- self assume that authority. As Lord Stowell laid it down — ' ' I cannot call it cruelty if a gentleman chooses to settle his weekly bills himself, because I take it that a wife acts in this respect, not by any original right, but as steward an^l representative of her husband. And if a man has but a moderate opinion of his wife's management, and is vain enough to have a better of his own, if he does choose to take into his own hands the payment of the weekly bills, I protest it does appear to me to be that kind of conduct with which no magistrate, ecclesiastical or civil, has any right to interfere." ^ As to a wife's right to draw and sign cheques in the husband's name. Lord Stowell laid it down — " I protest I have never imderstood it to be part of the prerogative of the wife that she shall have the right to draw for what she likes upon 1 Di/mrt V. D. (1847), 1 Bob. Ecc, 470, pp. 485-489 ; Means v. E. (1840), 2 N. of C, 470, p. 474 ; as to cruelty, see Chap. VII, s. 5 (c). 2 Chitty on Contracts, 12th ed., p. 2-33. 3 45 & 46 Vict., c. 75, s. 20. •' Evans v. E. (1790), 1 Hag. Con., 35, p. 115. Sec. 1 (/) PERSONAL RIGHTS 183 the banker of her husband. The purse is the husband's,' and with- drawing lier credit at the banker's is not cruelty." And a wife cannot give a person authority to enter her liusband's house. - ((/) Injuries to Wife The husband previous to the Matrimonial Causes Act, 1857, had the action of criminal conversation against the adulterer, which is now converted into damages against the co-respondent ; see post, Chap. "VII, s. 2 (/). Where there was no adultery, he could also maintain the action for harbouring and sheltering his wife;' but as long as the decision in R. v. Jaclcson^ remains law (establishing the wife's free will, see ante, p. 167), it would seem that this action could not be maintained.* If a wife is abducted against her will, this was anciently a felony.^ But now for this and other injuries done to the wife, where she becomes less serviceable to the husband, there accrues to the husband an action of trespass sounding in damage ; and this separate right of action is still available to the husband notwithstanding that by the Married "Women's Property Act, 1882, the wife also can sue, because previously the husband had a several as well as a joint right of action.^ And if she is 1 Evans v. E. (1790), 1 Hag. Con., 35, p. 123. 2 TayUr v. FisMr (1592), Cr. Eliz., 246. 3 Lewis V. Ponsford (1838), 8 Car. & P., 687 ; Philp v. Squire (1791), 1 Peake, 82, 114, and oases there cited. ■• (1891), 1 Q. B., 671, C. A. * The last instances of this action were Steeds v. Offord, the Times, January 29, 1892, p. 10 ; and Wallis v. Carr, the Times, May 14, 1892, p. 17 ; but in both cases the plaintiff was unsuccessful. « Hale's P. C, chap, lix., p. 636, citing 13 Ed. I, c. 34 ; and see post, Chap. XV. ' Weldonw. Winslow (1884), 13 Q. B. D., 784, C. A.; seeBrockbank v. Whitehaven Junction (1862), 7 H. & N., 834; and see BuUen & Leake, 184 DUTIES OF HUSBAND AND WIFE Chap, iv killed by negligence, tlie husband can recover damages under Lord Campbell's Act.^ Sec. 2.— Eights of 'Peoperty (a) Generally The rights of husband and "wife as to property are almost universally among the wealthier classes regulated by settlement (see post, s. 3) ; in fact, it is professionally incumbent on a lawyer advising, in the case of a married woman, to inquire if there is a settlement. This section deals with the rights of property in case there is no settle- ment, and supposing there is a settlement, in so far as the property is not affected by it ; for the Married Women's Property Act, 1882, explained infra, expressly enacts that nothing in the Act shall interfere with or affect any settlement or agreement for settlement, whether such settlement is entered into before or after the marriage.^ And as a settlement frequently contains a covenant by either husband or wife, or both, to settle after acquired property, it often happens that property coming to the wife absolutely, subsequent to her marriage, is regulated by the provisions of the previous settlement. But in each particular case it is a question of construction, regarding the class of property acquired and the wording of the covenant, whether such property is included and bound by the covenant, or passes free from the covenant. The rights of husband and wife after the other's death, in his or her real and personal property by way of dower, 4th ed., pt. 1, Statements of Claim iu Actions on Wrongs, tit. Husband, p. 436. Chitty on Pleading Declarations on Trespass, 7th ed., vol. ii., pp. 651, 652 ; and see the most recent hook by Minton- Senhouse on the Employers' Liability Act. i9&10Vict., c. 93. 2 45 & 46 Vict., c. 75, s. 19. SRr. 2 M RIGHTS OF PROPERTY 185 curtesy, intestate succession, and the right of a married woman to make a will, are treated of in another book of this series,! gg ^]^q present section is still further restricted to the rights of husband and wife in property during each other's life and the continuance of the marriage. The effect of nullity, divorce, or judicial separation in rights of property is considered pi)!ropta' impotentiam, if there is no more evidence than that they have for a period of three years lived together in the same house with ordinary opportunities of intercourse, and it is clearly proved that there has been no consummation, then, if that is the whole state of the evidence, inability on the part of one or other will be presumed ; on the other hand, the presumption to be drawn from the fact of non-consum- mation is capable of being rebutted, and also every case need not be fortified with the presumption ; for although no presumption can be raised from the absence of con- summation within a less period than three years, yet positive evidence may be given from which the sure inference of inability may be drawn. i The rule as to triennial cohabitation only applies when the impotence is left to be presumed from continued non- consummation, for when the impotence is clearly proved aliunde, the Court has never had recourse to it.^ If there is a visible incapacity, it is the duty of a petitioner to move promptly; and in one case Lord Sto well commented strongly on a delay of sixteen months ; ^ see post as to delay, p. 218. Inspection. — The best evidence arises from inspection.* In some foreign Courts they were wont to have a solemn inspection visitation performed by surgeons in presence of the judges and parties, and formerly in France they ' G. V. M. (1885), 10 App. Ca., 176. 2 F. f. c, D. V. D. (1865), 4 Sw. & Tr., 86; B. v. B. (1875), I. R. 9 Eq., 551. 3 Briggs v. Morgan (1820), 3 Phillim., 325. « n'elde V. W. (1731), 2 Lee, 580. Skc. 1 ft) DEFINITION AND JURISDICTION 211 used " the congressus " ; but that method was abolished by the Parliament of Paris in the year 1665. The Court usually requires medical evidence as to the physical condition of the parties, and it is the duty of the petitioner to apply to the Court to have sworn medical inspectors appointed who examine both parties. ^ If the respondent refuses to be inspected he will not be compelled, but it will be taken strongly against him or her, and the impotence presumed.^ Confessions. — Confession by itself is not suificient or satisfactory ; ^ but this, coupled with a refusal to undergo inspection, is strong evidence against a respondent.* But oral information given by the respondent to the inspectors on which they base their report, although there is no visible defect, will be sufficient to enable the Court to find the respondent actually impotent without the neces- sity of triennial cohabitation.^ (c) Jurisdiction and Procedure Old Ecclesiasticcd Law. — The suit for nullity on the ground of impotence being canonical, was always exclu- sively cognisable in the Ecclesiastical Courts.^ 1 H. V. C. (1860), 29 L. J., P. & M., 81, and cases there cited ; and see forms issued under authority of the Court, Nos. 54, 55, 56, and 57, given at length, Dixon on Divorce, 2nd ed. , pp. 604-606. ^ Pollard V. Wyiourn (1828), 1 Hag. Ec, 725 ; Sparrow v. Harrison (1841), 4 Moore P. C, 96 ; F. f. c, V. v. D. (1865), 4 Sw. k Tr., 86 ; B. v. L. (1869), L. R., 1 P. & M., 639 ; II. v. P. (1873), L. E., 3 P. & M., 126. The case of T. v. M. (1865), L. E., 1 P. & M., 31, seems unique, and not to have been followed ; but see B. alias A. v. B. (1891), 27 L. E. Ir.,587. 3 Canon 105 ; Wdde v. W. (1731), 2 Lee, 580, see 585 : and see as to Confessions, Chap. VII, s. 5 (a). * Pollard V. Wybourn (1828), 1 Hag. Ec, 725 ; Sparrow v. Harrison (1812), 4 Moore, P. C, 96. 5 Greenstreet v. Cumyns (1812), 2 PhUlim., 10 ; G—s v. T—e (1859), 1 Spinks, Ecc. & Ad., 389. 8 See Oughton, tit. cxoiii., sec. xvii., tit. coxvii.; Clarke's Praxis, tits. 212 NULLITY ON ACCOUNT OF IMPOTENCE Oiap. v "The question of impoteuoe as a ground of nullity has never yet been raised in the Temporal Courts of this country. The various restric- tions on marriage, such as a prior existing marriage, insanity, illegality under the Marriage Acts, illegality under the Boyal Marriage Act, and, since Lord Lyndhurst's Act, consanguinity or affinity, all these matters, when they arise incidentally in the Temporal Courts, have in modem times heen there dealt with for the purpose of the suit in which they have arisen. . . . How then, it may be asked, does it happen that the particular ground which is raised incidentally in this suit has not followed the fate of all other grounds of nullity and become cognisable in the Temporal Courts ? The answer is, that impotence does not render a marriage ' void,' but only ' voidable.' " ' And it was thereby laid down that a marriage cannot be impeached on the ground of impotence after the death of one of the parties.^ So where, to an action on a covenant made by the defendant in consideration of his daughter's marriage, the defendant pleaded that the marriage was null and void by reason of the impotence of the husband, without stating that it had been avoided by the sentence of any Court, or that either of the parties had elected to treat it as void, the Court of Exchequer held it a bad jjlea.* Under Matrimonial Causes Act, 1857. — By the Matri- monial Causes Act, 1857, all jurisdiction then exercised by any Ecclesiastical Court in England in suits of nullity of marriage were abolished and transferred to Her Majesty, to be exercised by " the Court for Divorce and Matrimonial Causes." * cvii. andcxii. ; the Cleric's Instructor, chap, iv., p. 331, and other books of ecclesiastical procedure ; and see account of Ecclesiastical Courts and Commissions of 1831, 1832, and 1883 ; and see ante, pp. 1-9. 1 Per Sir J. P. "Wilde, afterwards Lord Penzance, A. v. B. (1868), L. R., 1 P. & M., 559 ; and see Chap. VI, p. 222, as to other suits for nullity, and also Chap. II, p. 34 ; as to such a marriage being voidable only, and not void, see per Hannen, P., now Lord Hannen, Turner v. Thompson (1888), 13 P. D., 37; and Cavell v. Prince (1866), L. R., 1 Ex., 246. - A.y. B., ubi sup. 3 Cavell v. Prince, ubi sup. ^ 20 & 21 Vict., c. 85, ss. 2 and 6. By the Judicature Act, 1873, 36 & Sec. 1 (c) DEFINITION AND JURISDICTION 213 But in suits for nullity the Court is to " Proceed, act, and give relief on principles and rules which, in the opinion of the said Court, shall be as nearly as may be comformable to the principles and rules on which Ecclesiastical Courts have heretofore acted and given relief, but subject to the provisions herein contained, and to the rules and orders under the Act."i Generally in suits for dissolution the procedure as to evidence, and as to the verifying affidavit by the peti- tioner, is the same as in suits for dissolutions ; see post, Chap. VII, s. 1 («), s. 5 (a). Hearing in Gameru. — An important difference between the procedure in suits for dissolution and suits for nullity is, that in virtue of the section quoted sujn'U, a suit for nullity can be heard in camera privately, whereas a suit for dissolution must be heard in open Court. ^ Decree Nisi. — By the Matrimonial Causes Act, 1873, decrees for nullity are to be nisi in the first instance, and only to be made absolute after six months, during which there can be intervention to show coUusion, or that material evidence has been brought before the Court ; ^ and the Court will not shorten this period of six months except under very special circumstances.'' The respondent cannot apply for a decree nisi to be made 37 Vict., c. 66, ss. 16 (7), 31, 34, the jurisdiction of the Court for Divorce and Matrimonial Causes was vested in the High Court of Justice to be exercised by the Probate, Divorce, and Admiralty Division. The rules of the Supreme Court do not apply to divorce proceedings, see Ralfem V. /i. (1891), P., 139, but are under its own old rules ; see Dixon on Divorce, 2ud ed., App. B. &: D. ; and see post, Chap. VII, s. 1 (h). 1 lb., s. 22 ; Andrews v. Ross (1888), p. 14, P. D., 15 ; for form of petition, see Dixon on Divorce, 2nd ed. , p. 184 ; for form of citation of respondent, see pp. 205, 210. 2 C. Y. C. (1869), L. E., 1 P. & M., 640 ; A. v. A. (1875), L. R., 3P. & M., 2.30, 232, n.; and see post, Chap. VII, s. 1 (e). Chap. VIII, s. 1 (c); B. V. B. (1875), I.E., 9Eq.,551. 3 36 Vict., c. 31 ; see Chap. VII, s. 1 (e), 2 (ost, Chap. XVI. 2 Bury's case, «Si sup. ; and see pp. 33, 34, 129-133. J A. V. B. (1853), 1 Spinks, Ecc. & Ad., 12, p. 14. •* See Dixon on Divorce, 2nd ed., p. 127. 218 NULLITY ON ACCOUNT OF IMPOTENCE Chap, v impotence should be very strong.^ Therefore, when there was twenty-four years' delay, the House of Lords, basing their decision on this, as well as a lack of the fullest proof and lack of sincerity (as to which see post , p. 219), refused a decree. ^ And in a case where there was seven- teen years' delay unaccounted for, with some defect of proof and insincerity (see post, p. 219), the Privy Council, reversing the Court of Arches, refused a decree.^ Where there was delay of sixteen years, the House of Lords held it to be accounted for by the petitioning wife's ignorance of her remedy.'' In another case the delay was excused where the petitioner had hoped that the respondent would become cured. ^ Where the impotence is undoubted, mere delay is not sufficient to disentitle the petitioner to relief ; ^ but where there is a conflict of evidence, delay is material, as throw- ing discredit on the petitioner's story.'' (o) Iiisincerity " Insincerity " as a bar appears to have been a principle originated by Lord Stowell, by whom and by his succes- sors it seems to have been defined as " combination of circumstances, which show that the alleged grievance was not the motive which led to the commencement of the 1 CastUdeiiy. C. (1861), 9 H. L. C, 186 ; CimoY. C. (1873), L. K., 2 H. L. So., 300. - Castleden v. C. , uhi sup. ; but see observation.'? of Lord Bramwell on this decision in II. v. M. (1885), 10 App. Ca., 176, p. 204. 3 B^n V. B—n (1854), 1 Spinks, Ecc. & Ad., 248. ^ Lewis V. JIayward (1866), S,") L. J., P. & M., 105. = E. V. T. (1863), 3 Sw. & Tr., 312. s M. alias D. v. D. (1885), 10 P. D., 75 ; and see H. L. case, G. v. M., iibi sup., Cuno v. C, uM svp., decided tlie same year; and see- per Lord Ohelmsford, L. C, in Lewis v. Haywood, ubi sup,, Quod ab initio nan valet in tractu te-mporis non convalescit. T S.^. A. (1878), 3 P. D., 72 ; and see B. alias A . v. B. (1891), 27 L. R. Ir., 587. Sec. 2 (c) BARS TO SUIT 219 suit," lor a "mixture of subsidiary motive." But in a recent case in the House of Lords, Lord Selborne, L. C, and Lord Bram-\yell declined to recognise the existence of any such principle of so recent an origin, except as far as it might rest on a basis of substantial justice, so as to render it unfair that the petitioner, after having approbated the marriage by taking substantial benefits under it, should then sue for its annulment ; and in such a ease only mitjld the petitioner be held barred.- But where a husband was respondent to a suit for divorce on account of adultery, in which suit he might have raised the question of the validity of the marriage, but did not, and a divorce a mensa et thoro was pronounced against him, he was held estopped from instituting a suit for nullity on account of the wife's impotence.^ {d) Age That the parties married at an advanced age, even in the case of the woman beyond the period for child-bear- ing, as, for instance, where the wife was aged forty-nine at the date of marriage, is no bar to a suit if the petitioner can prove the respondent's incapacity.* (e) Matrimonial Offences j\risconduct on the part of the petitioner is no bar to the suit; and see post, p. 233. Adtdfenj. — If the petitioner has been guilty of adultery ^ 1 Per Dr. Lushington in Anon (1857), 1 Dea. & Sw., 295, p. 300. 2 G. V. M. (1885), 10 App. Ca., 176. 2 Guest V. Shipley (1820), 2 Hag. Con. , 321 ; and for converse case, see Ditchfield v. D. (1869), L. R., 1 P. & M., 729 ; infra, pp. 220, 286. * Williams v. Eomfray (1861), 2 Sw. & Tr., 240 ; 6 Jur., N. S., 151 ; and see ante, pp. 205, 206. 5 Anon (1887), 1 Dea. and Sw., 295 ; Tamrner, f. c, Ditchford v. D. (1864), 33 L. J., P. & M., 105 ; G. v. M. (1885), 10 App. Ca., 176 ; M. V. D. (1885), 10 P. D., 75. 220 NULLITY ON ACCOtfNT OF IMrOTENCE Chat. V or cruelty,! this will not bar him or her from suing for a decree. A plea alleging adultery or cruelty will be struck out, even if the petition was originally for judicial separation or dissolution of marriage on account of cruelty or adultery or both. If the respondent sets up that the marriage was null on account of impotence, the question of nullity will be tried first before that of adultery is gone into.2 Cruelty. — Neither can a plea of cruelty be added by the petitioner in a petition for nullity, except in so far as it may tend to show why there was no further cohabita- tion ; 5 but the fact that the petitioning wife has failed in a suit for nullity will not bar or estop her from subsequently instituting a suit for dissolution of marriage on the ground of the husband's adultery and cruelty.* Bigamy. — Nor will an intervening marriage subsequent to the alleged voidable marriage, and previous to the institution of the suit for nnllity, bar the suit.* (/) Agreement not to sue Lastly, when a separation deed between husband and wife contains the common agreement not to sue or molest each other, the petition will be barred. ° 1 Williams V. Ilomfray (1860), 6 Jur., N. S., 151 ; 2 Sw. & Tr., 240. 2 G. V. M., uhi sup.; Anon, ubi sup. ; but tlie petitioner iu the nullity suit may be cross-examined as to lier improper intimacy with the co-respondent in the cross suit; M. v. D. (1885), 10 P. D., 75 ; and see Mayhew v. M. (1812), 2 Phillinj., 11. 3 G—s V. T—e (1854), 1 Spinks, Ecc. & Ad., 389. 4 Ditchfidd V. D. (1869), L. R., 1 P. & M., 729. =■ B. alias, A. v. B. (1891), 27 L. R. Ir., 587 ; such marriage would probably be validated by the retrospective etfect of the decree ; see ante, p. 34. 6 Ahlridge v. A. (1888), 13 P. I)., 210. CHAPTEE VI NULLITY OF MAEKIAGE (EXCEPT ON ACCOUNT OF impotence)^ Grounds of Nullity and (c) Parents, 229 Procedure, . 221 [d) Guardians, 230 [a] Causes of Action, 221 (c) Committee of a Lunatic, 230 (b)SiiU for Nullity, 223 {/) Other Persons, . 231 Original Jurisdiction, 223 Eeinainder Men, 231 Declaratory Sentence, . 224 Churchwardens, . 231 Under Matrimonial Sovereign, . 232 Causes Act, 1857, . 225 {g) Interveners, 232 (c) Legitina£y Declaration 3. Estoppel, 232 Act, 1858, 225 (a) Genercdly, . 232 (d) Nullity as a Defence, 226 {b) By Delay or Mis- In Dissolution or Judi- conduct, . 233 cial Separation, 226 Duty to Separate, 234 In Restitution of Con- (c) By Judgment, 234 jugal Mights, . 227 4. Incidents of the Suit, 235 In Jactitation, . 227 (a) Generally, . 235 (e) Other Actions, . 228 {b) Alimony, . 235 Who can sue, . 228 (c) Custody of Children, . 236 (a) Generally, . 228 (d) Variation of Settle- (6) Parties to the ments, 236 Marriage, 228 (e) Interrogatories, . 236 Sec. 1. — Geotjnds fob JSTullitt and Pbocbdure (a) The Cause of Action The civil disabilities of prior existing loarriage, nonage, lack of essential requirements of form, and since the 1 And see ante, Chap. II, p. 20, Validity of Marriage, and Chap. Ill, p. 123, Proof of Marriage ; as to procedure in petitions for nullity, see Dixon on Divorce, 2nd ed. 221 222 NULLITY OF MARRIAGE Chap. VI Marriage Act, 1835, 5 & 6 Will. IV, c. 54, relationship (see ante, p. 30, and Cliap. II, Validity of Marriage), makes a marriage void even without sentence, and the sentence of the Court is only declaratory ; canonical disability only makes the marriage voidable, and till avoided it is good.^ The present only canonical disability is impotence (see ante, Chap. V, p. 203) ; affinity used previous to 5 & 6 Will. IV, c. 54, to be a canonical disability only making the marriage voidable.^ Force renders, it would seem, a marriage, not void, but voidable ; free cohabitation would ratify and act as estoppel; see ante, pp. 23-28. And Sir J. P. Wilde, J. 0., now Lord Penzance, laid down — "In all eases in which the incapacity to marriage is one in which society has an interest, and which rests on grounds of public policy, it would be wrong and illogical that the validity or invalidity should depend on the options of the parties, and in all such cases the marriage is absolutely ' void ' and not ' voidable.' " ^ And Sir Edward Coke wrote — "And it is further to be understood, that many divorces that were of force by the Canon Law when Lyttleton wrote, are not in force at this day ; for by the statute of 32 Hen. VIII, c. 38, it is declared that persons be lawful (that is, may lawfully marry) that be not prohibited by God's law to marry, that is to say, that be not prohibited by Levitical degrees." •■ 1 See Shelford on Marriage and Divorce, pp. 479-85 ; and see per Sir John Nicholl in Elliott v. Gnrr (1812), 2 Phillim, 16, p. 19, as to distinction between Statutory or Common Law nullity on the one hand and nullity for impotence on the other ; see per Dr. Lushington, Miles V. Chillnn (1849), 6 N. of C, 636, p. 647 ; and Kenn's case (1607), 7 Rep., 426, 446, n. (e) ; R. v. Preston (1759), 1 W. Bl., 192; ex parte Turing (1812), 1 V. & B., 140. 2 See infra, and Chap. V, Nullity for Impotence, p. 203 ; and see also, Chap. I, pp. 10, 11, and Chap. II, p. 30. 3 A. V. B. (1868), L. R., 1 P. & M., 559 ; and see quoted ^osi!, 223. * Co. Lit., 235a, cited Wing v. Tayler (1861), 2 Sw. & Tr., 278 ; as to prohibited degrees, see Chap. II, p. 30. Skc. 1 ft) NULLITY AND PROCEDURE 223 (b) Suit for Nullity Original Jurisdiction. — The suit for nullity was one belonging to the old jurisdiction of the Ecclesiastical Courts. They had thereby cognisance of all disabilities, statutory ^ and civil as well as canonical. And Sir J. P. "\A'ilde, J. 0., now Lord Penzance, laid down — " The various restrictions on marriage, suoh as a prior existing marriage, insanity, illegality under the Marriage Acts, illegality under the Royal Marriage Act, and, since Lord Lyndhurst's Act, consanguinity or affinity, all these matters, when they arise incidentally in the Temporal Courts, have in modern times been dealt with for the purpose of the suit in which they have arisen. In older times all questions of marriage were relegated to the ecclesiastical authorities. Upon the plea of ne unque accouple in an action for dower, the validity of the controverted marriage was always to be determined by the bishop's certificate. The gradual declension of spiritual authority in matters temporal has brought it about that all questions as to the intrinsic validity of a marriage, if arising collaterally in a suit instituted for other objects, are determined in any of the Temporal Courts in which they may chance to arise {aliter as to impotence, see ante, p. 212). Thmigh at the same thne a suit for the purpose of obtaining a definite decree declaring a iMirriage void which should he universally binding, and which should ascertain and determine the status of the parties once for all, has from all time up to the present been maintainable in the Ecclesiastical Courts or the Divorce Court alone." ^ The Court in suits for nullity has jurisdiction to consider the marriage of English subjects wherever celebrated,^ and also over the marriages of foreigners 1 Clarke's Pra,xis, tit. cvii. ; the Clerk's Instructor in the Ecclesi- astical Courts, chap, iv., pp. 332-68; Oughton, tit. cxciii. The first case of statutory nullity under Lord Hardwick's Act was Shaw v. Page, cited 1 Hag. Con. , 213 ; and see per Dr. Lushington, Miles v. Chilton (1849), 6N. of C, 636, p. 647. 3 A. V. B. (1868), L. R., 1 P. & M., 659; and sea ante. Chap. I, p. 1-9, Chap. II, passim, and Chap. Ill, Proof of Marriage, s. 1 (a), and 2 (c), pp. 123-129. 3 Harford v. Morris (1776), 2 Hag. Con., 423, p. 42,'i ; Lawford v. Davies (1877), 4 P. D., 61 ; Bonaparte v. B. (1892), Times, Aug. 1, p. 9 ; Aug. 2, p. 10. 5224 NULLITY OF MARRIAGE Chap. VI if celebrated in England.^ As to validity of a foreign sentence of nullity and divorce, see post, Chap. XVII. Declaratory Sentence. — Though the sentence of nullity is an informal one, yet it is as of right, and the Court has no discretion in the matter. "Every person interested who thinks there is a legal defect may apply, and has a right to a declaratory sentence if his application is well founded. It may be necessary for the convenience and happiness of families and of the public likewise, that the real character of these domestic connections should be ascertained and known." 2 And in another case Lord Stowell ohserved in a case of statutory nullity — "It is the interest of both parties that the suit should proceed, in order that they may know the exact legal relation in which they stand to each other. The Marriage Act 3 declares marriages in such cases to be ipso facto void, — the sentence of the Ecclesiastical Court is declaratory only, it does not make them void. If, then, I should dismiss the suit, it would not legalise the marriage, but the marriage might be questioned upon a claim of the wife's, in any future transac- tion, in any Court where such claim was made."* And again, Sir J. NichoU, in a case of statutory nullity, observed — "Though the parties did intend to contract a valid marriage, yet either of them has the right to the benefit of a declaratory sentence. No such sentence is necessary ; but it is a matter of convenience to the parties that it should be given ; and it is a duty this Court owes to the public to declare the situation of the parties. " ' But in a recent case the Court declined, although the petitioner's case was fully proved, to make absolute a 1 Simonin v. Mallac (1860), 2 Sw. & Tr., 67. 2 Per Lord Stowell in Pertreis v. Tondear (1790), 1 Hag. Con., 136 ; and see post, s. 3. 3 Lord Hardwicke's Act, 26 Geo. II, c. .33. i Bowzer v. Ricketts (1795), 1 Hag. Con., 213. 5 Hayes v. U^atts (1819), 3 Phillim., 43 ; and see Andrews v. Hoss (1888), 14 P. D., 15 ; and see post, p. 232, s. 3, Estoppel. Sf.c. 1 (6) NULLITY AND PROCEDURE 225 declaratory decree nisi of nullity, until certain conditions were fulfilled by petitioner. ^ And before pronouncing its decree of nullity, the Court has a duty to see that the alleged marriage is proved. ^ Under Matrimonial Causes Act, 1857. — Petitions for nullity are now assigned to the Probate and Divorce Divi- sion, and heard in a similar way to a petition for dissolu- tion; but the Matrimonial Causes Act, 1857, provides that as to these nullity suits the Court shall "proceed and act and give relief on principles and rules which in the opinion of the Court shall be as nearly as may be con- formable to the principles and rules on which the Ecclesi- astical Courts have heretofore acted and given relief ; " ^ and by a later Act the procedure in nullity was assimi- lated (as the decree being first nisi and not absolute till after six months) to the procedure in suits for dissolution of marriage,* and the final declaration of nullity post- poned till the decree absolute ; ^ and the Queen's Proctor and other persons are empowered to intervene to prevent collusion.^ The suit may be heard in camera.'' (c) Legitimacy Declaration Act, 1858 The Legitimacy Declaration Act, 1858,^ enables any natural born subject desiring to establish the validity of 1 Langwarthy v. L. (1886), 11 P. D., 85, C. A. 2 Nokes V. Milward (1824), 2 Add., 386, where two other cases are distinguished and the form of the decree given. 3 20 & 21 Vict., u. 85, ss. 6, 22 ; and see Andrews v. Ross (1888), 14 P. I)., 15 ; as to forms of these petitions, see Dixon on Divorce, 2nd ed., pp. 185-189'; and for citation, see p. 211. •1 36 Vict., u. 31 ; Langwarthy v. L. (1886), 11 P. D., 85, G. A. ; as to decrees nisi and procedure generally, see Chap. VII, s. 1 (e), p. 247. 5 S. V. B. (1884), 9 P. D.,80. 8 36 Vict., 31 ; as to intervention, see Chap. VII, p. 261. 7 C. V. C. (1869), L. R., 1 P. & M., 640. 8 21 & 22 Vict., c. 93 ; and see 22 & 23 Vict., c. 61, s. 7 ; as to the form of petition, see Dixon on Divorce, 2nd ed., pp. 196-199, 212-214. 15 226 NULLITY OF MARRIAGE Chap. VI his marriage, or his legitimacy, or the validity of his father and mother's or grandfather and grandmother's marriages, to petition the Probate and Divorce Division to declare such marriage valid ; and the Court has jurisdiction and power to declare the validity or invalidity of such marriage. The petition proceeds in like manner as if , instituted under the Matrimonial Causes Act, 1857.'' The Attorney-General must always be served with copy of the petition and made a respondent,^ and it is his duty to oppose and traverse the allegation ; ^ but the Court can in its discretion direct other persons to be cited,* and the issue will be usually directed to be tried by a jury.'' The Act, however, only enables a person to apply for a declaration of Ms own legitimacy, not to obtain the declaration of other persons' illegitimacy, although a declaration of the validity of the marriage of the peti- tioner's father, mother, grandfather, and grandmother may involve such illegitimacy ; and so a petitioner cannot get a declaration that his elder brother was born previous to the marriage of their parents." (d) Nullity as a Defence In Dissolution or Judicial Separation. — If in the old suit for divorce the defendant denied the marriage on which the suit is founded and alleged a prior marriage, 1 21 & 22 Vict., li. 93, s. 4 ; see rule 174 ; and see post, Chap. VII, p. 247 ; and ante, p. 1.32, as to effect of decree. 2 21 & 22 Vict., c. 93, s. 6 ; Shedden v. Patrick (1860), 2 Sw. & Tr., 170. 3 Ryves v. R. and A.-6. (1865), L. R., 1 P. & M., 23. 4 21 & 22 Viet., c. 93, s. 7 ; Mansel v. The A.-O. (1879), L. R., 4 P. D., 232, C. A.; and see BrinUey v. The A.-G. (1889), 14 P. D., 83; and Bain v. The A.-O. (1892), P., 217, 261, C. A. 5 Re Bou'cerie (1862), 2 Sw. & Tr., 548. 6 Chaplin's Petition (1867), L. R., 1 P. & M., 328; Mamxd v. The A.-G., uhi svp. Sec. 1 W) NULLITY AND PROCEDURE 227 the original action was stayed and the question of the validity of the marriage determined before the question of adultery is gone into.i And now nullity is a good defence to a petition either for dissolution of marriage or for judicial separation. ^ In Restitution of Gmyugat Riglits. — So in an action fur restitution of conjugal rights the marriage may be denied by the defendant, and its validity will then be considered.^ In Jactitation. — The old suit for jactitation (now nearly obsolete), being a complaint that the defendant boasted that he or she was married to the plaintiff, may become a suit for nullity. For, if out of the three defences the defendant admits that " such representations have been made, but they are true, for that a marriage had actually passed, and in such a manner as to give the party the right to claim the benefit of it. In that state of things the proceeding assumes another shape, that of a suit of nullity and of restitution of conjugal rights, on an inquiry into the fact and validity of such asserted marriage; and it will depend upon the result of that inquiry whether they falsely pretended or truly asserted such a marriage. In the former case, the Court would pronounce a sentence of nullity, and enjoin silence in future." * 1 RoUns V. Wolsdey (1754), 1 Lee, 616, and see 2 Lee, 421; and see Maylmv v. M. (1812), 2 Phillim., 11. 2 See Dixon on Divorce, 2nd ed. , pp. 124 and 126 ; and see ante, Chap. Ill, p. 127, Proof of Marriage, s. 1 (c), and pp. 247, 248, 267. 3 Conran v. Lmce (1754), 1 Lee, 630 ; and see Lindo v. Bdisario (1795), 1 Hag. Con., 216 ; such defences are usual, and a question of nullity or validity is often raised in a suit for restitution; and see Dixon on Divorce, 2ud ed., p. 128 ; and see post, Chap. X, s. 1 (h) ; and ante, pp. 128, 130. « Per Lord Stowell in Hawke v. Carri (1820), 2 Hag. Con., 280, p. 285 ; and see p. 130, and post, Chap. X, s. 2. 228 NULLITY OF MARRIAGE Ceap. vi (e) Other Actions Nullity of marriage may be also raised in an action for probate of wiU ^ or administration of the goods of an intestate,^ or as against the Crown claiming the estate of an intestate bastard,^ or in a bill for dower,* and in many other causes, as, e.g., in the settlement of a pauper; see ante, Chap. Ill, Proof of Marriage, pp. 123-133. Sec. 2. — Who can sue (a) Generally A slight interest is sufficient to enable persons to sue, aud they need not be claiming through or representing the parties to the marriage.^ And any pecuniary interest is sufficient to entitle a person to bring an action for nullity," and he has a right to a decree.^ This is not so with regard to nullity for impotence, as to which and the reasons for such suit being personal, see ante, Chap. V, p. 215. (6) Parties to the Marriage Either of the parties to the marriage may sue to annul his or her marriage.* 1 Wilson V. BrocMey (1810), 1 Phillim., 132; Steadman v. Powell (1822), 1 Add., 58 ; but see Warter v. }V. (1890), 15 P. D., 35. 2 Brovming v. Reane (1812), 2 Phillim., 69 ; in this case the cause was lunacy ; Wilkinson v. Gordon (1824), 2 Add, , 152 ; Wiseman v. W, (1867), L, R., IP. &M., 351. 3 Dyke v. Wallis (1862), 2 Sw. & Tr., 466 ; Dyke v. Williams, ib., 491 ; Qiieen's Proctor v. Willianns (1862), 4 Sw. & Tr., 221. ■« Poole V. P. (1831), Younge, 331. = Faremouthv. Watson (1811), 1 Phillim., 355. « Jiay V. Sherwood (1837), 1 Moore P. C, 363. " Pertreis v. Toudear (1790), 1 Hag. Con., 139 ; and see ante, p. 224. 8 Hodgkinson v. Wilkie (1795), 1 Hag. Con., 262 ; Andrews v. P^o'ss (1888), 14 P. D., 15. Sec. 2 (6) WHO CAN SUE 229 So in a suit of nullity on the ground of insanity at tlie date of the marriage, brought by the husband who had subsequently recovered, Lord Stowell laid down : " It is, I conceive, perfectly clear in law that a party may come forward to maintain his own^as^ incapacity." i If either of the parties is a minor, he or she must sue or defend by a guardian; see jjont, p. 230. (c) Parents A father can commence an action for nullity in respect of his child's marriage, whether such child be an infant or adult, not merely if the father should have some specific pecuniary interest (see ante, p. 228), but also on account that he might be liable by statute under the Poor Laws (see Chap. XIV, s. 2 (6)) to maintain the grand- children, issue of such marriage ; ^ and on the like ground, after the liability cast on her by the Married Women's Property Act, 1882, s. 21 (see Chap. IV, s. 2 (6)), it is presumed that a mother can sue.^ The father can also sue as the infant's guardian (see post, p. 230), for the infant has a concurrent right of action.* But it is doubt- ful if mere patria potestas would enable the father of an adult child to sue.^ If the father sues in his own right, he must cite both husband and wife.^ 1 Turner v. Meyers (1808), 1 Hag. Cou., 414; and see ;post, jDp. 232-235. - Pai.}] V. SJierwood (1837), 1 Moore P. C, 353, oTemiliug Turner v. M,-yers, 1 Hag. Con., 414, in Wells v. Cottam (1863), 3 Sw. & Tr., 364 ; for a recent action by » father, see Templeton v. Tyre (1872), L. E. , 2 P. & M. , 420 ; bnt the personal rejiresentatiYes of a father can- not sue in this respect, for his estate will not be liable, and therefore tlie action abates ; Bevan v. M'Mahon (1859), 2 Sw. & Tr. , 58. 3 And see Prowse v. Spurway (1876), 24 W. R., 850. ■1 Bowzer v. Ricketts (1795), 1 Hag. Con., 213. 5 Pay V. Shervjood, ubi sup. , and 1 Curt. , 173, 193. ^ Wells V. Cottam, ubi sap. 230 NULLITY OF MARRIAGE CnAp. VI (d) Chiardians If either of the parties to the suit is an infant, he or she must sue a defendant by a guardian ad litem who can be compelled to act ; ^ but a next friend of an infant will not be allowed to petition in the name of the infant for a declaration of the infant's legitimacy under the Legitimacy Declaration Act, until there has been an inquiry before the registrar whether the suit will be for the benefit of the infant, lest such next friend might with a view to his own interest be suing in order to have the infant declared illegitimate. 2 An infant respondent appearing by a guardian must previously elect a guardian, or a curator ad litem must be appointed. ^ (e) Committee of a Lunatic The committee of a lunatic may bring an action on his or her behalf to have the marriage avoided ; * but the sanction of the Court should be obtained to the suit,^ and if no committee has been appointed, a guardian ad litem will be constituted.^ 1 Beauraine v. B. (1808), 1 Hag. Con., 498 ; and see Boraine's case (1809), 16 Ves., 346 ; and Beatirain v. Scott (1813), 3 Camp. N. P., 388 ; Turner v. Felton (1812), 2 Phillim., 92 ; Dennis v. D. (1815), Arches, cited 2 Curteis, 687-690. And see the oases cited under (c) Parents, ante, p. 229, where such parent usually sued both qua parent in lii.s own interest and also as child's guardian. = lie Chaplin (1867), L. E. 1., 1 P. & M., 328. 3 Wells V. Gottara (1863), 3 Sw. & Tr., 364. ^ Fust V. Bowerman (1789), Arches, cited 2 Add., 399, 402 ; and see Portsmouth, Earl of , v. Portsmouth, Countess of (1826), 3 Add., 63, 1 Hag. Ec., 355 ; and see Pope on Lunacy. = Wilkinson v. W. (1845), 4 N. C, 295. 6 Fry V. F. (1890), 15 P. D., 50, C. A.; Hancock v. Peaty (1867), L. K., 1 P. & M., 335. Sec. 2 if) WHO CAN SUE 231 (/) OtJw Persons Any interest or liability, however slight, provided it be specific and pecuniary, entitles a party to bring nullity.^ Eemainder Men. — So persons claiming in remainder, hovcever remotely or contingently, whether under a will or settlement, can bring nullity ; ^ but it seems doubtful whether a mere spes successionis ab intestato, i.e., the chance of taking a share under the statute of distribution, or being heir to the person whose marriage is impeached in case such person dies intestate and childless, is sufficient to enable a party to sue. CIvurchwardens. — But a liability under the Poor Law as to the statutory obligation to support children or grand- children (see post, Chap. XIV, s. 2 (h)) will enable a father, or mother, or son to sue ; ^ and on like ground parochial authorities might sue in order to invalidate the marriage and bastardise the issue, and thereby avoid liability.* Also when the Ecclesiastical Courts administered the IMatrimonial as well as the Ecclesiastical Law, the church- wardens could and ought to proceed by a suit in a criminal form against a parishioner for incest, as in a marriage with a step-daughter ; and in that suit the marriage might be declared void as well as penance inflicted ; and not merely churchwardens, but any person by permission of the Court might promote the office of the judge.^ At the 1 Ray V. Sherwood (1837), 1 Moore P. C, 353, by the delegates. 2 Ray V. Sherwood, uhi sup. ; Faremouth v. Watson (1816), 1 Phillim. , 355, and see per Sir John NicoU in Chichester v. Donegal (1822), 1 Add., 5, 16. 3 Ray V. Sherwood (1837), 1 Moore P. C, 333, p. 399. * Ray V. Shervjood, libi sup. 5 Blackmore v. Brider (1816), 2 Phillim., 359 ; R. v. Wye (1838), 7 A. & B., 761 ; Woods v. II'. (1840), 2 Curt., 516, marriage of uncle and niece; Chick v. Rainsdale (1835), 1 Curt., 34, where the wife's sister 232 NULLITY OF MAERIAGE Cdap. \i present time, parish officers -would usually litigate the legitimacy or marriage of a pauper in a settlement case ; see ante, Chap. Ill, pp. 129, 130. Sovereign. — And in the case of H.E.H. the Duke of Sussex, the Sovereign, acting through his Procurator General, sued for nulhty under the Eoyal Marriage Act.^ (g) Intervenen-s Any person who could by reason of having any interest institute the suit, may intervene in the suit and take part in it ; as, e.g., where there had been a double marriage and the first wife brought an action for restitution of conjugal rights, the second wife was allowed to intervene.^ Also the original parties to the suit of nullity may call on any other persons interested to come before the Court, in order that if so such third party as well as the original parties may be bound ; but such third party cannot be compelled to come in.^ Sec. 3. — Estoppel* (a) Generally In ordinary actions the conduct of the party may estop them, on the principle volenti non fit injuria, and a party would not be allowed to get rid of an obligation which sued ; and see Ray v. Sherwood, ubi sup. , pp. 396, 397 ; at the present day, since 1837, the Probate and Divorce Division has no power to iniJict penance, which belongs to the Ecclesiastical Court ; and the Ecclesiastical Court has no power to pronounce nullity ; see Chap. VII, s. 1 {a). It is a canonical duty incumbent on the ministers and churchwardens to "present" to the bishop and archdeacon incestuous persons (Canon 109-119). 1 2 Add. 400, n. ; and see ante, Chap. II, pp. 116-121. ' Dalrymple v. D. (1811), 2 Hag. Con., 137, n. 5 See Chichester v. Donegal (1822), 1 Add, , s. 10 ; and see Donegal v. Donegal (1821), 3 Phillim., 586, 600; and see Montague v. Montague (1824), 2 Add., 372. •" See ante, Chap. Ill, pp. 129-133. Sec. 3 (a) ESTOPPEL 233 they had entered into with their eyes oi^en; but the principles prevailing in regard to the contract of marriage differ from those prevailing in all other contracts knov^n to the law/ and so there is no estoppel in nullity ; and however much time may have expired, however bad the petitioner's conduct may be, that is no bar to a decree of nullity.^ And cases of nullity are properly described as cases in which the Court gives a reluctant obedience to the provisions of the law, — the first inclination of the Court is to support the marriage, as far as it can indulge such an inclination.^ But the petitioner will have to rebut all the presumptions as to what these are ; see ante, Chap. Ill, pp. 139-U6. (6) By Delay or Misconduct So where a marriage has been twice celebrated in order to make it more valid, and ten years of cohabitation had elapsed, and children had been born, still the Court on the suit of the wife, though reluctant, considered it an imperative duty to decree nullity.* Or again, in a case of statutory nullity under Lord Hardwicke's Act, where the husband had married by licence under age without consent, the Court observed the words of the Act of Parliament are positive and peremptory, and the Court is under the necessity of enforcing it ; it is better at any time to stop as soon as possible, lest the continuance should involve the interest of a greater number of persons, for there is no length of time in ivhich it loill not affect the interests of parties , and in this case, though the petitioning husband had 1 Per Butt, J., ill Andrews v. Ross (1888), 14 P. D., 15. 2 See Miles v. Chilton (1849), 6 N. of C, 636 ; and see ante, p. 219. 3 Per Lrjrd Siowell Cresswell v. Cosins (1815), 2 Phillini., 281; and see ante, p. 224, a.s to tlie sentence being declaratory. •< Days T. Jarvis (1814), 2 Hag. Con,, 172. 234 NULLITY OF MARRIAGE Cn,vp. VI himself obtained the licence by falsely swearing that he was of age, the marriage was annulled. i The petitioner having aided the respondent in obtaining a collusive divorce to marry her, will not estop her showing divorce, and therefore marriage was void.^ Duty to separate. — Still, the proper course for the parties whose marriage is in question is to separate as soon as they know of its invalidity ; and when a suit for nullity has been commenced, the parties ought to separate, for cohabitation would be legally censurable;^ and, in fact, in all these cases an allegation has commonly appeared that the complainant had withdrawn from all further cohabitation from the time when he discovered the alleged invalidity of the marriage.* (c) By Judgment The party proceeding may be bound by a previous decision of a Court in favour of the marriage ; see ante, Chap. Ill, Proof of Marriage, s. 2, pp. 129-133, and see pp. 219, 285. But a previous dismissal of a suit for nullity by an Ecclesiastical Court " Would not legalise the marriage, but the marriage might be ques- tioned, upon any claim of the mfe's, iu any future transaction, in any Court where such claim was made." ^ And it also appears that a sentence given for or against 1 Johnston v. Parker (1819), 3 Phillim. , 39, where over twenty years had elapsed; and see Hayes v. Watts, ib., 43, where the wife after eighteen years' cohabitation petitioned to have it set aside ; and see further, Duins v. Donovan (1830), 3 Hag. Ec. , 301 ; and see ante, Chap. I, pp. 14, 15. 2 Bonaparte v. B. (1892), the Times, Aug. 1, p. 9, Aug. 2, p. 10. 3 Sullimn v. S. (1824), 2 Add., 299, p. 302; JVokes v. Milward, ib., 386, pp. 402, 403; and see Otowes v. C. (1845), 4 N. of C, 1, pp. 7, 8. 4 lYokes V. Milward (1824), 2 Add., 386, p. 402. 5 Bowzer v. liicketts (1759), 1 Hag. Con., 213. Sec. 3 (c) ESTOPPEL 235 marriage during the life of the parties may be repealed after their death. ^ And in a probate suit where administration had been granted on the ground that a second marriage with a deceased wife's sister had revoked a will, still three years later a beneficiary under that will was allowed to prove such marriage invalid, and therefore to obtain probate, as the will was thereby not revoked.^ Sec. 4. — Incidents of the Suit. (a) Generally The suit generally proceeds in the same way, and according to the same procedure, as other petitions in the Probate and Divorce Division,^ but a petition for nullity may be heard in camera.'^ Also a decree of confrontation can, following the old ecclesiastical practice, be made in the Probate and Divorce Division in a suit for nullity,^ alite in a suit for dissolution.^ The decree of nullity may have the incidental effect of validating a subsequent marriage ; see ante, p. 34. (ft) Alimony During the suit where a marriage de facto is admitted, the respondent wiU be given alimony pendente lite, and interim costs.'' After decree of nullity, when the marriage is pronounced 1 Kenn's case (1607), Jenkins, 289, 7 Rep. i2b; Vin. Abr., Bastard (0). 2 Mette V. M. (1859), 1 Sw. & Tr., 416 ; and see Haviland v. Mortiboy (1858), 4 Jur., N. S., 842. 3 See Dixon on Divorce, 2nd ed., pp. 185, 201, and jjassm; and see Chap. VII, s. 1 (e), 247. •1 C. V. C. (1869), L. R., 1 P. & M., 640. s JSnticknap v. Rice (1865), 4 Sw. & Tr., 136. « Sooke V. H. (1858), 4 Sw. & Tr., 236 ; and see Chap. VII, s. 5 (a). 7 Bird V. Bell (1753), 1 Lee, 209 ; Portsmouth v. P. (1826), 3 Add., 63 ; and see Miles v. Chilton (1849), 1 Rob. Ec, 684 ; see Dixon on Divorce, 2nd ed., p. 408 ; and see Chap. XI, s. 1. 236 NULLITY OF MARRIAGE Chap, vi void owing to tlie respondent wife having a husband alive at the time of marriage, permanent alimony will not be given.i The Court has now the same power to grant alimony in suits of nullity as in suits for divorce;'- as to which, see post, Chap. XI, s. 1. (c) Custody of Children The children of a void marriage are illegitimate (see ante, Chap. Ill, p. 147); but the Court has power to make, not merely interim, but also permanent orders as to the custody, maintenance, and education of the children, issue of a marriage it declares void. And in the Lang- toortlvij case the Court of Appeal refused to make the decree of nullity absolute till the father made suitable provision for the children born of the void marriage.^ (cZ) Variation of Settlements The Court has the same power of, and jurisdiction over, dealing with and varying settlements in the case of nullity as it has in dissolution of marriage ; * as to how this would be exercised, see 2^ost, Chap. XI, s. 4. (e) Interrogatories The parties to a suit for nullity may be interrogated even although, as in nullity for bigamy, he or she could not answer without admitting a felony ; but in such case the party interrogated may decline to answer.^ 1 Bird V. Bell (1754), Lee, 621. = 36 Vict, c. 31. 3 20 & 21 Vict., c. 85, s. 35 ; 22 & 23 Vict,, c, 61, s. 4; 41 Vict., c. 19, .s. 3 ; Lang-worthy v. L. (1886), 11 P. D., 85, C. A. ; and see gener- ally. Chap. XI, s. 6. ^ 22 & 23 Vict., c. 61, s. 5 ; but the Court cannot under this power vary a settlement when the marriage has been declared null and void by a foreign or colonial Court ; Moore v. BuJl (1891), P., 279. '" Huston V. Smith (1884), 9 P. D., 57; Harvey v. Lovekin (1884), 10 P. D., 122. CHAPTEE VII DISSOLUTION OF MARRIAGE^ 1. Jurisdiction and Pro- cedure, . . .238 (a) Old Lata abolished, . 238 (&) The Divorce Court es- lablished in 1857, . 240 The Ji'-dicati're Act, 1873, . . 241 Appeals, . . . 242 (c) Jurisdiction, . . 243 (d) Grounds fur Dissolu- tion, . . . 244 (e) Procedure, . . . 247 Petition, . . 247 Trial,. . . .248 Decree yis-i, . 249 Decree Absolute. . . 249 Enforcement of Orders and Decrees, . . 250 2. Wio can sue and be sued, 251 (a) Parties, . . 251 (b) Guardian of a Minor, 252 (c) Comviittee of a Lun- atic, . . . 252 {d) Executor or Admin- istrator, . . 252 (e) Respondent, . . 253 (/) Co-respondent and Damages, . . . 256 Measure of Damages, . 257 Apportionment of Damages, . . 259 (g) Intervention, . . 261 By Queen's Proctor, . 261 By one of the Public, . 263 Rescission of Decree, . 266 3. Absolute Bars, . 267 (a) Generally, . . . 267 (b) Petitioner's Case not Proved, . . .267 (c) Connivance, . 268 {d) Condonation, . . 272 Knowledge essential, . 275 Proper Conduct of Hus- band suspecting Wife, 277 Wife Condoning, . 279 Reviver, . . . 280 Proper Conduct of Wife, 280 Reviver, . . , 281 {e) Counter-charges, . 282 (/ ) Collutdon, . . .282 (g) Agreement not to sue, 284 (A) Estoppel, . . .285 4. Discretionary Bars, - . 286 (a) Generally, . . . 286 (b) Adultery, . . . 288 (c) Cruelty, . . . 292 (d) Delay, . . .293 Excuses for Delay, . 294 1 See Dixon on Divorce, 1891, 2nd ed. ; Brown and Powles on Divorce 1890. Statistics of divorce are given in a Return of Divorce and Matri- monial Causes in England, 1889 (80), of causes tried in the thirty years 238 8 DISS DLUl ^lON OF MARRIAGE Chap. VII (e) Desertion, . 295 Hdbittial Drimkennes. , 330 if) Wilful Neglect and Constructive Cruelty, 330 Misconduct conducing Moral Cruelty, , 332 to the Adultery, . 297 Provocation, 336 Evidence and Definitions, 305 {d) Desertion, . 337 (a) Oeneralhj, . 305 Separation Deed, 339 (6) Adultery, . 309 Imprisonment, , 341 Presiiviptioii, 315 Reasonable Excuse, 346 Fnmiliitrilies, 317 (e) Bigamy withAdultcrii 349 Letters, 321 if) Incestuous Adultery, 349 Identity, 321 {g) Rape, Sodomy, ana (c) Cruelty, 323 Bestiality, . 350 Sec. 1. — Jurisdiction and Peooeduee (a) Old Laio abolished By the old Ecclesiastical Law a husband or wife could obtain from the Ecclesiastical Court a divorce a mensa et from the establishment of the Court in 1857 down to 1887 ; and, as in the United States of America, a Report of Marriage and Divorce from 1867-86, 20,267 M.D., has been issued as a Government publication, the following statistics afford an exact comparison of England and America ; but the American Report mentions that owing to the destruc- tion by fire, or otherwise, of several court-houses with their records, the number of divorces are rather understated : — The population of England, taken from the Registrar-General's Returns, was 29,015,613 in 1889, and 25,371,489 in 1879 ; the population of the United States, taken from Whittaker, was 62,622,250 in 1890, and 50,155,783 in 1880, or roughly, the population of the United States is very nearly double that of England. The number of divorces for twenty years, 1867-88, is in England 4724, and in the United States 328,716. The ratio of the annual number of marriages to divorces was in England 718 to 1, and in the six States where exact statistics of marriage were kept, Connecticut 11 '32, Columbia District 30 '83, Massachusetts 31 '28, Ohio 20'65, Rhode Island ll'll, Vermont 16'96 marriages respectively to one divorce. In the thirty years for 1858-87 there were in England 5,630,830 marriages, corresponding to 13,345 petitions for divorce or judicial separation, out of which there were pronounced 7321 decrees for dissolution and 985 for judicial separation. The ratio of these is, in respect of 1000 marriages, 2 '370 petitions for relief, I'SOO decrees of dis- solution, '175 for judicial separation, i.e., out of each 1000 marriages only 3 came before the Divorce Court. The average number of dissolutions granted per annum, taking the five years 1883-87, is 358, as compared to 333 in the five years 1878-82 — an increase about corresponding to the increase of population. In the United States the increase has been Sec, 1 (<,) JURISDICTION AND PROCEDURE 239 tlioro oil proving against the other party adultery or cruelty, or sodomy or attempted sodomy, unless such complainant was barred by compensatio criininis, i.e., being themselves guilty of a similar matrimonial offence, or exceptione per- sonali, such as connivance.' But this divorce did not leave the parties free to remarry, and if they did, it was bigamy.' The husband could also bring an action of criminal conversation against a man committing adultery with his wife, and recover damages.'^ Further, it was the practice after a divorce a men^a et tlwro, and a verdict for the petitioner in an action of criminal conversation, or either, for the husband and — but more rarely — the wife to obtain a private Act of Parlia- ment dissolving the marriage. This system being so expensive as to amount to a denial of justice to the poor, a Koyal Commission was appointed to inquire into it, and reported against it.* After considerable discussion in Parlia- ment the present system was adopted by the passing of the Matrimonial Causes Act, 1857 ; see ante, Chap. I, pp. 11, 12. much more, for while the population has increased by 30 '1 per cent., the divorces have increased by 79 '4 per cent.; the ratio of married couples to divorces was in 1870, 664, while in 1880 it had sunk to 481. In the United States the average duration of marriage before divorce is 8 "97 years for husbands, as opposed to 9 '27 years for wives, or both together 917 ; also 25,371 couples were divorced after more than twenty-one years' cohabitation. There are no statistics in England as to the average duration of a divorced marriage. 1 For details of old ecclesiastical practice and divorce, see the text- books, Clarke's Praxis, tit. cvii., cxiii., cxiv. ; the Clerk's Instructor in the Ecclesiastical Courts, chap. iv. , pp. 386-406 ; Oughton, tit. cxciii., ccxiii., ccxv. ; Shelford on Marriage and Divorce, the latest, and the Reports of the Ecclesia.stical Courts ; and see the Report of the Ecclesiastical Courts Commission, 1831 (70), 1883 [c. 3760], and Divorce Commission, 1872, 13 [1604]. 2 Porter's case (1637), Cro. Car., 461 ; and see ante, pp. 11, 12. 3 See post, p. 2.'i5. ■* See Macqueen's House of Lords' Practice ; see Report of Divorce Commission, 1852, 53 [1604] ; and see ante, pp. 17, 18. 240 MSSOLUTION OF MARRIAGE Chap, yii Tlie Matrimonial Causes Act, 1857, enacted that after the coming into operation of the Act "All jurisdiction now exercisable by any Ecclesiastical Court in Eng- land in respect of divorces a mensa et thoro, suits of nullity of marriage, suits for jactitation of marriage, suits for restitution of conjugal riglits, and in all causes, suits, and matters matrimonial, shall cease to be so exercisable except so far as relates to the granting of marriage licences ; " i and " no decree shall hereafter be made for a divorce «?«e»isaei thoro ;"- and " after this Act shall have come into operation no action shall be maintainable in England for criminal conversation ; " ' and a Secretary of State has power to order all records (except marriage licences) of the Ecclesiastical Courts to he removed.* (6) Divorce Court established in 1857 The Matrimonial Causes Act, 1857, after reciting in the preamhle — "Whereas it is expedient to amend the law relating to divorce, and to constitute a Court with exclusive jurisdiction in matters matrimonial in England, and with authority in certain cases to decree the dissolu- tion of a marriage," enacted, "As soon as this Act shall come into operation all jurisdiction now vested in or exercisable by an Ecclesias- tical Court or person in England in respect of divorce a onensa et thoro, suits of nullity of marriage, suits for restitution of conjugal rights, or jactitation of marriage, and in all causes, suits, and matters matrimonial, except in respect of marriage licence, shall belong and be vested in Her Majesty ; and such jurisdiction, together with the jurisdiction conferred by this Act, shall be exercised in the name of Her Majesty in a Court 1 20 & 21 Vict., c. 85, s. 2 (see this transfer of jurisdiction considered, Niboyet v. N. (1878), 4 P. D., 1, C. A.) ; the preservation of existing decrees and pending suits is provided for by ss. 2, 3, 4, 5 ; and see also 21 & 22 Vict., c. 108, s. 5. 2/6.,s. 7. 3/S., s. 59. ^ Jb., s. 66. Under ".this power an order was made on the 2nd of Feb. 1858, by Sir George Grey, directing the Registrar of the Consistory Court of London to transmit all records, etc. , in that Court to the Registrar of the Court of Probate. The author is informed by Mr. Alexander Pulling, editor of the Index to the Statutory Rules and Orders, that no other or further order under this power has been made. Sec. 1 ft) JURISDICTION AND PROCEDURE 241 of Record, to be called ' The Court for Divorce and Matrimouial Causes.'"! The Judicature Act, 1873. — By the Judicature Act, 1873, the jurisdiction vested in, or capable of being exercised by, the Court for Divorce and Matrimonial Causes was transferred to and vested in the High Court of Justice,^ and the Probate, Divorce, and Admiralty Division was constituted a Division of the High Court ; ^ and there was assigned to that Division all causes and matters which would have been within the exclusive cognisance of the Court for Divorce and Matrimonial Causes.* Power to make rules and regulations concerning the practice and procedure was conferred by the Matrimonial Causes Act, 1857 ; it was subsequently exercised by the Judge Ordinary, and is now vested in the President of the Probate and Divorce Division, and the former rules con- tinue till altered ; ^ and the rules of the Supreme Court do not apply to proceedings for Divorce and Matrimonial Causes." As at first constituted, the powers of the Court were distributed between the Judge Ordinary and the full Court of Divorce. The Judge Ordinary could exer- cise all the ordinary powers of the Court except petitions for dissolution or nullity of marriage and applications for 1 20 & 21 Vict., c. 85, s. 6. 2 36 & -37 Vict., c. 66, s. 16 (17). 'lb., s. 31. The proper title is "The Probate and Divorce and Admiralty Division ' Divorce.' " See Anon (1875), 1 Charley, N. P. C, 41. « 36 & 37 Vict., c. 66, b. 34. 5 20 & 21 Vict., u. 85, ss. 53, 67 ; Charles v. C. (1866), L. R., 1 P. & M., 260 ; mison v. TI'. (1871), L. R., 2 P. & M., 341 ; 38 & 39 Vict., o. 77, s. 18. For the rules, see Index to Statutory Rules and Orders, 1891 ; they are prmted in full in the Appendix B and D to Dixon's Divorce, 2nd ed. 6 R. S. C. Ord., 68, r. 1 {d) ; Harvey v. Lmekin (1884), 10 P. D., 122, C. A.; lledfern v. R. (1891), P., 139, C. A. i6 242 DISSOLUTION OF MARRIAGE CnAf. vil new trials, which were reserved to the full Court, consist- ing of several judges, three of whom, including the Judge Ordinary, constituting a quorum.^ But hy the Matrimonial Causes Act, 1860, the Judge Ordinary was given all the power to determine alone what- ever was previously reserved for the full Court, but ■vrith an appeal to the full Court.^ By the Judicature Act, 1873, there are to he two judges of the Probate and Divorce Division, of whom the senior is the President; and each has jurisdiction sitting alone.^ Ajjpeals. — The appeal from the decision of each or either of these judges is now to the Court of Appeal and not to the full Court,* even in cases of applications for new trials ; ^ and from the Court of Appeal to the House of Lords, except in those cases where the decision of the Court of Appeal is final."' The appeal is to be from the order nisi and not from the order absolute, and the time for appealing to the House of Lords is one month after the judgment appealed against is pronounced if the House of Lords is then sitting, or if not sitting, then fourteen days after the House of Lords next sits : '' the time for appealing to the Court of Appeal is three months.^ 1 20 & 21 Vict., c. 85, ss. 8, 9, 10, and 11 ; and see 22 k 23 Vict., c. 61. 2 23 & 24 Vict., c. 144 ; Robinson v. R. (1877), 2 P. D., 77, C. A. ; and as to appeal, see also s. 55 of 20 & 21 Vict., c. 85. 3 36 & 37 Vict., c. 66, s. 31 (5). ^ Judicature Act, 1881, 44 & 45 Vict., c. 68, s. 9. 6 lb., 1890, 53 & 54 Vict., c. 44. « lb., 1881, 44 & 45 Vict., u. 68, .^. 9. 7/6., ss. 9, 10; Cleaver v. C. (1884), 9 App. Ca., 631. See the debate on giving to one judge tlie power formerly entrusted to the full Court, Hansard, 3rd series, vol. clvii., pp. 1873-1883; vol. clviii., pp. 126-134 ; vol. clx., pp. 1742-1755. 8 20 & 21 Vict., c. 85, s. 55 ; but on a refusal of a new trial in fourteen days, Ahier v. A. (1885), 10 P. D., 110. Sec. 1 fr) JURISDICTION AND PROCEDURE 243 (c) Jurisdiction i The Court established by the Matrimonial Causes Act, 1857, is a Court for England only ; and Scotland, Ireland, and the Channel Isles are exempt from its jurisdiction, as foreign countries. ^ So an Irish husband whose domicil of origin was Irish, and who resided at Sackville Street, Dublin, was not allowed to petition.^ When the matri- monial domicil was in the Channel Islands the petition was dismissed.* The Court, however, has jurisdiction, not merely over persons domiciled in England, but over per- sons who, though not domiciled, are (although foreigners) bond fide resident in England, not merely casually or travellers. The fact that the adultery was committed abroad is more or less immaterial, but the Court mainly considers whether or not the matrimonial home is Eng- land ; ^ if it is so, all persons who stand in the legal relation of husband and wife have a claim to relief on the ground of any violation of the matrimonial duty.^ Where the domicil is English there is jurisdiction, although the marriage and the adultery may be abroad.'' When the wife is the petitioner the maxim that the domicil of the husband is the domicil of the wife may 1 The effect in England of a divorce granted by a foreign tribunal is discussed jjosi!, Chap. XVII. 2 Yelverton v. Y. (1859), 1 Sw. & Tr., 574 ; and see Forster v. F. (1863), 4 B. & S., 187 ; Dasent v. D. (1849), 7 N. of C, 126. ■i Manning v. M. (1871), L. B., 2 P. & M., 223; as definition of domicil, see p. 244, u. 3, and post, Chap. XVII. As to Ireland, see Chap. XIX. * Le Sueur v. Le S. (1876), 1 P. D., 139. 5 Xiboyet v. jV. (1878), 4 P. D., 1, C. A. ; D'Etchegoyen v. D'E. (1888), 13 P. D., 132 ; Wilson v. W. (1872), L. E., 2 P. & M., 341, 435 ; Santo Teodo-ro v. ,S. T. (1876), 5 P. D., 79 ; Goulder v. G. (1892), P., 240. « D'Aguilar v. D'A. (1794), 1 Hag. Ec, sup. 773. ■J Raidiff v. li. (1859), 1 Sw. & Tr., 467; Goulder v. G. (1892), P., 240. 244 DISSOLUTION OF MARRIAGE Cuap. \n compel her to sue him iu the Coi.irts of the country where he resides ; but if the matrimonial home was English, the wife has in many cases been allowed to petition here, according to the principles above laid down.^ But where the marriage and the cohabitation and the adultery was in Jersey, and the husband having deserted his wife and gone to reside in America, although she acquired a iond fide domicil in England, yet it was held she could not petition in England.^ But although a husband may have deserted his wife and gone out of the jurisdiction, his domicil may still remain English, and if so the wife can sue in the English Court.^ Objection to the jurisdiction may be waived by the respondent appearing absolutely, in which case there must be an answer on the merits.* (d) Grounds for Dissolution of Marriage " It shall be lawful for any husband to present a petition to tlie said Court praying that his marriage may be dissolved on the ground that his wife, since the celebration thereof, has been guilty of adultery ; and it shall be lawful for any loife to present a petition to the said Court praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years and 1 Niioyet v. N., uhi sup. ; Santo Teodoro v. S. T. , ubi sup. ; and see ante, pp. 165, 166. 2 Le Sueiir v. Le S. (1876), 1 P. D., 137. 3 Domicil is where a person has his true fixed permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning. Wharton's Law Lexicon. The subject of domicil i.s a very intricate one. For a more detailed elucidation the professional reader is referred to Dicey on Domicile ; and see, too, post, Chap. XVII ; and see Goulder v. G. (1892), P., 240. 4 Bond V. B. (1860), 2 Sw. & Tr., 93 ; ZyckUnsU v. Z. (1862), 2 Sw. & Tr., 420 ; CaUwdl v. O. (1863), 3 Sw. & Tr., 259 ; Wilson v. W. (1871), L. K., 2 P. & M., 341 ; but see Grange v. G. (1892), P., 245. Sec. 1 id) JURISDICTION AND PROCEDURE 245 upwards." ^ "In case the Court shall be satisfied on the evidence that the case of the petitioner has been proved, and shall not find that the petitioner has " (done what amounts to an absolute bar to the decree ; as to what those absolute bars are, see post, p. 267, s. 3), ' ' then the Court shall pronounce a decree declaring such marriage to be dissolved, provided always that the Court shall not be bound to pronounce such decree if it shall find that the petitioner has" done amounts to (see post, s. 4) a discretionary bar.2 So if the petitioner conies into Court with clean hands ho has an absokite right to his decree ; ^ but in certain oases where he is guilty of some acts (as to what these are, see jjost, s. 4, pp. 286-304), it lies in the discretion of the Court whether or not to grant it ; but if he has been guilty of certain other acts, it is the duty of the Court to dismiss the petition; see post, s. 3, pp. 267-286. As regards these suits for dissolution, Lord Hannen laid down — " This Court, in suits for dissolution, is not bound to act on the principles on which the Ecclesiastical Courts formerly acted, such suits being already excluded from the operation of 20 & 21 Vict., c. 85, s. 22. On the other hand, I am bound as far as possible to maintain uniformity in the decision of this Court, and to apply the principles that my predecessors have established in the exercise of the novel jurisdiction created by the Act of 1857." * If the petitioner has already obtained a decree for judicial separation, he or she may, if the respondent commits a fresh matrimonial offence, proceed to obtain a dissolution, supposing, that is to say, that the combined offences put together raise a sufficient ground for a dis- solution of marriage. 1 20 & 21 Vict., c. 85, s. 27. 2 20 & 21 Vict., c. 85, s. 31. 3 See per Lord Chelmsford, L. C, Mordaunt v. Monoreiffe (1876), L. R., 2Sc. &D., 374. •4 M'Cord V. M'C. (1875), L. R., 3 P. & M., 237 ; and see Mordaunt V. Moncreiffe (1876), L. R., 1 Sc. & D., App., 374, p. 385, where Lord Chelmsford, L. C, declared that they were exercising a new statutory jurisdiction. 246 DISSOLUTION OF MARRIAGE Chap, vii As, for instance, where the judicial separation was for the husband's cruelty, and he subsequently committed adultery, the wife obtained a dissolution of marriage ; ^ and in another case where the husband had been guilty of cruelty and adultery, and the wife, although entitled to a dissolution, yet wishing to aUow her husband a chance of reform, waived this remedy, and only asked for and obtained a judicial separation, but subsequently the husband having committed fresh adultery, the wife was held entitled to a dissolution of marriage on the ground of the fresh adultery coupled with the old cruelty committed during the previous cohabitation. ^ If the husband has only been guilty of adultery alone, and his wife obtains a judicial separation in consequence, she runs the risk of never being able to turn her remedy into a dissolution ; for ex necessitate rei after a judicial separation a husband cannot be guilty of cruelty or desertion, and subsequent simple adultery, not incestuous or bigamous, will give her no further rights. In fact, in such a case, unless the husband commits the somewhat unusual matri- monial offences of incestuous adultery, bigamy, and adultery or sodomy, she will never be able to obtain a dissolution. But it is a wise and prudent course for a wife to obtain a judicial separation for cruelty or desertion, as after this, in the event of her husband committing subsequent adultery, she will have the option of petition- ing for a dissolution. If the husband is guilty of adultery alone without cruelty or desertion, and the wife wishes to free herself, her prudent course is to separate at once, otherwise she might be barred by condonation ; see post, 1 Bland v. B. (1866), L. R., 1 P. & M., 237. 2 Green f. G. (1873), L. R., 3 P. & M., 121, followed Mason v. M. (1883), 8 P. D., 21, C. A., where it was the husband who first asked and obtained a judicial separation for his wife's adultery, and subsequently, she continuing adulterous, asked for and obtained a dissolution. Sm. 1 (d) JURISDICTION AND PROCEDURE 247 s. 3 (d), p. 272. She should not sue for judicial separation, for without any suit the law allows her to quit a husband living in adultery, and she is not thereby deemed guilty of desertion ; but, on the contrary, if the husband con- tinues to live in adultery, he, although it is the wife who quitted him, will be guilty of desertion, and at the end of two years she will be entitled to dissolution, if, that is to say, he continues in adultery. For — ''If -T man is living with another woman, the wife is justified in saying, ' I shall not return to you, nor shall I allow you to have access to me while you are living in open adultery with another woman.' " So continued adultery ripens into desertion. ^ (e) Procedure Petition. — The application is by petition. ^ "And every such petition shall state, as distinctly as the nature of the oa,se permits, the facts on which the claim to have such marriage dissolved is founded." s Together with the petition is to be filed an affidavit verifying the same so far as the petitioner is able to do so, and stating that there is no collusion or connivance between the deponent and the other party to the marriage ; * and the petition is to be served on the party affected by it unless the Court dispenses with service.^ The marriage of petitioner and respondent must be alleged in the petition, and proved at the hearing.^ 1 Fanmr v. F. (1884), 9 P. D., 245 ; Knapp v. K. (1880), 6 P. D., 10 ; and see post, s. 5 {d), p. 342. 2 20 & 21 Vict., c. 85, s. 27 ; and see rule 1, and see form 1. 3 lb. , s. 27. ■* /S. , s. 41 ; and see rules 2 and 3. ' 76. , s. 42 ; and as to citation and service, see rules 8-18 and forms 2-5. 8 Dixon on Divorce, 2nd ed., p. 294 ; Pagani v. P. (1866), L. R., 1 P. & M., 223; and see ante, Chap. Ill, pp. 127, 226, 227; and see post, s. 3 (b) (h). 248 DISSOLUTION OF MARRIAGE Cuai- VK Trial. — The question of fact may be determined by the Court itself, i.e., by a judge sitting alone, or by a judge with a special or common juryj^ but any of the parties has a right to have the contested matters of fact tried by a jury.^ The Court has power to direct trial of an issue at Assizes, but it is rarely exercised.^ As to evidence, see post, s. 5. The finding of the jury is not conclusive on the Court ; for even when there is a jury there is a duty on the Court, i.e., the judge, to satisfy itself as to the proofs of facts alleged ; and though it almost always follows the finding of the jury, it is not bound by it.* Therefore the Court sometimes refuses a decree notwithstanding a verdict by the jury in the petitioner's favour ; but it may be laid down that the Court has never granted a decree contrary to the verdict, although in a single case the Court has con- sidered the unsatisfactory character of the adverse verdict a reason for exercising its discretion (see s. 4, p. 286) in the petitioner's favour.^ The trial must be in open Court, and there is no power or authority, even by assent of all parties, to hear a petition for dissolution privately in camera.'^ 1 20 & 21 Vict., c. 85, ss. 36-40. 2 20 & 21 Vict., c. 85, s. 28 ; and see rules 40-50, 205, 206. In undefended case, tlie trial is witliout a jury ; Thompson v. Rourke (1892), P., 244, C. A. Also the Court may direct trial by jury, though neither party desires it ; RatdiffY. R. (1858), 2 Sw. & Tr., 217. 3 20 & 21 Vict. c. 85, s. 40; mans v. E. (1858), 1 Sw. & Tr., 216, and see post, pp. 352, 373. i Barnes v. B. (1868), L. R., 1 P. & M., 572 ; and see Bering v. D. (1868), ib., pp. 531, 535 ; and Dolby v. D. (1861), 2 Sw. & Tr., 228 ; lYarracott v. N. (1864), 3 Sw. & Tr., 408 ; and see Long v. L. (1890), 15 P. D., 218 ; and nee post, ss. 3 {b), 4 (a). 5 Conradi v. C. (1868), L. R., 1 P. & M., 514; ^a™&s v. B., libi sup. 6 Barnett v. B. (1859), Sea. & Sm., 20 ; C. v. G. (1869), L. R., 1 P. & M., 640; aliter as to nullity or judicial separation, see A. v. A. (1875), L. R., 3 P. & M., 230 ; and see ante, pp. 213,225, mApost, p. 365. When the Divorce Bill was introduced, a clause to that effect was in the Bill, hut it was struck out in Parliament ; see Barnett v. B., ubi sup.; ^rr. 1 W JURISDICTION" AND PROCEDURE 249 Decree nisi. — Every decree for a divorce shall in the first place be a decree nisi, and no decree nisi for a divorce shall be made absolute until after the expiration of six calendar months from the pronouncing thereof, unless the Court shall fix a shorter time ; i and during that period the Queen's Proctor or any one of the public can intervene. As to such intervention, see jjas/, p. 261 ; as to the effect of degree nisi, see Chap. XIII. On the decree nisi the lis is at an end as between the parties.^ Decree absolute. — After the expiration of six months from the decree nisi, and on proof that there has been no intervention,^ the petitioner can apply to have the decree made absolute ; but even in case there is no intervention the petitioner has no absolute unconditional right to have the decree made absolute at the end of six months ; and the making of the decree absolute may be suspended till the petitioner complies with the conditions, as, e.g., provision for a child that the Court deems just and proper.* Occasionally, in exceptional circumstances, the and see a discussion in House of Commons, April 22, 1887, on the motion of S. Smith, against the publication in newspapers of the offensive details of divorce cases, Hansard, 3rd series, vol. cccxiii., pp. 1660-1673. By French Law, Code Civil, Article 239, divorce cases may, by order of the Court, be heard with closed doors ; and it is forbidden to report them in the newspapers. 1 23 & 24 Vict., c. 144, o. 7 ; 29 & 30 Vict., c. 32, s. 3 ; 47 & 48 Vict., c. 68, s. 5. ; Wattonv. W. (1866), L. R., 1 P. & M., 227 ; decrees nisi only apply to petitions for dissolution of marriage and not to Judicial separation, restitution of conjugal rights, or jactitation ; see Chaps. VIII and X ; they were applied to nullity suits by 36 Vict., c. 31 ; see ante, Chaps. V and VI, pp. 213, 226. 2 Latham v. L. (1861), 2 Sw. & Tr., 299 ; Oiisey v. 0. (1875), 1 P. D., 56 ; Midwinter v. M. (1892), P., 28, 35, C. A. 3 Rules 80, 194, and 207. No motion need be made in Court, but an afadavit is filed in tlie registry, whereupon a decree is pronounced in open Court. As to registration of decrees absolute, see ante, p. 34 ; as to their effect, see post, Chap. XIII, s. 3. i Watton ». W. (1866), L. R., 1 P. & M., 227 ; Langworthy v. L. 250 DISSOLUTION OF MARRIAGE Chav. yii Court shortens the period of six months, and makes the decree absolute more quicklj^^ It is only the petitioner who can apply to have the decree nisi made absolute ; and if he or she fails to apply, the respondent cannot apply ; but if the petitioner makes a long default, the respondent can ask to have the petition dismissed for want of prosecution. ^ If the petitioner dies after the decree nisi the suit abates, and his or her personal representatives cannot have the suit revived in order that a decree absolute may be pronounced ; ^ but the Court has made a degree absolute notwithstanding a suggestion that the respondent and co-respondent, who had gone to South America together, had both died of yellow fever meanwhile, and within a few days of one other.* As to showing cause against decree nisi, see post, ■2 (.9), p. 261. Enforcement of Orders and Decrees. — It was enacted by the Matrimonial Causes Act, 1857, that all decrees and orders of the Court might be enforced and put in execution in the same way as orders and decrees of the High Court of Chancery ; * that is to say, by attachment of the party,^ or sequestration of his or her (1886), 11 P. D., 86, C. A. ; and see Bering v. D. (1868), L. K., 1 P. & M. , 531, but not to give a solicitor liis costs ; Patterson v. P. (1870), L. E., 2 P. &M., 192. 1 Watton V. W., uU sup. ; Fitzgerald v. F. (1874), L. R., 3 P. & M., 136; M. y. B.,ib., p. 200. 2 Ousey V. 0. (1875), 1 P. D,, 56 ; Half den v. Boddington (1881), 6 P. D., 13 ; Hancock v. H. (1867), L. K., 1 P. & M., 334 ; Lewis v. L. (1892), P., 212 ; neither can the respondent show cause against the decree being made absolute, Stoate v. S. (1861), 2 Sw. & Tr., 384. 3 Stanhope v. S. (1886), 11 P. D., 103, C. A. ■1 Bering v. D. (1868), L. K., 1 P. & M., 531. 5 20 & 21 Vict., c. 85, s. 62 ; and as to costs, see Chap. XI, s. 5. ' Lynch v. L. (1885), 10 P. D., 183 ; Bates v. B. (1888), 14 P. D., Siic. 1 fe) JURISDICTION AND PROCEDUKE 251 effects. The attachment usually preceded sequestration ; but if the party in contempt is abroad out of the jurisdiction, so that a writ of attachment would be idle, and the Court is satisfied that he has notice of the order, sequestration of the party's goods will be ordered at once.i The Court has also jjower to grant an injunction ; - and as to restraining a respondent from leaving the jurisdic- tion or removing his goods, see post, Chap. XI, s. 1 (a). Sec. 2. — Who can sub and be sued (a) The Parties A petition for divorce is a personal act to be initiated by the husband or wife ; the petitioner has to sign the petition personally, and make an affidavit to the truth of its allegations ; see ante, p. 247. The necessary parties to the suit are the husband and wife, whether as peti- tioner or respondent, the co-respondent, i.e., the man with whom the wife is alleged to have committed adultery, and at her option the woman with whom a husband is alleged to have committed adultery ; see post, pp. 254, 255. The death of the petitioner or respondent makes the suit abate (see pp. 250, 252), although it would seem that the death of the wife would not prevent the husband presenting a petition for damages against the co-respon- dent ; see^os^, pp. 256, 257. 17, C. A. ; De Lossy v. DeL. (1890), 15 P. D., 115 ; Clarke v. 0. (1891), P., 278 ; and see rules 110-112, 179, 203. 1 Dent v. D. (1867) L. R., 1 P. & M., 366 ; Miller v. M. (1870), L. E., 2 P. & M., 54 ; Allen v. A. (1885), 10 P. D., 187 ; Hyde v. H. (1888), 13 P. D., 166, C. A.; and see pp. 381-383. 2 Koakes v. N. (1877), 4 P. D., 60 ; Newton v. N. (1885), 11 P. D., 11 ; Gillet v. G. (1889), 14 P. D., 158.; and see pp. 381-383. 252 DISSOLUTION OF MARRIAGE Chap, vit (&) Guardian of a Minor If the petitioner or respondent, i.e., the liusband or wife, are minors, he or she appears by his or her elected guardian. But a minor co-respondent can appear and defend without a guardian. ^ (c) Committee of a Lunatic The lunacy of a petitioner or respondent does not bar a petition for dissolution, it being a civil proceeding. The committee of the estate of a husband or wife may either present a petition or defend one for the respondent, or the respondent might appear by a guardian ad litem.'^ If the lunatic's wife, previous to the decree of dis- solution, gives birth to a child which it is alleged is illegitimate, the Lords Justices in Lunacy may direct pro- ceedings to be taken to raise the question of that child's legitimaoy.5 (d) Executor or Administrator A suit for divorce is a personal action, and according to the maxim actio personalis moritur cum persona the executor or administrator of a dead petitioner can neither ' E. R., 105-108 ; see Redfern v. R. (1891), P., 139, where the re- spondent wife was a minor ; Beavan v. B. (1862), 2 Sw. & Tr., 652, where the petitioning husband was a minor. In the old Ecclesiastical Courts a minor sued or defended by guardian, see Beauraine v. B. (1808), 1 Hag. Con., 498 ; Morgan v. M. (1841), 1 N. of C, 23 ; Brown V. B. (1850), 2 Rob. Ec, 302. 2 Baker v. B. (1880), 5 P. D., 142 ; 6 P. D., 12, C. A. ; Mordaunt v. Moncreiffe (1874), L. R., 2 H. L. So. & Div. App., 374 ; and see Rule 196, and Fry v. F. (1890), 15 P. D., 25, 50, C. A. It is for the Lords Justices in Lunacy, in their discretion, to determine whether or not the committee shall petition. It had been previously allowed that the committee of a lunatic might sue for judicial sei^aration ; Woodgate v. Taylor (1861), 2 Sw. & Tr., 512. 3 Stoer in re (1884), 9 P. D., 120. Sec. l' (rf) WHO CAN SUE AND BE SUED 253 commence nor continue a petition for dissolution of marriage or judicial separation after the petitioner's death. "A man can be no more divorced after his death than he can after his death be married or sentenced to death. Marriage is a union of husband and wife for their joint lives, unless it be dissolved sooner, and the Court cannot dissolve a union which has already been determined." In this case a husband had obtained a decree nisi for dissolution on Maj^ H, 1883, and died July 27, 1883, before it was made absolute. It was subsequently decided that the respondent who had married again was entitled to a life interest in £15,000 bequeathed by the petitioner's father, who died in 1881, to the petitioner's widow. Thereupon the petitioner's executor asked leave to inter- vene in order to have the decree nisi made absolute. But the Court of Appeal, for reasons above given, decided that the executor could not revive the suit ; and so the state of marriage not being dissolved at the petitioner's death, the respondent as his widow was entitled to her life interest in the £15,000.' But in a previous case where it was suggested by interveners, the parents of the re- spondent, that the respondent wife and the co-respondent had died meanwhile, soon after the decree nisi, in South America, of yellow fever, the Court nevertheless on the application of the petitioner made the decree absolute.^ (e) Respondent After the petitioner has filed his petition he or she must extract a citation,^ and have it served on the respondent personally, unless he or she is by leave allowed to make substituted service ; * the respondent can then 1 Stanhope v. S. (1886), 11 P. D., 103, C. A.; and see Brocas v. B. (1861), 2 Sw. & Tr., 383 ; Grant v. G. (1862), ib., p. 522 ; and see ante, pp. 250, 251. 2 iJering v. D. (1868), L. E., 1 P. & M., 531. = Rnles 8 and 9. J Rules 10-18. 254 DISSOLUTION OF MARRIAGE Chap. VII appear absolutely ; or if he or she objects to the jurisdic- tion of the Court, he or she can. appear under protest.-'- After appearance the respondent can file an answer either denying the charge or setting up countercharges by wslj of bar (see post, ss. 3 and 4), or both, denying and counter- pleading. If, however, the respondent's answer contains matter other than a simple denial of the charges in the petition, the respondent must verify such additional matter by affidavit filed. Further, the respondent who appears and answers must always file an affidavit stating that there is no collusion or connivance between the petitioner and the defendant.^ Besides defending and resisting a petition for dissolu- tion brought against him or her, the respondent can obtain relief as if he or she were petitioner in a cross suit. The Matrimonial Causes Act, 1866, provides — " In any suit instituted for dissolution of marriage, if the respondeut shall oppose the relief sought on the ground, in the case of a suit in- stituted by the husband, of his adultery, cruelty, or desertion, or in case of such suit by a -wife, on the ground of her adultery or cruelty, the Court may in such suit give to the respondent, on his or her application, the same relief to which he or she -would have been entitled in case he or she had filed a petition seeking such relief. "3 If under this power the respondent makes a counter- charge of adultery against his wife with some third person, such person may at all events on his own application to in- tervene be made a party.* Also the woman with whom a respondent husband is alleged to have committed adultery may, on denying the adultery, also on her own application 1 Rules 19-22, 185 ; see form 6. 2 Eules 28-31, 186 ; and see form 7. 3 29 & 30 Vict., c. 32, s. 2 ; but this does not enable the respondent to add a prayer for restitution of conjugal rights ; Drysdale v. D. (1867), L. R., 1 P. & M., 365 ; and s&e post, Chap. X, s. 1. * CuMnrj V. C. (1888), 14 P. D., 13 ; Wheels v. 11'. (1889), 14 P. D., 154. skc. 2 « WHO CAN SUE AND BE SUED 255 be made a respondent so as to take part in the suit and cross-examine. 1 (/) Go-respondent and Damages When a husband petitions for dissolution of marriage he must, whether or not he claims damages, make the alleged adulterer a party, unless the Court on special grounds excuses him.'^ Also on a wife's petition, the person with whom the husband is alleged to have com- mitted adultery can and will on such person's application be made a party.^ Damages against such alleged adulterer may be claimed by the husband in any petition for dissolution, or for judicial separation, or in a petition for damages only.* The co-respondent is liable for costs.'^ The petition against the co-respondent is triable on the same principles as the old actions for criminal conversa- tion.^ But notwithstanding this a co-respondent can set 1 Bell V. B. (1883), 8 P. D., 217 ; and see n. 3, infra. 2 20 & 21 Vict. ,0. 85, s. 28, rules 4-7 ; for grounds on -vvliich a petitioner will be excused from making the adulterer a co-respondent, see Dixon on Divorce, 2nd ed. , pp. 225-227. On a respondent liusbaml recriminating adultery against a petitioning wife, the man with whom the petitioner is alleged to have committed adultery may be made a party; Curlings. C. (1888), 14 P. D., 13; WheelerY. W. (1889), 14 P. D., 154. A separate list of all the co-respondents is kept at the Divorce Registry, Somerset House. As to an infant co-respondent, see p. 252. 3 20 & 21 Vict., c. 85, s. 28 ; and see Bell v. B. (1883), 8 P. D., 217 ; Connemara v. C. (1892), P., 102 ; but the petitioning wife can make no claim for damages against such person ; see ante^ Chap. IV, s. 2 (c), p. 190." ■• 20 & 21 Vict., c. 85, s. 33 ; as to damages in judicial separation, see Mason v, M. (1883), 8 P. D., 21 ; a petition for damages only is but rarely filed, Pomero v. P. (1884), 10 P. D., 174. 6 20 & 21 Vict., ^. 85, s. 34 ; and see Forster v. F. (1863), 4 B. & S., 187. ^ 20 & 21 Vict., c. 85, s. 33 ; for explanation of the old action of crim. con., see Selwyn's Nisi Prius, vol. i., tit. Adultery; BuUer's Nisi Prius, 7th ed., p. 26a; Chitty on Pleading, 5th ed., tit. Crim. Con. The remedy was either in "trespass" or in "case" ; see Macfadzen V. Olivant (1805), 6 East, 387. 256 DISSOLUTION OF MARRIAGE Cbap. vil up other matters than would "be available to a defendant in crivi. con. For in the action of crim. con., the only defence available, assuming the marriage and the adultery to be proved, is connivance by the plaintiff; any other inofficious conduct by the husband only went in reduction of damages. 1 But a co-respondent can not only deny the adultery charged, but set up any bar whether absolute or discretionary (see post, ss. 3 and 4) which would be avail- able to the respondent wife as defence against her husband; and so if the decree nisi is rescinded on account of the petitioner's adultery, the co-respondent will be relieved from the costs and the damages the jury had previously assessed against him.^ Also if the co-respon- dent can prove connivance even with a man other than himself, the petition will be dismissed.^ Also a separation deed between husband and wife bars any claim to damages against previous but not subsequent adultery, though it might mitigate the damages.'' On the other hand, it occasionally happens that a husband can get costs and damages against the co-respondent, when as against the wife he would be barred as in a case of condonation,^ or if the co-respondent had ravished the wife," in both of which cases the co-respondent is liable. Also if the wife is dead, the husband can still, if otherwise entitled, as ''^ Foley V. Lord Peterborough (1785), 4 Doug., 294; see Dv2>erley V. Gunning (1792), 4 T. R., 651 and 657 ; Wyndham v. Wycomhe (1801), 4 Esp., 15; Bromley y. Wallace (1802), 4 Bsp., 237; Winter V. Henn (1831), 4 C. & P., 494 ; and see books referred to, p. '255, n6. 2 Ravenscrofl v. JR. (1872), L. R., 2 P. & M., 376 ; Story v. S. (1887), 12 P. D., 196 ; but see per contra, Hulse v. H. (1871), L. R., 2 P. & M., 357. 2 EUyatt V. E. (1869), 3 Sw. & Tr., 503 ; Ada,ms v. A. (1867), L. R. 1 P. & M., 333 ; and see Otway v. 0. (1887), 13 P. D., 12, 141, C. A. * Rard v. /. (1889), 14 P. D., 45. = Pomero v. P. (1884), 10 P. D., 174. = Long V. L. (1890), 15 P. D., 218. Sec. 2 (/) WHO CAN SUE AND BE SUED— DAMAGES 257 when he only discovered it on her deathbed, recover damages against the adulterer. ^ If sufficient evidence is not made out against the co- respondent, as, for instance, when the wife's confession detailed by the petitioner as a witness is the principal evidence, the co-respondent may be dismissed at the end of the petitioner's case.^ The co-respondent can also raise defence of want of jurisdiction. ^ Measure of Damages. — As to the principles on which the jury is to assess damages, regard must be had to the husband's loss, and as to how far that loss can be traced 1 Wilton V. Webster (1835), 7 C. & P., 198. 2 21 & 22 Vict., c. 108, s. 11 ; and see Craviford v. C. (1886), 11 P. D., 150, following RoUnson v. ij. (1858), 1 Sw. & Tr., 362, In Craw- ford V. C, tried before Butt, J., without a jury, on Feb. 12, 1886, the chief witiies.s in support of the petition was the petitioner himself, Mr. Crawford, who related at length, and in minute detail, confessions made to him by his wife, in wliieh she described various act of adultery committed by her with the co-respondent, ranging over a period of several years. Two other witnesses were called who confirmed the evi- dence of the petitioner in minor particulars. Mrs. Crawford was not then called as a witness. Mrs. Crawford's confession to the petitioner, related by him as a "witness, was evidence against her ; but the petitioner being only able to swear to what his wife told him, this was no evidence against Sir C. W. Dilke, M.P. The judge thereupon found that the respondent had been guilty of adultery with the co-respondent, but that there was no admissible evidence to show that the co-respondent had been guilty of adultery with respondent, and thereupon dismissed Sir C. W. Dilke, M.P., and pronounced a decree nisi. On May 5, the Queen's Proctor intervened to show cause why the decree nisi should not be made absolute, on the ground that the charge of adultery on which it was granted was not true. It was heard before Lord Haunen and a jury on July 16 and several following days ; the Queen's Proctor called witnesses, and then the petitioner called, as a witness Mrs. Crawford, who gave evidence that her confession was true, and gave evidence of adultery. Thereupon the Queen's Proctor's inter- vention was dismissed and the decree made absolute. If Mrs. Crawford had been a witness at the first trial her evidence would have been admis- sible against Sir C. W. Dilke ; and see ;post, Evidence, s. 5, p. 307. 3 Wilson V. W. (1871), L. E., 3 P. & M., 353 ; Grange v. O. (1892), P., 245 ; and see ante, pp. 243, 244. 17 258 DISSOLUTION OF MARRIAGE Chap. VII to the co-respondent's action. Lord Hannen, President, in charging the jury, ohserved — " First, you must remember that you are not here to punish at all . . . all that the case permits a jury to give is compensation for the loss which the husband has sustained. That is the only guide to the amount of damages to be given. But, undoubtedly, if it is proved that a man has led a happy life with his wife, that she has taken care of his children, that she has assisted in his business, and then some man appears upon the scene and seduces the wife away from the husband, then the jurj^ will take those facts into consideration. But the question in this case, as in so many others, is whether or not these losses have been cast upon the petitioner by the action of the co-respondent. If he did not seduce her away from her husband, that makes a very material differ- ence in considering the amount of damages to be given. In considering these questions, undoubtedly the conduct of the husband must be looked to. . . If you come to the conclusion that he did not make any earnest inquiry after her, that is a fact you could consider when yon are considering the damages he has sustained by some man con- sorting with her afterwards. What can any husband expect who has separated from his wife, who he knows has no means ? " . . (A jury- man having asked what were the means of the co-respondent, the Pre- sident added) : " The means of the co-respondent have nothing to do with the question. The only question is what damage the petitioner has sustained, and the damage he has sustained is the same whether the co-respondent is a rich or a poor man."^ Evidence that the husband and wife were on good or had terms previous to the adultery, is admissible in aggravation or reduction of damages ; and to prove this, letters between husband and wife are sometimes put in.^ 1 Keyse v. K. (1866), 11 P. D. , 100 ; and on this principle, where a curate of no means, committed adultery with the wife of a rich merchant married many years, and mother of five children, he was cast in damages for £2000 ; and see James v. Biddinglon (1834), 6 C. & P. , 589. On the other hand, the Marquis of Anglesey, see Bell v. B. (1859), 1 Sw. & Tr., 565, was cast for £10,000, the judge dwelling on his taking advantage of the prestige of his rank to debauch a vain woman. A jury are apt to take Boult's view of a peer as co-respondent — "The nobleman would have dealt with her like a nobleman," Pericles, Act VI, scene 6. 2 Pollard V. P. (1864), 3 Sw. & Tr., 613 ; and see Willis v. Bernard (1832), 5 C. & P., 342 ; Trelawney v. Coleman (1817), 1 B. & Aid., 90 ; Wiltm, V. Webster (1835), 7 C. & P., 198 ; Elsam v. Favcett (1797), ] Esp., 562 ; Edwards v. Crook (1801), 4 Esp., 39. Sec. 2 (/) WHO CAN SUE AND BE SUED— DAMAGES 259 Also as to the effect, in the measure of damage, of a separation deed previous to the adultery. Butt, J., charged a jury— " The amount of injury suffered is the pecuniary injury to the husband. It must be obvious to any one that if a husband and wife have consented to live sei^arately, aud have, iu fact, lived separately for a number of years, the injury to the husband would be compensated by the smallest amount of damages. But each case varies with the different circum- stances of life, and I have no hesitation in telling you that if a man makes the acquaintance of another man's wife, engages her affections, and is the cause of her ' separation from her husband, and then, after such separation, commits adultery with her, the husband is entitled to the same amount of damages as he would have been entitled to if no separation deed had been executed between them, and that even if no adultery had been conmiitted before the separation." In this case, where the respondent was a well-known opera houffe singer and the co-respondent the lessee of the theatre at which she performed, the damages were assessed at £5000.^ An agreement between the petitioner and co-respondent fixing the amount of the damages will not be recognised ; they must be assessed by a jury.^ It was laid down as a rule in cases of erim. con., that a new trial on the ground of excessive damages would very rarely be granted, unless it were proved that the jury must have acted under the influence of undue motives or some gross error or misconception.^ Appwtionment of Damages. — The damages assessed by the jury are not ipso facto the property of the husband, and he cannot recover them as in an ordi- nary action by judgment and execution following. 1 Izard v. /. (1889), 14 P. D., 45 ; and see Harvey v. Watson (1844), 2 Dowl. & L., 843 ; and as to separation deeds, see pp. 200, 271, 272, 275, 284, 339. 2 Call-well V. C. (1860), 3 Sw. & lY., 259. An agreement to pay damages is void ; 6'ipi)s v. G. (1864), 11 H. L. C, 1. ' Wilford v. Berkeley (1758), 1 Burr., 609 ; Chambers v. Caulfield (1805), 6 East, 244. 260 DISSOLUTION OF JIARRIAGE Csap. vit The Court lias by tlie statute power, instead of order- ing damages to be paid to the petitioner, to direct that the whole or a part of them should be settled on the respondent or the children of the marriage. This power is often, nay, usually exercised ; the husband rarely gets the Avhole absolutely. This apportionment is purely a matter for the Court's unfettered discretion, which is exercised according to the diilering circum- stances of each case. For instance, where the damages paid by the co-respond- ent were ^5000, the Court ordered £1500 to be settled on the youngest child, who alone remained with the petitioner, £1500 to go to the petitioner, who was also to be reimbursed his costs, and the residue to be invested in the purchase of a life annuity for the respondent, to he paid her as long as she lived chastely and did not become the "wife of the co-respondent, and on her breaking these conditions to be paid to the petitioner. The object of this condition was that the co-respondent being a married man, and subsequent to the suit having visited the respond- ent, it was intended by this condition to prevent the respondent troubling the married life of the co-respondent and his wife ; but it was not made a condition that the respondent should not remarry, except as regards the co- respondent.i Damages, however, are not often asked for, but costs for or against the co-respondent are adjudged on the same principles according to his culpability. There 1 ileijeu-r v. M. (1876), 2 P. D., 254 ; and Forsler v. F. (1863), 3 Sw. & Tr., 158, where out of £5000 damage";, £1000 were given to the peti- tioner, and then an annuity of £120 to the respondent, dum casta rixcril, and in breach of that condition, remainder to her daughters, and the residue of the fund to the daughters ; and see Xarrncot T. N. (1869), 3 Sw. k Tr., 408, 4 Sw. & Tr., 76, where the condition wa.s dti.m casta and not duTii sola vixerit ; and see Chap. XI, s. 1 ((^), s. 4 (c), as to dv-ni casta clause, pp. 391, 392, 402. Sec. 2 (/) WHO CAN SUE AND BE SUED— DAMAGES 261 are three positions as to costs, that the petitioner should pay the co-respondent's costs, that the co-respondent should pay the petitioner's costs, or that each party should pay their o^yn costs. It is only when the petition is dismissed that the peti- tioner will be ordered to pay the co-respondent's costs, and then not always ; see ante, p. 256. But even if the peti- tioner is successful, the co-respondent will not be ordered to pay the petitioner's costs if he did not know that the re- spondent was a married woman, ^ or if he and the respond- ent acted on a. bo7id fide belief that the marriage between the petitioner and the respondent was void.^ The subsequent bankruptcy and discharge of the co-respondent does not release him from liability under a judgment against him for damages and costs unless specially so ordered. ^ (g) Intervention The Matrimonial Causes Act, 1857, directed that the Court should satisfy itself as to and inquire into collusion between the parties, and as to whether there was any counter-charge or bar against the petitioner ; * but it did not provide any machinery to put the Court upon its inquiry, nor could a stranger without any legal private interest intervene.* Intervention of the Queen's Proctor. — But in 1860^ 1 See Dixon on Divorce, 2nd ed. , pp. 467 and seq. 2 Ousey V. 0. (1874), L. R., 3 P. & M., 223. 3 Bankruptcy Act, 1890, 63 & 54 Vict., c. 71, s. 10 ; and as to pro- ceedings in bankruptcy and for committal under the Debtors Acts, see special books, and ex parte Fryer (1886), 17 Q. B. D., 718, C. A. 4 20 & 21 Vict., c. 85, ss. 29-31. = Y. V. Y. (1860), 1 Sw. & Tr., 598. 6 The Matrimonial Causes Act, 1860, 23 & 24 Vict., c. 144. This provision of the Act, being in a Bill introduced in the Lords creating an oiBcial to be paid out of funds from time to time to be voted by Parlia- ment, brought about a constitutional conflict between the Houses of 262 DISSOLUTION OF MARRIAGE Chap. VII this defect was remedied by putting into activity and conferring the function of intervention vipon an official called the Queen's Proctor, whose previous duties had been confined to representing the rights of the Crown, first in the Ecclesiastical and then in the Probate Court, to the estates of intestates. ^ The Matrimonial Causes Act, 1860, empowered the Court to direct the papers to be sent to the Queen's Proctor, who was then under the direction of the Attorney-General, to appear and argue.^ Further, the Matrimonial Causes Act, 1860, provided that — " At any time during the progress of the cause or before the decree is made absolute, any person may give information to Her Majesty's Proctor of any matter material to the due decision of the case, who may thereupon talce such steps as the Attorney-General may deem necessary or expedient ; if from such information or otherwise the said Proctor shall suspect that any parties to the suit are or have been acting in collusion for the purpose of obtaining a divorce contrary to the justice Parliament ; the Commons protesting against a Bill to lay a charge on the revenue being introduced except in their House as so infringing the rules against money bUls. The merits of this new measure, introducing a "Public Ear" to receive informations, it may be anonymous or pro- ceeding from discontented servants, were never discussed ; see Hansard, 3rd series, vol. clx., pp. 1628-1631, 1734-1742. The theory of this enactment is that it "supposes that the public is interested in seeing that no marriage is dissolved except on certain grounds ; and if the Queen's Proctor comes to the conclusion that there is a ground for supposing that a decree has been obtained contrary to the justice of the case, it is his duty to intervene." Lord Hanneu, Crawford v. C. (1886), 11 P. D., 150 ; and for other facts of this case, see ante, p. 257, and see also p. 266. In Scotch divorce cases, the Lord Advocate has never intervened since 1857 ; see ^J05i, Chap. XVIII. In France, the State, i.e, le ininistere puMique, has a right of audience in divorce cases, Code Civil, art. 239. 1 These duties of representing the Crown in intestacy are now vested in the Solicitor to tlie Treasury, who is a Corporation, 39 & 40 Vict. , c. 18. 2 23 & 24 Vict., 0. 144, s. 5 ; for instances of the Court exercising this power, see Ousey v. 0. (1875), 1 P. D., 56 ; Le Sueur v. Le ,S. (1876), 2 P. D., 79, C. A.; Soltomnyer v. De Barros (1877), 2 P. D., 81.- Sec. 2 (ff) WHO CAN SUE, ETC.— INTERVENTION 263 of tlie case, lie may, under the direction of the Attorney-General and by leave of the Conrt, intervene in the suit, alleging snch case of collu- sion, and retain counsel and subpcena witnesses to prove it."^ Under this section the Queen's Proctor can only inter- vene to sot up collusion after obtaining the direction of the Attorney-General and by leave of the Court. The Court generally gives leave, as a matter of course, to intervene ; but it has power to withdraw and withhold its leave to intervene, acting as a Court of Appeal from the decision of the Attorney-General.'^ Intei-vention by one of the Public. — Not only the Queen's Proctor, but also any of the public, though without any interest, pecuniary or otherwise, can intervene. For the Matrimonial Causes Act, 1860, provides that between the decree nisi and the decree absolute — "Any person shall he at liberty, in such manner as the Conrt shall by general or special order in that behalf from time to time direct, to show cause why the said decree should not be made absolute by reason of the same having been obtained by collusion, or by reason of material facts not being brought before the Court ; and on cause being so shown, the Court shall deal with the cause by making the decree absolute, or by reversing the decree nisi, or by requiring further inqiiiry as justice may require."^ This part of the section authorises intervention by any of the public, whether interested or not. The intervener cannot be the respondent,* or any one actually instigated by him or her, or his or her nominee ; but the mere fact 1 2-3 & 24 Vict., u. 144, s. 7- As to the practice of intervention by the Queen's Proctor, see rules 68, 69, 202 ; the Queen's Proctor or other interveners may be condemned in costs if unsuccessful, 41 Vict., u. 19, ... 2. 2 Gladstone v. G. (1875), L. R., 3 P. & M., 260; as to what is collusion, see post, s. 3 (/), p. 228. 3 23 & 24 Vict. , c. 144, s. 7 ; and see rules 70-76 as to procedure and intervention by one of the public. ■» Stoate V. S. (1861), 2 Sw. & Tr., 384 ; the respondent must appeal and ask for a new trial, see ante, p. 242. 264 DISSOLUTION OF MARRIAGE Chap. ^^I that the intervener may be (as he usually is) the friend or relative of the respondent is no objection.^ The Queen's Proctor can also intervene under this part of the section as one of the public, but under the direction of the Attorney-General ; and although he alleges collusion, he need not obtain the leave of the Court.^ But this section does not permit the Queen's Proctor or any one else to intervene on any other grounds except collusion (as to which, see pp. 263, 282) and suppression of material facts. It does not give him the right to intervene because he may suspect that the verdict on the issues previously tried was an improper one, or contrary to the weight of evidence ; ^ but although a particular charge of adultery had been before the Court investigated or decided, yet an intervener may bring forward fresh material facts in proof or disproof of the same particular former charge of adultery, to show that the verdict ought to have been the other way.* The intervention can only be after the decree nisi. If, pre\'ious to or during the first trial, infor- mation be given to the Queen's Proctor, not giving rise to a suspicion of collusion, but only bringing to his know- ledge matters material to the due decision of the case, he is not entitled to take any step ; but he could watch the case to see if these material facts are brought to the notice of the Court. If at the trial they are brought forward, he need do nothing more ; but if not, he can intervene as one of the public.^ 1 Howarth v. B. (1884), 9 P. D., 218, C. A.; and see Forster v. F. (1863), 3 Sw. & Tr., 158. 2 Bering v. D. (1868), L. E., 1 P. & M., 631 ; Gladstone v. G. (1875), L. E., 3 P. & M., 260 ; Hudson v. //. (1875), 1 P. D., 65 ; Sottmnayer ». De Barns (1879), 5 P. D., 94 ; Crawford v. C. (1886), 11 P. D., 150 ; and see rule 202, and ante, p. 263. 3 Gladstone v. G. , vM sup. ^ Crawford v. C. , uhi sup. 5 Hudson V. H., wii svp. Skc. 2 (6f) WHO CAN SUE, ETC.— INTEEVENTION 265 Such suppression of material facts includes, not only facts by the suppression of which the charge against the respondent on which the decree nisi was granted may be proved untrue,^ but may be also fresh matters and charges in opposition to the decree as proving the petitioner guilty of conduct amounting to an absolute or discretionary bar,2 or setting up question of domicil and jurisdiction. ^ As to the suppression of material facts, such mere suppression, if not done by collusion, will not of itself disentitle the petitioner to a decree absolute if when the full facts are disclosed he or she would otherwise be entitled. As when a petitioning husband, charging his wife with two successive acts of adultery, suppressed the fact that he had condoned the first act of adultery, and the Queen's Proctor having intervened, this condonation was proved ; but as it was shown that the second adultery was uncondoned, the decree was made absolute.'' But it is not necessary for the intervener to prove that the facts were intentionally withheld, for an accidental suppression of material facts justifies intervention.^ When the Queen's Proctor intervenes to prove the petitioner's adultery, he is not bound to that strictness of proof required between petitioner and respondent ; for if the Queen's Proctor makes out a prima facie case, the petitioner is bound to produce evidence to rebut it.° It often happens that the Queen's Proctor, whether by the direction of the Attorney-General or as one of the 1 Crawford v. C. (1886), 11 P. D., 160. 2 Derinff v. D. (1868), L. E., 1 P. & M., 631 ; as to what is an absolute or discretionary bar, see post, ss. 3 and 4. 3 Sottomayer v. JJe Barros (1879), 6 P. D., 94 ; see ante, j^p. 243, 244. ■1 Alexandre v. A. (1870), L. E., 2 P. & M., 164, observed upon in Butler V. B. (1890), 15 P. D., 66, C. A. 5 Jlowarth v. H. (1884), 9 P. D., 218, C. A. 6 Bulse V. //. (1871), L. E., 2 P. & M., 357 ; fize> post, pp. 309 and .seq. 266 DISSOLUTION OF MARRIAGE Chap. VII public, acts on information supplied by tlie respondent or co-respondent or his or her friends, and so to get the case reopened and retried. Lord Penzance said — "It seems to me that there is no impropriety -whatever in a co- respondent or a respondent furnishing to the Queen's Proctor the facts whicli he brings before the Court in cases of tliis kind. It is for the Queen's Proctor, when he has had the facts furnished to him, to submit them to Her Majesty's Attorney-General, and it is then for the Attorney- General to consider them, and to direct whether, in the interest of the public, the expense ought to be incurred of proving them, with a view of stopping the decree. To my mind it matters little or nothing from what source the information comes." ^ But in the case where Sir C. Dilke was made a co- respondent, and after a decree nisi against the respondent on the ground that she had committed adultery with Sir C. Dilke, the Queen's Proctor intervened, and Lord Hannen, the President, observed — " I wish to express in the strongest possible manner my repudiation of the notion that this intervention has been undertaken in the interests of the co-respondent. If it were so, the Queen's Proctor would have failed in his duty. I must assume that the Qneen's Proctor has not acted for the protection of the co-respondent, but because he thinks that the facts require that the Court should come to the conclusion that the confession of Mrs. Crawford is not true." 2 However, said Lord Hannen, he should not put forward a purely speculative plea of collusion, which would have to be abandoned at the trial for want of evidence. The plea is one which ought to be based on some information which leads the Attorney-General to the conclusion that there is a case fit and proper to be submitted to the Court in support of the charge.^ Rescission of Decree. — If the decree nisi is rescinded and the petition dismissed, the petitioning wife has still 1 «. Paul V. St. P. (1869), L. R., 1 P. & M., 739. 2 Crawford v. C. (1886), 11 P. D.,.150 ; and see the facts of this case ante, p. 257. 3 Gladstone v. G. (1875), L. R., 3 P. & M., 260. Sec. 2 (g) WHO CAN SUE, ETC.— INTER VENTION 267 been allowed to enforce a previous order for costs against her husband ; i but in another case where a sum of money was in Court, an application by her to get it out of Court and paid to her, was refused,^ and the money was ordered to be paid out to the Queen's Proctor. ^ As to effect on the costs of a petitioning husband, see ante (/), pp. 256, 261. Sec. 3. — Absolute Baes (a) Generally " Upon such petition for the dissolution of a marriage, it shall be the duty of the Court to satisfy" itself, so far as it reasonably can, not only a^ to the facts alleged, but also whether or no the petitioner has been in any way accessory to or conniving at the adultery, or has condoned the same, and shall also inquire into any counter-charge which may be made agaiust the petitioner." ^ "In case the Court, on the evidence in relation to the said petition, shall not be satisfied that the alleged adultery has been committed, or shall find that the petitioner has, during the marriage, been accessory to or conniving at the adultery of the other party to the marriage, or has condoned the adultery com- plained of, or that the petition is presented or prosecuted in collusion with either of the respondents, then, and in any of the said cases, the Court shall dismiss the said petition." ^ (6) Petitioner's Case not 2Jruved The Court is bound to see that the petitioner's case is made out,* even if the case is undefended. The petitioner must prove his allegations by evidence, and nothing material can be taken as admitted.'' In undefended cases, the trial is by the Court and not by a jury.^ 1 \nul.more v. ir. (1866), L. E., 1 P. & M., 96 ; and (JlcuUlune v. G. (187.^), L. B., 3 P. &M:., 260. 2 Butler V. B. (1889), 14 P. D., 160 ; 15 P. D., 32, 126, C. A. 3 Butler V. B. (1890), 15 P. D., 161. 4 20 & 21 Vict., u. 85, s. 29. = 20 & 21 Vict., c. 85, s. 30. 8 20 & 21 Vict., c. 85, ss. 29-31. 7 Dixon on Divorce, 2nd ed., pp. 287, 294. 8 Thompson v. Rourke (1892), P., 244, C. A. 268 DISSOLUTION OF ilARRIAGE Chap, xn (c) Connivance The Court is bound to satisfy itself, so far as it reason- ably can, that the petitioner has not been accessory to or conniving at the adultery ; and the connivance, if made out, is an absolute bar.i If the connivance amounts to procuring the wife, it is a criminal offence for which the husband may be prosecuted ; see post, Chap. XV, s. 5. Connivance was a good plea in bar to the old Common Law action of criminal conversation ; ^ and it was also in Canon Law, under the name of lenocinium, a bar to obtaining a divorce in the old Ecclesiastical Courts on the principle volenti non fit injuria, but in practice, previous to 1790, such an allegation was very rare.^ A plea of connivance does not necessarily admit adultery.^ Connivance may be objected either against husband or wife petitioning. Differing from condonation, it seems now settled that a single connivance at adultery with a particular person is a bar to a suit in respect of subsequent adultery or adultery with another person ; it is not open to the petitioner having once connived at adultery to say non omnibus or non semper dm-niio, and to subsequently sue • in other words, there is no reviver.^ 1 20 & 21 Vict., c. 86, s.s. 29-31. 2 See BuUeu's N. P., tit. Adultery, 7th ccL, pp. 26a, 27a; Selwyn's N. P., tit. Adultery, 10th ed., vol. i., p. 8 ; and see ante, pp. 25,5, 256. s See Hodges v. //. (1795), 3 Hag. Ec, 118, p.. 120, where Sir W. Wynne cited Cibber v. C. (1738) as the only known instance. ■> Jiogers v. It. (1830), 3 Hag. Ec, 57, p. 58; Moorsom v. M. (1792), 3 Hag. Ec., 87, p. 91. 5 Loveringy. L. (1792), 3 Hag. Ec, 85; Crewe Y. C. (1800), ib., 123; Lord Stowell, Stone v. Stone (1844), 3 N. of C, 278, p. 282; Qipps V. G. (1863), 3 Sw. & Tr., 116, 11 H. L. C, 1, refusing to follow Hodges v. H., ubi sup.; and see Adams v. A. (1867), L. E., 1 P. & M., 333 ; as to reviver, aw 2>ost, pp. 280, 281. Rei-. 3 (c) ABSOLUTE BARS— CONNIVANCE 269 Coimivanoe and condonation (see post (d), p. 272) are ''Essentially different in their nature, though either may have the same legal consequence. Condonation might take place without imputing, either in the case of a wife or of a husband, the slightest degree of blame. . . . But connivance necessarily involves criminality ou the part of the individual who connives ; and as the blame sought to be imputed is the more serious, so ought the evidence in support of such a charge to be more grave and conclusive." i ' ' Connivance must be the act of the mind before the offence has been committed ; condonation is the result of a determination to forgive an injury which was not known till after it was inflicted." 2 Connivance usually (but not necessarily, for the hus- band may be laying a trap for his wife and her paramour) implies collusion.^ As to ivhat amounts to Connivance, — Since 1790 conniv- ance has frequently been discussed by the judges in the Ecclesiastical Courts. In a more recent case that went from the Consistory Court through the Arches up to the Privy Council, in which all the previous authorities were considered, it was laid down that there must be know- ledge and intention on the part of the petitioner, an active or passive conspiracy towards, or complicity in, the guilt of the respondent ; and without intentional concurrence or corrupt connivance there is no bar.* Since the Matrimonial Causes Act, 1857, facts short of connivance may constitute that wilful neglect and mis- conduct conducing to adultery which is a discretionary bar ; see post, s. i (/), pp. 297-304. In an early case after the Matrimonial Causes Act, 1 Turton v. Turton (1830), 3 Hag. Ec, 338, p. 350. 2 Bonvier's Law Directory ( Amer. ) ; in fact, connivance consists in the husband being an accessory, passive or active, before the act ; condona- tion arises from .subsequent pardon. 3 Crewe v. C. (1800), 3 Hag. Ec, 123, pp. 129, 130 ; as to collusion, see post, p. 282. 4 Phillips V. P. (1846), 3 N. of C, 444 ; 4 ib., 623 ; 5 ib., 435. Several cases on connivance are gathered together in 3 Hag. Ec, 57-155, as cited in Rogers v. R. (1830), ib. 270 DISSOLUTION OF MARRIAGE Chap, vh 1857, tried before the full Court, Hill, J., thus charged the jury — 'That the jury must take the law from the Court as to what con- stituted connivance. That in order to justify them in finding "by their verdict that the husband had been guilty of connivance, they must be satisfied from the facts, which have been established in evidence, that he had so connived at his wife's adultery as to have given a willing consent to it. They would have to consider whether he was or not an accessory before the fact. Mere negligence, mere inatteutiou, mere dulness of apprehension, mere indifference, would not suffice ; there must be an intention on his part that she should commit adultery. If such a state of things had existed as would in the apprehension of reasonable men result in the adultery of the wife, whether that state of things was produced by the connivance of the husband or inde- pendent of it, and if the husband, intending that the adultery should take place, did not interfere, when he might have done so, to protect his own honour, he was guilty of connivance." ^ In 1864: the House of Lords decided that the word connivance in the Act meant, not merely refusing to see an act of adultery, but also wilfully abstaining fiom taking any step to prevent adulterous intercourse, which, from what passes before the husband's eyes, he must reasonably expect will occur. ^ And the full Court laid down that this knowledge and acquiescence is to be proved like any other conclusion of facts, either by express language or inference deducted from facts and conduct.^ There must be willing consent beforehand to the adultery ; * and where "The result of the whole evidence is that there was a good deal of weakness on his part, and want of proper spirit and determination in the matter, but that being desirous not to part with his wife, he was overpersuaded that there was nothing wrong in her conduct," this is not connivance.^ 1 Allen V. A. (1860), 2 Sw. & Tr., 108, n. 2 Gipps V. G. (1864), 11 H. L. C, 1. 3 BouUing v. B. (1863), 3 Sw. & Tr., 329. ^ Marris v. M. (1862), 2 Sw. & Tr., 530. 5 St. Paul V. St. P. (1869), L. E., 1 P. & M., 739; and as to adrais- Sw. 3 (d ABSOLUTE BARS— CONNIVANCE 271 Knowledge is a material fact in connivance as in condonation ; but in condonation the time of the know- ledge coming to the petitioner must be subsequent to the adultery, and prior to the acts constituting condonation (see 2^ost (d), p. 272) ; in connivance the same degree of knowledge prohahilis sckntia must be brought home to the petitioner, but at an earlier date, i.e., prior to the adultery complained of. But knowledge alone will not constitute connivance, although without knowledge there can be no connivance. ^ Closely connected with this is the consideration of the proper conduct of the husband or wife who suspects the other ; as to this, see ;poBt (d), pp. 277-281. The points to which the Court will pay attention are as follows : — First, what acts were done by the wife. Secondly, what came to the knowledge of the husband. Thirdly, what might reasonably have come to his knowledge. Fourthly, what the husband did do, and what he did not do.^ Mere " inofficious " conduct by a husband, such as introducing his wife to a Royal mistress, will not amount to connivance.^ A separation deed may amount to connivance ; but this will not be determined on the mere wording of the deed, but the evidence will be admitted as to whether or not it sibility of evidence of representations by the wife to the husband in disproof of connivance, Hoare v. Allen (1801), 3 Bsp., 276. 1 Stone V. S. (1844), 3 N. of C, 278, p. 304, and 4 N. of C, 274. 2 Phillips V. P. (1844), 8 N. of C, 444, p. 466. Dr. Lushington's judgment was expressly alBrmed by the Arches, 4 N. of C, 523; by the Privy Council, 5 N. of C, 435. 3 Harris v. H. (1829), 2 Hag. Ec, 376, pp. 413^16 ; and see araves v. (?. (1842), 3 Curt., 235 ; see^osi, s. 4 (/), pp. 297-304. 272 DISSOLUTION OF MARRIAGE Chap. \'1I ■was the intention of tlie party to connive. The evidence of this would be that the innocent spouse knew of the other's guilty intimacy, and knowingly consented to him or her leaving the matrimonial cohabitation to be free to live at pleasure with his or her paramour.^ If this be so, it does not matter whether the innocent i^arty con- sented willingly or not ; as Lord Penzance observed — *'Tf it were established that tlie wife consented, as one of the con- ditions of the grant of the allowance, to the husband continuing the adulterous intercourse which had been established, such consent would in my opinion amount to connivance, even if it were extorted from her by pressure of circumstances in which she was placed, nnless, of course, the pressure to which she was subjected amounted to that degree of force which would invalidate any agreement. She might be very unwilling to consent ; but if in the end she withdrew her scruple for the sake of getting an allowance, I think she would be guilty of connivance." ^ (d) Condonation ^ The Court is bound to satisfy itself whether or not the petitioner has condoned the adultery of the respondent ; and such condonation if made out constitutes an absolute bar, and obliges the Court to dismiss the petition.^ So even although not pleaded, the Court will, if manifest, take notice of it.* In practice, condonation is the most frequent bar that prevents an innocent spouse from proceeding against the other party; in fact, the usual question by the solicitor to his client after hearing about the matrimonial grievance 1 Moss V. R. (1869), L. B., 1 P. & M., 734; and see Sluddy v. S. (1858), 1 3w. & Tr., 321 ; Tha-nms v. T. (1860), 2 Sw. & Tr., 113 ; and as to separation deeds, see pp. 220, 259, 275, 284, 339. 2 As to what effect condonation by the respondent of a matrimonial offence of the petitioner has on removing the discretionary bar, see post, s. 4 (i), pp. 290-292. 3 20 & 21 Vict., c. 86, ss. 29-31. ■1 Curtis V. C. (1858), 1 Sw. & Tr., 192 ; 4 Sw. & Tr., 2-34. Sec, 3 id) ABSOLUTE BARS— CONDO]S"ATION 273 complained of is, "What did you do when you dis- covered your wife's [or husband's] adultery; did you separate instantly 'i " But although condonation creates a bar against the petitioner in favour of the respondent, yet condonation alone is no bar against the petitioner recovering damages from the co-respondent. So a man who, notwithstanding the adultery, has taken his wife back to live with him, can yet recover damages against the adulterer.^ In any case condonation only bars the remedy as regards jiast and prior matrimonial offences, so that in order that condonation may defeat the petition, it must be proved to have been subsequent to the offence alleged. If a guilty spouse after being forgiven relapses, the condonation is no bar to the innocent spouse having remedy for the subsequent matrimonial offence,^ nay, such subsequent offence "revives" the former; see post, pp. 280, 281. Otherwise condonation would amount to universal licence to unlimited debauchery. ^ As to what amounts to condonation, i.e., whether the petitioner had condoned the respondent's offence, this is a question of fact, and to be decided by the jury under the direction of the judge ; * or if the Court sits without a jury, then by the Court deciding as a jury questions of fact. Condonation is a bar to aU the diverse matrimonial offences, adultery, cruelty, etc. These offences vary, in that some, like cruelty, etc., must be known to the injured party, and others, such as adultery, may be 1 Pomero v. P. (1884), 10 P. D., 174, not following A^oms v. JST., (1861), 4 Sw. & Tr., 237 ; and see i<. 256. 2 Sanchez, bk. x. , disp. 5, No. 20 ; and see Ferrers v. F. (1788), 1 Hag. Con. ,"130; and Wilton v. W. (1859), 1 Sw. & Tr., 563; and see Alexandre v. A. (1870), L. R., 2 P. & M., 164, and see p. 265. 3 D'Aguilar v. D'A. (1794), 1 Hag. Ec, 773, p. 787. •" Peacock v. P. (1858), 1 Sw. & Tr., 183. i8 274 DISSOLUTION OF MARRIAGE Chai-. vii unknown. As to these latter offences, ■which are or may be secret, a knowledge is essential to condonation, so that acts which would otherwise amount to a bar of condona- tion may he explained away hy showing that the innocent condoning spouse was then ignorant of the matrimonial offence committed by the other. Also it is established in practice that condonation is not pressed so strictly against the wife as the husband. It is very difficult, therefore, to frame an exhaustive definition. The Canonists and Civilians described remissio as a reconciliation, whether tacit or express.^ Oughton declares that it is constituted by the innocent party after probable knowledge of the matrimonial offence having marital intercourse with the guilty.^ It was a term commonly used in the Ecclesi- astical Court ; but although the argument frequently turned as to what amounted to condonation, no exact definition was ever given, and it was used in the Matri- monial Causes Act, 1857, as if perfectly understood.^ So in an early case soon after this Act, Lord Campbell, Chief Justice, presiding over the full Court of Divorce, held that condonation could only be constituted by reconciliation, followed, not necessarily by sexual inter- course, which might be inapplicable, but by conjugal cohabitation, so that the guilty spouse is restored to his or her former position as a spouse, though it may be a degraded spouse without his or her former privileges.* And condonation has the same meaning under the Matri- monial Causes Act, 1857, as it had previously in the Ecclesiastical Courts.* There should be added to the 1 Sanchez, bk. x., disp. 5, No. 19 and seq. ; biit Lord Camphell, C. J. (see supra), in the full Court of Divorce declined to adopt and follow the definitions of Canonists and Civilians. 2 Oughton, tit. 214. 3 Keats V. K. (1859), 1 Sw. & Tr., 334. ■» Bent V. D. (1865), 4 Sw. & Tr., 105. Sec. 3 (rf) ABSOLUTE BARS-CONDONATION 275 above description of condonation, first, that the condona- tion must, as to an offence of which ignorance is possible, be knowing ; and secondly, as regards the wife, that it must be free, i.e., she must not be constrained to cohabita- tion. Bound up with the doctrine of condonation is the consideration of the proper conduct of the injured or suspicious spouse towards the offender. Condonation may be "express" or "implied,'' but condonation is usually implied ; and it is as to what conduct implies condonation that the chief difficulties arise. Express condonation is constituted by an agreement not to sue (see post (g), p. 284) ; and, as Lord Penzance said, where "The parties have entered into a written agreement, whatever ground there may be for saying that the wife forgave the Imsband mu.st be found in the agreement, wliich supersedes any presumption of law ; and the conduct of the parties must be referred to that agreement, i " Such express condonation by written agreement is final, and not liable to reviver,^ unless it is expressly made conditional.^ But a mere verbal "pardon" and "for- giveness " standing alone will rarely amount to con- donation. ^ Lastly, express condonation bars the remedy even for unknown prior ofi'eiices, see post (g), aliter as to implied condonation. Implied condonation, which is much the most usual and difficult to prove, is exemplified by the following instances of what is condonation as against husband or wife. Knowledge essential to Condonation. — As against either, however, the condonation must be with knowledge of 1 Newsome v. A'. (1871), L. E., 2 P. & M., 306. 2 Itose V. R. (1883), 8 P. D., 98, C. A. 3 Keats V K. (1859), 1 Sw. & Tr., 334, by the full Court. 276 DISSOLUTION OF MARRIAGE Chap. VII the offence. Soon after the Matrimonial Causes Act, 1857, the Judge Ordinary laid down that condonation is forgiveness of matrimonial offence, with full knowledge of all its particulars.! It seems doubtful, however, whether, if a hushand or wife has committed adultery with A. and B., and subsequently the innocent party, knowing of the adultery with A., condones it, such innocent spouse can on subsequently becoming aware of the adultery with B., obtain a decree against the guilty spouse in respect of such adultery which was prior to the condonation, but then unknown.^ Therefore reasonable knowledge, probabilis scientia, of the matrimonial offence, derived either from voluntary confession by the guilty party or credible information, followed by cohabitation, is condonation ; the question being whether or not the condoning party believed the information he had re- ceived.^ Lastly, condonation is always conditional on the guilty party not committing a matrimonial offence in the future ; but apparently other conditions may be im- posed by the innocent spouse on returning to cohabitation, on breach of which the effect of condonation is destroyed.* A suit for restitution of conjugal rights may amount to condonation ; and at all events it is inconsistent with a 1 Peacock v. P. (1858), 1 Sw. & Tr., 183 ; and see Ougliton, tit. 214 ; and see generally, Snow v. S. (1842), 2 N. of C. , sup. 1 ; Turton v. T. (1830), 3 Hag. Be., 338, p. 351 ; Bramwell v. B. (1831), ib., 618, p. 629. 2 Dempster v. D. (1861), 2 Sw. & Tr., 438, where the previous cases are reviewed. 3 Ellis Y. E. (1865), 4 Sw. & Tr., 154; and see Keats v. K. (1859), 1 Sw. & Tr., 334, p. 346; Best v. B. (1823), 1 Add., 411, p. 439 and seq. ; Billon v. D. (1842), 3 Curt., 96, pp. 112, 113 ; Dohbyn v. O. (1817), Pointer on Divorce, 233, n. As to willingness to believe in- formation against wife, see Lord Penzance's judgment, quoted post^ p. 308. ■» Cooke V. C. (1863), 3 Sw. & Tr., 126, 246; Kaiis v. E. (1859), 1 Sw. & Tr., 334, p. 357, aliter in Scotch Law; Collins v. C. (1884), 9 App. Ca., 205. Sec. 3 (rf) ABSOLUTE BARS— CONDONATION 277 charge of cruelty, as it shows that there is no apprehension of personal violence. ^ The husband sleeping with the wife after discovery of her adultery always, as against him, amounts to condonation.^ Projier Conduct of a Hushand who suspprfs Ms Wife. — As soon as a husband has full knowledge and proof of adultery by his wife, he must instantly separate from her ; but he may only have suspicions. As to this, Lord Stowell laid down — "A husband has suspicions, lie lias some iutiraation.s, he has enough to convince his own mind, but not to instruct a legal case. In that distressing interval his conduct is nice, and it is difhcult to refrain from cohabitation, as the means of discovery would be frustrated ; and if he continues cohabitation, it then becomes liable to that species of imputa- tion which has proved to the disadvantage of this gentleman." •' Meanwhile, althoiigh ' ' A husband is not barred by a mere permission of opportunity for adultery, nor is it every degree of inattention on his part which will bar him of relief, but it is one thing to permit and another to invite ; he is perfectly at liberty to let the licentiousness of the wife take its full scope, but that he is to contrive the meeting, that he is to invite the adulterer, then to decamp and give him the opportunity, I do think amounts to legal prostitution." * In this case Lord Stowell quoted Sanchez to show that a hushand, although he may not tempt, may watch his 1 Ei-'ias V. E. (1843), 2 N. of C, 470; and Xeeld v. X. (1831), 4 Hag. Ec, 263, p. 268; but see Wilson v. W. (1849), 6 Moore P. C, 484. 2 Timmings v. T. (1792), 3 Hag. Ec, 77; Winscomv. W. (1864), 3 Svv. & Tr., 380 ; and see p. 278 ; aliter as to wife, see p. 279. 3 Elwes V. E. (1796), 1 Hag. Con., 269. '' Timmings v. T. (1792), 3 Hag. Ec, 76; Sanchez, bk. x., disp. 12, No. 52, commented on Phillips v. P. (1844), 3 N. of C, 444, pp. 481, 482; and see Reeves v. R. (1813), 2 Phillim., 125. But this dictum of Lord Stowell, that the husband may " let the licentiousness of the wife take its full scope," was strongly disapj)roved by Lord Westbury, L. C, in the House of Lords ; Cripps v. G. (1864), 11 H. L. C, 1, p. 20. 278 DISSOLUTION OF MARRIAGE Cn.u., vii wife.^ As to watohing by detectives, see post, 4 (/), pp. 303, 304, and 5 (a), p. 308. Where a husband once knows of his wife's misconduct lie should immediately refrain from sleeping with her, even if he does not expel her from house forthwith. ^ If a husband, after receiving probable information from others, or confession of a guilty passion from a wife, still, although leaving her bed, hesitates a while before expelling her and seeking a divorce, meditating whether he could pardon and reform her, there is nothing wrong in this, and he is not barred.^ Great facility of condonation and repeated reconcilia- tions show insensibility to injury, and almost amount to licence to future adultery,* and induces the Court to scrutinise the petitioner's conduct with jealousy.^ It is a proper course for a husband on receiving information which he believes of his wife's adultery, to communicate with her relations. Communication with her relations being given in evidence at the trial always redounds well to the husband, whatever the issue of the trial. Por on being expelled from the husband's house, it is open to her relations, if they believe in her inno- cence, to receive her ; and it cannot be said that the husband sent her off to, and she had to put herself under, the protection of the co-reSpondent. If the relations do not receive her, it shows that they believe in her guilt and approve the husband ; and if in a trial between 1 See previous note. ^ Dillon Y, D. (1842), 3 Curt., 86, p. 113 ; Best v. B. (1823), 1 Add., 411 ; Oughton, tit. 214, sec. 5 ; and see p. 277. 3 Hoar V. H. (1801), 3 Hag. Ec., 137, p. 141 ; Stone v. S (1844), 3N. of C.,278, p 307. 4 Westimath v. W. (1827), 2 Hag. Ec., sup. 1, p. 113; Timmings V. T. (1792), 3 Hag. Ec, 76. ■' Dunn V. D. (1817), 2 Pliillim., 403. Sec. 3 (d) ABSOLUTE BARS-CONDONATIOK 279 husband and wife lier relations take the side of and approve the husband, his conduct will usually be approved of by the Court and public opinion. Implied Condonation as against the Wife. — Condonation is not so readily presumed as a bar against the wife 'as against the husband. ^ " She may liave a difflculty either in quitting the house or witli- (Irawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife. A woman may submit to necessity. It is too hard to term submission mere hyjiocrisy." - As regards cruelty which consists of a series of acts, condonation is not to be lightly presumed from a continu- ance of cohabitation after one or several acts. Also the continuance may be obtained by the apprehension of some greater evil, e.g., privation of children, and their removal abroad by a harsh and excited father. Also the mere accompanying a husband to America does not necessarily condone the previous acts.^ As against a petitioning wife, marital intercourse with her husband subsequent to the matrimonial ofience does not necessarily amount to condonation.* An unwilling acquiescence by the wife to live in the same house, but without connubial cohabitation, is not condonation ; ° for although when husband and wife live in 1 See Durante. D. (1825), 1 Hag. Be., 733, p. 752; D'Aguilar v. D'A. (1794), 1 Hag. Ec, 773, p. 786; Beehy v. B. (1799), 1 Hag. Ee., 789. 2 Beeby v. B. (1799), 1 Hag. Ec, 789; and see Sant v. S. (1874), L. R., 5P. C, 542. 3 Curtis V. C. (1858), 1 Sw. & Tr., 192, p. 200; aud see West- meaih v. W. (1827), 2 Hag. Be., sup. 1, p. 113, Sir John Nicholl ; and see Sant v. S., ubi sup. 1 Newsome v. ^\ (1871), L. B., 2 P. & M., 306, p. 311, Lord Penzance. s B'Jguilar v. D'A. (1794), 1 Hag. Bo., 773, p. 782; and see Westmeaih v. W. (1827), 2 Hag. Ec., sup. 1, p. 118. 280 DISSOLUTION OF MARRIAGE Chap, yii the same house they are presumed to cohabit matri- monially, this presumption may be rebutted.^ Lastly, cohabitation obtained by force or fraud could never aiiiount to condonation.^ Reviver. — Although condonation implies forgiveness, yet it only implies "forgiveness of a peculiar character," because it is coupled with the condition that the husband shall not in future be guilty of any marital offence ; ^ condonation, accordingly, is never final,* but always conditional.^ This condition of good conduct in the future is always implied in condonation, but it may be expressly inserted ; ^ but in a final condonation by agree- ment not to sue, the condition of reviver will not be implied,^ unless it is expressly inserted. The effect of reviver is that the petitioner can complain as well of the previous condoned offences as of the subse- quent offences. Proper Conduct of Wife if Husband is adulterous. — " Forgiveness on the part of a wife, especially with a, large family, in the hope of reclaiming her husband, is meritorious, while a similar forgiveness on the part of the husband would be degrading or dis- honourable."' But repeated forgiveness shows insensibility to the injury ; ^ and a wife would not be justified in living in the 1 Beeby v. B. (1799), 1 Hag. Ec, 789, p. 796. 2 Snow V. S. (1842), 2 N. of C, sup. 1, p. 15. 3 Newsome v. N. (1871) L. K, 2 P. & M., 306 ; Durant v. D. (1825), 1 Hag. Ec, 733, p. 761 ; aUter in Scotch Law, Collins v. C. (1884), 9 App. Ca., 205. ■1 Rosey. R. (1883), 8 P. D., 98, C. A., Jessel, M. R. 6 Blanford v. B. (1883), 8 P. D., 19 ; Dent v. D. (1865), 4 Sw. & Tr., 105 ; Moore v. M. Times, 1892, July 16, p. 16. " Rose V. R., ubi sup. ; and see post ( Morgan v. M. (1869), L. R., 1 P. & M., 644. i M'Cord V. jl/'C. (1875), L. R., 3 P. & M., 2a7. 288 DISSOLUTION OF MARRIAGE Chap, vii (6) Adultery Adultery on the part of the petitioner creates a dis- cretionary bar.i Adultery " during the marriage " includes adultery subsequent to the decree nisi and before the decree absolute ; so if the petitioner obtaining the decree nisi commits adultery, there can be intervention resulting in the decree being reversed.^ If the petitioner has once been found guilty of adultery in a matrimonial suit, that finding is conclusive ; and that iinding being given in evidence by the respondent or the Queen's Proctor, the Court or jury can find the petitioner guilty of adultery without further evidence.^ As to proof of adultery, see post, 5 (&), p. 309 ; but when the Queen's Proctor intervenes to prove adultery, the burden of proof is not so strict against that official, as the petitioner is bound to refute & prima facie case made out.* When the respondent makes such counter -charge of adultery, the question of the petitioner's adultery may be reserved altogether for a rebutting case after the re- spondent's witnesses have been called. In this case the petitioner can first give his evidence against the re- spondent, and be cross-examined thereon, without being 1 20 & 21 Vict., u. 85, s. 31 ; as to adultery being a bar to judicial separation, see Chap. VIII, ». 2 (a). 2 Hulse V. H. (1871), L. K., 2 P. & M., 259; and also includes adultery after a decree of divorce a mensa et thoro ; Lautour v. Q. P. (1864), 10 H. L. C, 685 ; and saapost, 5 (J), pp. 309, 313. 3 GonracU v. C. (1867), L. E., 1 P. & M., 391 and 514; as to the converse case, whether a finding in a party's favour precludes by way of res judicata,, the same charges being ever again raised around him or her, see Rohinson v. R. C-877), 2 P. D., 75; and see ante. Estoppel, p. 285. J HiiUe V. //. (1872), L. E., 2 P. & M., 357. Sec. 4 ft) DISCRETIONARY BARS— ADULTERY 289 asked any questions as to the charge of adultery against himself or herself, and then at the close of the respondent's evidence the petitioner may he recalled, and other witnesses called to the charge of adultery against the petitioner. ^ As to the exercise of the discretion, assuming the adultery is proved, in these cases Lord Penzance, J. C, observed, the question is — ''To what extent ought this Court to exercise n discretion in granting or withholding a decree to petitioner, who has himself been found guilty of adultery. There is no douht, I think, that the Legislature has invested this Court with a discretion on the subject ; and there is equally no doubt that there are cases, in which the adultery of the petitioner has been committed, that ought not in justice to stand in the way of a decree." ^ But "the instances in which the Court has pronounced a decree for the dissolution of a marriage, notmthstanding the adultery of the petitioner, are very rare."3 There are two classes of cases where the Court has exercised its discretion in favour of the petitioner. Firstly, where the petitioner has married again under the mistaken but bond fide idea that the respondent was dead,* also where the petitioning husband or wife after obtaining a decree nisi in ignorance of the effect of the decree nisi, and previous to and without the decree absolute remarried with another man or woman, and cohabited, the Court made the decree absolute notwithstanding the petitioner's adultery, as he or she had acted bond fide, though ignor- antly, and without any intention to commit adultery. ^ 1 Jachman v. J. (1889), 14 P. D., 62. 2 Morgan v. M. (1869), L. R., 1 P. & M., 644. 3 ArCm-d V. M'C. (1875), L. R., 3 P. & M., 237, Lord Hannen; and see Barnes v. B. (1868), L. R., 1 P. & M., 572. i Joseph v. /. (1865), 34 L. J., P. & M., 96 ; approved Morgan v. M. (1869), L. R., 1 P. & M., 644 ; M'Cord v. M'C. (1875), L. R., 3 P. & M., 237 ; and Freegard v. F. (1883), 8 P. D., 186. 5 JVoUe V. N. (1869), L. R., 1 P. & M., 691 ; Wickham v. IF. (1880), 6 P. D., 11 ; Moore v. M., Times (1892), July 16, p. 16 ; and see ante, Chap. II, p. 34. 19 290 DISSOLUTION OF JIARRIAGE Chap. VH Secondly, where a petitioning wife has been driven into prostitution by her husband. In this case a wife petitioned for dissolution on account of her husband's cruelty and adultery, which were proved. It was also proved that the petitioner had been coerced by the respondent into leading a life of prostitution, he taking the money she obtained by prostitution. After eight months of this life, during which see was continually ill-treated by the respondent, she left him and went to her brother, the prostitution being contrary to her will. The Court, in exercise of its discretion, granted a decree for dissolution notwithstanding the bar of adultery.^ Thirdly, in case of condonation of the petitioner's adultery by the respondent. This alone will not suffice to induce the Court to exercise its discretion in the petitioner's favour ; he does not thereby become rectus in curia.^ In this case the petitioner had married an actress, and previous to the marriage he had cohabited with Janet Bunn, which was previously intimated to the respondent. On one occasion since marriage, the said Janet Bunn having frequently gone after the petitioner, he committed adultery with her, which the respondent after finding out pardoned, and cohabited with the petitioner. Still the Court refused to exercise its dis- cretion in the petitioner's favour, although as to his adultery it was shown that the act was isolated, had been 1 Colenum \. G. (1866), L. R,, 1 P. & M., 81 ; approved Morgan v M. (1869), ib., p. 644; M'Cm-d v. M'O. (1875), L. R., 3 P & m' 237. 2 M'C'ord V. M'C, uH sup., Lord Haimen, overruling Lord Pen- zance's dictum in Morgan v. M. (1869), L. R., 1 P. & M., 644, and the decision of the Ecclesiastical Court delivered by Dr. Lnshin^ton • Anichini v. A. (1839), 2 Curt, 210, 218. The dictum of Jesse!, M.' R., to the contrary, in Rose v. li. (1883), 8 P. D., 98, C. A. ' has never been followed, and cannot be considered law. As to condoned adultery being a bar to judicial separation, see Chap. VIII, s. 2 (a). Seo. 4 (6) DISCRETIONARY BARS— ADULTERY 291 condoned by the respondent, and in no way conduced to her guilt.i And where the petitioning hushand had been guilty of adultery with one of the servants fire years previous to his wife's adultery, which was proven, and the husband's adultery had been condoned, and was unconnected witli the wife's, stOl, the President, Lord Hannen, refused a decree, saying — '■ Xow it is perfeL'tly true tliat the wife — as wives frequeiitlj- do — ibr- gave her husband. But it is impossible not to feel that, after a man has committed himself in this way, it must have a very serious effect on those feelings in the wife which go far to constitute the safeguards of married life. She would be more likely to fall into error, having the example of her husband before her." - But in a case where the wife was the petitioner, it was shown that after the marriage, in 1876, the husband was constantly drunk and ill-treated her. Then in 1880, three years previous to the present suit, tlie husband had petitioned against her, and, proving adulter}', had obtained a decree ))isi, which was reversed on the intervention of the Queen's Proctor proving gross and notorious crtrn- inaHty against the husband. The husband subsequently cohabited with her for above a month, thereby condoning her adultery ; but on his commencing to ill-treat her, she left and went to her mother. He subsequently, as well as committing adultery, was convicted of rape on a girl under twelve years, and sentenced to ten years' penal servi- tude. The wife petitioned for dissolution by reason of her husband being guilty of cruelty, adultery, and rape ; 1 il'CordY. M'C, uti sup. The Court observed that the wife (an actress) belonged to a profession in which she was exposed to great temptations; and for a similar dictum see Calcraft v. Lard IIn rhorough (1831), 4 C. & P., 499 ; siaipost, p. 303 2 .Vtnry v. ,s". (1SS7), 12 P. D., 196 ; and see Stoker v. S. (1SS9), 14 P. D.. 60. 292 DISSOLUTION" OF MARRIAGE Chap, vii the Court, notwithstanding her condoned adultery, gave her a decree — " Having regard to all the circumstances of the present case, and to the position in which the husband is placed by the sentence passed upon him, a sentence which deprives him of the power of fulfilling any of the conjugal obligations, not forgetting, too, that rape is treated for the purpose of the Divorce Acts as a higher conjugal misdemeanour, one of a more heinous nature than mere adultery." i Outside these three classes, in certain instances the Court has exercised its discretion in favour of the peti- tioner, as in a case where the petitioning husband's adultery was a single isolated act, nowise conducing to the wife's adultery, and her conduct was very ilagrant, there being numerous co-respondents, the Court gave a decree notwithstanding the petitioner's adultery. ^ (c) Gruelty Cruelty by the petitioner towards the other party to the marriage constitutes a discretionary bar to him or her obtaining relief.^ As to what is cruelty, see post, 5 (c), p. 323; but acts falling short of cruelty may amount to desertion, post (e), p. 295, or to wilful neglect, posi (/), pp. 297-304; imprisonment of a spouse is neither deser- tion by such spouse nor excuse for desertion by the other ; see post, pp. 341, 348. Where the jury found cruelty against the petitioner and adultery against the respondent, but it appeared that the wife had drunken habits which were the cause of the husband's cruelty, and, further, that the cruelty had in no wise conduced to the wife's drunkenness and adultery, the Court in its discretion gave a decree.* Cruelty is usually 1 Collins V. C. (1884), 9 P. D., 231. 2 Conradi v. C. (1868), L. R., 1 P. & M., 514. 3 20 & 21 Vict., c. 85, s. 31. 1 Pearman v. P. (1860), 1 Sw. & Tr., 601. Sec. i (c) DISCRETIONARY BARS— CRUELTY 293 a matrimonial offence committed by a husband, but it may be committed by a wife (see post, 5 (c), pp. 325, 326) ; and in one case the cruelty of a petitioning wife was objected as bar against her, and the petition dismissed, i In the Ecclesiastical Courts, cruelty in the petitioner was no bar to a divorce a mensa et thoro for adultery (see Chap. VIII, s. 2 {h)); rather the wife "should have sought her remedy in the purity of her conduct, not in the contamination of her person."^ Cruelty found against the petitioner in a previous suit is conclusive evidence; see ante, pp. 285, 286. {d) Delay Unreasonable delay by the petitioner in presenting or prosecuting his or her petition is a discretionary bar to relief being granted.^ Facts showing delay may amount to the absolute bar of connivance or condonation ; see ante, s. 3 (c) (d), pp. 268, 272. As to what space of time amounts to delay, that depends upon the excuse that can be made ; and then, even assum- ing there is " unreasonable delay,'' whether the Court will exercise the " discretion " vested in it favourably to the petitioner. A delay of two years unexplained, where the petitioner has been content to let things be, amounts to unreasonable delay creating a bar ; * but if the petitioner intends to rely on desertion with adultery, he or she must wait till the desertion has lasted two years.* 1 Boreham v. B. (1S66), L. K., 1 P. & M., 77. 2 Jones V, /. (1847), 5 N. of C, 134, p. 143, Dr. Phillimore. 3 20 & 21 Vict., c. 85, s. 31. Delay was not a bar iu tlie old Ecclesi- astical Courts ; see Chap. VIII, s. 2 (e). 4 Xicholson V. N. (1S73), L. E., 3 P. & M., 63 ; and see Heyes v. H. (1887), 13 P. D,, 11. = Knapp V. K. (1880), 6 P. D., 10 ; Blandfm-d v. B. (1883), 8 P. D., 19 ; Farmer v. F. (1884), 9 P. D., 245. 294 DISSOLUTION OF MARRIAGE Chap. VII The bar of the delay is applied more strictly against the hushand than against the wife, for " the cases ■which the Legislature had principally in view were those in which a hushand's honour had been wounded, and he had put up with his own disgrace for a length of time. The rule vigilantibus non dormientihus jura suhveniunt obtained in the Ecclesiastical Courts, and was adopted by the House of Lords."! As against a petitioning wife, the bar of delay is less severely enforced. For, even after nineteen years' delay, where a wife, a schoolmistress, separated from her husband in 1850 in consequence of his committing incestuous adultery with her sister, which continued after the separa- tion, and did not petition for dissolution till 1869, and on being examined on the reason of the delay, stated that her mother was very reluctant to have the scandal in the family exposed, and that she yielded to her mother's urgent entreaties, and had taken no step during her mother's life, and immediately on her death had presented this petition ; the Court, while holding that there was " unreasonable delay," yet in the circumstances of the case exercised its discretion in the petitioner's favour and gave a decree for dissolution.^ As might have have been expected, where a wife delayed for twenty years after a separation to sue for dissolution, she was held barred.^ But, curiously enough, there is no absolute limit of time in point of law. Ejxuses for Delay. — The poverty of the petitioner is frequently accepted as an excuse. But poverty is a relative term ; and in a case where the husband, who was 1 Newman v. N. (1870), L. R., 2 P. & M., 57, 58. 2 Xmmnan v. N. (1870), L. B., 2 P. & M., 57 ; and see Turton v. T. (1830), 3 Hag. Ec., 338. 3 BmuoUrhy. B. (1891), P., 189, C. A. Sec. 4 to) DISCRETIONARY BARS— DELAY 295 a coal-hauler, and had been a constantly prosperous man, and possessed stock-in-trade to the extent of £600, nine horses, and several cottages, had delayed petitioning for fourteen years, the Court refused a decree on the ground of unreasonable delay. ^ So where a wife abstains from proceeding with a sincere wish to give her husband a chance of reforming, this has been accepted as an excuse. In this case the husband having been guilty of cruelty and adultery in 1867, the wife sued for judicial separation only, which was granted in 1868. In 1872 she petitioned for dissolution, the husband having continued to live in adultery. The wife stated that the reason why she did not ask for dissolution in the first instance was that she loved her husband, and hoped his heart would change ; but that finding that he was now living in adultery with another woman, she had abandoned the hope of his reformation and desired the dissolution of her marriage. The Court believing this, and that the present suit was bond fide instituted in consequence of past adultery, and considering her motives meritorious, exempted her from the suspicion of unreason- able delay, and granted a dissolution.^ But an excuse by the wife for twenty years' delay, that she did not wish to proceed till her only child, a son, had grown up and she could ascertain his wishes, was held insuf- ficient by the Courtof Appeal, and the wife declared barred. ^ (e) Desertion " If the petitioner shall, in the opinion of the Court, have been guilty ... of having deserted or wilfully separated himself or herself from 1 Short V. S. (1874), L. R., 3 P. & M., 193. 2 Green v. G. (1873), L. R., 3 P. & M., 121; and see an exactly similar case, Mason v. M. (1883), 8 P. D., 21, C. A., where the hushand was the petitioner. 3 Beauderkv. B. (1891), P., 189, C. A. 296 DISSOLUTION OF MARRIAGE CnAr. VII the other party before the adultery complained of, and without reason- able excuse," this causes a discretionary bar.^ So where a husband proved against his wife adultery which occurred in 1866, but she proved that she had obtained against him in 1868 a judicial separation for desertion on his part, beginning in 1856, and therefore previous to the adultery comjjlained of, the Court refused a decree for dissolution, saying — " Nothing is more likely to conduce to adultery than throwing a young wife on the world without the protection of her husband ; a desertion without excuse before the adultery complained of is therefore in my opinion a strong reason for withholding a decree. " ^ If, however, the desertion by the petitioner has clearly not conduced to the respondent's adultery, the Court has granted a decree.^ In another case the petitioning wife at the age of sixteen had been entrapped into a marriage with the respondent, who was a French master, aged thirty-six, without her parents' knowledge. When she came home 1 20 & 21 Vict. , c. 85, s. 31. As to what is desertion withoiit reasonable excuse, see post, 5 (d), p. 337 ; though it does not appear that the desertion to act as a discretionary bar need amount to two years' deser- tion, see post, ib. ; a separation not amounting to desertion may yet amount to wilful neglect and misconduct conducing to the adultery, see (/), p. 297. Malicious desertion was not a bar in the old Ecclesi- astical Courts, Morgan v. M. (1841), 2 Curt., 679, p. 691; Clowes v. C. (1845), 4 N. of C, 1, p. 12 ; see also Chap. VIII, s. 2 (c), although then, and therefore now, it might tend to prove connivance. 2 reatman v. Y. (1870), L. R., 2 P. & M., 187 ; and see lieyes v. II. (1887), 13 P. D., 11 ; Jeffreys v. J. (1864), 3 Sw. & Tr., 493. ^ Williamson v. W. (1882), 7 P. D., 76. In this case the respondent wife had been imprisoned, and on leaving gaol went into domestic service, then asked her husband to take her back, which he refused on the ground of her being a criminal (which refusal was unjustifiable, see post, 5 [d) p. 348} ; she then went back to service and subsequently committed adultery ; and see Dames v. D. (1863), 3 Sw. & Tr., 221, where husband and wife, servants, were in different houses, and the petitioner had a decree. Sec. 4 (e) DISCRETIONARY BARS— DESERTION" 297 from the clmrcli to the parents crj'ing, and told them of it, they inquired about the husband, and finding he was not suitable for her separated them and sent her abroad. They never cohabited, and the respondent committed bigamy. The Court, whether thinking that the petitioner's being entrapped was a reasonable cause for desertion, or in the exercise of their discretion, gave her a decree.^ But in another case desertion was held a bar as against a petitioning wife.^ (/) Wilful Neglect or Misconduct conducing to Adulterij "If the petitioner shall, in the opinion of the Court, have been gnilty of such wilful neglect or misconduct as has conduced to the adultery,". . . this constitutes a discretionary bar.^ " Inofficious " conduct by petitioner was also considered in the Ecclesiastical Courts.* But it may be that the facts set up as wilful neglect, etc., may amount to connivance, 3 (c), p. 268, or cruelty,4 (c), p. 292, or desertion, 4 (e), p. 295. "Desertion" will usually amount to wilful neglect and misconduct conducing to the adultery ; * but desertion is a separate bar, see ante (e), p. 295. Separation falling short of desertion " may, however, constitute wilful neglect and misconduct conducing to the adultery.'' Still the imprisonment of the petitioner is no excuse for the re- i Du Terreaux v. Du T. (1859), 1 Sw. & Tr., 555 ; and see the similar" circumstances of Beamn v. B. (1862), 2 Sw. & Tr., 662, post (/), p. 299. 2 Borehamv. B. (1866), L. B., 1 P. & M., 77. 3 20 & 21 Vict., c. 85, s. 31. * Forster v. F. (1790), 1 Hag. Con., 144 ; and see Hams v. H. (1829), 2 Hag. Ec, 376, p. 413. 5 Oiiseyy. 0. (1874), L. R., 3 P. & M., 223, where desertion was given in evidence as and held a bar under this head ; also see the facts set outpost, 5 (d), pp. 348, 349. s As to what is desertion, and the cases shomng that separation is not desertion, see post, 5 (d), p. 337. 7 Hawkins v. H. (1885), 10 P. D., 177. 298 DISSOLUTION OF MARRIAGE Chap, vii spondent's adultery. This has been decided hy the full Court of Divorce in a very hard case. The petitioner was in the Post Office, and the respondent wife a woman of good education and respectable connections. A year after the marriage he was condemned to ten years' trans- portation. He had no means to support her, and she was supplied with means by her own family. An affec- tionate correspondence was carried on, and she endea- voured to obtain his pardon. But after three years' good behaviour, she, while living alone in Essex, became the co-respondent's mistress, and had a child. The full Court of Divorce held that although but for the petitioner's absence the adultery would not have taken place, yet that it did not amount to wilful neglect as regards the re- spondent, and that the petitioner was entitled to a decree.-' But in certain circumstances mere separation may con- stitute a bar against the petitioner. Especially if a man marries his mistress or a common prostitute, he is bound to afford her the more care and protection.^ " It has sometimes been supposed that if a man chooses to marry au immodest woman, he cannot afterwards free himself from her by reason of her unchastity. But there is no such law. Whatever the jirevious life of a woman may have been, she binds herself by marriage to chastity, and if she break the conditions of marriage, her husband is entitled to claim its dissolution. But, on the other hand, a husband is at all times bound to accord to his wife the protection of his name, liis home, and his society, and is certainly not the less so where the previous life of his wife renders her peculiarly accessible to temptation. No man is justified in turning his wife from his house without reasonable cause, and then claiming a divorce on account of the misconduct to which he has by so doing conduced. And this I am of opinion the petitioner did. ... In this case a young man man-ied a woman of loose character, with whom he had lived for nine months previously. After a short time they dis- iton V. C. (1859J, 1 Sw. & Tr., 475. 2 Baj/lis V. B. (1867), L. K., 1 P. & M., 395 ; Dilloti v. D. (1842), 3 Curt., 86, pp. 97 and 110 ; Graves v. G. (1842), 3 Curt., 235 ; and see p. 299, a,s to marriage with a prostitute ; and see Hawkins v. II. (1885), 10 P. D., 177, per Lord Hanuen, as to antenuptial seduction by petitioner. Sec. 4 (/) DISCRETIONARY BARS— NEGLECT, ETC. 299 agreed about money. He accused her of extravagance, and she him of parsimony. At last he broke up the house, sold his furniture, and told his wife she must go and live by herself in chambers he had occupied when a baclielor, in Regent Street. As soon as she went there lie set a watch over her, and was successful in a very short time in detecting lier in adultery. . . It is hardly to be doubted that he both expected and hoped that she might commit herself. What is this but, in the words of the statute, ' conduct conducing to the adultery ' ? The petition must be dismissed." i But where the petitioning husband was a minor, aged sixteen at the date of the marriage, and the respondent was a prostitute, aged over twenty-eight, and after their marriage he was made a ward of Court, and by order of the Court husband and wife were separated, and the husband's relatives made her no allowance ; when a petition was iiled by the guardian for the wife's aditltery, a decree was granted.^ And in the Ecclesiastical Court where there had been a marriage by a minor, who had left the wife or been separated from her, although the Court would have considered the case more favourable if the minor husband's parents had made the wife an allowance, yet the mere withdrawal of such allowance did not bar the husband of his remedy against the adulterous wife.^ Facts not coming up to and constituting, but falling short of, connivance (see ante, p. 268), may constitute neglect and misconduct conducing to the adultery. So in a case where, " before the adultery complained of, and while the respondent was 1 B,njUs V. B. (1867), L. R., 1 P. & M., 395 ; in this case the petitioner's conduct amounted to desertion without reasonable cause, althougli it had not amounted to two years' desertion ; and see Hawkins v. H. (1884), 10 P. D.,177. " Beavan v. B. (1862), 2 Sw. & Tr., 652 ; and see the similar circum- stances of Du Terreaux v. Du T. (1859), 1 Sw. & Tr., 555, ante, i {e), p. 296 ; and see also HiU v. Turner (1737), 1 Atlt., 516. 3 Reeves v. B. (1813), 2 Phillim., 125, p. 129; Clowesv. C. (1845), 4 N. of C, 1, p. 31 ; Morgan v. M. (1841), 2 Curt., 679, p. 689 ; Sidlivan v. S. (1824), 2 Add., 299. 300 DISSOLUTION" OF MARRIAGE Cn,vp. vii residing in the co-respondent's house, the petitioner and the respondent and the co-respondent had been in tlie habit of going together to places of amusement ; that the respondent and co - respondent frequently danced together at those places in the petitioner's presence ; that the petitioner frequently went away late at night, leaving the respondent and co-respondent together at these places ; and that on two occasions a policeman, who was a friend of the petitioner, had spoken to him as to the imprudence of his conduct, when he remarked that the co- respondent was a good fellow, and would do no harm, and took no further notice ; " and on this evidence Lord Penzance, J. C, gave judg- ment — • " I am of opinion that although the petitioner was reckless in his conduct, and careless whether his wife committed adultery or not, the evidence does not go so far as to establish actual connivance. But he certainly exposed his wife to temptation to which no wife ought to be exposed by her husband, and was guilty of neglect and misconduct conducing to the adultery, "i As to what acts "will amount to wilful neglect and misconduct conducing to adultery, these vary in each particular case, and as to any suspicion the petitioner might or ought to have had. Besides what above appears, further instances might be given. An arrangement by which a young wife was to travel by the night mail from London to Ireland with a cavalry officer was characterised by Lord Penzance as a very imprudent one ; but if there was no reason for suspicion, it is not imprudence of that sort that would lead the Court at once to come to the conclusion that he had been guilty of wilful neglect or misconduct.^ Lord Penzance observed on this clause that the statute threw on the Court the responsibility of saying whether or not the petitioner had been guilty of wilful neglect or 1 Ba^-nes v. B. (1867), L. E., 1 P. & M., 505. ^ St. Paul V. St. P. (1869), L. R., 1 P. & M., 739 ; in this case the guilty parties, instead of proceeding to Cork, where the wife's father lived, as was intended by the husband, stopped and slept together at hotels in Staiford and Dublin. Sec. 4 (/) DISCRETIONARY BARS— NEGLECT, ETC. 301 misconduct ; but as he preferred being assisted by the jury, he charged them as follows on the precise meaning of the words " Wilful neglect and misconduct '' — " The words are very large and general. . . . There is hardly a divorce case in which, scanning the circumstances after the wife has left her home and everything is known, you might not put your linger on some particular date or fact, and say, ' What a pity the husband did not interfere here. If he had not been very careless, if he had taken better care of his wife, he would have done this or that.' When an intimacy springs np between a married woman and a man who is not her husband, of a character not justified by the ordinary usages of society, the husband's vigilance ought no doubt to be alarmed, and he ought to repress that intimacy. That is part of the duty of the husband ; it is one of the obligations belonging to the marriage tie. But is that obligation of being alive to the first steps which might lead to dishonour, subject to the terrible penalty that if the husband neglects it he shall be tied to an adulterous woman for the rest of his life ? That would be a proposition of a perilous latitude. He ought, no doubt, to fulfil that obligation, but is his neglect to do it the misconduct intended by the statute ? I think it is not. I think that mere carelessness, the mere omission to do something here or there which ought to have been done, is not suflicient to constitute misconduct. Allowance miist be made for men's different dispositions. Some are very suspicious, others very confiding ; some are of a very active turn of mind, others are less excitable and observant, and, although not indifferent when their feelings are touched, are less likely to take notice of what is passing about them. One man is so constituted that very small matters attract his attention and arouse his suspicion, whilst another is of a free, open, high-spirited disposition, cheerful temperament, and does not sit brood- ing over every trifle that occurs. Mere carelessness, therefore, is not suiBcient to constitute misconduct ; if it were, very few men, probably, would go safely through the ordeal. What, then, is the meaning of misconduct ? The direction I give you is this : — Before you arrive at the conclusion that the petitioner has been guilty of such misconduct as the statute condemns, you ought to be thoroughly satisfied that the inti- macy between these parties was of such a character as to be distinctly dangerous, that the husband knew so much of it as to perceive the danger, and that he either purposely or recklessly disregarded it, and forebore to interfere. I have only to add that in speaking of what the husband knew, I mean what he actually knew, not what a more suspicious nature or a more active vigilance might have prompted him to discover, unless, indeed, he .should have purposely closed his eyes, which would be wilful misconduct, and something more. It is not necessary that a man should have intended any wrong ; but if he saw danger, and reck- lessly allowed his wife to remain exposed to that danger, although 302 DISSOLUTION OF MARRIAGE Ch,u-. vii without intending wrong, lie would be guilty of neglect. But, again, you must make allowance for the differences of mind and disposition, for one man may see danger in circumstances from which another would not draw such a conclusion. " ^ And in a later case Lord Penzance observed — ' ' This is very delicate ground, and the Court must be exceedingly careful in applying this provision to see its way pretty plainly to the conclusion that the husband's conduct amounted to ' wilful neglect or misconduct,' and that such ' wilful neglect or misconduct ' really conduced to the fall of the wife. . . The Legislature does not mean that a husband shall be deprived of his remedy whenever it can be proved that some conduct on his part has conduced to any particular act of adultery after an adulter- ous intercourse has once been established ; but it means that his remedy shall be withheld from him if he has so acted as to bring about that inter- course. That is a most important distinction. It may very well happen that a husband may be perfectly blameless as to his wife's adultery in the first instance, but that after she has established an adulterous intercourse, she and her paramour acting together for the purpose of blinding the husband, and throwing as much dust in his eyes as possible, may carry on their intimacy in such a way that he may not perceive it, and it may be that, blinded by them, his conduct may appear more or less neglectful. It seems to me that the neglect intended by the Legislature is neglect conducing to the woman's fall, and not neglect conducing to any particular act of adultery subsequent to her fall." In this case the wife of a solicitor at Maidenhead committed adultery with a captain in the Dragoon Guards. She was the daughter of a gentleman residing near Cork, and in 1865 and 1866 went to a hydropathic establish- ment near Cork at her father's wish and for the sake, as she said, of her health. There in January 1866 she committed adultery with the co-respondent — a friend of her father. Her husband did not cross over till Easter 1866, and then and subsequently his conduct was weak and foolish, though falling short of connivance ; but this weakness being subsequent to the adultery in January 1866, was not, according to the principles laid down above, held to be neglect conducing. ^ 1 Bering v. D. (1868), L. R., 1 P. & M., 531. 2 St. Paul V. St. P. (1869), L. K., 1 P. & M., 739; but, as was explained in this case, if, although owing to not knowing of the com- Sec. 4(/) DISCRETIONARY BARS— NEGLECT, ETC. 303 In an action of criminal conversation, the fact that the plaintiff, an officer, having married an actress, returned to his military duties, and allowed her to continue to perform at the theatre as an unmarried woman, unprotected from the temptations to which, by her profession, she was exposed, was considered unofficious conduct, which might be urged in reduction of damages. ^ Non-consummation of the marriage could not, under the old ecclesiastical practice, be pleaded in bar of a suit for adultery ; 2 ^^t it might, it is suggested, amount to " wilful neglect;" aee post, pp. 348, 349. Although wilful neglect and misconduct conducing is usually a bar set up against a petitioning husband, yet such conduct may also be objected against a wife. Thus to a wife's petition for dissolution on the ground of cruelty and adultery, the husband pleaded that the petitioner — "Habitually treated the respondent with insolence and neglect . . frequently absented herself from home, and refused to inform the respondent where she had been, and that she constantly set his orders and wishes at defiance — without reasonable cause left the house of respondent and withdrew herself from cohabitation with him for the sjjace of two years. " And the Court declared these pleas to be material, as showing " That the misconduct of the petitioner provoked the violence of the respondeiit, or may raise the question whether she has conduced to his adultery." 3 And as to private detectives, not only must the peti- mencement of the intrigue the petitioner could not be guilty of "neglect conducing," yet if subsequently becoming aware of its guilty nature he allowed it to continue, he would be guilty of connivance ; see ante, p. 268. 1 Calcraft v. Lord Earhorough (1831), 4 C. & P., 499 ; and for a similar dictum, see ante, p. 291. 2 Patrick v. P. (1821), 3 Phillim., 496; Hall v. H. (1849), 7 N. of C, 56 ; and as to refusal of marital rights, see ante. Chap. IV, p. 171. 3 Bugliesv. H. (1866), L. R., 1 P. & M., 219 ; and see Boreham v. B. (1866), L. R., 1 P. & M., 77. 304 DISSOLUTION OF MARRIAGE Chap. VII tioner's own conduct not have conduced to the respondent's adultery, but if the agent employed by him or her brings about the respondent's adultery, such misconduct will be imputable to the petitioner, and bar him or her from obtaining relief on the ground of such adultery. In this case the petitioning husband had employed one Williams as a detective agent to watch ihe respondent (who was living separate from the petitioner), and to obtain evidence of her adultery. Williams, who stood treat, induced the respondent and co-respondent to go out from Old Swinford for a pleasure excursion to Worcester, Wolverhampton, and Birmingham for three days, sleeping a night at each place. He plied them with drink to the extent of intoxi- cation (even to producing unconsciousness, as they said), and then put them to bed together, when, as they said, they were so drunk they did not even know they had gone to bed. On this evidence, Lord Penzance, the J. 0., observed — " If a husband employs a man to get evidence of adultery upon whicli to obtain a divorce, and the man so employed sets about to procure the defilement of the wife, and by the intervention of that man the wife is purposely induced to commit adultery, the petitioner has no right to a remedy in this Court for such adultery ; and I further think that the husband would have no right to a remedy even if it were proved that he had not given any distinct orders for that purpose. ... It is not necessary for me to determine whether Mr. Gower did give authority to Williams to bring about what was brought about. ... I think it quite possible that he did not tell Williams to do what Williams appears to have done, but at the same time he never warned him not to do what a man of his class and character would be liliely to do. The very first thing that would occur to such a man, if evidence were not forthcoming, would be to make an occasion which should furnish the evidence. In that point of view the petitioner is responsible for the act of his agent. But I decide the case on the broader ground that the petitioner cannot obtain the benefit of redress in this Court for an act of adultery brought about by his own agent. I dismiss the petition." i 1 Gower v. O. (1872), L. R., 2 P. & M., 428 ; as to the evidence of detectives, see post, 5 (a), p. 308. Sec. .3 (a) EVIDENCE AND DEFINITIONS 305 Sec. 5. — Evidence and Definitions (a) Generally The Common Law rules of evidence are applicable to all questions of fact tried.'^ The "witnesses may be summoned by subpcena, and then are to be examined orally on oath in open court, except in cases where evidence upon affidavit is admitted. Further, where a witness is out of the jurisdiction, and in certain other circumstances, a witness may be examined on a commission issued by the Court. Wilfully giving false witness is perjury.^ Evidence of tlie Parties. — The Court may order the petitioner to attend to give evidence, and be examined and cross-examined ; but he or she shall not be bound to answer any question tending to show he or she has been guilty of adultery.' When the wife petitions for dissolution of marriage on the ground of her husband's adultery, coupled with either cruelty or desertion, the husband or wife are competent witnesses, and may be compelled by subpoena, issued by either party, to give evidence as to such cruelty and desertion.* Lastly, in 1869 it was provided that "The parties to any proceecliug instituted in consequence of adultery, 1 20 & 21 Vict., c. 85, s. 48 ; 38 & 39 Vict., c. 77, ss. 20, 21. 2 20 & 21 Vict., c. 85, ss. 46-60, rules 51-55, 109, 129-146, 180, 188, 198 ; and see also a.s to evidence ou affidavit. Macartney v. M. (1866), L. R.,1P. &M., 2.59. 3 20 & 21 Vict., 0. 85, s. 43 ; see Ross v. R. (1869), L. R., 1 P. & M., 629 ; but if sucli petitioner, having been called as a witness, has given evidence in chief in disproof of his or her alleged adultery, he or she may be cross-examined thereon, see above. 4 22 & 23 Vict., 0. 61, s. 6. 306 DISSOLUTION OF MARRIAGE Chap. VII and the husbands and wives of such parties, shall be competent to give evidence in such proceeding : provided that no witness in any pro- ceeding, whether a party to a suit or not, shall be liable to be asked or bound to answer any question tending to show that he or she has been guilty of adultery, unless such witness shall already have given evidence in disproof of his or her alleged adultery." ^ But tlie clause tliat a witness is not liable to be asked or bound to answer any question showing he or she has been guilty of adultery, is only for the protection of the witness, not for the object of excluding evidence ; there- fore a prostitute may be called to give evidence that she has committed adultery with the husband. It is the duty of the judge to see that a witness has the protection given them by the statute, and if they claim it, to refuse to allow any questions to be put ; but if the witness is willing to answer, then evidence is admissible. ^ Also the usual rule of the privilege of professional com- munications applies, and therefore a solicitor to either of the parties cannot be asked, not even by the Queen's Proctor, if his client admitted to him that he or she had been guilty of a matrimonial offence.' The only Ecclesiastical rule forbade divorce to be granted on, and " that credit be not given to the sole confession of the parties themselves, howsoever taken on oath, whether within or without the court ; " * but the Matrimonial Causes Act, 1857, enacted that the Common Law rules of evidence shall be applicable, and observed in the trial of all questions of fact.^ As to evidence by 132&33 Vict., c. 68, s. 3; and see Bahhage v. B. (1870), L. E., 2 P. & M., 222 ; Broxon v. B. (1874), L. R., 3 P. & M., 198 ; Jachman v.. /. (1889), 14 P. D., 62. 2 Hebblethwaite v. //. (1869), L. E., 2 P. & M., 29. ^ BTanfordv.B.{1878),iP.D.,72; scad see Simmons v. 5. (1847), 5 N. of C. , 324, as to cross-examining professional adviser ; and see aiite, p. 283. i Canon 105 ; and see ilortimer v. M. (1820), 2 Hag. Con.. 310. 6 20 & 21 Vict., c. 85, s. 48 ; 38 & 39 Vict., c. 77, ss. 20, 21. Sec. 5 (a) EVIDENCE AND DEFmiTIONS 307 way of estoppel, adultery, or cruelty against the petitioner or respondent, see ante, Estoppel, pp. 285, 288. Admissions and confessions by a respondent or co- respondent are therefore evidence against each of them respectively ; and the Court, if satisfied that the con- fessions are genuine, and that there is no reasonable ground to suspect collusion, may give a decree on a con- fession alone ;i but admissions and confessions by the re- spondent are not evidence against the co-respondent, and vice versd.^ However, confessions are jealously scrutinised, especially if uncorroborated ; and in a case where the alleged confession was contained in a journal written by the wife, of a highly erotic nature, but not directly admitting actual sexual intercourse, and it was proved that many of the statements in it were exaggerated or imaginary, the Court refused a decree.^ As to the evidence of letters, aee post, 321. The evidence of a partieeps criminis is admissible for or against either respondent or co-respondent ; ^ and where 1 n'illiamsY. W. (1865), L. R., 1 P. & M., 29. 2 Robinson v. R. (1859), 1 Sw. & Tr., 362 ; Crawford v. C. (1886), 11 P. D., 150 ; but, as actually subsequently happened in botli tliese cases, the respondent and co-respondent can be called as witnesses, subject to the restrictions previously explained, and their sworn evi. dence is admissible ; for a further account of Crawford v. C, see ante p. 257. But the conduct of the wife on being charged with adultery, on the confession of the adulterer, i.e., if she adopts the confession, is evidence against her; Harris v. H. (1829), 2 Hag. Be, 376, p. 407 Croft V. C. (1830), 3 Hag. Ec, 310, p. 318. However, a declaration by the co-respondent's mother at the baptism of the child, issue of adulterous intercourse, is not evidence ; Faussett v. F. (1849), 7 N. of C, 72, pp. 93-95. 3 SoiUeux V. S. (1802), 1 Hag. Con., 373, p. 376 ; Best v. B. (1823), 1 Add., 411, p. 438 ; Simmons v. S. (1847), 5 N. of C, 324, and 6 N. otC, 578; Crawford ». C. (1886), 11 P. D., 150. When an alleged adulterer gives evidence in favour of the wife, his evidence must be watched with extraordinary vigilance ; Fraser v. F. (1846), 5 N. of C, 11, pp. 45-47. 308 DISSOLIFTION OF MARRIAGE Chap, vii the husband is the respondent it frequently happens that the prostitute with whom he is alleged to have committed adultery is called as witness.^ Prostitutes' evidence is admissible as the rule in re l,upanari testes lupanares admittentur, hut their evidence is jealously scanned if uncorroborated. 2 As to weighing the credibility of witnesses to evidence of adultery, Lord Penzance, J. C, laid down as his con- stant rule — " That there is a wide difference between tiie position of a husband living contentedly with liis wife, and being told by some one of her adultery, and that of a husband living apart from her, and subject to a money payment for her support. The discovery in the one case is a source of pain and discomfort, wliile in the other it is a source of relief, as it may lead to a divorce. In the first case, the husband receives the evidence brought to his knowledge with reluctance and distrust, and it is only when the matter is forced upon him by evidence from which he cannot withhold his assent that he takes it up ; but in a case like the present (the husband and wife were separated, he pay- ing her an allowance), the husband is, as it were, on the look-out for evidence, and those who may have seen or heard anything against the wife, instead of being reluctant to let him know it, are prone to come forward, because they are sure that their tale will be well received, and the husband will be glad to hear that there is a means of escaping from the bond he has contracted. The Court is therefore bound to watch the evideuce narrowly." 3 And the Court looks carefully into the evidence of detectives, especially if they are highly paid to collect evidence.'* The children of the parties are admissible witnesses, and are not supposed to be biassed either way j^ but the 1 Hehblethwaite v. H. (1869), L. R., 2 P. & M., 29. 2 See Wilson ». W. (1872), L. E., 2 P. & M., 435, p. 440 ; Ginger v. G. (186.5), L. R., 1 P. & M., 37 ; Giocci v. G. (1853), 1 Spinlcs, Ecc. & Add., 121, p. 133 ; AstUy v. A. (1828), 1 Hag. Ec., 714. p. 71". 3 Gower v. G. (1872), L. E., 2 P. & M., 428. i Sopwilh V. ,S'. (1859), 4 Sw. & Tr., 243; and see Wilson v. W. (1872), L. R., 2 P. & M., 435, p. 440 ; and see ante, pp. 303, 304. 5 Lockwood V. L. (1839), 2 Curt., 281 ; Saunders v. S. (1847), 5 N. Sec. 5 M EVIDENCE AND DEFINITIONS 309 evidence of near relations is presumed to be biassed, according as they are related to husband or wife re- spectively. ^ The evidence of servants also is usually biassed in favour of the side that produced ; and in case of cruelty, the servants usually come in at the end of the atfray, which they have but imperfectly seen.^ If servants continue to live in the house, seeing the adultery, they become corrupted witnesses.^ Evidence can also be obtained by one party obtaining, as against the other, discovery of document or administer- ing interrogatories ; but a party cannot be interrogated to show he or she is guilty of adultery.* The Ecclesiastical Court had power to make decree of " confrontation " of the parties, with witnesses to aid identification ; * but this cannot now be done by the Pro- bate and Divorce Division in petitions for dissolution ; the 43rd section of the Matrimonial Causes Act, 1857, only empowering the Court to order the attendance of the petitioner, not of the respondent." As to respondent who does not defend coming into Court by arrangement with petitioner, see ante, p. 283. (h) Adulter// Adultery by a wife or adultery by a husband during the marriage, coupled with cruelty or desertion, is ground of C, 408, p. 413 ; Chesnutt v. C. (1854), 1 Spinks, Ecc. & Add., 196, p. 203, 204. 1 Saunders v. S., ubi sup. 2 Westmeathv. W. (1827), 2 Hag. Ec, sup. 1, p. 74; Dysart v. D. (1847), 5 N. of C, 194, p. 196 ; and see post, p. 325. 3 Crewe v. C. (1800), 3 Hag. Bo., 123, p. 127. 'i Redfern v. R. (1891), P., 139, C. A. ; and see Dixon on Divorce, 2nd. ed., p. 276 ; aliter in nullity, see ante, pp. 215, 236. 5 Clerk's Instruction in Ecclesiastical Cases, p. 392 ; and see Searle V. Price (1816). 2 Hag. Con., 187. 6 Hooke V. H. (1858), 4 Sw. & Tr., 236 ; and see Lloyd v. L. (1866), L. R., 1 P. & M., 222. 310 DISSOLUTION OF MARRIAGE CnAr. VII for dissolution ; ^ and adultery alone by either party is ground for judicial separation ; ^ adultery with bigamy by a husband is groiind for dissolution, see j?06f, p. 349. Adultery by a petitioner also constitutes a discretionary bar.8 But in all these cases the same measure of evidence is necessary to prove adultery; but evidence as to identity is not so strict as against the Queen's Proctor intervening.* As to proof of adultery by estoppel, see ante, pp. 285, 288. That by the law of England, adultery, though a grievous sin, is not a crime, was decided by the House of Lords, and a petition for a divorce is a civil and not a criminal proceeding.^ But adultery and also fornication and solicitation of chastity are ecclesiastical oifenoes punishable iu the Ecclesiastical Court, reserved for its exclusive cognisance by the statute Circunn^pede Acjatis;'° 1 20 & 21 Vict., c. 85, ss. 27, 29, 30, 31. 2 See Chap. VIII, s. 1 (h). 3 See ante, s. 4 (6), p. 288 ; as to adultery by tlie petitioner being n bar to judicial separation, see Chap. VIII, s. 2 (a). ■1 Snlse V. H. (1872), L. R., 2 P. & M., 357 ; see ante, p. 265. 5 Mordaunt v. Moumiffe (1874), L. R., 2 H. L., Sc. & D., 374 ; but by the statute of Westminster, II, u. 34, intercourse with a married woman was rape, see Hale, P. C. , chap. lix. , p. 636 ; Co. Ins. , vol. ii. , p. 432, vol. iii., p. 206 ; and see Enilyn's preface to State Trials, vol. i., p. 33. An attempt was made by the Star Cihamber to punish adultery as an "euoriiious crime" under 1 Eliz., c. 1, s. 18; but Sir Edward Coke, C. J., delivered by habeas corpus those imprisoned therefor by the High Commissioners ; see Clumcey's case (1612), 2 Brownl. , 18, 12 Coke Rep. 82; Dr. t'onway's case (1611), 2 Brownl., 37. It was also attempted to legislate against it, in the Reformation Legum, see Report of Divorce Commission, 1853 [1604], and ante, Chap. I, p. 8. In Parliament a Bill was introduced in 1604, see Pari. Hist, of England, vol. V. , p. 88 ; and in 1800, see Cobbett's Parliamentary History, vol. x.i:xv., pp. 225-325; and under the Commonwealth an Act was passed, see Scobell's Acts, pt. ii., p. 121, cited 7 C. & P., 200, ii. In British India a man committing adultery with a married woman is liable to iive years* imprisonment, or el fine, or both ; see Penal Code, sec. 497 ; Code of Criminal Procedure, sec. 478. s 13 Ed. I ; see Gibson, C^odex, 1085 ; Burns' Ecc. Law, tit. Lewdnes.s ; and see Report of the Commission on Ecclesiastical Courts, 1883 ; and the Sec. 6 (6) EVIDENCE AND DEFINITIONS— ADULTERY 3U but no such suit in the Ecclesiastical Court for fornication or incontinence shall be commenced after eight months from the time of the offence, or carried for fornication after the parties offending have been married ; i and it is the duty of churchwardens and ministers to present in cases of adultery, whoredom, or uncleanness of life.^ And as to clergymen, the Clergy Discipline Act, 1892, provides that a bastardy order, a finding of adultery, a judicial or magisterial separation order against a clergy- man avoids his preferment, and immorality is a ground for prosecution. But this does not apply to bishops.^ As to the other effects of adultery at Common Law, see^os^, Chap. XIII. Continued adultery ripens into desertion, see post (d), pp. 342, 334. And it has also been argued that adultery may constitute cruelty, see^os^ (c), p. 332. An exception from adultery has been set up in favour of Jewish husbands, who, it is said, are entitled by the Jewish law to keep concubines ; but Lord Stowell doubted how far this could now be recognised.* Adultery may be defined as voluntary sexual inter- course between a married person and a human being of the opposite sex ^ during the subsistence of the marriage. Historical Appendices by Canon Stnbbs [e. 3760] ; and see per Bowen, L. J., in Redfern v. R. (1891), P., 139, pp. 145 and 147 ; Gallisand v. Rifjaud (1702), Lord Raymond, 809 ; and seepost, pp. 349, 350. 1 27 Geo. Ill, u. 44, s. 2, .still in force. ^ Canons 109, 113. But the Report of the Ecclesiastical Courts Commission, 1831 (70), states, p. 64, "In the Arches and Consistory of London no such suit has been brought for a long series of years ; in some of the County Courts they have been very rare." 3 55 & 56 Vict., c. 32 ; and see post, Chap. XIII, s. 8. ■» D'Aguilar v. B'A. (1797), 1 Hag. Ec, 773, p. 785. 5 As to sodomy and bestiality by a husband, see post, p. 350. Praxis inter fcBminas quse Tribadisma, mollities, Saphisnia, vel Gallicum aut Lesbianum vitium vocatur non est apud sententiam auctoris adulterium. Aliquaudo auteni in causa niatrimoniali de hoc vitio in uxore mentio est 312 DISSOLUTION OF MARRIAGE Chap, vn Such sexual intercourse must be during the marriage. So antenuptial uncliastity cannot be given in evidence against eitlier liusband or wife.^ Ifot even if the wife's antenuptial unchastity has resulted in pregnancy, which is existing, but concealed from the husband at the date of the marriage, does that constitute adultery. In this case an officer quartered at Cowes received a letter from the respondent, a lady whom he had met at the house of her uncle, a gentleman of position in the Midlands, and in the letter she asked him to come to see her at Southampton. He went, and she told him that she was in great trouble, and that her uncle had made her marry a man who turned out to have a wife living, and her relations had given her up. The officer made her an offer of marriage and then repented ; but under a threat of action of breach of promise he married her. He tlien found out, and she admitted, she was some months gone in pregnancy. On this he ceased cohabitation. This was not adultery.^ facta, uon vero quia sit causa divortii sed quia sit causa quae impediat divortium apud regulam supra scriptam ; 4 (e) (/), pp. 295, 297. Vide Dalloz, Jurisprudeuce generale Repertoire, tit. Adultere, 12 ; Caspar's Forensic Jurisprudence, by Balfour, vol. iii.,p. 335; Rom. i. 26; Saucliez, lib. X., disp. 4, Nos. 3-5. Pra.xis inter u.xoreni et bestiara est vitiuni sed non crimen ; vide 24 & 25 Vict., u. 100, ss. 61, 62 ; Lev. xviii. 23 and XX. 16, et monstra ab ea nata nequeunt esse heredes ; vide Bl, Com., tit. Monstrum, et Co. Lit., lb and 296, dubitatur autem an sit adnlterium. 1 See Perrin v. P. (1822), 1 Add., 1 ; and see Sullkan v. & (1824), 2 Add., 299, p. 306 ; Grates v. G. (1842), 3 Curt., 235. If a husband has illegitimate children at the date of the mamage, the wife should be informed of it; Westmeath v. W, (1827), 2 Hag. Ec., sup. 1, pp. 80, 91 ; King v. K. (1847), 5 N. of C, 244, p. 256. 2 Kennedy v. K. (1890), 62 L. T., 705 ; and see ante, p. 27 ; but such pregnancy at the date of the marriage is a reasonable excuse for the husband deserting her ; see post {d), -p. 347. A clause constituting concealed pregnancy on the date of the marriage a ground for nullity, where the Court was satisfied the petitioner was not the child's father, was proposed by Lord Redesdale to be added to the Matrimonial Causes SF.C. 5 to) EVIDEXGE AND DEFINITIONS— ADULTERY 313 But if the adultery is alleged to have taken place with the same persons with whom there was antenuptial incontinency, it may be pleaded ; for antecedent circum- stances explain subsequent acts, and thereby acts which, taken "per se, are of a doubtful or innocent character assume a different complexion. ^ And as the nuptial tie continues till decree absolute of nullity or dissolution, a petitioner having, after a decree iwi, had sexual intercourse with any person other than the respondent, constitutes adultery during the marriage, for which the Queen's Proctor may intervene, and the Court may rescind the decree nisi.- The intercourse must be voluntary; so if a wife is ravished or forced by the co-respondent, this is not adultery.2 So where a jury found adultery against the respondent and co-respondent, and assessed the damages Act, 1860, but struck out by tbe Lord Chancellor ; see Hansard, 3rd series, vol. clviii., p. 217. 1 WeatherUy v. II'. (1854), 1 Spinks, Bee. & Add., 193. 5 HuUe V. H. (1871), L. R., 2 P. & M., 2.59, 357 ; XoUe v. N. (1869), L. R, 1 P. & M., 691 ; Wichham v. IT. (1880), 6 P. D., 11 ; and see ante, s. 4 (b), p. 288. Sexual intercourse after a decree of divorce a mensa et thoro from the Ecclesiastical Court is adultery, and disentitled the petitioner to a decree for dissolution ; Lrnitour v. Queen's Proctor (1864), 10 H. L. C, 685 ; Ritchie v, R. (1861), 4 Macq. H. L., 162. 3 The crime of rape is sexual intercourse with a woman without her consent; and sexual intercourse with a lunatic or drunken woman is rape, for they cannot consent. See Roscoe's Criminal Evidence, and Archbold's Criminal Pleading; and 24 & 25 Vict., c. 100, ss. 48, 63. Also if a man has intercourse with a married woman by personating her husband, this is declared to be rape by the Criminal Law Amend- ment Act, 1885, 48 & 49 Vict., c. 69, s. 4 ; and see^osi;, Chap. XV, s. 6. See also Guwer v. 0. (1872), L. R., 2 P. & M., 428, where the petitioner's detective plied the wife and the co-respondent with drink and put them to bed together, and on this account the petitioner was refused a decree ; see this case given at greater length, ante, pp. 303, 304 ; and see Dalloz, tit. Adult^re, sec. 2, No. 20. A woman cannot be convicted of rape, Taylor's Medical Jurisprudence, 2nd ed. , vol. ii. , p. 471 ; and if a husband tells a story that he was forced, the Court will disbelieve it ; Story V. S. (1887), 12 P. D., 196. 314 DISSOLUTION OF JIARRIAGE Cdap. VIl at £50, notwithstanding this Butt, J., refused to rely on the verdict of the jury, hut having had the respondent examined hefore him, and finding that she was weak mentally and physically, and she swearing that she had been forced, and that she was not a consenting party, refused a decree nisi, and dismissed the suit against the wife, and gave judgment against the co-respondent for damages and costs. ^ As to adultery committed during insanity, it has been very recently laid down that although the respondent wife may not be of absolutely sane mind, and not free from delusions, as, e.g., where she left her home under the delusion that her husband was endeavouring to poison her; still, if she is capable of appreciating the nature and character of the act of adultery, and consequent divorce which it might entail, then she will be held guilty of adultery. 2 Lastly, it must be actual sexual intercourse consum- mated, and no proof of indecent liberties and improper familiarities will suffice to constitute adultery, if it can also be proved that no sexual intercourse actually oc- curred. As, for instance, it was proved that the wife went to a hotel with a young man, took a room, the blinds were pulled down, the door was locked, they remained there for a considerable time, and when they left the room was in considerable confusion. These were circumstances that raised a very strong suspicion. But, on the other hand, the wife asserted that her marriage had never been consummated, and that she was virgo intada, which was proved by the evidence of two medical men, who inspected her and swore that they were satis- 1 Long V. L. (1890), 1,5 P. D., 218, 2 Tarrow v, Y. (1892), P, 92; aud see Banbury v. //. (1892) P 222. Sec. 5 ft) EVIDENCE AND DEFINITIONS— ADULTERY 315 fied that she was a virgin, and that no sexual intercourse had ever taken place. On this the Court held that there >\'as no adultery. 1 The Court or jury must be convinced that the wife has transgressed, not only the hounds of delicacy, but of duty ; that there has been a surrender, not only of the mind, but of the person.^ Presumption. — As intercourse is usually secret, the Court or jury can, according to the old established practice, presume adultery on proof being given of suspicious acts and familiarities.^ Direct evidence or ocular proof is not required, for it would render relief almost impracticable ; but there must be such proximate circumstances proved as by former decisions, or in their own nature and tendency, satisfy the legal conviction of the Court that the criminal act has been committed.* And the Court does not take insulated 1 Hunt 7. E. (1856), Dea. & Sw., 121. In a case, curiously the con- verse of this, a wife first petitioned for nullity on the ground of her husband's impotence, which suit failed, and then petitioned for dissolu- tion on the ground of his adultery and cruelty, and was granted a decree; Ditchfield y. D. (1869), L. R, 1 P. & M., 729. Crimen est sodomia fenjinse cum homine ; R. v. Wisetnan (1718), Fortescue, 91 ; dubitatur autem an est adulterium. Mere kisses or lewd iiractices are not adultery; Sanchez, bk. x. , disp. 4, No. 11 and 12; Haiiierton v. IS. (1828), 2 Hag. Ec. , 8, p. 14 ; nor is mere solicitation of chastity; Elwes V. E. (1796), 1 Hag. Con., 269, p. 278; ChetiU v. C. (1821), 3 Phillim., 507; and see 24 & 25 Vict., c. 100, s. 63, as evidence of rape. -' See Robinson v. R. (1859), 1 Sw. & Tr., 362; the above expressions were continually used by Lord Stowell, see Williavis v. W. (1798), 1 Hag. Con., 299, p. 303 ; and see Hamsrton v. II., ^ibi sup.; but such expressions from the respondent wife are distrusted ; Grant v. 0. (18.39), 2 Curt., 16, p. 61. 3 See Ehoes v. E. (1796), 1 Hag. Con., 269, p. 279 ; where the prin- ciple of such presumption is explained. See AylifFe's Parergon. i Williams v. W. (1798), 1 Hag. Con., 299; Loveden v. L. (1810), 2 Hag. Con., 1 ; Harrmrton v. H. (1828), 2 Hag. Ec, 8 ; Davidson v. V. (1856), Dea. &Sw., 132. S16 DISSOLUTION OF MARRIAGE Cfiap. vti and detached charges, but is entitled to examine the whole together.! The fact that a witness does not draw a conclusion of adultery from what he or she saw, does not estop the Court from drawing tliat conclusion.^ It is not necessary to prove adultery at any particular time or place ; but it is generally necessary to prove that the parties were in some place together where adultery might probably have been committed. Were it indeed otherwise, it might happen that guilty intention would be mistaken for actual guilt.^ But mere proof of opportunity, short of cohabitation or pernoctation, without evidence of guilty intention, will not be sufficient to allow a deduction of adultery to be drawn. Further, if on the balance of evidence there exists any reasonable doubt, it must be given in favour of innocence and against guilt.'' Also, where a wife has conducted, during a married life of twenty years, with propriety, the Court will not oouclude that she has been guilty of adultery charged to have been committed without slightest regard for decency or fear of detection, unless established by cogent evidence.'' If the guilty parties have generally cohabited, the mere fact that, if in the same house they occupied separate beds, or supposing they met by concert and remain for weeks or more in some far oil' place, the mere fact that they occupy separate houses, will not prevent a deduction of adultery being drawn." ■ 1 Durant v. D. (1825), 1 Hag. Ec, 733, p. 748; Grant v. (/. (1839), 2 Curt., 16, 13. 37. 2 Ulires Y. E., uU sup., p. 278. 3 C'nlon v. C. (1849), 7 N. of C, 9. i Civcci V. C. (1835), 1 Spinks, Ecc. & Ad., 121, p. 134. 5 Ale.mvder v. A. (1860), 2 Sw. & Tr., 95. 6 Rulton V. R. (1796), Arches ; Cadoc/an, Lord, v. Cadogan, Ladi; (1796), 2 Hag. Cou., 4, n.; Clmmhers v. C. (1810), 1 Hag. Cou., 439. Sec. 5 (« EVIDENCE AND DEFINITIONS— ADULTERY 317 Clandestinity and secrecy gives a suspicious appearance to that which might otherwise be harmless or amhiguous.^ So also, if there is difference in the conduct of the wife towards the alleged adulterer, according as the husband is absent or present, that excites the suspicion of the Court. ^ Proof that in the petitioning husband's absence a child meanwhile has been born of which he could not be the father, and of the identity of the respondent, is conclusive proof of adultery ; further facts need not be proved.^ And e converso as against a respondent husband where pregnancy of his mistress, and liis acknowledgment of the resulting child, is proved, it is not necessary to bring further evidence of adultery.* As to arts of familiarity, Lord Stowell observed — " I decline eutering into a particular discussion of the acts of freedom, chiefly because the effect produced upon my judgment is not produced by them as detached facts, but as being in connection. When detached, some are improprieties or indelicacies, others not so much so, others not at all. Put the question on each distinct fact, and it may not amount to much, but that is not the way of considering the case. I take the whole together ; I consider them as a train of assiduities and worth our attention, as conduct distinguishing the gallantries of one man to one woman, as marking a system of behaviour from her to this one woman which differs from his conduct to others." 5 But, e converso, Dr. Lushington said that no combination of minor circumstances, though calculated to give a colour to facts, will supply the place of proof of facts.^ Visit by either husband or wife to a brothel is conclu- sive proof of adultery.'' 1 See Loveden v. L. (1810), 2 Hag. Con., 1 ; Elwes v. M. (1796), 1 Hag. Con., 269, p. 272. 2 Grant v. G. (1836), 2 Curt., 16, p. 39. 3 RicMrdson v. li. (1827), 1 Hag. Ec, 6. ■1 Durant v. D. (1825), 1 Hag. Be, 733, p. 746. 5 Jloorsom v. M. (1792), 3 Hag., 87, p. 112. 6 Grover v. G. (1836), 5 N. of C, 463, n. ' Jilliot V. ]!. (1776), Arches, cited 1 Hag. Con., 302 ; and see Kenrick 318 DISSOLUTION OF MARRIAGE Chap, vh But the visit of a wife to a single man's lodging or chambers does not of itself, without other facts, such as the behaviour of the parties and the state of the room, prove adultery. 1 So proof of a young man being privately introduced into the house and other clandestine and nocturnal meetings is evidence of adultery ; ^ and so also is it if a man goes into the wife's bedroom with her.^ A married woman being seen to come out of the bed- room of a young unmarried man is a very high indecwum, and coupled with other circumstances may amount to proof of adultery.* Evidence that during the suit the particeps criniinis has frequently visited the wife and stayed till late at night, has held, with other facts, evidence of adultery. 5 As to infection with venereal disease being proof of adultery, see^os^ (c), pp. 331, 332. Stopping the night at the same lodging-house with a married woman living alone, is a suspicious circumstance against both of them, requiring explanation.* And if the alleged adulterer stopped the whole night at the wife's lodging in the same room with the wife, where there was only one bed, it is conclusive evidence of adultery.^ V. K. (1832), 4 Hag. Ec, 114, p. 138 ; AstUy v. A. (1829), 1 Hag. Ec, 714. As the old English proverb there cited runs: "Persons do not go to a brothel to say their paternosters." 1 Williams v. W. (1798), 1 Hag. Con., 299; and in Fraser v. F. (1846), 6 N. of C, 11, pp. 23 and seq. 2 Lmedeny. L. (1810), 2 Hag. Con., 1. 3 Caton V. C. (1849), 7 N. of C, 9, pp. 25, 30. * Burgess v. B. (1817), 2 Hag. Con., 228, p.. 232; Fraser v. F., uU sup., pp. 32, 33 ; Faussett v. F. (1849), 7 N. of C, 72, p. 85, and see ib., pp. 79, 80, as to "loclied doors." 6 Haviertony. B. (1829), 3 Hag. Ec., 1. « Harris v. H. (1829), 2 Hag. Be, 376, pp. 387-395; Grant y. G. (1839), 2 Curt., 16, p. 52 and seq. 7 Drew V. D. (1842), 1 N. of C, 315. Sec. j (6) EVIDEXOE AND DEFINITION'S— ADULTERY 319 ^^'hell once a criminal connection is shown, its continuance is presvimed when the parties live under the same roof.^ But where the co-respondent had paid numerous visits to the wife in the petitioner's absence, the co-respondent setting up and proving that he was paying attentions, not to the respondent, but to her unmarried sister, it was accepted as explanation of the suspicious visits.- A married woman stopping the night out, and refusing to explain where she slept, is a suspicious circumstance.^ Proved solicitation of chastity will afford ground for inferring that where no resistance was met, adultery was committed.* " Wlien dislike of a "husband and nttaclimennt to anotlier man are co- eval, the dislike shown of the husband may deserve consideration as one of the effects, and consequently proofs of an improper attachment." But this would not be so if there were domestic quarrels previous to the wife's acquaintance with the alleged adulterer.^ If a wife is last seen by a witness reclining on a bank with the alleged adulterer's arm round her waist, they whispering together and ample opportunity follows, the deduction of adultery will be drawn." The alleged adulterer putting his hand on the respond- ent's thigh is an act of gross familiarity,'' and also putting his arm round her waist is suspicious.^ A married woman nursing her child in the presence of 1 Turton. v. T. (1830), 3 Hag. Ec, 338, p. 390. 2 West V. ir. (1870), L. R., 2 P. & M., 196. s Owen V. 0. (1831), 4 Hag. Be, 261 ; Ayliffe's Parergon, 51, 52. J Forster v. F. (1790), 1 Hag. Con., 144, p. 152; Soilleux v. S. (1802), ib., 373 ; and see Chettle v. C. (1821), 3 Phillim., 507 ; see as to solicitation by the wife, Taylor v. T. (1848), 6 N. of C, 558. s Fmser v. F. (1846), 5 N. of C, 11, p. 44. 6 Harris v. H. (1829), 2 Hag. Ec, 376, p. 396. ' Grant v. G. (1839), 2 Curt., 16, p. 41. 8 Grant v. G., ubi sup.; Faussett v. F. (1849), 7 N. of C, 72, p. 83. 320 DISSOLUTION OF MARRIAGE Cbap. \ii a man is an act of great indelicacy, raising a presumption against her.i Drunkenness proved against awife makes her adultery more probable.^ Presents of money made by a husband to a prostitute are evidences of adultery j^ also presents of money made by the alleged adulterer to a wife, but not articles of compli- ment, as needlework, slippers,* or presents of fruit and game, which are common acts of civility.^ A naval officer giving a married lady a passage on board a man-of-war is no evidence of adultery against him or her.'' Also as to life on board ship, too much stress must not be laid on facility of access, for it is not purposely made, but incidental to the state of a ship ; and it is quite evident that on board a vessel difficulty of access, even when desired, can seldom be effected^ If a respondent husband admits habitually consorting with prostitutes, but explains that he did so from pure and benevolent motives, and in order to reform them, the onus probandi of making out this explanation is on tbe husband. In this case the husband set up that he was connected with a Female Aid Society ; as to which Dr. Lushington — " I must observe, however, by the way, that even the establishment of such connection does not of necessity prove innocence. No one could contend that a support of such societies, however laudable in itself, 1 Caton V. C. (1849), 7 N. of C, 9, pp. 25, 30. 2 Jones V. J. (1847), 5 N. of C, 134; and see Taijlor v. T. (1848), 6 N. ofC, 558. 3 Cocksedc/e v. C. (1844), 1 Eob. Ec, 90, p. 98. •> Fraser v. F. (1846), 5 N. of C, 11, pp. 33, 34. = Moorsmnv. M. (1792), 3 Hag. Be, 87, pp. 93, 94. 6 Uarris v. H. (1829), 2 Hag. Ec, 376. " Harris v. IL, ubi sup.; and see Grant v. G. (1839), 2 Curt., 16. Sec. 6 ft) EVIDENCE AND DEKIWITIONS— ADULTERY 321 coustituted a panoply of purity . . . still a 5o«d^rfe connection with such a society, a bond, fide and prudent furtherance of its objects, would go a long way to account for conduct otherwise suspicious, if not explained."! Letters are very frequently used in evidence. ^ A letter written by the wife to tlie adulterer containing reference to her times has been held conclusive proof of adultery, unless the writer were a lunatic, or the letters were written to bring a false charge against the alleged adulterer. ^ Letters written to and received by the wife are not such strong evidence against her.* It often happens that the petitioner or the petitioner's detectives endeavour to obtain from Post-Office employees letters to or by the respondent ; this is an offence under the Act by the employee and the public. ^ If the letter has passed out of Post-Office custody, opening it for curiosity is merely a trespass and not a felony.'' Identity and Diversity. — As a matter of evidence the proof of identity is often difficult. For instance, assuming the respondent to be the husband, it is, say, proved by a witness, such as a lodging-house keeper, that a man under the name of Jtlr. Brown and a woman occupied rooms in her house and cohabited as man and wife ; but such witness, if the respondent does not appear, cannot prove that Mr. Brown is identical with Mr. Jones, the petitioner's 1 Ciocci V. C. (1853), 1 Spiuks, Ecc. & Ad., 121, pp. 148 and seq. 2 Bramwell v. B. (1831), 3 Hag. Ec, 618 ; Owen v. 0. (1831), 4 Hag. Ec, 261 ; Grant v. G. (1839), 2 Curt., 16, pp. 57 and seq. ; Tucker v. T. (1847), 5 N. of C, 458 ; Deane v. D. (1847), 5 N. of C, 626 ; Caton v. C. (1849), 7 N. of C, p. 15 ; and see the Common Law cases collected, ante, p. 258, as to wife's previous fond letters to husband being evidence in aggravation of damages. 3 Loveden v L. (1810), 2 Hag. Con., 1. ■1 Hamerton v. H. (1828), 2 Hag. Ec, 8. 5 See 7 Will. IV, and 1 Vict. , c. 36, explained in books of criminal law ; and see R. v. James (1890), 24 Q. B. D., 439. « M. V. Godfrey (1838), 8 C. & P., 563, 21 322 DISSOLUTION OF MARRIAGE Chap. VII husband ; although, she can say in court that the -vvoman who cohabited with Mr. Jones was not the petitioner. In these cases the best mode of proof is that a witness, such as the petitioner, or, still better, some one else who is acquainted with the respondent, should go with the lodging-house keeper, and in her presence identify Mr. Brown as the same jjerson as Mr. Jones ; so that the witness to the adultery and the witness to identity may concur. 1 Evidence of diversity to the effect that the woman with whom Mr. Brown, alias Jones, cohabited is not the petitioner. As against the Queen's Proctor intervening to prove the petitioner's adultery, he is not held to such strict proof of identity as in the trial of such an issue between husband and wife which may be undefended or only defended collusively. But on the Queen's Proctor's intervention — "There is uo reason to doubt but that the petitioner will contest the matter and refute the evidence if he can." ... In this case it was ' ' not disputed that the evidence is sufficient to establish the charge of adultery if there be proof of identity. . . . Evidence is now given that a man passing under the name of the petitioner lived in the house mentioned in the Queen's Proctor's plea and committed adultery there at the time and with the person specified in the plea ; and that the same man afterwards took lodgings at Mertou Place, where he gave a card on which were the names 'Samuel George Hulse,' corresponding with the name of the petitioner. The strong inference is that this man was the petitioner, although the proof is not as clear as would be required if this were a question of identity arising in a suit between husband and wife. I am of opinion that a prima facie case of identity has been established, and full notice of the charge having been given to the 1 See Williams Y. W. (1798), 1 Hag. Con., 299; Dillony. D. (1842), 3 Curt., 86 ; Fraseri. F. (1846), 5 N. of C, 11, p. 28 ; Deane v. V. (1847), 5 N. of C, 626 ; and Harris v. H. (1870), L. R., 2 P. & M., 77 ; and see Dixon on Divorce, 2nd ed., p. 340. TheCourt generally rejects evidence identification by means of a photograph, Dixon, p. 341 ; but see identification by photograph admitted in a criminal ease, B. v. Tolson (1864), 4 F. & F., 103 ; also in a Scotch Divorce, L. v. L. (March 20, 1890), 17 R., 754. Sec. 5 (6) EVIDEI^CE AND DEPHSTITIONS— ADULTERY 323 petitioner, he is bound to produce evidence to rebut it. As no evidence is forthcoming on his behalf, the decree nisi will be reversed, and the petition dismissed." ^ (c) Cruelty"' Adultery " coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro," ^ committed by a husband, is ground for a dissolution in the wife suing ; and cruelty alone by either party is a ground for judicial separation.* As to cruelty as a discretionary bar, see ante (c), p. 292. Whether the petition be for judicial separation or dissolution of marriage, the same facts are required to constitute legal cruelty. A suit for restitution of conjugal right by the petitioner is incon- sistent with a charge of cruelty ; see post, p. 278. As to cruelty reviving previous condoned matrimonial offences, see ante. Condonation and Eeviver, see s. 3 (fZ), p. 281 ; and when cruelty is set up as reviving previous condoned matrimonial offences, " it is not neces- sary that subsequent acts of cruelty shoidd be of exactly the same amount as those which have been committed on earlier occasions." ^ A charge of cruelty makes adultery more probable." If the case is not before the Court itself, the Court directs the jury what is legal cruelty, and then the jury are to find, not only wl^ether the acts complained of were done, but whether they constituted legal cruelty.'' 1 Hulse V. //. (1871), L. R., 2 P. & M., 357. 2 If a wife wished not to be divorced, but to be protected from a cruel husband, she could either obtain securities of the peace in the ordinary way from a magistrate, or apply for a writ of sujiplicavit to the same effect from the High Court ; see 4 Bl. Com., 253, 1{. v. Doherty (1810), 13 East, 171, and cases there cited ; ex parte King (1754), Ambler, 240, 333. 3 20 & 21 Vict., c. 85, ss. 27 and 16 ; and see Chap. VIII. ■1 See Chap. VIII, s. 1 (b). = Mytton v. M. (1886), 11 P. D., 141. 6 Cocksedge v. C. (1844), 3 N. of C, 218. 7 TomHns v. T. (1858), 1 Sw. & Tr., 168. 324 DISSOLUTION OF MARRIAGE CnAr. vil The petitioner ouglit to state certain acts which, if proved, should show that legal cruelty had been com- mitted. There is no doubt as to the meaning of adultery, but cruelty in ordinary language is an ambiguous term.^ Cruelty or sxvitia was a cause for divorce a inensa et tlioro in the Ecclesiastical Courts,^ and recognised by the Canonists. From an early date decrees for divorce a mensa et thoro were given on this account.^ The evidence on cruelty is perhaps the most, difficult to appraise of all matrimonial cases. Sir Cresswell Cress- well, J. 0., observed thereon — " The Legislature has in its -wisdom confided the determination of such cases to a jury in place of the Court, upon ■which it formerly devolved ; and a very difficult task it is. In the great variety of questions which in this country are referred to u, jury, there are few so difficult to handle as the contentions of an unhappy marriage. In the common run of cases, the inquiry is spread over a limited range of time ; the conclusion depends upon the converging effect of independent facts and witnesses, often largely fortified hy written documents, and illustrated by the daily practice of trade or the ordinary events of life; and although the jury is often embarrassed by the collision of directly contrary testimony, they commonly receive much aid and support from those portions of the case that rest in writing, or are plainly and un- deniably proved. They are seldom without some guide beyond the credibility of the parties themselves. But in cases of conjugal dispute, when cruelty is the issue, it is far otherwise. The domestic history of years is poured forth by husband and wife in alternate streams of opposite colours ; the memory of each is ransacked for the most trivial details ; the posture of each mind is antagonistic in the extreme, draw- ing memory or sometimes imagination after it in the attack or defence. Events are often misplaced in date, and always exaggerated in aspect. Unqualified accusations serve only to elicit absolute denials, and amidst a volume of evidence and at the end of a protracted investigation, the truth, obscured, disfigured, and transformed by prejudice and passion, is indeed hard to find. Nor does the nature of the case admit of much aid. Corroboration is seldom forthcoming. Those portions of times, 1 Suggate v. S. (1859), 1 Sw. & Tr., 489. 2 Ayliffe's Perergon, tit. Divorce ; Clarke's Praxis, tit. 107 ; Oughton, tit. 193, sec. 18 ; Sanchez, bk. x., disp. 18. 8 Green's case (1625), Cro. Car., 16 ; Porter's case (1637), ib., 461. Sec. 5 (c) EVIDEATCE AND DEFINITIONS— CRUELTY 325 which married people spend in quarrelling, are not their most public moments. If a third person becomes witness to their outbreaks it is generally a servant, and such persons generally enlist their feelings on one side or the other. Written evidence there is seldom any save letters, which, though they strongly illustrate the general love and feelings of the writers, seldom or never assist the proof of a disputed fact. So that in the result, the credibility of the parties themselves, tlieir demeanour before the Court, and their general bearing in word and deed, come to be the sole materials out of which the decision must be constructed."^ The general definition of cruelty is — "There must be an actual violence of such a, nature as to endanger personal health or safety ; or there must be reasonable apprehension of it. The Court, as Lord Stowell once said, has never been driven oft this ground. . . . The ground of the Court's interference is the wife's safety, and the impossibility of her fulfilling the duties of matrimony in a state of dread. " - " What merely wounds the mental feelings Is in few cases to be admitted, where it is not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manner, rude- ness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty. " " Cruelty is usually a charge brought by the wife against the husband, but occasionally the husband sues on account of the wife's cruelty ; and though no serious bodily injury be proved, yet if it be shown that she has an ungovernable temper, and when under the influence of 1 Scott V. S. (1863), 3 Sw. & Tr., 319 ; and see Tomkins v. T. (1858), 1 Sw. & Tr., 168, as to former system contrasted with trial by jury. 2 Milford V. M. (1866), L. E., 1 P. & M., 295; this definition of Lord Stowell in Evans v. E. (1790), 1 Hag. Con. , 35, is continually cited. His Lordship in giving it relied on Clarke and other books of practices ; but generally both Lord Stowell and other judges have declined to- give a strict legal definition of cruelty ; see Curtis v. ('. (1858), 1 Sw. & Tr. , 192. For instances of what is considered cruelty in the United States, see Report of Marriages and Divorces in U.S., 1867-1886. Published, 1889, 20,267, M. D., Chap. V of the Eeport. 3 Evans v. B., ubi sup., cited Tomkins v. T. (1858), 1 Sw. & Tr., 168 ; Paterson v. P. (1850), 3 H. L, C. , 308 and elsewhere passim. 326 DISSOLUTION OF MARRIAGE Cbap. vn it, whether excited by drink or jealousy, is in the habit of assaulting the husband, it will amount to cruelty ; but in such cases provision by way of alimony will be made for the wife.i " Cruelty can only be described generally, and rather by effects produced than by acts done ; " ^ and aggravations of cruelty may arise from the station of the parties. Thus among labouring classes a blow and curse may be consistent with a married life in the main very happy ; but if a nobleman of high rank and ancient family uses personal violence to his peeress, such conduct in such a person carries with it something so degrading to the husband and so insulting and mortifying to the wife, as to render the injury far more severe and insupportable.^ Also in the case of Lord Dysart, the husband's conduct showed a want of consideration and of aifection to his wife, and disregard of all her comforts, and com23elled her to submit to great privations and hardships. Lord Dysart, who had an ample fortune, elected to live in a state of great misery, with a deficiency of the common necessaries of life. He imposed extraordinary regulations on his wife, making her to do and endure things repellent to her feelings and inconsistent with her bring- ing up as a lady of position and with his station, and difficult to conform to. If she refused to comply, or com- 1 Kirk-man v. K. (1807), 1 Hag. Con., 409 ; Furlonger v. F. (1847), 5 N. of C, 422 ; White v. W. (1859), 1 Sw. & Tr., 591 ; Prichard v. P. (1864), 3 Sw. & Tr., 523 ; Carnerjiev. G. (1886), 17 L. R. Jr., 430, C. A.; in Scolt V. S. (1860), Sea. & Sm. , 133, it was dismissed ; see also Goodden V. O. (1892), P., 1, C. A., a.ui post, Chap. XI, s. 1; and .see R. v. Crawford (1845), 1 Den., 100, quoted at length pp. 478, 479. For curious instances of what is considered cruelty by wife to a husband in the United States, see U.S. Governmeut Eeport on Marriage and Divorce from 1867-1886. Published 1889, 20,267, M. D., Chap. V of the Report. - Westmeath v, W. (1827), 2 Hag. Ec, sup. 1, pp. 69 and 73. Sec. (<•) EVIDENCE AND DEFINITIOXS-CRUELTY 327 plained, he not only abused her, but, being a man of great strength, used instant force to compel her. For this the Court of Arches, though with some hesitation, granted a separation. 1 To give further definitions would complioate rather than elucidate this matter to the reader ; but the following illustrations of what has been held by the Court, or found by the jury, to be legal cruelty will, it is hoped, explain the matter. A single actual intentional blow uncondoned is legal cruelty ; and if there is reasonable apprehension of its repetition, a decree will be granted ^ aliter if not.^ " Everything is in legal construction scEvitia whiah tends to bodily harm, and in that manner render cohabitation unsafe ; whenever there is a tendency only to bodily niiscliief, it is a peril from which the wife must be protected. It is not necessary, in determining this point, to inquire from what motive such treatment proceeds. If the passions of the husband are so much out of his own control as that it is incon- sistent with the personal safety of the wife to continue in his society, it is immaterial from what provocation such violence originated. The law does not require there sliould be many acts. The Courtis indisposed to interfere on account of one slight act, particularly between persons who have been under long cohabitation ; because if only one such instance of ill-treatment, and that of a slight kind, occurs in many years, it may be hoped and presumed that it will not be repeated. But if the one act should be of that description which should induce the Court to think that it is likely to occur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fuUy sufficient to authorise its interference. " ■^ The fact that a petitioning wife has already obtained securities of the peace against her husband, and that they are living separate, is no defence. ^ 1 Dysart v. D. (1847), 5 N. of C, 194, 1 Rob. Eo., 470. 2 Reeves v. R. (1862), 3 Sw. & Tr., 139 ; I'opkin v. P. (1794), 1 Hag. Ec., 765, n., 768, n. 3 Small-wood v. S. (1861), 2 Sw. & Tr., 397. ■< Solden v. ff. (1810), 1 Hag. Con., 453, Lord Stowell, 5 Eulme V. //. (1823), 2 Add., 27. 328 DISSOLUTION OF MARRIAGE Chap, vii But an unintentional "blow, however painful, is not cruelty. There is no fear of its repetition.^ Or, for instance, where the wife vexatiously and un- justly refuses to give up the keys, on which a struggle takes place, and she is unfortunately bruised against the steps ; this is an accident, and the hurt was not inten- tionally inflicted, and therefore it is not cruelty. ^ Also it may be sliown that it arises from the lunacy of the respondent ; if so it will be an excuse, and no decree will be made ; for although an insane husband is likely to be dangerous to his wife, the remedy lies in the restraint of the husband, not in the release of the wife.^ Still, if there is no cruel intention or spite in the husband, and the blows proceed from impulse or even from slight provocation, yet "If the passions of the husbaud are so much out of his own control that it is inconsistent with the personal safety of the wife to continue in his society," if the husband is a person of ungovernable and excitable temper, a decree wiU be granted.* As to rebutting evidence of general good conduct and amity between husband and wife, it has been said — "What their common acquaintance and persons meeting them in society might observe is of little weight. It is much to be feared that husband and wife, particularly among the higher ranlcs, who from education and habit have some command over their external behaviour, often appear to the world to be mutually civil and kind, when at home by their own fireside they are but ill at ease with each other ; and that 1 NeeU V. N. (1831), 4 Hag. Ec, 263, p. 270 ; see post, as to drunkenness, p. 330. 2 Oliver v. 0. (1801), 1 Hag. Con., 361, p. 372. 3 Ball V. //. (1864), 3 Sw. & Tr., 347 ; Banbury v. IL (1892), P. , 222 ; and see post, p. 336 ; as to lunacy of a petitioner, see post, p. 337. 4 Westmeath v. W. (1827), 2 Hag. Ec., sup. 1, p. 129, and passim; and see post, pp 330, 336. Sec. 5 (c) EVIDENCE AND DEFINITIONS— CRUELTY 329 many a wife is often obliged to wear a countenance cheerful and clad in smiles, who carries with it and under it an aching heart." ' E converse, if the evidence shows a malignancy of disposition in the husband,^ or " When it is established as a fact that a husband is desirous of com- pelling his wife to quit his roof, it is not very likely that he will be over-scrupulous in the adoption of means to attain that end ; " ^ and if the husband treat the wife with utter indiflference, ' ' these facts strengthen the probability of other evidence to acts of misconduct." ^ A husband kicking his wife while she was pregnant, and only a month before her confinement, threatening to disinherit the child, striking the wife on the breast so that it produced a very serious bruise, knocking her down in a French post-house, amount to cruelty even within the most restricted definition ; * and so also is pulling the wife by her hair out of the room and upstairs." A husband who was a guardian of the poor procuring his wife to be sent to the poorhouse, has been admitted in allegation as an act of cruelty.^ Threatening to send a sane wife to a madhouse is personal violence, justifying her in leaving the husband.' Forcibly ejecting the wife from the house and turning her out of doors is cruelty.* Cruelty to children in the wife's presence in order to annoy her is admissible as evidence of cruelty.^ 1 Weslmeath v. W. (1827), 2 Hag. Ec, sup. 1, p. 98. 2 Wilscm V. W. (1848), 6 N. of C, 290. 3 Saunders v. S. (1847), 5 N. of C, 408, pp. 415, 416. ^ Westmeath v. IF. (1827), 2 Hag. Ec, sup. 1. 5 Lockwood v. L. (1839), 2 Curt., 281, p. 287 ; in an earlier case dragging a wife by the hair was held not sufficient cruelty for a divorce ; Holmes v. H. (1755), 2 Lee, 116. 6 Emns V. E. (1843), 2 N. of C, 470. 7 Hoidiston v. Smyth (1825), 2 C. & P., 22. » Chesnutt v. G. (1854), 1 Spinks, Eco. & Ad., 196. 9 Wallscourt v. ir. (1847), 5 N. of C, 121; Siujgatev. S. (1859), 1 Sw. & Tr., 489; and see Otway v. 0. (1887), 13 P. D., 12, 141 ; and Saat r. S. (1874), L. B., 5 P. C, 542. 330 DISSOLUTION OF MARRIAGE CaAr. vii Hahitual drunkenness^ in a spouse is not in itself cruelty, however much, like gaming or extravagance, it may be distressing to the petitioner ; ^ but if the respond- ent's intemperance result in violence, showing a want of self-control and apprehension of bodily injuries to the wife in the future, a decree will be given, just as in criminal cases, if injuries are actually inflicted ; drunkenness is not excuse. And assuming these injuries to be condoned, the drunken habits of the respondent will induce the Court to believe in the apprehension that they will be repeated.^ Forcing the wife to give up her separate property to the husband is not cruelty ; * the husband procuring a fictitious execution to be put into the wife's house is not cruelty.^ Gonstriictive Cruelty. — Venereal disease,^ whether gonor- rhea or syphilis, wilfully inflicted by the respondent on the petitioner, has always been considered an act of legal ' In the Inebriates Acts, 1879 and 1888, 42 & 43 Vict., c. 19 ; 51 & 52 Vict., c. 19, a habitual drunkard is defined as "a person who, not being amenable to any jurisdiction in lunacy, is, notwithstanding, by reason of habitual intemperate drinking of intoxicating liquor.s, at times dangerous to himself, herself, or to others, and incapable of managing himself or herself, and his or her affairs." 2 Brmmi v. B. (1865), L. R, 1 P. & M., 46 ; Evans v. E. (1843), 2 N. of C, 470 ; Scott v. S. (1860), Sea. & Sm., 133. 3 Marsh v. J/. (1858), 1 Sw. & Tr., 312 ; M;/tton v. M. (1886), 11 P. D., 141 ; Waddell v. W. (1862), 2 Sw. & Tr., 584 ; Power v. P. (1865), 4 Sw. & Tr., 173 ; Chesnutt v. C. (1854), 1 Spinks, Ecc. & Ad., 196. * D'Aguilar v. D'A. (1794), 1 Hag. Ec, 773 ; and see Ji. v. Middleton (1819), 1 Chitty, 654. 5 Simmons v. ,s'. (1847), 5 N. of C, 324, pp. 334, 335. " The author's apology for expatiating on this ground of cruelty is, that it sometimes happens that a wife who has been infected with a venereal disease by her husband, not merely does not know what she is suffering from, but even when so informed and treated for it by a medical man, is further ignorant that the wilful communication of such a disease by a husband is legal cruelty ; see Parldnson v. P. (1869), L. R.,2P. &M., 27, Sec. 5 (c) EVIDENCE AND DEFINITIONS-CRUELTY 331 cruelty in the Matrimonial Courts,^ although it cannot be made the basis of criminal proceedings.^ It must be proved, not only that the petitioner is infected with the disease, but that the disease was inflicted by the respondent, ^ and wilfully inflicted. As to the wilfulness, the mere fact that a husband communicated disease to his wife is not sufficient to constitute legal cruelty ; the act must be a wilful one.* Lastly, that the respondent was suffering from venereal disease is evidence of adultery, especially if it shows itself long after the marriage ; ^ but the Judicial Committee of the Privy Council laid down that " the adultery of the husband must not be inferred from the mere fact that the wife is tainted with venereal disease, and is neither herself charged with adultery nor suspected of it. The existence of such a disease in the wife is consistent with the adultery of the husband, with her own adultery, and with accidental communication of the disease ; and it will not be ascribed by preference to the first of these causes, even when the husband at a former time infected the wife, in the absence of proof that the husband was him- self diseased at the time specified in the articles. " '' If the wife has been unchaste, and her paramour is infected, 1 It must, of course, be Diade out that it is venereal disease, and not an innocent complaint, as the itch ; Chesnutt v. C. (1854), 1 Spinks, Bcc. & Ad., 196, pp. 197, 201 ; and see Stone \. S. (1844), 3 N. of C, 278, pp. 289, 290 ; and see A^. v. A^. (1862), 3 Sw. & Tr., 234. 2 J{. V. Clarence (1888), 22 Q. B, D., 23. 3 Mm-pnett V. M. (1869), L. R., 1 P. & M., 702. J Boardimnv. B. (1886), L. R., 1 P. & M., 233, citing the ruling of the 'full Court ; Jones v. /. (1860), Sea. & Sm. , 138 ; and Ciocci v. C. (1853), 1 Eco. & Ad., 121 ; and see Brown v. B. (1865), L. R., 1 P. & M., 46. 5 PopHn V. P. (1795), 1 Hag. Ec, 765, n. (Jollett V. C. (1840), 8 Monthly Law Mag., N. of C, 158, reversing ib., 1 Curt., 678. 332 DISSOLUTION OF MARRIAGE Chap, yii the burden of proof shifts, and it is for the wife to show that the husband contracted the disorder from the con- tamination of another person than herself.^ That the husband has had connection with the wife unnaturally has been alleged a cruelty, but the charge has never been proved.^ Spitting in the spouse's face is legal cruelty.^ The respondent husband bringing home prostitutes to the matrimonial home, or committing adultery with servants, has, where it preyed on the wife's health, been held cruelty ; * and the respondent's incest has also been alleged as cruelty.^ The respondent husband falsely charging the petitioner wife with incest,'' and sometimes with adultery,'' has been held cruelty. As to denial of conjugal rights being cruelty, see ante, Chap. IV, p. 171. Moral Cruelty. — As a general rule cruelty is con- stituted by actual physical violence. But even without actual violence, cruelty may be constituted first by threats of personal violence, not mere words of abuse, but threats which there is a probability of their being carried into 1 King v. E. (1847), 5 N. of C, 244, pp. 252-255. 2 Geils V. G. (1848), 6 N. of C, 97 ; N. v. N. (1862), 3 Sw. & Tr., 234 ; and see Chap. IV, ante, p. 173, and. post, pp. 350, 351. 3 Ii'Aguilarv. D'A. (1794), 1 Hag. Ec., 773, p. 776, n. ; Saunders V. S. (1847), 5 N. of C, 408, p. 418 ; Curtis v. C. (1858), 1 Sw. & Tr., 192, p. 197 ; Waddell v. W. (1862), 2 Sw. & Tr., 584. A wife spitting in her husband's face, whereupon he l;ills her, may reduce the killing from murder to manslaughter ; ij. v. Smith (1866), 4 F. & F., 1066. ■* Swatman v. S. (1865), 4 Sw. & Tr., 136 ; but seeder contra, Cousen V. C. (1865), ib., 164, where the previous authorities are reviewed ; and see- per contra, Beauderk v. B. (1891), P., 189, C. A. ; and see liouliston V. Smyth (1825), 2 C. & P., 22. 5 Gale V. G. (1852), 2 Eob. Ec., 421. 8 Bray v. B. (1828), 1 Hag. Ec, 163. ' Durant v. D. (1825), 1 Hag. Ec, 733, pp. 759, 760, 769; see Wilsons, ir. (1848), 6 N. of C, 290, Sec. 5 fe) EVIDEjSfCE AISTD DEFINITION'S -CRUELTY 333 execution, and a reasonable appearance of bodily hurt ; ^ or secondly, by any conduct of the other party by which the petitioner's health has suffered per quod consortum amittitur.^ But in a case where a clergyman adopted towards his wife what he called affectionate discipline, but which, as the result, broke down her health, the full Court of Divorce granted a judicial separation for cruelty. In this case the full Court adopted the Judge Ordinary's declara- tion of the law — " The pecnliar and distinguishing feature of this case is the adoption by the respondent of a deliberate system of conduct towards liis wife with view of bending her to his authority. ... If force, whether physical or moral, is systematically exerted for this purpose, in such a manner, to such a degree, and during such a length of time as to break down her health and render serious malady imminent, the interference of the law cannot justly be withheld by any Court which affects to have charge of the wife's personal safety. " And the full Court observed — "The object of the Matrimonial Court in exercisiug its jurisdiction in decreeing a judicial separation for cruelty, is to free the injured consort from a cohabitation which has been rendered, or which there is imminent reason to believe will be rendered, unsafe by the ill-usage of the party complained of . . The most frequent form of ill-usage which amounts to cruelty is that of personal violence, but the Courts have never limited their jurisdiction to such cases alone. "... And Lord Penzance, J. 0., observed — "Tn cases of this kind everything depends on degree. Many acts which are venial in themselves become reprehensible as parts of a system. Others, justifiable on occasions, lose their justification when continuously and purposely repeated. In considering a charge of cruelty, therefore, the conduct of the party inculpated can only be justified, or the reverse, as a whole. And if, upon a general review, the 1 Evans v. Jl. (1790), 1 Hag. Con., 35 ; D'Aguilar v. D'A. (1794), 1 Hag. Ec, 775, n., 776, n. ; Otway v. 0. (1812), 2 Phillim., 95 ; Ilulme V. H. (1823), 2 Add., 27 ; Bostock v. B. (1858), 1 Sw. & Tr., 221. 2 See D'Aguilar v. D'A. (1794), 1 Hag. Ec, 773 ; Kelly v. A'. (1869), L. E., 2P. &M., 31 and 59. 334 DISSOLUTION OF MARRIAGE CnAP. VII Matrimonial Court is of deliberate opinion that cohabitation could not be resumed with safety to the wife, it is bound by the dictates of common sense, as well as upon principles repeatedly avowed and acted upon in a long series of decisions, to step in and forbid its resump- tion. No doubt in such cases as the present, where the personal violence used is of a trifling character, it behoves the Court to be sedulous in inquiry and slow in conviction. It should be entirely satisfied that the conclusion of the wife's danger is clearly reached, and on reliable evidence." In this case the full Court assumed that no actual physical violence had taken place, but relied upon the moral cruelty. The facts were (and they are so peculiarly interesting an instance of moral cruelty that they are quoted at length) that after twenty-five years of married life the respondent husband at the close of 1867 took up the idea — ' ' That his wife was plotting and conspiring against him. He commenced opening her letters, and calling her a vile traitor and apostate. He told her that no modest woman would associate with her ; that she had given her confidences to another man : he refused to sit at the table with her ; he insisted on occuj^yiug a separate bedroom ; he told his servant to take orders from hira and not from his wife ; he kept apart from his wife all day, except at family prayers, and even then he appears to have little or no communication with her, except in the way of rebuke or reproach. At length in May 1868 the petitioner became ill. her appetite wholly failed ; she lost the senses of taste and smell, and towards the end of that month felt a sensation of numbness in her, which gave reason to fear paralysis. She consulted Dr. Drysdale. He advised her to leave home ; her husband refused, and on the 29th of June, having become worse, she left her home without his consent." She then travelled with relations in Wales and Ireland for four months, and returned home October 1868. On her return — " Mrs. Kelly was entirely deposeil from her natural position as mi.stress of her husband's house. She was debarred the use of money. Not only were the household expenses withdrawn from her control, but .she was not permitted to disburse any for her own necessary expenses. Every article of dress, every trifle that she required, had to be put do%vn on paper, and her hu.sband provided it if he thought proper. Having on one occasion of going into town declined to tell her husband on her Sec. 5 (d EVIDENCE AND DEFINITIONS— CRUELTY 335 return every house to which she had been, an interdict was placed on her going out at will. At one time the doors were locked to keep her in ; at another a man-servant was deputed to follow her ; at another tlie appellant acconipauied her himself whenever she wanted to go abroad. On these occasions he appears to have occupied the short time they were together in what he called putting her sin before her in strong, coarse, and abusive terms, aj^plying to her the same ej^ithets and language as would be applicable to a woman who had been guilty of adultery. He took no meals with her ; he occupied a separate bedroom ; he passed no portion of the day, however small, in her society. They met, as before, at family prayers, and if he spoke to her at all, it was only to give some direction, or to reproach her. Save on one or two occasions she saw no one. Those whom she desired to see were forbidden the house. She was absolutely prohibited from writing any letters unless her husband saw them before they were posted. She was thus, as far as the appellant could achieve it, practically isolated from her friends. Meanwhile the care of the household was confided to a woman hired for that purpose, who was directed not to obey Mrs. Kelly's order without the respondent. In fact, she was treated like a child or a lunatic, and thus, be it remembered, although she had passed the mature age of sixty years, and had been married to the appellant for seven and twenty years." And, said the full Court, they were satisfied the efi'ect of the treatment on Mrs. Kelly before she left for "Wales was such "As to cause change of air and scene and absence from her husband to be necessary, and that from the treatment she suffered after her return from Ireland her health was so broken down that to continue subject to the same treatment for any length of time would not only have seriously imperilled her health, but would have exposed her to the highly probable consequences mentioned by the medical man, viz. paralysis or madness." The full Court, after examining the counter-charges brought by Mr. Kelly against his wife, and pronouncing them to be in most cases either entirely unfounded or trivial — " And in those few cases in which her conduct may not be entirely free from blame, that her acts were the consequence and not the cause of her husband's ill-treatment, and whether taken separately or collec- tively, afford no ju.stiflcation for it ; " 336 DISSOLUTION OF MARRIAGE CnAP. vil And in tlie result they were satisfied " Of the extreme peril to which Mrs. Kelly's health was exposed with- out any adequate fault of her own," gave a judicial separation, i And Butt, Pres., laid down— "Although I am not aware that there were any blows, still, if the conduct of the husband (a persistent case of harsh, irritating conduct) be such as to endanger the life, or even the health of the wife, that is cruelty iu every sense of the word, whether we talk of ' legal cruelty ' or anything else. " In this case the respondent husband admitted he was drunk and disorderly, and the evidence showed that the wife left his house in terror, the servant girl ran out into and remained in the garden through fear, and the wife, in consequence, left her husband ; the Court held that she left her home in bodily fear, and was justified in leaving it, and gave a judicial separation.^ If the harsh behaviour of the husband, from which the wife suffered, arose out of a disordered state of the brain which was permanent, and rendered him liable to fits of ungovernable passion, this will not prevent the Court, "which considers the wife's safety, giving a decree.^ Provocation. — Lastly, as to the cruelty to the petitioner, it must be shown that such ill-usage was not provoked by the petitioner's misconduct or temper. For, said Lord Penzance, J. 0., and the full Court adopted this — "The decisions of my predecessors have imported this further pro- 1 Kelly y. K. (1869), L. R.,"2 P. & M., 31 and 59 ; followed Bethune V. B. (1891), P., 205. 5 Mylton V. M. (1886), 11 P. D., 141 ; in this case the respondent husband said, shaking his fist in her face, "that being a lawyer he knew the law too well to commit actual violence ; " see similar expressions, Chap. IV, p. 176 ; and as to drunken violence, see p. 330. 3 Curtis V. C. (1858), 1 Sw. & Tr., 192 ; and see Hanburij v. //. (1892), P., 222, and ante, p. 328. Sec. 6 (c) EVIDENCE AND DEFINITIONS— CRUELTY 337 position as a condition of tlie Court's interference, that the troubles of the wife are not owing to her own misconrtuct. " i If a wife can ensure her own safety by lawful obedience, and by a proper self-command, she has no right to come here ; ^ and it has been laid down that it is not necessary that the conduct of the wife should be entirely without blame, for the reason which would justify the imputation of blame to the wife would not justify the ferocity of the husband. ^ The husband must explain what acts of the wife he relies on to prove justification of his cruelty ; mere drunkenness or insolence is not enough.* o The Court will not assume provocation. ; it is for the respondent to set up and prove it.^ If the respondent sets up that the petitioner is a lunatic, and that the force actually used was only what was necessary for the petitioner's protection, and was applied under proper medical advice, this is a defence ; " but if the petitioner is sane, then detention or threatened detention in a lunatic asylum is personal violence. '^ {d) Desertion " Desertion without reasonable excuse for two years 1 Kelly V. K. (1869), L. R., 2 P. & H., 31 and 59 ; and see ^Yanng V. IK (1813), 2 Hag. Con., 153 ; Best v. B. (1823), 1 Add., 411 ; Walls- court V. W. (1847), 5 N. of C, 121. 2 Dijsart V. D. (1847), 1 Rot). Ecc, 470 ; Taylor v. T. (1755), 2 Lee, 172; Waring V. W. (1813), 2Phillira., 1-32. 3 Holden v. S. (1810), 1 Hag. Con., 453. * Shaw V. S. (1861), 2 Sw. & Tr., 515 ; and see Pearman v. P. (1860), 1 Sw. & Tr., 601 ; and see Hughes v. II. (1866), L. R., 1 P. & M., 219.' 5 Lockwood V. L. (1839), 2 Curt., 281, p. 286. 6 H. V. Mackenzie (1766), 3 Burr., 1922 ; but a husband or wife ill- treating a lunatic spouse in their charge is criminally punishable by the Lunacy Act, 1890, 53 Vict. , c. 5, s. 322, making li. v. Rundle (1855), 6 Cox C. C, 549, no longer law. He is not entitled as of right to her custody, re Davy (1892), W. N., 124. 7 Houliston V. Smyth (1825), 2 C. & P., 22. 22 338 DISSOLUTION OF MARRIAGE Chap. YII and upwards " by the husband, coupled with his adultery, is a ground for dissolution in a suit by the wife ; ^ and desertion without cause for two years and upwards, by either husband or wife, is a ground for judicial separation in a suit by either husband or wife.^ But in all parts of the Act (except s. 21, relating to protection orders) deser- tion must be held one and the same thing.^ Therefore decisions as to desertion in suits for judicial separation apply to desertion in suits for dissolution of marriage, and vice versa. As regards desertion in connection with Ijroteotion and maintenance orders, see Chap. VIII, s. 3, Chap. IX, ss. 2, 4 ; and as to remedy for desertion by way of restitution of conjugal rights, see Chap. X, s. 1. Desertion is also a fact creating a discretionary bar ; see ante, s. 4 (e) (/), pp. 295, 297. Desertion is a new matrimonial offence, created by the Matrimonial Causes Act, 1857, and not transferred from the old jurisdiction of the Ecclesiastical Courts.* Doctrine and Definition. — As to what is " desertion," it must be first pointed out that mere separation is not desertion.^ If either husband or wife quit company by mutual consent, or go away for health or business, this is not desertion. " No one can desert wlio does not actually and wilfully bring to an end an existing state of cohabitation. Cohabitation may be put an end to by other acts besides that of actually quitting the common home. 1 20 & 21 Vict., c. 85, s. 27. 2 lb., s. 16 ; Millar v. M. (1883), 8 P. D., 187 ; and see Chap. VIII, s. 1 [b], and Chap. IX, s. 2 (a), s. 4 (a). 3 Per Lord Penzance, Yeatman v. )'. (1868), L. R., 1 P. & M., 489 ; Cargill v. C. (1858), 1 Sw. & Tr., 235. * Thompson v. T. (1858), 1 Sw. & Tr., 231 ; Brookes v. B., ib., p. 326. Even malicious desertion was no bar in the old Ecclesiastical Courts ; see ante, s. 4, p. 295, u. 4, Chap. VIII, s. 2 (c). ^ But separation may amount to a bar or wilful neglect conducing to the adultery ; see ante, s. 4 (/ ), p. 297. Skc. o (rf) EVIDENCE AXD DEFINITIONS— DESEETION 339 Advantage may be taken of temporary absence or separation to hold" aloof from a renewal of intercourse. Tins done wilfully against the wish of the other party, and in execution of a design to cease cohabita- tion, would constitute ' desertion.' But if the state of cohabitation has already ceased to exist, whether by the adverse act of husband or wife, or even by the mutual consent of both, 'desertion' in my judgment becomes from that moment impos.sible to either, at le.ist until their common life and home have been resumed. In the meantime either party may have the right to call on the other to resume their conjugal relations, and, if refused, to enforce their resumption ; but such refusal cannot constitute the offence intended by the statute under the name of desertion without cause." i Separation Deed.^ — So if the separation takes place under a separation deed, that usually deprives it of the character of desertion. If the wife bargains away her right to relief by execut- ing a separation deed, allowing her husband to live apart, she cannot subsequently complain of being deserted with- out cause by him. Even if the separation deed is void and invalid, that will not make a voluntary separation " desertion," or if the husband does not jiay her what he agreed to pay, for — " The husband's breach of contract could not by relation back make the parting involuntary which was in fact voluntary, though the volition of the wife was moved by the husband's promises. The seiia- ration, it must always be remembered, was an act done under the deed ; and though the deed be void, or its covenants afterwards broken, it would be most nujust to treat that act as if the deed had never ex- isted. The failure of the deed cannot be held so as to react upon the separation for which it ^^rovided, as to unpress upon the separation a character entirely opposite to that which it bore at the time. If it could, it might as well be said that the wife had deserted her husband as that he had deserted her." ^ 1 Fitzgerald v. F. (1869), L. E., 1 P. & M., 694 ; and see Millar v. M. (1883), 8 P. D., 187. 2 Separation deeds are here eou.sidered as negativing desertion ; as estoppel to suing for other matrimonial offences, they are considered ante, s. 3, and they are also discussed Chap. IV, p. 200, and pp. 256, 258, 259, 271, 272, 275, 284. 3 Crabb v. C. (1868), L. R., 1 P. & M., 601 ; Parkinson v. P. (1869), L. R., 2 P. & M., 25 ; Buchnaster v. £. (1869), L. R., 1 P. & M., 713. 340 DISSOLUTION OF MARRIAGE CnAi-. vir It may he that in certain cases a separation deed will not prevent the cessation of oohahitation heing desertion, as where a separation deed was executed, heing obtained without the real concurrence or assent of the otlier party to the separation ; i this, however, must he distinguished from cases where there was a consent, although an unwilling consent. ^ As, for instance, in the case of fraud — " If a man, ileterniiniDg to desert his wife, were to set about fraudu- lently, by the show of agreement which he never intended to fulfil, covering his true purpose under delusive covenants, and seeking a shield for a design in a consent bought by treachery. " s Or where a wife for a few months, from mere compas- sionate feeling, because the husband said he was starving, made him an allowance which she afterwards stopped because she thought that by continuing the payment she was encouraging him to keep apart from her. She often wrote to him, asking to resume cohabitation, but he refused. The Court held that there was nothing like an assent or agreement on her part to his staying away from her, and she had therefore made out a case of desertion.* The mere fact that one party makes to the other a pecuniary allowance will not, supposing the separation otherwise amounts to desertion, alter its legal effect ; for "A husband who withilraws from cohabitation with his wife may be guilty of desertion although he continues to support her. A wife is entitled to her husband's society, and the protection of his name and home, in cohabitation. The permanent denial of these rights may be 1 Dagcj V. 1). (1882), 7 P. D., 17 ; and see also Moore v. M. (1887), 12 P. D., 193, where the wife got a judicial sexoaration for desertion notwithstanding a separation. 2 See Ross v. R. (1869), L. R., 1 P. & M., 734 ; and see ante, p. 272. 3 Craibv. C. (1868), L. R, 1 P. & M., 601, obiter dictum by Lord Penzance. i Xott V. iV. (1866), L. R., 1 P. & M., 251 ; distinguished Parkinson V. P. (1869), L. E., 2 P. & M., 25. Sec. 5 (a) EVIDENCE AND DEFmiTIONS^DESERTION 341 aggravated by leaving her destitute, or mitigated by a liberal provision for her support ; but if the cohabitation is put an end to without the consent of the "wife, and without the intention of renewing it, the matrimonial offence of 'desertion' is in my jiidgment complete."^ Imprisonment.'^ — Imprisonment of the respondent in gaol for a criminal offence, however long the term of the sentence may be, is not desertion. For " It is essential to the constitution of desertion that there should be a voluntary abandonment by the husband of the society of the wife against her wUl." In this case the respondent, having committed a criminal offence, absconded in November 1866, with the consent of the petitioner, in order to avoid arrest. He was, how- ever, arrested and imprisoned ; soon after the expiration of his sentence he was again imprisoned, and at last received a term of penal servitude. He continued through- out his imprisonment to write affectionate letters to his wife, and when out of gaol endeavoured to resume co- habitation, which she declined ; the Court, though holding that her refusal was justifiable, declared that he was not guilty of desertion. 3 If, however, the circumstances under which the respondent left the petitioner amounted to desertion in the first instance, the fact that the re- spondent was subsequently arrested and imprisoned, and so prevented resuming cohabitation, will not deprive the desertion thus commenced of its original character, and at the expiration of the two years the petitioner can claim relief therefor.* Separation subsequently becoming Desertion. — A scpara- 1 Yeatman v. Y. (1868), L. B., 1 P. & M., 489 ; and see Macdonald V. M. (1859), 4 Sw. & Tr., 242 ; and see ante, s. 4, p. 296. 2 And see also at Conviction for Felony, ante, s. 4 (i), pp. 292, 293, and (c), (/), pp. 296, 297, 298, ^.-aApost, p. 348. 3 Tovmsend v. T. (1873), L. E., 3 P. & M., 129. i Drew V. D. (1888), 13 P. D., 97. 342 DISSOLUTION OF MARRIAGE Chap, vii tion which did not amount to desertion in the first in- stance may afterwards become desertion. "There are cases in which the parties may have innocently ceased for a time to be actnally living together, separated by the calls of every- day life or the exigencies of public duty, and the husband or wife taking advantage of the separation may have purposely rejected all subsequent opportunities of coming together again, and this may con- stitute desertion. For, in truth, in such cases the state of cohabitation was not in the first instance wholly relinquished, but only suspended till a fitting occasion for its resumption, and purposely to reject all such occasions is practically to abandon it. " i The most usual cause of separation turning into deser- tion is adultery by the deserter. As, for instance, when tlie husband emigrated to follow his profession as a doctor, which he did in various places for several years, corresponding with and from time to time meeting his wife, but later began to commit adultery with Mrs. Thain, who went to live with him as the mistress of his house ; it was held that the desertion began, not when they ceased to cohabit, but when he made up his mind to abandon the wife and live with another woman." Adultery ripening into Desertion. — If a man is living with another woman, the wife is justified in leaving him and saying to him — "I shall not return to you, nor shall I allow you to have acces.s to me, while you are living in open adultery with another woman." And if this continues for two years, so that there never is a time at which the petitioner is bound to go back and 1 Fitzgerald v. F. (1869), 1 P. & M., 694. 2 Gatehouse v. G. (1867), L. R., 1 P. & M, 331 ; and see Lawrence v. L. (1862), 2 Sw. & Tr., 575 ; and Wood v. W. (1887), 13 P. D., 22 ; but adultery does not always turn separation into desertion ; see Kecch v. K. (1868), L. E., 1 P. & M., 641 ; Towmend v. T. (1873), L. E., 3 P. & M., 129 ; in both cases the respondent made a bonfl fide offer to return to cohabitation previous to committing adultery ; and see also Lodge v. L. (1890), 15 P. D., 159. Sec. 5 (d) EYIDEXCE AND DEFIKITIONS— DESERTION 343 cohabit, for she is justified in refusing to do so as long as the adulterous cohabitation continues, the petitioner will be entitled to a decree ; ^ if, however, the respondent, having broken off his adulterous cohabitation, makes a bond fide offer to resume cohabitation, the desertion -will terminate, and though the petitioner might get a judicial separation for adultery, she will not be entitled to dissolu- tion for adultery with desertion. ^ Refusal after Sejparation to resume Cohabitation. — But supposing the state of separation to exist, neglect or refusal to resume cohabitation will not convert the separa- tion into desertion, although either party has the right to call on the other to resume cohabitation, and if refused, to bring an action for restitution (unless estopped by separation deed, see Chap. X, s. 1). "Such refusal cannot be the offence intended by the statute under the name of desertion without cause." ^ In this case Major and Mrs. Fitzgerald in 1861 had their conjugal home at Braydon Hall ; both Avere temporarily absent from it, he for a month at Cowes, she for a few days in London. She there received information which led her to believe that her husband had committed adultery, and immedi- ately refused to return home or cohabit; and subsequently instituted a suit founded on adultery and cruelty, which failed. After this neither attempted to resume cohabita- tion; but in 1868 she commenced a suit, charging, together with adultery, which was proved, desertion. But the Court held that neither Major Fitzgerald's conduct in 1 Knapp V. K. (1880), 6 P. D., 10 ; Bkindford v. B. (1883), 8 P. D., 19 ; Farmer v. F. (1884), 9 P. D., 245 ; Wood v. W. (1887), 13 P. D., 22 ; Garcia v. G. (1888), 13 P. D., 216 ; Lappington v. L. (1888), 14 P. D., 21 ; and see Hoidiston v. Smyth (1825), 2 C. & P., 22 5 and Harding V. H. (1886), 11 P. D., 111. 2 Lodge v. L. (1890), 15 P. D., 159. 3 Fitzgerald v. F. (1869), L. R., 1 P. & M., 694. 344 DISSOLtFTION OF MARRIAGE Chap. Yil 1861, when going to Cowes, nor his subsequent failure to resume cohabitation, constituted desertion. ' It is one thing to make a breach, it is another to refrain from attempts to heal it. Desertion means abandonment, and implies au active "with- drawal from cohabitation that exists ; the word carries with it an idea of forsaking or leaving, and is hardly satisfied by the negative position of standing apart." i Refusal io obey a decree for restitution of conjugal rights is desertion for two years. The Matrimonial Causes Act, 1884,^ provides — " If the respondent shall fail to comply with a decree of the Court for restitution of conjugal rights, such respondent shall thereupon be deemed to have been guilty of desertion without reasonable cause, and . . . when any husband who has been guilty of desertion by failure on his part to comply with a decree for restitution of conjugal rights has also been guilty of adultery, the wife may forthwith present a petition for dissolution of her marriage, and the Court may pronounce a decree nisi for the dissolution of sucli marriage on the ground of adultery coupled with desertion." Such desertion may be coupled with adultery either before or after the decree for restitution, so as to form ground for dissolution on a wife's petition.^ Commencement of Desertion. — As the desertion, to be a ground of relief, must have lasted two years,* it is important to fix its commencement. When the hus- band actually leaves the wife's society, the desertion commences from that moment ; but if the cessation of 1 Fitzgerald v. F. (1869), L. R., 1 P. & M., 694 ; and see Williams V. W. (1864), 3 Sw. & Tr., 547; and R. v. Leresche (1891), 2 Q. B., 418, C. A. ; Mahoney v. M'Carihy (1892), P., 21 ; see Chap. IX, ss. 2, 4. In such a case the proper course is to bring au action for restitution, see Chap. X, s. 1 ; and if after decree the respondent then refuses to obey and cohabit, he or she is guilty of desertion. 2 47 & 48 Vict., c. 68, s. 5 ; and see Harding v. 11. (1886), 11 P. D., Ill ; and Cliap. VIII, s. 1 (h), p. 353, and Chap. X, s. 1 (c), p. 377. 3 Bigwoody. B. (1888), 13 P. D., 89. * Except in the case of refusal to obey a decree of restitution of conjugal rights, which constitutes at once the full offence of desertion for two years. See Chap. X, s. 1, and supra.. Sec. 5 (., 1 P. & M., 694 ; and see ante. Separa- tion becoming Desertion, p. 341 ; anipost, Eeasonahle Excuse for Deser- tion, p. 346. 346 DISSOLUTION OF MARRIAGE Chap, vlt this will affect or deprive the petitioner of a right to a remedy already completed. ^ As to a written request by a petitioner, or offer by the respondent in a suit for restitution of conjugal right to resume cohabitation, see Chap. X, s. 1. Reasonable Excuse. — Lastly, assuming that there is desertion, it should be shown that the desertion was " without reasonable excuse," as in s. 27 of the Matri- monial Causes Act, 1857, or ''without cause," as in s. 16 thereof, which means "reasonable cause," and is identical with "reasonable excuse." " According to the matrimonial law of this country . . . nothing will justify a man in refusing to receive his wife, except the commission of some distinct matrimonial offence, such as adultery and cruelty, upon which the Court could found a decree of judicial separation." But the full Court of Divorce has "decided that conduct falling short of a matrimonial offence, sufficient to found a decree for judicial separation, was still sufficient ' cause ' to bar all remedy to a wife wliom her husband has deserted." But "the cause should be grave and weighty which, in the judgment of the Court, should deprive a deserted wife of her remedy for that desertion." " It would be of evil example to hold that mere frailty of temper, unless shown in some marked and intoler- able excesses, was reasonable ground to justify a man in throwing a young wife on the woi'ld without the protection of his home or society." = The usual justification for the desertion is adultery or suspicion of adultery. For if a husband is living in adultery, the wife is justified in refusing to cohabit; and although, as a matter of fact, it is she who leaves the common home and breaks off relations, yet she is not deserting, but, on the contrary ; ^ if the husband's adultery continues, it will, after two years, unless stopped by a 1 Carrjill V. 0. (1858), 1 Sw. & Tr., 2-35 ; Basing v. B. (1864), 3 Sw. & Tr., 516 ; and see Brookes v. B. (1858), 1 Sw. & Tr., 326. 2 Yeatman v. Y. (1868), L. R., 1 P. & M., 489 ; without reasonable excuse qualifies desertion ; Saswell v. //. (1859), 1 Sw. & Tr., 502. s Graves v. G. (1864), 3 Sw. & Tr., 350 ; and see liouliston v. Smyth (1825), 2 C. & P., 22 ; and see ante, p. 342. Sec. s (d) EVIDEKCE AND DEFHTITIONS— DESERTION 347 bond fde offer to return to cohabitation, ripen into deser- tion ; see ante, p. 342. Nay, if a petitioner suspects the other party of a matrimonial offence, it is his or her duty to separate forthwith, lest he or she bo barred by con- donation ; see ante, s. 3 {d), pp. 277, 278, where the proper course to be adopted on suspicion of adultery is discussed. If, however, the suspicion turns out unfounded, and the petitioner loses the case, it does not therefore prove that separation was unjustified. "She failed to establish her husband's guilt to the satisfaction of the jury and of the Court. But it is not inconsistent with that to allege that she had reasonable grounds for suspecting her husband as to warrant her in withdrawing from cohabitation imtil her suspicions were confirmed or dispelled." i Further, as above explained, acts other and less than adultery will be a reasonable cause for desertion.- So acts of familiarity and indecent liberties permitted or practised by one party will, although not amounting to adultery, justify the other party in separating.^ And where the petitioner had been deceived into a marriage by the mi.srepresentations of the respondent, and she turned out to be pregnant at the date of the marriage, and on discovering this he refused to cohabit ; this was held a reasonable cause for desertion, and on his proving subsequent adultery he liad a decree.* Cruelty generally authorises either spouse in leaving the other.' 1 Per Lord Penzance, Fitzgerald v. F. (1869), L. R, 1 P. & M., 694 ; but in Dvphmy v. D. (1892), P. 53, Jeune, J., held that separation caused by a suspicion of adultery which turns out unfounded is deser- tion without reasonable cause. 2 See Tempany v. Hakewill (1858), 1 F. & P., 438. 3 Haswell v. H. (1859), 1 Sw. & Tr., 502. < Kennedy v. K. (1890), 62 L. T., 705. 5 See ante, p. 323, as to cruelty ; and see Ilouliston v. Smyth (1825), 2 C. & P., 22, where the husband threatened to shut up the wife as a lunatic, and she was held justified in leaving him. 348 DISSOLUTION OF MARRIAGE CnAr. vn Drunkenness and breaking of furniture hj a wife does not justify a husband in deserting her.i Apparently, if one of the spouses becomes a convict, this does not justify the other party in refusing to cohabit during suoli time as the criminal is out of gaol.^ Although, if the husband becomes an outlaw or is banished the realm, the wife need not follow him, and she becomes a feme sole.^ Refusal to consummate by the other party has been held an excuse for desertion. In this case the marriage had admittedly never been consummated ; the petitioner had separated from his wife, and she had cohabited with the co- respondent and had a child by him. The respondent wife set up the petitioner's desertion without reasonable cause, and that he had thereby been guilty of wilful neglect and misconduct, conducing to her adultery. The petitioner swore that he was always ready and willing, but that his wife refused to allow him to consummate, and that this refusal on her part was the cause of his separating. She swore that the marriage had never been consummated in consequence of the incapacity of the petitioner, and that she therefore considered it null and void. Neither party sued for nullity ; but the petition was for dissolution, to which the wife set up desertion in bar. Lord Hannen, J. 0., said — " I think I am justified on the evidence before me in saying that it may well have been a matter of doubt between the two persons on wliicli side the fault or physical defect lay. In such state of things, I think that the husband, taking the view that the fault was not with himself but with his wife, and in that state of mind coming to the conclusion 1 Zfez/fsv. ^. (1887), 13P. D.,11; &oM v. ;S. (1860), Sea. & Sm., 133. 2 Per Lord Hannen, Pres., Willimnson v. W. (1882), 7 P. D., 76; Corpus Juris Canonici Decretal, bk. iv., 19. 3 ; but see Toionsend v. T. (1873), L. R., 3P. &M., 129; andseeoate, pp. 291, 297, 341, as imprison- ment. 3 Bl. Com., blc. i., p. 443 ; and see ante, Chap. IV, p. 166. Sec. 5 (d) EVIDENCE AND DEFINITIONS— DESERTION 349 that the counection between them was intolerable, leading to misery and not to happuiess, because the wife was either unable or resolutely unwilling to consummate, and therefore leaving her, cannot be said to have been guilty of such desertion as is contemplated by the statute ; " and the petitioner had his decree nisi.^ If one of the spouses is a minor, dependent on his or her parent, and after the marriage, into whicli he or she has heen entrapped, is separated from the other spouse, either by order of the Court of Chancery ^ or by the parents, this will he a reasonable cause for the sejjaration.^ (e) Bigamy with Adultery "Bigamy with adultery" by a husband during the marriage is a ground for dissolution ; and "Bigamy shall be taken to mean marriage of any person, being married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere." * A second bigamous marriage of the respondent must be proved ; it is not suflicient to prove a conviction for bigamy.^ Further, besides the proof of bigamy, the petitioner must prove cohabitation by the respondent with the woman with whom the respondent went through the ceremony of marriage." (/) Incestuous Adultery " Incestuous adultery" by a husband during the marriage 1 Ousey V. 0. (1874), L. R., 3 P. & M., 223 ; and see ante, pp. 295, 297. 2 Jieavan v. B. (1862), 2 Sw. & Ti-., 652 ; and see ante, p. 299. 3 Du Terreaux v. Bu T. (1859), 1 Sw. & Tr., 555 ; Proctor v. P. (1865), 4 Sw. & Tr., 140 ; and see ante, pp. 296, 297. 4 20 & 21 Vict., c. 85, s. 27. 5 March v. M. (1858), 2 Sw. & Tr., 49; and see Burt v. B. (1860), 2 Sw. & Tr., 88 ; and see ante. Chap. Ill, pp. 132, 133, and Chap. XV, s. 3. 6 Borne v. //. (1858), 2 Sw. & Tr., 48. 350 DISSOLUTION OF MARRIAGE Chap, vii is a ground for dissolution. " Incestuous adultery means adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully con- tract matrimony, by reason of her being within the pro- hibited degrees of consanguinity or affinit}'."! This includes illegitimate relations of the wife ; see anie, Chap. II, p. 30. The usual incest committed by a husband is adultery with the wife's sister ; ^ but in one case a husband eloped with his motlier-in-law.^ Condoned incestuous adultery is revived by adultery not incestuous.* Incest is a spiritual offence, reserved for the exclusive cognisance of the Spiritual Court by the statute Circumspecte Agatis, punishable in a criminal suit by public penance, excom- munication, or six months' imprisonment.^ {g) Eajx, Sodomy, Bestiality If the husband during the marriage has been guilty of rape, or sodomy, or bestiality, either of these is a ground for dissolution." 1 20 & 21 Vict., c. 85, s. 27. 2 Stoker V. S. (1889), 14 P. D., 60; A^ewman v. X. (1870), L. E., 2 P. & M., 57 ; iXewsome v. iV. (1871), L. R., 2 P. & M., 306. 3 A case of divorce on a wife's petition, grounded on the respondent's incestuous adultery with his motlier -in-law, was reported in tlie Times .some years ago. The author cannot now find the reference ; he would he obliged if one of the readers would furnish him with it. ■* Newscmie v. A''., uhi su-p. 5 Gibson's Codex, p. 1085; Harris v. Ilichs (1694), 2 Sall^., 548; Burgess v. B. (1804), 2 Hag. Con., 223, 53 Geo. Ill, c. 127, s. 3; Blackmore y. Brider (1816), 2 Phillim., 359 ; Griffiths v. Reed (1828), 1 Hag. Be, 195 ; Chick v. RamsdaU (1835), 1 Curt., 34 ; Woods v. W. (1840), 2 Curt., 516. It is the duty of the minister and churchwardens to present incestuous persons to the ordinary for punishment ; Canons 109, 113 ; and see ante, Chap. VI, p. 231, and pp. 310, 311 ; as to punishment for incest in Scotland, see post. Chaps. XV and XVIII. 6 20 & 21 Vict. , c. 85, s. 27, attempted sodomy was on a ground for a divorce a mensa et thoro in the Ecclesiastical Court ; Bromley v. B. (1793), 2 Add., 158, u. ; Morjg v. M. (1824), 2 Add., 292. Sec. 5 (ff) EVIDENCE AND DEFINITIONS— RAPE, ETC. 351 Sodoniitieal practices between husband and wife are sometimes alleged by a petitioning wife as cruelty ; but as naturally there is no corroborative evidence, the Court shrinks from believing such a charge on the wife's evidence alone. ^ 1 lY. V. N. (1862), 3 Sw. & Tr., 234; Geils v. G. (1848), 6 N. of C, 97 ; aud see Chap. IV, p. 173, and see ante, p. 332. CHAPTER VIII JUDICIAL SEPAKATION AND PEOTECTION OEDER 1. Jurisdiction and Pro- [b) Onielty, 356 cedure, 352 (c) Desertion, 357 (a) The Court, . . 362 (d) Sqximlion Deed and {b) Grounds for Judicial Estoppel, 357 Separation,, . 352 (e) Delay, 358 (c) Procedure, . . 355 {/) Connivance and Con- 2. Bars to Decree, . 366 donation, 358 [a) Adultery, . . 356 3. Protection Order, . 359 Sec. 1. — Jurisdiction and Proceduee (a) The Court The old jurisdiction of the Ecclesiastical Courts to enter- tain matrimonial suits and give divorces a mensa et tlioro ^ having been abolished by the Matrimonial Causes Act, 1857, it was transferred to the Court for Divorce and jVIatrimonial Causes.^ This jurisdiction is now vested in the Probate Divorce and Admiralty Division ; see Chap. YII, p. 240, as to the constitution of the Court ; as to hearing at Assizes, see p. 355, n. 2. ill) Gi'ounds for Judicial Separation The Matrimonial Causes Act, 1857, enacted — " No decree shall hereafter be made for a divorce a mensa et ihoro, hnt in all cases where a divorce a mensa et thoro might now he pronounced, 1 For practice in Ecclesiastical Courts, see Clarke's Praxis, tits, cvii., cxiii. , cxiv. The Clerk's Instructor in the Ecclesiastical Courts, chap, iv., pp. 386^06 ; Oughton, tit. cxciii., ccxiii.-ccxv. 2 20 & 21 Vict., c. 85 ; see ante. Chap. VII, p. 240. 3S2 Sec. 1 (« JUDICIAL SEPARATION— JURISDICTION" 353 the Court may pronounce a decree for juilicial separation, which shall have the same force and the same consequences as a divorce a mensa et thoro now has ; " i and further, that " a sentence of judicial separation (which shall have the effect of a divorce a mensa et thoro under the existing law, and such other legal effect as herein mentioned) may be obtained, either by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards ; " 3 and further, "if the respondent shall fail to comply with a decree for restitution of conjugal rights, such respondent shall thereupon be deemed to have been guilty of desertion without reasonable cause, and a suit for judicial separation may be forthwith instituted, and a sentence of judicial separation may be pronounced, although the period of two years may not have elapsed since the failure to comjDly with the decree for restitution of conjugal rights ;"3 and in such a suit for judicial separation the " Court shall proceed and act and give relief on principles and rules Avhich in the opinion of the said Court shall be as nearly as may be conformable to the principles and rules on which the Ecclesi- astical Courts have hitherto acted and given relief, but subject to the provisions herein contained, and to the rules and orders under this Act ;"■' and further, "application for judicial separation on any one of the grounds aforesaid may be made by either husband or wife to the Court, according to the rules and regulations which shall be made under the authority of this Act ; and the Court to which petition is addressed on being satisfied of the truth of the allegations therein contained, and that there is no legal ground why the same should not be granted, may decree such judicial separation accordingly. " ^ Such decree for judicial separation may be reversed on the application of a husband or wife, if such husband or wife shows that it was obtained in liis or her absence, and that there was reasonable grounds for desertion.'' A judicial separation may be given on a petition for dissolution, at the prayer of the petitioner, although facts are proved 1 20 & 21 Vict., c. 85, s. 7. = /*., s. 16. 3 Matrimonial Causes Act, 1884, 47 & 48 Vict., c. 68, s. 5 ; and see Harding v. H. (1886), 11 P. D., Ill; Bigwood v. B. (1888), 13 P. D., 89. 4 20 & 21 Vict., c. 85, s. 22. 5 lb., s. 17. 8 lb. , s. 23, and rules 6-3-66 ; for procedure to obtain reversal, see Dixon on Divorce, 2nd ed., pp. 193-195. In order to obtain a reversal, it must be shown why the complainant was absent ; that, e.g., he was not wilfully and contumaciously absent ; and must further show the decree was wrong on the merits ; Phillifs v. P. (1866), L. R., 1 P. & M., 169. 354 JUDICIAL SEPARATION AKD PROTECTIOST Chap, viii sufficient to grant dissolution.^ Also it is the practice when a suit for dissolution fails owing to the petitioner not bringing sufficient evidence to warrant a dissolution, to grant a j udicial separation if the evidence is sufficient to entitle the petitioner to such a decree, e.g. where petition- ing wife sets up cruelty and adultery, and only proves the latter.^ But where the petition for dissolution fails, owing to a counter-charge being established against the petitioner amounting to an absolute or discretionary bar, it had been the practice to dismiss the petition and not to allow the petitioner to amend it into or to grant a decree of judicial separation ; ^ but in a recent divorce suit where the wife petitioned for dissolution, but her suit failed owing to desertion being established against her, Jeune, Pres., granted the wife a judicial separation.'' With a petition for judicial separation on account of the respondent wife's adultery may also be joined a prayer for damages against the adulterer.^ A decree of judicial separation may be subsequently turned into a decree for dissolution ; '^ and the mere fact that a husband or wife, although the facts of the case entitled the petitioner to a dissolution, elected only to obtain a decree for judicial separation, will not estop the petitioner sub- sequently obtaining a decree of dissolution. For instance, 1 Dent V. D. (1865), 4 Sw. & Tr., 105 ; or a decree nisi altered to Judicial separation ; Leiois v. L. (1892), P., 212, 213. 2 Keech v. K. (1868), L. R., 1 P. & M., 641 ; Fitzgerald v. F. (1869), L. R., 1 P. & M., 694 ; Buckmaster v. U. (1869), L. R., 1 P. & M., 713 ; Lodge v. L. (1890), 15 P. D., 159. 3 Bareham v B. (1866), L. R., 1 P. & M., 77 ; Lempriere v. L. (1868), ih., p. 569 ; Mijcoch v. J/. (1870), L. E., 2 P. & M., 98. i Duplany v. D. (1892), P. 53, distinguishiug Otwuy v. 0. (1888), 13 P. D., 12 and 141, C. A. 5 20 & 21 Vict., u. 85, s. 33 ; and .see Afason v. .1/. (1883), 8 P. D., 21, C. A. ; and Chap. \'ir, pp. 255-261. 6 As to tlie advisability of a spouse asking for judicial separation, see ante, Chap. VII, pp. 246, 247. Sec. I (6) JUDICIAL SEPARATION— PROCEDURE 855 a husband lias been guilty of adultery and cruelty, the wife obtained a judicial separation for his adultery ; he subsequently again committed adultery, whereon the wife obtained a decree of dissolution on the ground of the old cruelty and the new adultery.^ (c) Procedure "Application for judicial separation on any one of the groiuids aforesaid may be made by either husband or wife by petition to the Court." 2 Generally the procedure in petitions for judicial separa- tion is identical with that in petitions for dissolution of marriage, except that the decree is not by order nisi,^ but a decree absolute is given at once, which, however, may be reversed (see ante, p. 252) ; also, though the Court is to inquire into collusion, there is no power for the Queen's Proctor or any other person to intervene.* Also a suit for judicial separation (though not for dissolu- tion) may be tried in camera ; and where it is desirable for the sake of public decency that the investigation should take place in private, the public will be excluded.^ The same persons can petition for judicial separation as for dissolution, and the orders of the Court may be put in force and executed in the same way.^ Also witnesses are admissible, and evidence taken and weighed in the same manner as in a petition for dissolu- 1 Gmn V. O. (1873), L, R., 3 P. & M., 121 ; followed Mason v. J/. (1873), 8 P. D., 21, C. A. ; and see ante, p. 246. 2 20 & 21 Vict., c. 85, s. 17. But it cannot be tried at Assize.'!, 21 & 22 Vict., c. 108, s. 19 ; and see pp. 248, 355. 3 See Chap. VII, pp. 247-251. •> Y. V. Y. (1860), 1 Sw. & Tr., 598 ; see ante, p. 261. ■' C. \. 0. (1869), L. R., 1 P. & M., 640; A. v. A. (1876), L. R., 3 P. & M., 230 ; and see p. 248. 6 See Chap. VII, pp. 250, 251-255; and Ross v. R. (1869), L. R., 1 P. & M., 629. 356 JUDICIAL SEPARATION AND PROTECTION Chap, viil sion,i and the Court will draw a similar conclusion from evidence. As to the effect of the decree, see post, Chap. XIII, s. 5 ; as to decree against a clergyman, see «6., s. 7, p. 430. Sec. 2. — Bars to Decree'' (a) Adultery If the petitioner has been guilty of adultery, neither he nor she can obtain a judicial separation on the ground of any matrimonial offence committed by the respondent, whether cruelty, ho-wever aggravated, or adultery, or both, for the adultery of the petitioner is an absolute bar.^ Eccrimina- tion of adultery or compensatio criminiwn was always a bar to a divorce in the Ecclesiastical Courts.* But if the adultery of petitioner has been condoned, then such adultery is no bar to ju.dicial separation for a subsequent matrimonial offence by the other party.^ As to adultery as a bar to dissolution of marriage, see Chap. VII, s. 4 {b), pp. 288-292 ; as to adultery as a bar to restitution of conjugal rights, see Chap. X, pp. 374, 375. {h) Cruelty It seems also since the Matrimonial Causes Act, 1857, 1 See Chap. VII, pp. 305 and seq. - For practice of Eucle.siastical Courts, see Clarke's Praxts, tit. cxv. ; Ougliton, tit. cexiv. 3 Otioay V. 0. (1888), 13 P, D., 141, C. A. ; following Drummond v. n. (1861), 30 L. J., P. & M., 177 ; and see Grossi v. G. (1873), L. R., 3 P. &M., 118. ■» See this explained by Lord Stowell, Forster v. F. (1790), 1 Hag. Con., 144 ; and see Brisco v. B. (1824), 2 Add., 259. 6 Seller v. .S. (1859), 1 Sw. & Tr., 482, following Anichini v. A. (1839), 2 Cur., 210 ; and distinguishing Hope v. //. (1858), 1 Sw. & Tr., 94 ; and see post, Chap. X, p. 374, covipensatio criimnum, and overruling Lord Stowell's dicta in Beehy v. B. (1799), 1 Hag. Ec, 789, p. 797. In dissolution of marriage, adultery is a discretionary bar, and its condonation alone does not induce the Court to make a decree in the petitioner's favour ; see Chap. VII, s. 4, pp. 290-292, Sec. 2 (« JUDICIAL SEPARATION— BARS TO SUIT 357 a petitioner who has been guilty of cruelty, especially if such cruelty had led to the respondent's adultery, is barred from obtaining a decree of judicial separation. i As to cruelty as a bar to dissolution of marriage, see Chap. VII, s. 4 (c), pp. 292, 293. As to cruelty as a bar to restitution of conjugal rights, see Chap. X, p. 375. (c) Desertion It has been decided by Jeune, J., in a recent suit, that desertion proved against the petitioning wife was no bar to her obtaining judicial separation for the respondent's adultery. 2 {d) Separation Deed and Estoppel A separation deed is usually inconsistent with "deser- tion," and prevents a petitioner obtaining relief on that ground ; ^ and further, a separation deed usually contains a covenant not to sue, which amounts to estoppel ; * but in one case, where, after the execution of a separation deed, a husband sued for dissolution on the ground of the wife's adultery, which he failed to prove, but the respond- 1 Borelmm v. B. (1866), L. R, 1 P. & M., 77 ; Lempriere v. L. (1868), L. R., 1 P. & M., 569 ; but see Duplany v. D. (1892), P., 53. In the Eocle.siastical Court it had heen several tunes held that the cruelty of the petitioner cannot be pleaded in bar to a divorce a vieyisa et thoro for the respondent's adultery ; Eldred v. E. (1840), 2 Curt. , 376 ; Dillon V. D. (1842), 3 Curt. , 86, 92 ; Cocksedge v. G. (1844), 3 N. of C. , 218. 2 Duplany v. D. (1892), P., 53, not following the dictum of Lord Penzance in Lempriere v. L. (1868), L. R., IP. & M., 569 ; and Borelmm v. B. (1866), L. R., 1 P. & M., 77. Jeune, J., based his decision on the doctrine that in Ecclesiastical Courts even malicious desertion by the petitioner was no bar to him or her obtaining a divorce a inensa et thoro; Morgan v. M. (1840), 2 Curt., 679; Clowes^. C. (1845), 4 N. of C, 1 ; and see Chap. VII, pp. 295-297. 3 See Chap. VII, s. 5 [d), pp. 339-341. ^ See Chap. VII, s. 3 {g), pp. 284, 285 ; and for definition of Estoppel, see Chap. Ill, p. 130. 358 JUDICIAL SEPARATION AND PROTECTION Chap. Yin ent proved several acts of cruelty against him previous to the separation, the respondent was granted a judicial separation ; ^ and in a similar case a respondent wife, after dismissal of husband's petition for divorce, was granted a judicial separation for desertion because the separation deed contained no covenant not to sue, and no provision as to condonation.^ If the petitioner has entered into a compromise of the suit, such compromise is binding upon both parties, except in case of fraud or a gross mistake in the agreement. ^ (e) Delay Delay in itself is no bar to a suit for judicial separation ; but coupled with other circumstances it may show that the suit is not instituted for the protection of the peti tioner, but for some collateral purpose ; and if so, a decree will be refused.* (/) Connicance and Condonation. In the ecclesiastical courts connivance or condonation was a bar to a divorce a mensa et thoro, and therefore connivance or condonation (supposing the latter to be un- affected by " reviver ") proved against the petitioner is a bar to a judicial separation. As to what constitutes connivance, see ante, pp. 268-272 ; for condonation, see pp. 272-282. 1 Brown v. B. (1874), L. R., 3 P. & M., 202. 2 Moore v. 31. (1887), 12 P. D., 193. 3 Soojjer V. R. (1863), 3 Sw. & Tr., 251. 4 Matthews v. 31. (1859), 1 Sw. & Tr., 499; 3 Sw. & Tr., 161 ; distinguished Cooke v. C. (1863), 3 Sw. & Tr., 126, 246 ; and see the old Ecclesiastical cases, Ferrers v. J'. (1791), 1 Hag. Con. , 130 ; 3Iortimer v. 31. (1820), 2 Hag. Cou., 310 ; Walker v. W. (1813), 2 Phillini., 153 ; Best V. B. (1814), 2 Phillim., 161 ; RicJutrdson v. R. (1827), 1 Hag. Kc, 6 ; and see ante, p. 293. Sec. 8 PROTECTION ORDER 359 Sec. 3. — Protection Order A wife who is deserted by liei" liusband can apply to the Probate and Divorce Division for a protection order. ^ There is a concurrent jurisdiction vested in a Court of Summary Jurisdiction to grant protection orders, as to which, seej'osf, Chap, IX, pp. 361-364. For the grounds on which a protection order can be made, see post, Chap. IX, s. 2 (a), p. 361 ; and for its effect, see Chap. IX, s. 2 (6), p. 362, and Chap. XIII, s. 5. The application, when to the Probate and Divorce Division, may be made in writ- ing, and heard in Chambers ; and must be supported by affidavits ; ^ and the husband need not be cited.^ If the order has been obtained wrongly, i.e., fraudulently and by concealment of material facts, the husband may apply by motion to the Court for its reversal. ■* A protection order made against a clergyman is not an offence under the Clergy Discipline Act, 1892.* 1 20 & 21 Vict., 0. 8.5, s. 21 ; 21 & 22 Vict., c. 108, ». 6. - Rules 124, 197. 3 Ex parte Hall (18.58), 27 L. J., P. & H., 19; and see ex parte Sewell (1858), 28 L. J., P. « M., 8. ^ 20 & 21 Vict., c. 85, s. 21 ; 21 & 22 Vict,, c. 108, s. 6 ; 27 & 28 Vict., c. 44, rule 125 ; and see Mudge v. Adajiu (1881), 6 P. D., 54 ; Mahoney v. McCarthy (1892), P. 21. In both these cases the reversal of the protection order was obtained after the wife's death, and in order tliat the husband might obtain possession of her goods by his marital right, as against her executor. 5 55 & 56 Vict., c. 32, s. 1 ; and see Chap. XIII, s. 8. CHAPTEE IX MAGISTEPJAL SEPARATION 1. JuTiscliction of Police {c) affect of Order, . 366 Courts, .... 360 {d) Variation and Cessa- 2. Protection Order, . 361 tion of Order, 367 («) Grounds for Order, 361 i. Maintenance Order, 368 Desertion, . 362 (a) Grounds and Ajoplica- {h) Effect of Order, . 362 tionfor Order, 368 [c] Cessation of Order, 364 (i) Bar to Maintenance 3. Separation Order, . 364 of Order, 369 (a) Grounds for Order, . 364 (c) Effect of Order, . 369 Aggravated Assault, . 365 [d) Variation and Cessa- {b) Bar to Order, . 365 tion of Order, 370 Sec. 1. — Jurisdiction of Police Courts Besides the concurrent jurisdiction vested in the Probate and Divorce Division, a minor jurisdiction was conferred by the Matrimonial Causes Act, 1857, on a Petty Sessional or Police Court, i.e., on two or more Justices in Petty Sessions, or a Metropolitan and Stipendi- ary Magistrate sitting alone, to give limited relief to a wife who had been deserted by giving her what was called a protection order.^ The jurisdiction of the Police Court is not exclusive, for an application for a protection order may also be made to the Probate and Divorce Division.^ By the policy of the Legislature this jurisdic- 1 20 & 21 Vict., c. 85, s. 21; see ante. Chap. VIII, s. 3, p. 3.58; as to ground for and effect of protection order, sea post, pp. 361, 362, and Chap. XIII, s. 5. 2 20 & 21 Vict., c. 85, s. 21, and 21 & 22 Vict., u. 108, s. 6 ; and see ante. Chap. VIII, s. 3, p. 358. Sec. 1 JURISDICTIOSr OF POLICE COURTS 361 tion was increased in 1878 by the Matrimonial Causes Act, 1878, extending it to cases where the husband had been guilty of an aggravated assault on his wife, when the Court has power to make a separation order ; and further, in certain cases, to make an order by way of alimony and custody of children.^ And in 1886, by the Married Women (Maintenance in Case of Desertion) Act, 1886, a further jurisdiction was conferred on a magistrate in case of desertion of a wife by her husband, to malie an order in favour of such woman by way of alimony ; ^ such order being much more ample than the protection order, which, previous to that Act, was the only relief he could have given in case of a desertion. In all these Acts it is provided that the wife shall bo the complainant, and no remedy under them is provided in favour of a husband who has been deserted or assaulted by his wife. The application must be to the Police Court of the district in which the complaining wife resides.^ A separation (but not a protection or maintenance) order made against a clergyman is an offence under the Clergy Discipline Act, 1892 ; see jjost, Chap. XIII, s. 8. Sec. 2. — Protection Order* (a) Grrounds for Order The wife can apply in case she is deserted by her husband for an order to protect her subsequently acquired earnings and property ; and the Court, if satisfied that such desertion was without reasojiahle cause, and that the 1 41 Vict., c. 19, s. 4. For grounds and effect of separation order, see post, pp. 364-368. 2 49 & 50 Vict., c. 62. 3 R. V. /. /. of Plymouth (1880), 44 J. P., 168. * See ante. Chap. VIII, s. 2, p. 358 ; imipost, Chap. XIII. s. 5. 362 JIAGISTERIAL SEPARATION Cnip. IX wife is maintaining herself by her own industry and property, may make the order. ^ Desertion. — The grounds for the order must he " deser- tion '' in the proper sense of the word, not mere separation by mutual consent, or a going away by the husband to follow his business.^ Nay, further, the desertion con- templated by this section as the ground for a protection order, must go beyond the desertion as contemplated in the case of a petition for dissolution of marriage or judicial separation ; for in this section ' ' Desertion means, not only that the husband has absented himself, but has left the wife unprovided for ; and such desertion must continue at the time of making the order, and a hand fide offer of the husband to return and provide for his wife would take away her right to have such an order made." 3 {b) Effect of the Order ^ The protection order does not give the wife the right to any payment by way of alimony from her husband or release her from cohabitation ; it merely regards property, and it thus gives her her own, and the right to hold such property, and to sue and be sued like a. feme sole. In order to appreciate the effect of a protection order under the Matrimonial Causes Act, 1857, it must be remembered what was the state of the law previous to the Married "Women's Property Acts with regard to the property of married women who had no settlements ; see fwtfcjChap. IV, pp. 184-188. Since these Acts, which give a woman control over her own property, and the right to sue and be sued, and contract with regard to such separate 1 20 & 21 Vict, c. 85, s. 21. ■- Ex parte Aldridge (1858), 1 Sw. & Tr., 88. 3 Ccirrjill V. C, 1 Sw. & Tr., 235, per Lord Penzance, followed and approved j>/a/io»ei/ V. M'Garthy (1892), P., 21 ; and see ante, Chap. VII, o. 5 ((?), pp. 3-37-349 ; and post, s. 4 {a), p. 368, as to what is ' ' desertion. " J And hce Chap. XIII, s. 5. Sec. 2 (« PROTECTION ORDER 363 property (sec ante, pp. 188 and seq.), a protection order seems more or less useless and unnecessary. But now for the same ground of desertion, the wife has hesicles the protection order, the more ample remedy of a main- tenance order; &&& post, pp. 368-370. The Court was empowered to make "An order protecting lier (lawful) earning.? and property acquired since the commencement of such desertion from lier husband and all creditors and persons claiming under him, and such earnings and property shall belong to the "wife as if she were a/cme sole." The order is to be entered with the registrar of the County Court ; and if, after notice of the order, the hushand, or any creditor of the husband, seizes and holds any property of the wife, he will be liable to restore the specific property and double its value ; and during the continuance of the protection order the wife is to be in the same position as to property and contracts, suing and being sued, as if she had obtained a decree of judicial separation. 1 The order is to state the time when the desertion commenced. 2 The protection order bars the wife's right to pledge the husband's credit for necessaries.^ So to a poor wife a protection order was but little, if any, advantage, and now seems absolutely useless. For it did not relieve her from cohabitation, it did not compel the husband to pay her any alimony, and it did not permit her to pledge his credit ; it merely gives her her own property (if any), which 1 20 & 21 Vict., c. 85, s. 21 ; and 21 & 22 Vict., c. 108, s. 7. 2 21 & 22 Vict., c. 108, s. 9 ; the order is retrospective as to goods acquired since the desertion, but previous to the order. Goods of Ann Elliott (1871), L. R., 2 P. & M., 274. 3 Tempany v. Ilakewill (1858), 1 F. & F., 438 ; and see a,nte, Chap. IV, pp. 178-182, as to the wife's property and right to pledge the husband's credit for necessaries. 364 SFAGISTERIAL SEPARATION CaAr. IX is now efifected by the Married Women's Property Act, 1882. A protection order does not bar or preclude the wife from petitioning the High Court for a dissolution of marriage, or for a judicial separation, or from obtaining alimony in such suit.^ (c) Cessation of Ordefr Any husband or any creditor claiming under him may apply to the Court that the order be discharged ; ^ and if the order was obtained by the applicant wife having con- cealed material facts from the Court which granted the order, the order will be discharged. ^ But the reversal of the order is not to affect any valid interim contracts or deahngs with the wife's property.* Where, however, no one's rights can be affected, — that is to say, the only persons interested being the wife's executors and legatees, — the husband can apply even after the wife's death to have a protection order unjustly obtained discharged, and in such action obtain revocation of probate, and so obtain by his marital right, when available, and in those cases where the wife is not otherwise entitled to make a will, the whole of her personal property.^ Sec. 3. — Separation. Order (a) Grounds for Order In 1878 the Legislature conferred further jurisdiction on a Police Court to give a separation order to a wife who 1 Hakewill v. II. (1860), 30 L. J., P. & M., 254 ; and see Oillet v. G. (1889), 14 P. D., 158. 2 20 & 21 Vict., c. 85, s. 21 ; 27 & 28 Vict., c. 44. 3 Mahoney v. M'Carthy (1892), P., 21. J 21 & 22 Vict., c. 108, ss. 8-10. ■> JIiiAigev. Adams{lS81), 6P. D., 54 ; Mahoneyy. M'Carthy, xihisuii. Sec. 3 (a) SEPARATION" ORDER 365 had been assaulted by her husband, and to order against the husband payment of alimony to the wife, and to give over to the wife the custody of the children. The Matrimonial Causes Act, 1878, provided — " If a husband sliall be convicted summarily or otherwise of an aggra- vated assault within the meaning of the statute 24 & 25 Vict., c. 100, s. 43, upon his "wife, the Court or magistrate before "whom he shall be so convicted may, if satisfied th,at the future safety of the wife is in peril, order that the wife shall be no longer bound to cohabit with the husband ; " such order is subject to appeal to the Probate Division of the High Court.i Aggravated Assault. — An aggravated assault is defined as an assault on a female of such an aggravated nature that it cannot in the opinion of the Justices be sufficiently punished as a common assault.^ The Justices, on committing the husband for an aggra- vated assault, can grant a separation order without impos- ing a fine or imprisonment.^ (6) Bar to Order It was provided by the Act — " That no order for payment of money by the husband, or for custody of the children of the wife, shall be made in favour of a wife who shall be proved to have committed adultery, unless such adultery has been condoned."'* As to wliat is condonation of adultery, see ante, Chap. YII, pp. 272-282. It appears that this proviso does not bar 1 41 Vict. , c. 19, s. 4 ; and as to appealing, see Hetherinciton v. //. (1887), 12 P. D., 112 ; Powell v. P. (1889), 14 P. D., 177 ; Lewin v. L. (1891), P., 254 ; Grm-e v. 6. (1878), 14 Cox C. C, 200. 2 24 & 25 Vict., c. 100, s. 43 ; and see Holden v. King (1876), 46 L. J. Ex., 75. 3 Woods V. W. (1884), 10 P. D., 172 ; Powell v. P. (1889), 14 P, D. 177. 4 41 Vict., c. 19, s. 4. 366 MAGISTERIAL SEPARATION" Cnir. IX an adulterous wife who had he en assaulted by her husband getting an order that she should not he bound to cohabit to the effect above defined ; as to whether adultery even condoned would bar a' wife from obtaining a dissolution of marriage or judicial separation, see ante, Chaps. VII and A'lII, pp. 288-292, 356. It a^jpears that no other form of matrimonial misconduct except adultery is a bar to a separation order. Subsequent adultery is a ground for variation; see {d), p. 367. (c) Effect of Order The Court can ' ' order tliat the wife shall be no longer hound to cohabit with the husband ; and such order shall have the force and effect in all respects of a decree of judicial separation on the ground of cruelty ; and such order may further provide — 1. That the husband shall pay to his wife such weekly sum as the Court or magistrate may consider to be in accordance with his means, and with any means which the wife may have for her support ; and the payment of any sum of money so ordered shall be enforceable and enforced against the husband in the same manner as the payment of money is enforced rinder an order of affiliation. 2. That the legal custody of any children of the marriage under the age of ten years shall, in the discretion of the Court or magistrate, be given to the husband." ^ But the Justices are not obliged on convicting and giving the order to hear the husband's evidence as to his means.^ The amount of the weekly sum which the Court may order the husband to pay is not limited as it is under a maintenance order ; as to which, see pp. 369, 370. When it is provided that the payment of the money can be enforced as under an affiliation order, it thereby results that it can be enforced by distress, and in default of distress by imprisonment, and in that way only.^ 1 41 Vict., c. 19, s. 5. = Powell v. P. (1889), 14 P. D., 177. 3 See the Bastardy Acts, 4 & 5 Will. IV, c. 76, ss. 57, 71 ; 7 & S Vict., c. 101, ss. 4-8 ; 8 & 9 Vict., o. 10, ss. 3-9 ; 35 & 36 Vict., c. 65 ; 36 Vict., c. 9 ; 44 & 45 Vict., c, 24, s. 6 ; and fine post, Chap. XII, s. 3, p. 415. Sec. 8 W SEPARATION ORDER 367 If the Imsbaiid goes out of the jurisdiction and leaves no tangible goods that aie physically seizable, the wife is ■without remedy, however large be the husband's property in stocks and shares, etc., or hy way of interest under a settlement.^ But a magisterial separation in her favour does not preclude or stop the wife from applying for a petition to the Probate and Divorce Division of the High Court for a dissolution of marriage or a judicial separation, in which, of course, she will obtain alimony in the usual way ; and this will be indeed her only effectual course if the husband absconds. 2 (d) Variation and Cessation of Order ' ' The Court or magistrate by whom any siieh order for iiaynient of money shall be made, shall have power from time to time to vary the same on the application of either the linsband or the wife, upon proof tliat the means of the husband or wife have been altered in amount since the original order or any subsequent order varying it shall have been made ; " . . . and "anj^ order for the payment of money or for the custody of children may be discharged by the Court or magistrate by whom such order was made upon the proof that the "wife has since the making thereof been guilty of adultery. " ^ The appeal from the original order or from a refusal to discharge or vary is to the Probate and Divorce Division ; but the application to discharge must, in the first instance, be made to the Court which originally convicted.* On such application the Court should receive evidence as to the paternity of a child born more than nine months after the separation order.* Eeconciliation and resumption of cohabitation without any order put an end to the separation order, and its 1 Gillel V. 6. (1889), 14 P. D., 158 ; and see cases under the Bastardy Acts ; &\\ipost. Chap. XII, s. 3, p. 415. ^ See Gillet v. (?., uhi sup. ; and see ante^ p. 364. 3 41 Vict., e. 19, s. 4; and see R. v. Huggins (1891), W. N., 88. 4 EetMringtonY. H. (1887), 12 P. D., 112. 368 MAGISTERIAL SEPARATION Coap. IX validity ceases, and the payment of alimony due under it cannot be enforced even if they again separate.^ Sec. 4. — Maintenance Order (a) Grounds and Ai^plication for Order The Married Women (Maintenance in Case of Desertion) Act, 1886, empowered — " Any married woman wlio shall have been deserted by her hushand to summon her husband before any two Justices in Petty Sessions, or any Stipendiary Magistrate ; and thereupon such Justices or Magistrate, if satisfied that the husband, being able wholly or in part to maintain his wife and family has wilfully refused and neglected to do so, may " make a maintenance order. 2 The mere fact that husband and wife are living separate will not give the wife a right to maintenance ; there must be desertion. That is to say, the parties must have been living together when the desertion took place. If the wife left the husband, or if they separated by mutual consent or under some separation agreement or deed, then there is no " desertion." Nor, if the husband neglects or refuses to pay what he contracted to pay by a separation deed, does that constitute desertion, although in that case the wife can usually call on him to resume cohabitation ; and if he refuse, enforce it. Still even in this la.st case the refusal is not " desertion." ^ This Act gives a more ample remedy to a deserted wife as against her husband than a protection order (see ante, 1 Eaddon v. H. (1887), 18 Q. B. D., 778. 2 49 & 50 Vict. , Ki. 52 ; the procedure is assimilated to that in a .summons for assault. 3 Pape V. P. (1887), 20 Q. B. D., 76 ; R. v. Leresche (1891), 2 Q. B., 418 ; and as to what is desertion, see further, ante, s. 2 (a) p. 362, and Chap. VII, pp. 3.37-349 ; but the desertion is a question of fact for the Justices ; R. v. Binixistle (1889), 58 L. J., M. C, 158. Sec. 4 (a) MAINTENANCE ORDER 369 pp. 358, 359, 361-364), which previously was her only remedy. For although, on a hushand deserting his wife, the guardians could sue him on her becoming chargeable to the parish (see ante, p. 181), yet this did not allow the wife to sue. And if, on tlie wife having become cliarge- able, such an order has been made, and the wife sub- sequently leaves the Union, she may then obtain a main- tenance order against her husband.^ This Act is retrospective, being intended to cure an existing evil and to afford married women a remedy for desertion, wliether such desertion took place before the passing of the Act or not.^ (6) Bar to Maintenaiice Order ' ' Provided always that no order for payment of any such sum by the hushand shall be made in favour of a wife who shall be proved to have committed adultery, unless such adultery has been condoned." 3 As to what is condonation of adultery, see ante, pp. 272- 282 ; and see also pp. 290-292, 356, 365, 366, how far adultery or condoned adulbery is a bar to a dissolution of marriage, a judicial separation, or a separation order. Subsequent adultery is a ground for variation ; see p. 370. (c) Effect of Order The maintenance order that may be made by the Court is — " That the husband shall pay to the wife such weekly sum, not exceed- ing two pounds, as the Justices or Magistrate may consider to be in accordance with his means and with any means the wife may have for her support and the support of her family ; and the payment of any sum so ordered shall be enforceable and enforced in the same manner as the piayment of money is enforced under an order of affiliation." ■• 1 Kershuvj and K. (1887), 51 J. P., 646. 2 R. V. Bininstle (1889), 58 L. J., M. C, 158. 3 49 & 50 Vict., c. 52, s. 1 (2). 4 Ih., A. 1 (1). 24 370 irAGISTERIAL SEPARATIOX Cum-, ix The power of ordering maintenance and enforcing it is word for word identical with that of ordering money under a separation order, see ante, pp. 366, 367 ; except that a maintenance order is limited in amount to two pounds a week, and there is no power of giving custody of children to the wife. It would also seem hy analogy to the protection and separation orders that the maintenance order does not preclude the wife petitioning the High Court ; see ante, pp. 364, 367. It is not declared by the Act that a maintenance order is equivalent to a judicial separation, or that it relieves her from cohabitation ; so it would seem to follow that a husband could at any moment terminate the desertion, and require to be taken back into cohabitation ; and if the wife refuses she will be in default. {d) Variation aiwl Cessation of Order. '' The said Justices or Magistrate by whom any .such order for pay- ment shall be made, or other Justices or Magistrate sitting in their or his stead, shall have power from time to time to vary the same, on the application of either the husband or wife, npon proof that the means of the husband or the wife have been altered in amount since the original order, or any subsequent order varying the same shall have been made : " and "any order for payment of any such sum may be discharged by the Justices or Magistrate by whom such order was made, or other Justices or Magistrate sitting in their or his stead, npon proof that the wife, since the making thereof, has been guilty of adultery." i This provision as to variation or discharge of a main- tenance order is similar to that as to the variation or dis- charge of a separation order (see ante, pp. 367, 368), and it may be presumed that a maintenance order would also be terminated by resumption of cohabitation (see a7ite, pp. 367, 368). 1 49 & 50 Vict., c. 52, s. 1 (1) (2), and see s. 2. CHAPTER X EESTITUTION OF CONJUGAJ . KIGHTS AND JACTITATION 1. Restitution of Conjugal Insincerity/, . . 375 Rights, . . .371 Separation Deed, 376 {«) Cause of Action, 371 Offer to return to (6) Defences, . . .374 Cohabitation, . . 376 Denial of Marriage, . 374 io) Sentence, . . 376 Adultery, . 374 (d) Effect of Suit, . . 378 Cruelty, . 375 2. Jactitation of Marriage, 378 Sec. 1. — Eestitution op Conjugal Eights (a) Cause of Action Eestitution of conjugal rights is the proper Ecclesiastical remedy for desertion, for desertion in the Ecclesiastical Courts was not punishable in any other way ; see Chap. VII, pp. 295, 3.37, and Chap. VIII, p. 357. " lu this suit the marriage is pleaded by the party proceeding, and it is further alleged that the party proceeded against has witlidrawn from cohabitatiou, and the prayer is that the defendant, whether husband or "wife, shall be compelled to return to cohabitation, . . . This process has in a very few instances been resorted to for purposes resembling those sought to be attained by the Scotch proceeding of declarator of marriage, namely, with the view of trying the validity of a marriage respecting the legality of which some doubt may exist, and where there may be a chance that the witnesses to establish the same may, if the maiTiage be contested at a future time, be dead or not forthcoming." i Previous to 1891 it was considered to be the law that a deserted husband had a concurrent right of redress by 1 Ecclesiastical Courts Commission Report, 1831 (70), p. 43 ; 3 Bl. Com., 94 ; see Clerk's Instructor in the Ecclesiastical Courts, chap, iv., pp, 322-330. 871 372 CONJUGAL RIGHTS AND JACTITATION Ceat. X act of the party in seizing his wife ; hut in that year, where a hushand whose conduct was otherwise hlameless seized his wife when she refused to cohabit, the Court of Appeal released her by habeas corpus} The suit can only be instituted when the respondent has withdrawn from cohabitation in the same house. A suit cannot be instituted on the ground that the petitioner, though allowed by the respondent to reside in the same house with him, was denied access to his person and bed.^ For " the duty of matrimonial intercourse cannot be compelled by the Court, though matrimonial cohabita- tion may be."^ On the other hand, the fact that a respondent has supplied the petitioner with a suitable house and establish- ment and a sufficient income, is no answer to a petition for restitution if the respondent refuses to live under the same roof with the petitioner.* In this case Captain Weldon declined to cohabit with Mrs. Weldon. He had taken a furnished house at Acton, engaged two servants, offered to pay the rent as long as it was occupied, and continued an allowance of £500 a year, paid monthly. He also offered, if Mrs. Weldon preferred to live in any other neighbourhood, to endeavour to make arrangements to meet her wishes. Nevertheless, Mrs. Weldon was held entitled to have a decree for restitution enforced by attachment against Captain Weldon.* It is not necessary to aver the age of the parties.'' 1 n. f. Jaclcson (1891), 1 Q. B., 671, C. A.; aud see Dr. Liisliingtou's flicta in Lockwood v. L. (1839), 2 Curt., 281, pp. 301, 302 ; and see ante, Chap. IV, pp. 166, 167, 177, 178. Neither can a husbaud, agaiust whom an order for restitution has been made, force him.self into hi.s father-in- law's house ; Jlnrilimj v. JL (1886), 11 P. D., 111. 2 Orme v. 0. (1824), 2 Add., 382. 3 See J'orstej-v. F. (1790),! Hag. Con., 144, p. 154; andseermte, p. 171. i Jrelilon V. W. (1883), 9 P. D., 52 ; and sue post, p. 377. 3 Pool V. P. (1813), 2 Phillim., 119. Sec. 1 („) RESTITUTION OF CONJUGAL RIGHTS 373 Also in a suit for divoixe it was the practice of the Ecclesiastical Courts, if the suit failed for want of proof, to decree restitution ; i if the suit failed by reason of recrimination against the petitioner, the respondent was simply dismissed, and restitution not ordered.^ But under the present practice the respondent to a petition for dissolution cannot with her answer pray for restitution of conjugal rights.^ By the Matrimonial Causes Act, 1857, the jurisdiction of the Ecclesiastical Court was abolished and transferred to and vested in the Court for Divorce and Matrimonial Causes, and now to the Probate and Divorce Division of the High Court,* where relief is to be given on the same rules and principles on which the Ecclesiastical Courts acted. ^ Application for restitution of conjugal right is to be by petition to the Court, by either husband or wife." The petitioner must, previous to the institution of the suit, make a ^vritten demand on the respondent to return to cohabitation ; "^ this must not be a lawyer's letter, but written by the party personally in a friendly spirit.^ Also at any time during the suit, the respondent 1 Evans\. E. (1790), 1 Hag. Cou., 35, p. 129; Oliver v. 0. (1801), 1 Hag. Con., 361; D'Aguilar v. D'A. (1794), 1 Hag. Ec, sup. 773, p. 784 ; and see Westmeath v. W. (1827), 2 Hag. Ec., sup. 1, p. 62 ; but see Scott v. Jones (1842), 2 N. of C, , 36 ; a nullity for impotence suit, wliicl) failed. 2 Denniss v. D. (1808), 3 Hag. Ecc, 348, n., 353, n. ; Forster v. F. (1790), 1 Hag. Con., 144 ; and see Hope v. H. (1858), 1 Sw. & Tr., 94, cited ^os(, p. 374. 3 DrijsdaleY. D. (1867), L. R., 1 P. & M. 365. 1 20 & 21 Vict., c. 85, ss, 2, 6 ; see ante, Cliap. VII, pp. 238-242, for constitution of the Court. A petition for restitution cannot be heard at Assizes, 21 & 22 Vict., c. 108, s. 19 ; repealing partly, 20 & 21 Vict., c. 85, ss. 17, 18 ; and see ante, pp. 348, 355. 5 20 & 21 Vict., c. 85, s. 22. 6 S. 17 ; and see ante, Chap. VII, pp. 247, 248. ' Rule 175. s Field V. F. (1888), 14 P. D., 26, C. A. ; Smith v. S. (1890), 15 P. D., 11, 17, C. A, ; and see ex parte Sheehy (1876), 1 P. D., 423, 374 CONJUGAL RIGHTS AND JACTITATION CnAP. x on offering to return to cohabitation may liave it stayed. 1 In order to give jurisdiction to the Court, the husband must be either domiciled, or at least resident for some considerable time in England. ^ (6) Defences Denial of Marriage, Cruelty, or Adultery. — In defence the marriage may be denied, or the adultery or the cruelty of the petitioner pleaded in bar.^ Adultery of the petitioner is a bar to a suit for restitu- tion,* even although the respondent also may have been guilty of adultery.^ In this case the petitioner's adultery had not been condoned, and elsewhere dicta are to be found, that condoned adultery by a petitioner is not a bar to a suit for restitution.'^ That the respondent has previously set up the same facts to prove the petitioner's adultery in a suit for divorce, and failed to prove them, is a bar by way of 1 Rule 176 ; C, -others v. C. (1868), L. R., 1 P. & M., 568 ; but after '•failure to comply " with the decree, an offer to cohabit is too late ; Harding v. //. (1886), 11 P. D., 111. 2 Yeherton v. Y. (1859), 1 Sw. & Tr., 574 ; Firebrace v. F. (1878), 4 P. D., 63 ; Chichester v. C. (1885), 10 P. D., 186. 3 Ecclesiastical Commission Report, 1832, p. 43 ; Clarke's Praxis, tit. coxvi. ; Oughton, tit. ccxxvi. ; and see Grant v. G. (1754), 1 Lee, 692 ; Conran v. Lowe (1754), 1 Lee, 630, where in each case a Fleet marriage was set up ; and see Swift v. Kelly (1832), 4 Hag. Ec. , 139. ■• Owen V. 0. (1831), 4 Hag. Ec, 261 ; but actual adultery, not mere impropriety, must be set up ; Burroughs v. B. (1861), 2 Sw. & Tr., 303. 5 Hope V. B. (1858), 1 Sw. & Tr., 94 ; Sir Cresswell Cresswell's judgment, overruling and disregarding the Canon Law, and Oughton ; but see a contrary decision in Ireland, Seaver v. S. (1846), 2 Sw. & Tr., 665, where iu a case of " conipen.sation " it was held that an adulterous petitioner could obtain restitution against an adulterous respondent. 6 Anichini ■/. A. (1839), 2 Curt., 210, discussed in UTope v. H., ubi sup.; and see Bramwell v. B. (1831), 3 Hag. Ec, 618; Seller v, & (1859), 1 Sw. & Tr., 482, Sec. 1 (4) RESTITUTION OF CONJUGAL RIGHTS 375 estoppel to setting up again the same charges, by way of defence, to an action for restitution. i In such case whore the respondent sets up the petitioner's adultery, the respondent can ask for and if proved obtain a judicial separation. ^ As to erueltij, nothing could be offered in bar to a suit for restitution except what would be sufficient to entitle the re- spondent toadivorce incase she had sued setting upcruelty.^ StiU in one case the respondent wife was allowed to plead her ill-health, and that the petitioning husband lived in Ireland ;* in another, desertion by the petitioner;^ in another, antenuptial incontinency by the petitioner was suggested as a bar.^ But in another case the respondent husband was not allowed to set up his wife's insanity and a morbid hatred towards him in bar of her suit, for the insanity of the wife is no ground for the husband turning her out of doors.'' Insincerity. — The insincerity of the petitioner, and the fact that the motive of the suit is merely to obtain money, is no defence, and whatever the petitioner's motives may be, the Court is bound to pronounce for restitution.^ In fact, Lord Hannen, Pres., said — 1 Sopwith V. S. (1861), 2 Sw. & Tr., 160, explaining Moore v. M. (1843), 3 Moore P. C, 84 ; and see Carnegie v. C. (1886), 17 L. R. Ir., 430, C. A. ; and ante, Cliap. VII, pp. 285, 286, as to Estoppel. 2 Blackborne v. B. (1868), L. R., 1 P. & M., 563. s Eolmes v. If. (1755), 2 Lee, 116 ; Scott v. S. (1865), 4 Sw. & Tr., 113 ; but see Carnegie v. C. (1886), 17 L. R. Ir., 430, C. A. ; as what is cruelty and as what is reasonable cause for desertion, see Chap. VII, pp. 323-337, 346-349; as to how far the dismissal of a previous suit by the respondent, grounded on cruelty, amounts to an estoppel against raising it again, see Carnegie v. C, iibi sup. ; and see ante, Chap. VII, pp. 285, 286, as to Estoppel. i Molony v. M. (1824), 2 Add., 249. * Scott v. S., uhi sup. 1- Perrin v. P. (1822), 1 Add., 1, p. 4. ^ Hayward v. H. (1858), 1 Sw. & Tr. , 81 ; and see ante, as to insanity, pp. 328, 336, 337. » Simmons v. S. (1847), 5 N. of C, 324, p. 329. 376 CONJUGAL EIGHTS AND JACTITATION Chap. X "I must further observe tliat so far are suits for restitution of conjugal rights from being in truth and in fact what theoretically they purport to be, proceedings for the purpose of insisting on the fulfilment of the obligation of married people to live together, I have never known an instance in which it has appeared that the suit was instituted for any other purpose than to enforce a money demand. " i Separation Deed and Agreement not to sue. — A separa- tion deed, whether or not entered into as the compromise of existing litigation, or as a private arrangement between the parties, bars the right to sue for restitution. ^ Offer to return to Cohabitation. — The respondent, by offering at any time to return to cohabitation, may have the suit stayed ; ^ but not if the offer is not ionu fide or " after failure to comply " with decree when desertion is comp)lete.'' (c) Sentence The sentence of the Court is that the respondent husband shall, within a limited time fixed by the Court, take the wife home and treat her with conjugal affection, and mutatis mutandis where the husband sues ; ^ if the husband is respondent, after sentence it is his duty to take the first step by asking her to return to him." If the resiJondent neglects or refuses to obey the sentence, he or she would have been attached. Therefore, if either 1 Marshall v. M. (1879), 5 P. D., 19, p. 23. 2 Stanes v. S. (1878), 3 P. D., 42 ; Alarshall v. J/. (1879), 5 P. D., 19 ; Clark V. C. (1885), 10 P. D., 188, C. A. However, in Tress v. T. (1887), 12 P. D., 128, under special circumstances the petitioning wife was granted a decree for restitution notwithstanding she had entered into a separation deed covenanting not to take proceedings to compel cohabita- tion ; and see ante, pp. 200, 228, 271, 284, 339, 357, as to separation deeds. s Eule 176 ; and see Crothers v. C. (1868), L. E., 1 P. & M., 568. « 47 & 48 Vict., c. 68, s. 5 ; Ifunlinfj v. JI. (1886), 11 P. D., Ill ; and see ante, pp. 344-346. 5 Orme v. 0. (1824), 2 Add,, 382. The Clerk's Instructor in the Ecclesia-stical Courts, p. 327 ; Dalrymple v. D. (1811), 2 Hag. Con., 54, p. 137 ; and see the recent case of JIawtrey v. //., reported in the daily papers for July 6, 1892. « Alexander v. A. (1861), 2 Sw. & Tr., 385. Sec. 1 « RESTITUTION OF COXJUGAL RIGHTS 377 spouse refused, without just cause, to live with, the other, the complaining deserted spouse could either compel the other to live with him, or have her imprisoned until she consents to cohabit. The Court had no power of releas- ing the respondent except upon obedience. The attach- ment was not in the discretion of the Court, but ex cleMto justitix to enforce the legal rights of the husband.^ In one case a husband was imprisoned for three years in the county gaol of Salop, and then only released because it appeared he had a good defence (the petitioning wife's elopement and adultery, which he had neglected to plead) ;'^ in another, a wife was imprisoned in Norwich gaol for a year, and her application to be released refused. ^ But in 1884 the Matrimonial Causes Act, 1884, en- acted that from and after the passing of the Act a decree for restitution of conjugal rights shall not be enforced by attachment;* but in case of non-compliance the respondent may be ordered to pay money in the nature of alimony or mamtenance to the petitioner (s^Qpost, Chap. XI, s. 2); and also such disobedience amounts to " desertion " (see Chaps. VII, p. 344, and A^II, p. 353) ; and an offer by respondent to cohabit after time for compliance had expired is unavail- ing, as desertion is complete.* But the Act does not apply to Ireland." So a decree for restitution of conjugal rights may there still be enforced by attachment ; see Chap. XIX, s. 2 [a). The Matrimonial Causes Act, 1884, also empowers the Court in case of non-compliance by respondent to make orders as to custody of children ; see post, pp. 393, 404. 1 Barlee v. B. (1822), 1 Add. Ec, 301 ; L,iUn v. L. (1854), 1 Spinks, Ecc. & Add., 274 ; Scott v. 8. (1865), 4 Sw. & Tr., 113 ; Weldon v. ir. (1883), 9 P. D., 52. - Laldn v. L., ubi sup. ^ Barlee v. B., vM siij). ■1 47 & 48 Vict., 0. 68, the Act is retrosiwctive ; Weldon v. W. (1885), 10 P. D., 72. = Ilarding v. 11. (1886), 11 P. D., 111. 6 47 & 48 Vict., c. 68, s. 7. 378 CONJUGAL RIGHTS AXD JACTITATION Cdap. x (d) Effect of Suit The institution of a suit for restitution usually shows that there is no fear in the petitioner of cruelty by the respondent, and it usually amounts to condonation ; but like other condonation, it is subject to reviver by subsequent offences.i A decree for restitution made against a clergy- man is not an offence under the Clergy Discipline Act, 1892; see post, Chap. XIII, s. 8. Sec. 2. — Jactitation of Mareiage This suit is analogous to a libel action ; but brought in the Ecclesiastical Court the remedy being not in damages, but by way of injunction. The cause of action, i.e., the quasi libel complained of, is that one of the parties boasts or gives out that be or she is married to the other, whereby a common reputation of their matrimony may ensue. Unless the respondent sets up and proves a marriage, and there are no acts by the petitioner amount- ing to an estoppel, the respondent will be enjoined per- petual silence on that head.^ Suits for jactitation were very familiar in the Ecclesiastical Courts till 1770, when they were brought into disrepute by the celebrated trial of the Duchess of Kingston for bigamy in the House of Lords,^ and the action has now fallen into disuse ; '^ 1 AWlil V. iX. (1831), 4 Hag. Ec, 263, p. 268 ; Evans v. E. (1843), 2 N. ot C, 470, p. 473 ; Wilson v. IF. (1849), 6 Moore P. C, 484, where it was held not to be condonation ; and see ante. Chap. VII, pp. 276, 277. 2 3 Bl. Com., 93 ; Oughton, tit. 194-197 ; Clarke's Praxis, tit. cviii.- cxi. ; Shelford on Marriage and Divorce, pp. 582-586. The Clerk's Instructor in the Ecclesiastical Courts, chap. iv. , pp. 369-375. 3 See Walton, v. Rider (1752), 1 Lee, 16, n. ; but there are two later cases in which Jewish marriages were, according to the evidence of their own rites, held invalid in such suits ; Lindo v. Belisario (1795), 1 Hag. Con., 216 ; Goldsmid v. Bromer (1798), 1 Hag. Con., 324 ; and see au Irish case. Bodkin v. Case (1835), Milw. , 355, 356 ; and see West- combe v. Dods (1752), 1 Lee, 59. ■* But see the recent case of Thompson v. Itourke (1892), P., 254, C. Sec. 2 JACTITATION OF MARRIAGE 379 although in 1862 an attempt was made to revive such a suit by petitioner complaining of a boasted marriage with his mother. But there being no precedent for the insti- tution of such a suit by any one except the parties to the boasted marriage, the suit was dismissed. ^ The institution of such suit was another way of trying the validity of the marriage besides the suit for a declaration of nuUity, see ante, Chap. VI, jj. 227 ; but the decree of silence given thereon was not so conclusive as a decree of nullity.^ Suits for jactitation are now, by the effect of Matrimonial Causes Act, 1857, and the subsequent Acts, transferred to the Probate and Divorce Division, where they must be tried on the same principles as formerly in the Ecclesiastical Courts.-^ There are three defences, first, a denial of the alleged boasting ; secondly, an admission of the boasting, but that it is true in that a marriage has actually passed, when the proceedings assume the shape of a suit for nullity and restitution of conjugal rights, or an inquiry into the fact and validity of the alleged marriage, ■^^'hereon the Court would either pronounce nullity and enjoin silence, or on proof of the marriage order the accuser to return to matri- monial cohabitation ; a third defence is by way of estoppel, that although there is no marriage the complainant has fully authorised the boasting by publicly, officially, and con- tinually treating the respondent as his acknowledged wife.'' There is no power in a suit for jactitation to make an order for alimony or custody of children.^ A. ; and see a report of a proceeding in this suit in the Times for 1892, July 14, p. 14. Also on the trial of Richard Dames for bigamy, at Devon Assizes, it was stated that the prisoner had instituted a suit for Jactitation, Times, April 22, 1885, p. 10. 1 Campbell v. Corlay (1862), 31 L. J., P. & M., 60. 2 Duchess of Kingston's case (1776), 20 St. Tr., 355 ; and see ante, Chap. Ill, p. 130. 3 20 & 21 Vict., 85, ss. 2, 6, 22. ■1 Lord Stowell's judgment, Hawke v. Corn (1820), 2 Hag. Con., 280, 5 Thompson v, Roiirke, uU sup. CHAPTEE XI INCIDENTS OF DIVORCE, ALIMONY, VARIATION OF SETTLEMENTS, CUSTODY OF CHILDREN ^ Alinioiiy and Mainteu- (a) Genercd, 392 ance. 380 ib) Payment hy Husband (n) General, 380 to Wife, 393 Enforeeineiit of Ali- (c) Payment by Wife to mony, 381 Husband, 393 (6) Alimony &r Mainten- 3. Penalties on Guilty ance pendente lite, 383 Wife, .... 394 Frojiort ionate Amount, 384 4. Variation of Settlements, 396 Cessation, 385 (rt) Power of the Court, 396 (c) Permanent Aliinnny, . 385 (b) Principles and Pm- J'rojmrtion allotted, . 386 pm-tions of Division, . 398 Guilty Wife, 387 Guilty Resjjondent, . 398 Cessation, 3S7 Innocent Petitioner, 399 {d) Permanent Mainten- Pespondenfs oicn ance, 387 Fortune, . 400 Power of Court, . 387 (c) Condition of Chastity, 402 Proportion allotted 5. Costs, . 402 innocent Wife, 390 6. Custody of Children, 404 Proportion allotted (a) General, 404 cjuilty Wife, ■ 390 (6) In the innocent Peti- Forfeiture on Jiemar- tioner, .... 406 riage or Vnehastity, 391 (c) In the guilty Respond- Payment in lieu of ent, .... 407 Restitution of Con- (d) In a Third Party, . 407 jugal Riglits, 392 Sec. 1. — Alimony and Maintenance (a) General Alimony or maintenance is paj^ahle by a hu.sband to a wife ; it is never payable by a Y'ife to a Imsband. 1 Tlie practitioner is referred to Dixon ou Divorce, 2ud ed., chaps, xi. and xii. 380 Sec. 1 (a) ALIMONY AND MAINTENANCE 381 Any pecuniary penalty on a guilty wife is provided for in case she is wealtliy under s. 3, p. 394, or by variation of settlements ; see s. 4, pp. 396-402. Further, by a recent legislation, which abolished the penalty of attachment for disobeying an order for restitution of conjugal rights, a wife who refuses to cohabit with her husband may be obliged to make him an allowance; see s. 2, pp. 392-394. Maintenance, interim or permanent, is ordered in suits for dissolution ; alimony, in suits for judicial separation. In nullity suits when the marriage is declared null and void, there is no power to order either permanent alimony or maintenance, and on the decree absolute slmionj pendente lite ceases (see post (6), p. 385); but if there are issue of such void marriage, the Court can provide for them, and thereby for their mother.^ Alimony and maintenance is always proportionate to the husband's means, and therefore it is incumbent on the wife seeking alimony to show what the husband's means are ; and the husband may disprove her estimate by giving evidence that it is too high, or that it is subject to large necessary deductions. Enforcement of Alimony. — In order that a wife may not, after being ill-treated, be subsequently pauperised, it is most important that adequate alimony or maintenance should be allotted ; and that the proper payment to her of the amount so ordered should be secured and enforced. If the wife is entitled to alimony, the means for her recovering and enforcing it should be in every way facilitated. When the husband is petitioner, the wife usually finds little difficulty in obtaining payment of alimony, as the husband is before the Court. Cut when ^ Langworthy v. L. (1886), 11 P. D., 85, C. A.; and see jpost, ». 6, p. 404. 382 INCIDENTS OF DIVORCE Chap, xi tlie wife is the petitioner, it often happens that the hushand who has committed a matrimonial offence not only personally leaves the jurisdiction, hut removes or alienates his property so as to defeat the just claims of his wife. It was the old practice of the Court of Chancery to aid the order for alimony given by the Ecclesiastical Court by granting, as against the husband personally, writs 7i6 exeat regno so as to prevent him leaving the jurisdiction,^ and injunctions to prevent him removing or alienating his property,^ or if he did, it would set aside the deed.^ The Probate and Divorce Division has now full power, however, of enforcing its own order (see Chap. Til, pp. 250, 251) ; and a charging order on stock can be obtained.* But the more recent decisions have been adverse to the wife's claims ; in one case refusing attachment against a husband for non-payment of the arrears of permanent maintenance,* in another refusing an injunction to restrain a husband from removing his property from the juris- diction." Alimony cannot be proved for in bankruptcy,'' nor can 1 See Pearne v. Lisle (1749), Ami)., 75 ; Anon (1741), 2 Atk., 210 ; Head v. H. (1745), 3 Atk., 293, 547 ; ex parte Whitmore (1750), 1 Dick, 143; Roebuck v. R. (1787), 2 Coop. t. Cot., 251, where Lord Eldon, L. C. , said he was bound by authorities to grant writ of ne exeat regno ; and Haffey v. H (1807), 14 Ves., 261, and cases there noted; and Vandergucht v. De Blaquiire (1838), 8 Sim, 315 ; 5 My. & Cr., 229. ■2 Anon {1721), 9 Mod., 43. 2 BUnkinsop v. B. (1849), 10 Beav., 277 ; 12 Beav., 568 ; 1 De G,, M. & G., 495. ■< Holden, ex parte (1863), 13 C. B., N. S., 641 ; Ricketts v. R. (1891), W. N., 29 ; Clarke v. C. (1873), L. R., 3 P. & M., 57. 5 De Lossy v. De L. (1890), 15 P. D., 115. "Newton v. X. (1885), 11 P. D., 11, distinguishing, but inexactly quoting, Noakes v. N. (1878), 4 P. D., 60. T Linton Y. L. (1885), 15 Q. B. D., 239, C. A.; ex parte Henderson (1888), 20 Q. B. D., 509, C. A. Sec. 1 (n) ALIMONY AND MAINTENANCE 383 it be sued for and judgment signed under Urder XI Y/ nor is it assignable.^ The enforcement of orders and execution is matter of practice lying outside the scope of this "work,^ nor is it proper here to canvas the correctness of these latter decisions ; but it is a question of natural justice whether a wife who has been ill-used, insulted, and deserted should be subject to the further injury of being reduced to penury by the successful fraud of her husband ; and if the present powers of the Court are insufficient, it should be matter of legislation to improve its process so as to prevent substantial injustice. ( b) Alimony and Maintenayice pendente lite. It was the old established practice of the Ecclesiastical Courts in suits for divorce a mensa et thoro, or for restitution of conjugal rights, to grant alimony pendente lite; and by s. 22 of the Matrimonial Causes Act, 1857, this is continued with regard to petitions for restitution or judicial separation. Also in suits for nullity the Ecclesiastical Courts, as soon as a marriage de facto was admitted, allotted alimony pendente lite till the marriage was declared null and void.* This practice by s. 22 of the Matrimonial Causes Act, 1857, is binding on the present Court in suits for nullity, and such alimony continues till the decree absolute.'' Insuits for jactitation there is no power to order alimony.'' 1 Bailey v. B. (1884), 13 Q. B. D., 855, C. A. 2 Re Robinson (1884), 27 Oh. D., 160, C. A. 3 See Dixon ou Divorce, chaps, xi. and xii. ; and see Edwards on Execution, and Anderson on Execntion. ■» See Bird v. Bell (1753), 1 Lee, 209, 621 ; JUarl of Portsmouth v. Countess of Portsmouth (1826), 3 Add. Ec, 63. 5S. V. B. (1884), 9 P. D., 80; and see ante, Chaps. V and VI, pp. 214, 225. 6 Thompson v. RourM, the Times, 1892, July 14, p. 14. 384 i:N"CIDEjSfTS OF DIVORCE Chap. XT Also " upon any petition for dissolution of marriage the Conrt shall have the same power to make interim orders for payment of money, by way of alimony or otherwise, as it would have had in a suit instituted for judicial separation, "i But whether the suit he for dissolution of marriage or for judicial separation, interim maintenance or alimony pendente lite is applied for and given on the same principles and on the same proportions ; and in this section hoth are referred to as alimony. The petition for alimony as a matter of practice lies outside this hook, hut it may he said that alimony cannot he allotted till a marriage (or in case of a suit for nullity, a marriage de facto) is admitted or proved.^ Proportionate amount. — Alimony pendente lite is an interim arrangement granted and ordered on the ground of necessity only on the supposition that the wife has no other means of support. So where the hushand has only £60 per annum and the wife had a sum of £70 in her hands, she was refused alxiaoTij pendente lite.^ Also, where the parties have lived separate for many years, the wife supporting herself hy her own exer- tions,* or under money paid by the husband under a separation deed,^ or where the wife was actually living with and supported hy the co-respondent, alimony pendente lite Avas refused.^ The proportion allotted to the wife hy way of alimony pendente is usually about a fifth of the husband's income ; 1 20 & 21 Vict., c. 85, s. 32. = See rules 81-94, 189-192, 204, and Form 13, and the cases, Smyth V. S. (1824), 2 Add., 2.54; MUcheUx. M. (1853), 1 Spinks, Ec. & Add., 102 ; Ellis v. E. (1880), 8 P. D., 188, C. A. ; and see Dixon ou Divorce, 2nd ed., chaps, xi. and xii. 3 Coowhs V. C. (1866), L. K., 1 P. & M., 218. 4 Barrows v. B. (1867), L. B., 1 P. & M., 553 ; Georc/e v. G., ih. :' Powell V. P. (1874), L. R., 3 P. & M., 55, 186, decided by the full Court. 6 Holt V. //. (1868), L. R., 1 P. & M., 610. s..;c. I (« ALIMONY AND MAINTENANCE 385 but this proportion is regulated by circumstances, i " The wife during the pendency of the suit must be presumed not to be guilty, yet she is not to live in the same way as if she were exempt from any imputation. She is, as it were, under a cloud, and should seek privacy and retirement."! And where the wife is admittedly guilty of adultery, and the only question at issue, as to which she has appealed, was whether or not the husband also had been guilty of adultery, no more alimony than will suffice for a mere subsistence will be allotted. ^ Cessation of Alimony pendente lite. — Alimorxj pendente lite ceases on the decree absolute, and it also usually ceases on the wife being found guilty of adultery ; though the Court in its discretion can make an order for its continu- ance if it thinks that the wife wiU obtain a new trial and show her innocence.^ Except on a finding of adultery it continues, pending her appeal, notwithstanding, say, a find- ing of collusion, or the intervention of the Queen's Proctor. * Where the petition is for nullity, the alimony pendente lite ceases on the decree nisi being made absolute.* (c) Permanent Alimony In cases of judicial separation and restitution of con- jugal rights, the Matrimonial Causes Act, 1857, provided that where the application was by the wife the Court might make any order which might be deemed just for the payment of alimony to the wife.^ 1 Hawkes v. II. (1828), 1 Hag. Ec, 526. 2 Stcme V. & (1845), 4 N. of C, 274. 3 Whitmore v. IV'. (1866), L. R., 1 P. & M., 96 ; Noblett v. N. (1869), L. E., 1 P. & M., 651 ; Dunn v. D. (1888), 13 P. D., 91, C. A. 4 Jones V. /. (1872), L. E., 2 P. & M., 333 ; ButUr v. B. (1889), 15 P. D., 13. = S. V. B. (1884), 9 P. D., 80. 6 20 & 21 Vict., c. 85, s. 17, and see s. 22 ; s. 32 refers to mainten- ance on dissolution. The rules thereon are 81-94, 189-192. 25 386 INCIDENTS OF DIVORCE Chap. XI In allotting permanent alimony, the Court is bound by the practice and rules of the old Ecclesiastical Courts. 1 A petition for permanent alimony may be filed after the final decree for judicial separation. ^ A separation deed executed between husband and wife usually bars the wife's right to permanent alimony ; the Court has no jurisdiction to vary the deed (as it would have in case of dissolution of marriage, see post, s. 4, p. 397) ; and so, as it cannot release either of the parties from their obligations under the separation deed, and these obligations continue, the Court will not add to them except under special circumstances, by ordering permanent alimony.^ The Court has power to order the husband to pay the alimony ; it cannot order him to secure the alimony on his property, as it can do with regard to permanent mainten- ance.* Alimony may be paid either direct to the wife or to a trustee on her behalf.^ Where a husband fails to pay alimony, the wife can pledge his credit, and he will be liable for necessaries supplied to her.^ As to tlie proportion of the alimony, the ordinary rule of the Ecclesiastical Courts, by which the Court is bound, was to allot to the wife a third of the husband's income ; but in no case could more than a half be allotted, even though the wife brought more than a moiety into settle- 1 Haigh v. H. (1869), L. R., 1 P. & M., 709. 2 Covell V. C. (1872), L. R., 2 P. & M., 411. " Oandy v. G. (1882), 7 P. D., 77, 168, C. A. 4 Hunt V. H. (1883), 8 P. D., 161 ; and se&post (d), pp. 388, 389. 5 20 & 21 Vict., c. 85, =. 24. 6 /&., s. 26 ; as to the husband's ordinary liability for necessaries supplied to the wife see ante, Chap. IV, pp. 178-182. Sec. 1 M ALIMONY AND MAINTENANCE 387 ment, and under the settlement the income of the whole of the property was receivable by the husband, i Permanent alimony is always larger than alimony pendente lite.^ Guilty Wife. — The Court has jurisdiction to order permanent alimony to be paid to a guilty wife ; and when the judicial separation is granted on account of the wife's cruelty, the Court usually will order the husband to pay her alimony.^ Cessation. — Permanent alimony stops if husband and wife return to cohabitation.* (d) Permanent Maintenance Power. — "Tlie Court may, if it shall think fit, on any such decree (for dissolution of marriage) order that the husband .shall, to the satis- faction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of her husband, and to the conduct of the parties, it shall deem reasonable ; and for that purpose may refer it to any of the conveyancing counsel of the Court of Chancery to settle and approve of a proper deed and instrument to be executed by all necessary parties ; and the said Court may in any svich case, if it shall see fit, suspend the pronouncing of its decree until such deed shall have been duly executed." ^ The procedure is that a separate petition for mainten- ance is presented by the wife after the decree nisi, stating what the husband's means are. This is served on the husband, and the husband must answer on oath ; and 1 Eaigh v. H. (1869), L. E., 1 P. M., 609. If the income of the wife's property had been payable to the wife for her separate use, she would, notwithstanding the judicial separation, have retained it, as in judicial separation there is no power to vary settlements ; see^osi, ss. 3 and 4. 2 Kempe v. K. (1828), 1 Hag. Ec, 532. 8 Oooden v. G. (1892), P., 1, C. A., following Prichard v. P (1864), 3 Sw. & Tr., 52-3. 4 Per Lord Esher, Linton v. L. (1885), 15 Q. B. D., 239, p 245, C. A., followed Haddon v. H. (1887), 18 Q. B. D., 779. 5 20 & 21 Vict., c. 85, s. 32. 388 IlSrCIDENTS OF DIVORCE Chap, xi evidence is given as to the husband's means before the registrar. The registrar then makes a report as to what amount the husband should secure, and the judge con- firms or varies the registrar's report by his order, i This order is again referred to the registrar, as to how the amount ordered should be secured, and the deed is settled by the conveyancing counsel to the Court, and an order is made that the husband should execute it ; and if he does not he may be attached, and the deed executed by an officer of the Court. ^ This Act enables the Court to " secure " to the wife a gross sum, or an annuity for her life to the wife, but not to order payment.^ The usual order is for an annual sum, but sometimes a gross sum is ordered ; and if so, the wife receives it out and out as her absolute property.* An order for permanent maintenance made under this power is final, and cannot be varied.^ As a general rule, the Court will not interfere with reversionary interests, except under special circumstances, where, for instance, it would be impossible otherwise to secure a provision for the wife.^ And further, by way of supplementing the power in the first Act, the Matrimonial Causes Act, 1866, after reciting in the preamble that — ^ Rules 95-103, 204; ClmrUs v. C. (1866), L. R, IP. k M., 260. The petition for maintenance may be filed after the decree absolute ; Bradley v. B. (1878), 3 P. D., 47 ; and see Dixon on Divorce, 2nd ed., chaps, xi. and xii. 2 Uowarth v. //. (1886), 11 P. D., 68, 95. 3 Medley v. M. (1882), 7 P. D., 122, C. A. In permanent alimony the Court has no power to " secure " it on the husband's property, but only to order him to pay ; see ante (c), p. 386. ■> Lister v. L. (1889), 14 P. D., 175 ; 15 P. D., 4, C. A. ; in Uowarth V. H. (1886), 11 P. D., 68, 95, the wife was allotted the gross sura of £9100. ■s Rawlins v. R. (1865), 4 Sw. & Tr., 15S. 6 narrison v. H. (1887), 12 P. D., 1-30, 145. Sec. 1 to) ALIMOXY AND MAINTENANCE 389 "It sometimes happens that a decree for dissolution of marriage is obtained against a husband who has no property on which the payment of any such gross or annual sum can be secured, but nevertheless he would be able to make a monthly or weekly payment to the wife during their joint lives ;" enacted that "in every such case it shall be lawful for the Court to make an order on the husband for payment to the wife during their joint lives of such monthly or weekly sums for her maintenance and support as the Court may think reasonable : provided always that if the husband shall afterwards, from any cause, become unable to make such payments, it shall be lawful for the Court to discharge or modify the order, or temporarily to suspend the same, as to the whole or any part of the money so ordered to be paid, and again to revive the same order, wholly or in part, as to the Court may seem fit."^ It is only where by reason of the husband having no property, either in England or abroad, no order can be made under the former that the latter Act can be resorted to, or in other words, there is no jurisdiction to proceed under the latter Act if the husband has means. There- fore it is not alternative to the petitioner or the Court to proceed under the former or latter Act, but they must proceed under the former if possible ; neither can the order be made in the alternative, that the respondent should either secure maintenance or pay an annual or monthly sum.- Still the provisions of this Act do not apply exclusively to the case of poor men, but include professional men and merchants in receipt of large incomes by way of fees or trade profits, although such husband have either no capital, or their capital is so locked up in trade that it would " not be easy to secure upon it a fixed sum without doing that which, of course, it is most desirable not to do, namely, to destroy the very means by which the trade is carried on." So the Court may order sums of considerable amount to be paid weekly or monthly, and may from 1 29 & 30 Vict., c. 32. 2 Medley v. M. (1882), 7 P. D., 122, C. A. 390 mCIDENTS OF DIVORCE Chap, xl time to time modify the order. In this case the husband was a diamond merchant making large hut varying profits, £18,000 in one year, and nothing for several years, hut on a reputed average of £1700 per annum, and the Court ordered a month]}' payment to the wife at the rate of £500 per annum.^ A separation deed (which the Court has jurisdiction to vary, see post, s. 4 (a), p. 397) does not bar the right of wife to permanent maintenance as it would to perma- nent alimony.^ Proportion allotted to an innocent Wife. — The amount payable to an innocent wife is usually about a third of the husband's income ; ^ the same principles given being applicable as in permanent alimony.* For instance, the petitioner was only seventeen at the date of the marriage ; she had no property, and the husband had £560 per annum ; the marriage was dissolved for his cruelty and adultery ; there were no children, on which facts mainten- ance was ordered at the rate of £195 per annum.^ Guilty Wife. — As to giving permanent maintwiance to a guilty wife, the Master of the Rolls, Sir G. Jesse], laid down — "The, practice seems to liave grown up of not allowing maintenance to the guilty wife unless a special case is shown. I am not prepared to say on the present occasion that this is the correct rule. I am not going to lay it down that it is not so. I should require further consideration and argument before doing so, but it appears to me that the 32nd 1 Jardine v. /. (1881), 6 P. D., 213, decided by the full Court of Divorce. 2 Mnrrallv. M. (1881), 6 P. D., 98; as to permanent alimony, see ante (c), p. 386. 3 See Jardine T. J. (1881), 6 P. D., 213, £500 out of £1200 per annum ; Sarrison v. //. (1887), 12 P. D., 130, 145, £110 out of £400 per annum. 4 Sidnei/ v. S. (1865), 4 Sw. & Tr., 178. 5 Lister v. L. (1889), 14 P. D., 175 ; 15 P. D., 4, C. A. Sec. 1 (rf) ALIMONY AND MAINTENANCE 391 section of the Act has left an absolute discretion in the Court. I think there was good reason for doing so. Wlien a divorce could only be obtained by Act of Parliament, it was in practice only obtained by wealthy persons, because it was very expensive, and it might well be considered right that where a wealthy man had obtained a divorce from a wife who had no means of subsistence, he should, as a condition of being granted that divorce, be compelled to make some provision for her, so that she should not be allowed to starve. But the Divorce Act was meant to apply, not only to wealthy people, but to all people, and, indeed, one of the strong grounds for passing it was that under the then system, the wealthy alone could obtain a divorce. It was thought that this was not a right state of things, and consequently the remedy was made less expensive, so that all classes might be able to resort to it. Now in the case of people of small means very different considerations arise. When a working man who has married a washerwoman obtains a divorce, she can very well go washing again. This is quite a different case from that of a gentleman of large means who obtains a special privilege by Act of Parliament. I should be inclined to say that where a wealthy gentleman obtains a divorce, the Court, in acting under s. 32 (of the first Act), ought to act on a rule somewhat similar to that established in the House of Lords under the old practice, for the reason of the thing appears to be the same ; but we are not to be considered as finally deciding the point, or as laying down any rule for the guidance of the Divorce Court. I am only stating my present impression, that the Court, under s. 32, has full discretion, and is under no obligation to require special circumstances to be shown to entitle the guilty wife to some provision." But in this case the wife, having been, not only guilty, but vexatious in conducting her litigation, was refused permanent maintenance. ^ And in a recent case permanent maintenance was given to a guilty wife at the rate of 15s. per week. 2 But when the wife is guilty, at most a mere subsistence will be allowed.^ Foi-feiture on Remarriage or Unchastity. — A clause limiting the maintenance to the wife, dum sola et costa 1 Rohertson v. R. (1883), 8 P. D., 94, C. A. Further, under variation of settlements it frequently happens that a guilty wife is not deprived of her entire interest in funds brought into settlement by her husband ; see post, s. 4, p. 399. 2 Lander y. L. (1891), P., 161. 3 Stone V. S. (1845), 4 N. of C, 274, p. 276. 392 mCIDEiSTTS OF DIVORCE Chap XI vixerit, " so long as she remain chaste or unmarried," and on breach of that condition creating a forfeiture, is some- times inserted in the deed of security.^ Tlie Court has an absolute discretion -whether or not this clause shall or shall not be inserted. In fact, if the maintenance order was by way of giving her a gross sum of money, its enjoyment could not be taken from her on her second marriage ; and no rule is laid down whether the annual sum should be payable during the wife's whole life, or until her second marriage.^ However, of late years this clause has usually been omitted when maintenance is granted to an innocent wife,^ especially if the amount is small ; * and in such a case where it was only 15s. a week, the dum sola et casta clause was struck out by Lord Hannen, Pres., even though the payment was to a guilty wife.^ Sec. 2. — Payment in Lieu of Eestitution of Conjugal Eights (a) General Previous to 1884, if a respondent to a petition for restitution of conjugal rights did not obey the decree, it was enforced by attachment; i.e., imprisoning him or her till he or she obeyed.^ The Matrimonial Causes Act, 1884, 1 Fisher v. F. (1861), 2 Sw. & Tr., 410 ; Medley v. M. (1882), 7 P. D., 122, C. A. ; followed Harrison v. H. (1887), 12 P. D., 130, 145; and see as to similar clause in variation of settlements, post, s. 4, p. 402 ; and in settlement of damages. Chap. VII, p. 260. 2 Lister v. L. (1889), 14 P. D., 175 ; 15 P. D., 4, C. A. ; Wood v. W. (1891), P., 272, C. A. 3 Bradley v. B. (1882), 7 P. D., 2-37 ; Lister v. L., ubi sup. * M'oody. ^y., ubi sup. 5 Lander v. L. (1891), P., 161. ' Barlee v. B. (1822), 1 Add. Eoc, 301, where the respondent wife after three years' imprisonment in Norwich gaol was refused her release; and see Weldon v. IT. (1887), 9 P. D., 52; and see ante, Chap. X, pp. 372, 376, 377. Seo. 2 fa) PAYMENT m LIEU OF RESTITUTION 393 enacted that a decree for restitution of conjugal rights should thenceforth not be enforced by attachment.^ The Act empowers the Court to order payment of an annuity by the disobedient respondent to the petitioner, and for time to time to vary such order. ^ The Court has also power to make orders for the custody of children.^ Lastly, non-compliance with the decree is to be deemed equivalent to two years' desertion.* (b) Payment hy Husband to Wife Where the wife is the petitioner, the Court may, at the time of making decree, or afterwards, order, that if the decree is not complied with within a limited time, the respondent husband shall make to the petitioning wife such periodical payments as shall be just. This order to be enforced either as if it were an order for alimony, or the husband may be made to execute a deed securing the periodical payment as if it were a permanent main- tenance.^ The wife will be put in no worse position than if on a petition for judicial separation she had obtained an order for alimony ; and acting on this principle, the same pro- portion of a third of the husband's income will be allotted to her.^ (e) Payment by Wife to Husband Where the husband is the petitioner, if it appears to 1 47 & 48 Vict., c. 68, s. 2 ; Weldon v. W. (1885), 10 P. D., 72. This Act does not apply to Ireland, so tliere a decree for restitution of conjugal rights is still enforceable in the old way by attachment. See ante, p. 377, and^pos^, Chap. XIX. 2 lb., .ss. 2, 3 ; the application is to be by petition, rules 214, 215. 3 lb., s. 6, rules 214, 215 ; and see post, pp. 404-408. * lb., s. 5 ; and see Harding v. H. (1886), 11 P. D., Ill ; and Big- xoood V. B. (1888), 13 P. D., 89 ; and Chap. VII, pp. 344, 353, 377. 5 lb., .s. 2. 6 Theobald v. T. (1889), 15 P. D., 26. 394 INCIDENTS OF DIVORCE Chap, xi the Court that the wife is in possession of any -property, or in receipt of any profits of trade or earnings, the Court may order a settlement to be made of the whole or part of such property for the benefit of the petitioning husband and children, or either of them ; or may order a part of the trade profits and earnings of the wife to be periodically paid by the wife to the petitioning husband for his own benefit, or for the benefit of the children, or either. ^ As to the proportion to be settled on or paid to the husband, the Court may take into consideration the general conduct of the parties, but will not go into a minute debtor and creditor account of sums contributed by the husband and wife respectively to household expenses.^ In no case can property of the wife, as to which her "anticipation is restrained," be touched by the Court under this power, or taken from her.^ Sec. 3. — Penalties on Guilty Wife A guilty wife cannot be ordered to pay permanent or interim maintenance or alimony to her husband (see ante, pp. 380, 381, 393) ; although her interest under the marriage settlement may be taken away (seeposi, s. 4, pp. 400-402). But a rich guilty wife may be penalised by making her settle her existing or subsequently acquired property for the benefit of the innocent husband or the children. For it is provided — ■'In any case in -which the Court shall pronounce a sentence of divorce or judicial separation for the adultery of the -wife, if it shall be made appear to the Court that the "wife is entitled to any property either in possession or reversion, it shall be la-wful for the Court, if it shall think 1 47 & 48 Vict., c. 68, s. 3. = SmiftY. S. (1891), P., 129. 3 Michelle. M. (1891), P., 166, 208, 305, C. A. ; as to restraint on anticipation, see p. 193. Sec. 3 PENALTIES ON GUILTY "WIFE 395 proper, to order such settlement as it shall think reasonahle to be made of such property, or any part thereof, for the benefit of the innocent party, and of the children of the marriage, or eitlier or any of them." ' And suoh. instrument is to be valid notwithstanding the coverture of the wife.^ The Court can, of course, deal with all the wife's unsettled reversionary interests and other property in possession which is secured to her for her separate use. But the Court cannot under this power alter a settlement so as to make a wife settle and deal with property which she would otherwise not be able to alienate. For instance, the wife cannot be deprived under this power of property as regards which her anticipation is restrained,' nor can a power of appointment vested in her be extinguished.* If, however, the wife has a life interest under a settle- ment as to which her anticipation is not restrained, which she might therefore alienate or encumber, she may be ordered to settle this on the husband or children,^ even although there is a forfeiture clause on alienation.* It was in consequence of these limitations on the power of the Court in dealing with the wife's property under this Act and section, that the more extended power of varying settlements was conferred by a subsequent Act (see post, s. 4, pp. 396-402), in case of a decree of nullity or dissolu- tion of marriage. The proper procedure is, after the decree nisi, to order an inquiry into the details and particulars of the wife's property, in order that the settlement may be ordered 1 20 & 21 Vict., u. 85, s. 45 ; and see rule 95. 2 23 & 24 Vict., c. 144, s. 6. 3 jVorris V. N. (1868), 1 Sw. & Tr., 174; as to restraint on antici- pation, see p. 193. ■» Seatel v. S. (1860), 4 Sw. & Tr., 230. 5 Seatel V. S., ubisup., explained JV/icAeZZ v. M. (1891), P., 208, p. 211. 6 Milne T. M. (1871), L. E., 2 P. & M., 295. 396 IXCIDENTS OF DIVORCE Cuap XI as soon as the decree absolute is pronounced.^ As to how this power will be exercised, but few cases have yet arisen ; so no rule can be laid down. "Where a wife had only £100 a year from land, and £15 a year under a settlement, the Court, leaving untouched the £15, ordered two-thirds of the £100 per annum to bo settled on the children for their immediate possession, and the remaining one-third to be settled to come to them after the wife's death.2 In another case, where the wife had £3000 per annum under her father's will, which it appeared the co-respondent speculated on enjoying, the Court only deprived her of X500 per annum, which was settled on the husband.^ Seo. i. — Vahiation of Settlements (a) Power of the Court "The Court after a flual decree of nullity of marriage or dissolution of marriage may inquire into the existence of antenuptial or post- nuptial settlements made on the parties whose marriage is the subject of the decree, and may make such orders with reference to the appli- cation of the whole or a portion of the property settled, either for the benefit of the children of the marriage or of their respective parents, as to the Court shall seem fit ; " * and this power may be exercised * ' notwithstanding that there are no children of the marriage. " ^ The power conferred by this section does not extend to cases where the decree is only for judicial separation,^ or where the decree for dissolution has been pronounced by 1 Midwinter v. M. (1892), P., 28, C. A. 2 Bacon v. B. (1860), 2 Sw. & Tr., 86. 3 Milne V. M. (1871), L. R., 2 P. & M., 295. ^ 22 & 23 Vict., i;. 61, s. 5 ; the application is by petition, see rules 9.W03, 204. 6 41 Vict., c. 19, s. 3 ; Ansdell v. A. (1880), 5 P. D., 138. Previous to the latter Act this power could not be exercised if there was no issue ; Corrance v. C (1868), L. E., 1 P. & M., 495. 6 Qandy v. G. (1882), 7 P. D., 168, C. A. Sec. 4 (n) "\"ARIATION OF SETTLEMENTS 397 a Colonial Court ; i but the Act gives jurisdiction whenever there is a decree absolute for dissolution by the Probate and Divorce Division. A decree nisi gives no jurisdiction ; and if the petitioner dies after the decree nisi the suit abates, and no petition can be presented if the petitioner dies before the decree is made absolute ; ^ aliter if the petitioner dies after the decree absolute, when the children's guardian, but not the petitioner's executor, can petition.' So under this power the Court has jurisdiction to alter and vary, not only the ordinary English marriage settle- ment, but also a Scotch settlement * or a separation deed.° It can deal with capital as well as income,^ or make an order as to mere annuity,'' or extinguish a power of appointment among the children vested in either party.^ But once the order has been made the Court has no jurisdiction to alter it on proof of any subsequent change of circumstances ; for the power is one to be exercised once for aiU The Court, however, has no power to vary a settlement so as to inflict a forfeiture on any other persons than the 1 Moore v. Bull (1891), P., 279. 2 Grant v. (?. (1862), 2 Sw. & Tr., 522 ; and see Midwinter v. M. (1892), P. 28, C. A. 3 Ling V. L. (1865), 4 Sw. & Tr., 99; Smithe v. S. (1868), L. R., 1 P., & M., 587. i Nunneley v. jV. (1890), 15 P. D. , 186 ; Forsyth v. F. (1891), P. , 363. = Worsley v. W. (1869), L. E., 1 P. & M., 648 ; Bullock v. B. (1872), L. R., 2 P. & M., 389 ; Jump v. /. (1883), 8 P. D., 159 ; Clifford v. C. (1884), 9 P. D., 76, C. A. ; and see Benyon v. B. (1876), 1 P. D., 447, as the regard to be paid to a separation deed. Aliter in case of permanent alimony, see ante, s. 1 (c), p. 386; and as to permanent maintenance, see ante, s. 1 (d), p. 390. 6 Ponsonby v. P. (1884), 9 P. D., 58, 122, C. A. 7 Jump V. /. , ubi sup. 8 JVoel V. N. (1885), 10 P. D., 179 ; Bosville v. B. (1888), 13 P. D., 76. Benyon v. B. (1890), 15 P. D., 29 and 54, C. A. ; and see Glad- stone V. G. (1876), 1 P. D., 442. 398 INCIDENTS OF DIVORCE Chap. XI petitioner or respondent. So although the Court can vary it so as to benefit an infant, it has no power to vary a marriage settlement so as to deprive an infant child of the marriage of an interest secured to the infant by such settlement, even by way of a compromise that might be beneficial to the infant.^ So any interest given to the petitioner must be carved out of the respondent's interest under the settlement.^ "Where after the decree nisi the respondent was about to dispose of her property before an order to vary the settlements could be obtained, the Court restrained her by injunction from dealing with it.^ (h) Principles and Proportions of Division The Court of Appeal has laid down that the statute confers an absolute judicial discretion to order what will be for the benefit of the parties or their children, or either of them ; and though this power is not given for the purpose of punishing the guilty respondent, but for making due provision for all parties, yet the respective conduct of husband is to be taken into consideration in determining what provisions it would be reasonable to make.* In exercising so unlimited a discretion in so many varying circumstances, it is difficult to lay down any rule. But in general terms it may be said as follows : — As regards the respondent it is the usual course for the 1 Crisp V. C. (1872), L. B., 2 P. & M., 426, not even if the child is alleged to be illegitimate ; Pry or y. P. (1887), 12 P. D., 165; neither can the Court interfere with a settlement as far as it provides for the issue of a second marriage and for next of Ijin in default of issue ; Smith V. S. (1887), 12 P. D., 102. 2 Forsyth y. F. (1891), P., 363. 3 Noakes v. N. (1877), 4 P. D., 60. 4 Wigney v. W. (1882), 7 P. D., 177, C A. Sec. 4 (W VARIATION OF SETTLEMENTS 399 Court to extinguisli the guilty husband's interests in all funds brought into settlement by the petitioning wife, although an exception might be introduced in favour of a guilty husband incapacitated by physical infirmity from earning a livelihood and without means of his own.^ As regards a guilty mfe, the Court is more com- passionate, and sometimes extinguishes,^ and sometimes only reduces,^ the interest under the settlement which she has obtained from her husband, although a guilty wife is more usually provided for by way of alimony or main- tenance. Innocent Petitioner. — It would be contrary to natural justice that it should exercise this power, except where the respondent wife was penniless, or the husband a pauper cripple (see supra), so as to deprive the inno- cent petitioner of any part of the funds brought into settlement by him or her ; still, in one case, under some- what special circumstances, the wife was, on condition of being put in possession of her own fortune, directed to pay the large debts incurred during cohabitation in keep- ing up the joint establishment, such debt being due from the husband, who was almost penniless.* In fact, if there are no children or no ultimate trusts in the settlements for strangers (as to which, see ante, pp. 397, 398), the Court will, on the application of the petitioner, and unless the respondent can make out a good case to the 1 MaudsUy v. M. (1877), 2 P. D., 256 ; Wigney v. W. (1882), 7 P. D., 177, C. A. ; Samson v. S. (1887), 12 P. D., 130, 145. 2 Milne v. M. (1871), L. E., 2 P. & M., 295 ; Symonds v. ^;. (1872), L. E., 2 P. & M., 447 ; Fryor v. P. (1887), 12 P. D., 165. 3 CHffm-d V. C. (1884), 9 P. D., 76, C. A. ; Bosville v. B. (1888), 13 P. D., 76. i Wigney v. W. (1882), 7 P. D., 177, C, A. ; and see Thompson v. T. (1862), 2Sw. &Tr.,649. 400 INCIDENTS OF DIVOKCE CnAP. xi contrary, order tlie funds brought into settlement by each party to be retransferred to each of them respectively free from the trusts of the settlement. ^ Regpondenfs oim Fortune. — Lastly, as to depriving the guilty respondent of all or part of the funds brought into settlement by him or her. As regards the respondent husband, it is usual to make him provide for his vrife by orders of alimony and maintenance (see ante, s. 1, pp. 386, 387, 390) ; but occasionally provision is thus made for the petitioning vrife.^ But as regards a respondent wife, this (and the power under 20 & 21 "Viet., c. 85, s. 45, see ante, s. 3, p. 394, which is very occasionally had recourse to) is the usual way by which a rich guilty wife may be made to provide for her innocent husband and children. As to the principles on which the Court should act on such an application, it was laid down in the first case arising under this statute by the Judge Ordinary, Lord Penzance, and the full Court of Divorce — "The Court mil look at the probable pecuniary position wbicli the parties and their children would have occupied if the marriage which the settlement contemplated had been a binding union, and the parties had lived in harmony together upon their joint incomes. If this union has been broken, and the common home abandoned by the criminality of one without fault in the other, it seems just that the innocent party should not, in addition to the grievous wrong done by the breach of the marriage vow, be wholly deprived of means, to the scale of which he may have learnt to accommodate his mode of life ; nor, view- ing the matter on the other side, does it seem either just or equitable that funds which were intended, at the time of the marriage, for the use of both should be borne off by the guilty party, and perhaps transferred to the hands of the adulterer as the dowry of a second marriage. The interests of society point in the same direction. It 1 See yl. v. M. (1884), 10 P. D., 178, a case of nullity where there were no children. 2 Ponsonby v. P. (1884), 9 P. D., 58, 122, C. A. ; and see Chetxoynd V. C. (1865), L. R., 1 P. & M., 39. Sec. 4 (6) VARIATION" OP SETTLEMENTS 401 would be of evil example if this Court were to decide that the entire fortune of a wealthy married woman was to be reckoned as jjart of the prospects of an adulterer, or the resources of a second home for a guilty woman." 1 But the power must not be exercised to punisli the guilty party, but to provide for the petitioner and the children ;2 neither can it be exercised to punish a respond- ent who was in contempt by removing a child from the jurisdiction, and for the collateral purpose of enforcing the order of the Court.' In this case, where the petitioner was a clerk in the Foreign Office, at £260 per annum, possessing no other means, and the respondent had brought into settlement £1458 per annum, the adulterous wife was ordered to pay the petitioner £440 per annum during their joint lives, and a further sum of £200 per annum for the maintenance, by the petitioner, of the sole child, for so long as such child should remain in his custody.* And in another case where there were no children, and the wife had £1050 per annum under the settlement, the Court directed that £300 per annum should be paid to the petitioner, who was a colonel with £600 per annum.* In another case where the whole of the property settled came from the respondent's mother, and amounted to £150 per annum, and the respondent and co-respondent had intermarried, the Court ordered the whole of it, not to be 1 March v. M. (1867), L. R., 1 P. & M., 440. 2 Wigney v. W. (1882), 7 P. D., 177, C. A. 3 Symonds v. S. (1872), L. E., 2 P. & M., 447. i March v. M. (1867), L. R., 1 P. & M., 440 ; in Mod v. JV. (1885), 10 P. D. , 179, the petitioning husband was given £200 per annum out of the wife's £400 per annum, for himself and two children ; in Benyon V. B. (1876), 1 P. D., 447, the husband was given £300 per annum for life for himself, and £100 per annum for the maintenance of a child out of the wife's £1350 per annum. 5 Farrington v. F. (1886), 11 P. D., 84. 26 402 INCIDENTS OF DIVORCE Chap. Xl paid to the petitioner, but to be applied for tlie benefit of the tliree children.^ (o) Condition of Cliastity Occasionally, but only exceptionally, a condition is inserted whereby the provision for the wife is forfeited on her remarrying or becoming unchaste. As to this, President Sir James Hannen laid down — ' ' I think it is perfectly reasonable in those cases where a hushaud is called upon to sacrifice a portion of his means, that the condition dwm sola et casta vixerit should be imposed ; but I am of opinion that where the effect of the order is only to deprive a hnsband of his interest in the wife's fortune, and to put the innocent wife into immediate possession of her own income, no such condition should be imposed.^ Sec. 5. — Costs The costs of the proceedings are in the discretion of the Court ; i.e., the Court has full power, whatever the event be, to order any of the parties to bear the costs ; and there is no appeal as to costs. ^ Costs are a matter of practice which does not fall within the scope of this work. As between the petitioner and co-respondent, the costs are generally awarded accord- ing to the ordinary principles of litigation, victiis vidori 1 Paul V. p. (1870), L. R., 2 P. & M., 93. - Gladstone v. Cf. (1876), 1 P. D., 442 ; thus distinguishing Chetwynd V. C. (1865), L. R., 1 P. & M., 39, where the dum casta clause was inserted. In a case of settling damages on the wife, a condition of forfeiture was imposed in case of the respondent not living chastely or marrying the co-respondent, who was a married man ; Meyern v. it. (1876), 2 P. D., 254 ; see ante, Chap. VII. As to the insertion of the dum sola et casta condition in permanent maintenance and alimony, see ante, 1 {d), pp. 391, 392 ; and see Chap. VII, p. 260, as its inser- tion as a settlement of damages. 3 20 & 21 Vict., c. 85, s. 51 ; and see Butler v. B. (1890), 15 P. D., 126, C. A. ; Russell v. R. (1892), P., 152, G. A. Sec. 5 COSTS 403 in expensis damnxiur ; and a co-respondent against whom adultery lias been established may be ordered to pay the whole or any part of the costs.i As to the costs of inter- vention by the Queen's Proctor or one of the public, see ante. Chap. VII, pp. 263, 267. As between husband and wife, there was a practice in the Ecclesiastical Courts differing from the practice in ordinary litigation, that the costs of the wife, even in a suit for nullity, whether petitioner or respondent, were borne by the husband. ^ The reason of this practice was, that according to the old Common Law (see Chap. IV), it was supposed that the wife had no property, and that the husband had all, and it was proper that the wife should be furnished with funds to litigate with, to protect herself, so that a solicitor might be willing to act for her. And this practice continues now ; and the wife can, previous to the trial, apply that her husband should pay into Court or secure a sum sufficient to cover the costs of the hearing.^ If, however, the wife, in fact, has separate property, and more especially since the Married Women's Property Act, 1882 (see ante, Chap. IV, pp. 188-191), a wife with means, if unsuccessful, will be and has been condemned in costs.* 1 20 & 21 Vict., c. 85, s. 34 ; and see o.nte, Chap. VII, s. 2, pp. 255, 256, 261, 267, for instances in which an unsuccessful co-respondent is not condemned in costs. 2 See Oreen's case (1625), Cro. Car., 16 ; Onghton, tits, ccvi.-ccviii. ; Earl of Portsmouth v. Countess of Portsmouth (1826), 3 Add. Ec. , 63 ; BeU V. Bird (1763), 1 Lee, 209, 601 ; and at Common Law the costs of the wife's legal proceedings were necessaries for which the hushand was liable, and for which the wife could pledge his credit ; see Chitty on Contracts, 12th ed., p. 282 ; Rice v. Shepherd (1862), 12 C. B., N. S., 332; Ottaway v. Hamilton (W%), 3 C. P. D., 393, C. A., and ante, Chap. IV, p. 180. 3 See rules 158, 159, 177-179, 199-201 ; and see the principle of this explained, Robertson \. R. (1881), 6 P. D., 119, C. A. ; Smith v. S. (1882), 7 P. D., 84. i Milne v. M. (1871), L. B., 2 P. & M., 202 ; Otivay v. 0. (1888), 13 401 INCIDENTS OF DIVORCE Cdap. XI Sec. 6. — Custody of Children (a) General In suits for judicial separation, nullity, or dissolution of marriage, the Court has power to make interim orders and provide, in and after its final decree, with respect to the maintenance, custody, and education of the children of the marriage in question, or may direct the children to be made wards of Court.^ A similar power is now con- ferred on the Court in applications for a decree for restitu- tion of conjugal rights, if the resijondent fails to comply.^ But there is no such power in suits for jactitation.^ On the death of the person in whom the custody is vested by the Courts (i.e., of the petitioner as is usual, see j^ost, p. 406), the custody would, previous to 1886, have reverted to the respondent husband or the guardian. By the Guardianship of Infants Act, 1886, the Court can declare that the guilty respondent is unfit to have the custody of the children ; and in such case the parent so declared to be unfit shall not upon the death of the other parent be entitled as of right to the custody or guardian- ship of the children.* Children of a marriage declared void can be ordered by P. D., 141, C. A. ; Russeli v. R. (1892), P., 152, C. A. ; Jiobson v. R. (1891), 29 L. R. Jr., 152. , 1 20 & 21 Vict., c. 85, s. 35, and 22 & 23 Vict.| c. 61, s. i ; rules 104, 195, 212 ; and .see Hunt v. H. (1883), 8 P. D., 161. The Ecclesiastical Courts had no jurisdiction as to the custody of children ; see Oreenhill V. G. (1836), 1 Curt. , 462, which previous to and outside this power is vested in the Chancery Division ; see Chap. XIV, pp. 435-445, 450-453. 2 47 & 48 Vict., u. 68, s. 6 ; and see rules 214, 215 ; and see ante, Chap. X, p. 377. 3 Thompson v. Rourke, the Times, 1892, July 14, p. 14. * 49 & 50 Vict., c. 27, s. 7 ; and see Skinner v. ^. (1888), 13 P. D., 90. In default of such an order, the custody or guardianship will follow the ordinary law ; see Chap. XIV, s. 3. Sec. g M custody of children 405 the Court to be provided for by way of maintenance paid by the petitioner.^ The Court has jurisdiction to regulate custody of children up to the age of sixteen. ^ As to children over that age it has therefore no jurisdiction or power to make orders, either in regard of their custody, education, or maintenance.^ So in a case where the marriage of the Marquis and Marchioness of Blandford had been dissolved some years previous for the husband's adultery and desertion, and a supplemental petition was presented praying that the husband (now Duke of Marlborough) might be ordered to make some provision for his eldest son, a young man between twenty and twenty-one, the petition was dismissed.^ As to how this jurisdiction will be exercised, no hard and fast rule is laid down ; in every case the Court is bound to do what it considers to be the best for the interests of the children. The Court has a wide and unfettered discretion, a discretion overriding both the Common Law and Chancery rules as to custody of chil- dren previously in force ; the judge is not bound by those rules, though he will have regard to them.* If the person, whether husband or wife, against whom an order is made to deliver up the children, removes thew and does not obey, he or she will be committing contempt of Court, and can be proceeded against, i.e., by sequestra- tion or attachment.* Also, if it is the petitioner who fails to obey the order of the Court to provide for the 1 Langworthy v. L. (1886), 11 P. D., 85, C. A. 2 MalUnson v. M. (1866), L. R., 1 P. & M., 221 ; Ryder v. R. (1861), 2 Sw. & Tr., 225. 3 Blandford v. B. (1892), P., 148 ; but see Ryder v. R., uU sup. * Symington v. S. (1875), L. R., 2 So. & D., 415 ; Hundley v. II. (1891), P., 124, C:. A. ; Witt v. W. (1891), P., 163 ; and see Robotham v. R. (1858), 1 Sw. & Tr., 190 ; Marsh v. M. (1858), 1 Sw. k Tr., 312. 5 Eyde v. H. (1885), 13 P. D., 166, C. A. ; Allen v. A. (1885), 10 P, D., 187 ; Boyd v. B. (1859), 1 Sw. & Tr., 562, 406 INCIDENTS OF DIVORCE Chai'. xi children, the Court can refuse to make the decree nisi absolute until the petitioner obeys.^ The custody, etc., order is not final, and it may, on different circumstances arising, be subsequently varied by the Court. ^ But there is no power to direct that the provision ordered for the children should be " secured " by the respondent.^ (6) In the Innocent Petitioner As a general rule the custody of the children is always given to the innocent petitioner, whether husband or wife, in the absence of special circumstances to the contrary (see post, p. 407). The principle is, that the innocent party shall suffer as little as possible by the dissolution of the marriage. The wife ought not to be obliged to buy the relief to which she is entitled at the price of being deprived of the society of her children.'' However, the wife will not be given the custody for the express avowed purpose of proselytising them into a religion different from the father's ; ^ and where the petitioning wife, after obtaining a decree of dissolution and the custody of the children, subsequently fell into bad habits, cohabiting with a young man, and taking to drink ; and, on the other hand, the respondent husband had remarried and was leading a respectable life, — the daughter was removed from the custody of the mother and placed under the charge of the father.'' 1 Langwm-thy v. L. (1886), 11 P. D., 85, C. A. 2 Witt V. ir. (1891), P., 163, not following Robotham v. R. (1858), 1 Sw. & Tr., 190 ; and see March v. M. (1867), L. E., 1 P. & M., 437. 3 Hunt V. B. (1883), 8 P. D., 163. ^ See Symington v. S. (1875), L. R., 2 Sc. & D., 415 ; Mil/ord v. M. (1869), L. R., 1 P. & M., 715 ; D' Alton v. D'A. (1878), 4 P. D., 87. ^ D' Alton V. D'A., libi sup. 6 Witt V. ir. (1891), P., 163 ; and see March v. M. (1867), h. R., 1 P. & M., 437. Sec. e W CUSTODY OF CHILDREK 407 (r) In the Guilty Respondent An adulterous loife is, as a general rule, deprived of the custody of and even the access to the children, i As regards an adulterous husband, where the adultery was a single isolated act which had ceased, the House of Lords, considering the father was engaged in a prosperous business, that he was affectionately attached to his children, and that to separate him from the sons would not be to their advantage, gave to respondent husband the custody of the male children. 2 Also, where a judicial separation was granted against a husband for cruelty, he was allowed access to the children.^ {d) In a Third Partij As a general rule, the custody of the children is given to the husband or wife, even though a third party is willing to take and to pay for them ; still the petitioner will be given the custody, and the respondent ordered to pay maintenance.'' But where, although the petitioning wife had obtained a dissolution for her husband's adultery and cruelty, the Court considered her not only extravagant, but grossly indiscreet in conduct up to the very verge of criminality, the custody of the children was intrusted to the uncle, and right of access being reserved to the father and mother.* Also, where the petitioning wife sought the custody 1 HandUy v. H. (1891), P., 124, C. A.; Clout v. C. (1861), 2 Sw. & Tr., 391 yBent v. B. (1861), 2 Sw. & Ti-., 392. 2 Symington v. S. (1876), L. R., 2 Sc. & D., 415 ; and see Lord Hannen's remark in Skinner v. S. (1888), 13 P. D., 90. 3 Marsh v. M. (1858), 1 Sw. & Tr., 312. ^ Milfm-d V. M. (1869), L. B., 1 P. M., 715. 5 Chetwynd v. C. (1865) L. R., 1 P. & M., 39 ; and see Davis v. D (1889), 14 P. D., 162. 408 INCIDENTS OF DIVORCE Chai-. xi of the children for the avowed purpose of proselytising them into a religion other than the father's, the custody was vested in a schoolmistress, with a right of access by both husband and wife.i The third party can apply for the custody to the Divorce Court,^ but not after the death of either of the spouses ; then the application must be to the Chancery Division.^ 1 D'Alton V. D'A. (1878), 4 P. D., 87. 2 GodHchv. 6. (1878), L. R., 3 P. & M., 134; March v. M. (1867), L. E., 1 P. & M., 437 ; Chetwynd v. C. (1865), 4 Sw. & Tr., 151. 3 Davis V. D. (1889), 14 P. D., 162 ; and see post, Chap. XIV, pp. 435-445, 450-453, CHAPTEE XII BREACH OF PEOMISE OF MARRIAGE, SEDUCTION, AND AFFILIATION ORDER . Breach of Promise of (c) Defences, 412 Marriage, 409 id) Damages, . 413 (a) General, 409 (e) Return of Presents, 413 (b) The Promise, 410 2. Seduction, 414 Corroboration, . . 411 3. Affiliation Order, . 415 Sec. 1. — Breach of Promise of MaeeiageI (a) General Thebe were originally two alternative remedies in case of a breach of a promise of marriage : for specific performance in the Spiritual Court to compel the defendant to fulfil his promise, or in the Temporal Court for damages. The action in the Spiritual Court, to compel a marriage by reason of a contract, was abolished in 1753 by Lord Hardwicke's Act.^ After this date the action for damages became much more common, but the right of action existed from an early date.^ 1 See Chitty on Contracts, 12th ed., pp. 617-622 ; Eoscoe's Nisi Prins, Evidence ; Bullen and Leake on Pleading, 4th ed., vol. i., p. 266, tit. Marriage. See Rules of Supreme Court, App. A, pt. iii., sec. 4, Indorsement of Writ ; App. C, sec. v.. No. 10, Statement of Claim; App. D, sees, iv., v., 1, 16, Defences. 2 See ante, Chap. I, where an account of the action is given, pp. 8-10. 3 As early as 1469 there are traces of this action ; see Y. B., 8 Ed. IV, 4S, dicta by Genuey and the Chancellor ; but it was only in the middle of the seventeenth century that marriage was recognised by the law as a 409 410 PROMISE OF MARRIAGE, SEDUCTION, ETC. Cum-. Xll A resolution in favour of abolishing the action for breach of promise of marriage, " except in cases where actual precuniary loss has been incurred by reason of the promise, the damages being limited to such pecuniary loss," introduced by Mr. Herschell, Q.C., now Lord Herschell, was carried in the House of Commons by 106 votes to 65, May 6, 1879.1 This action may be brought by either the man or the woman ; but actions by men are rare, and when brought usually result in nominal damages.^ The action is a personal one, and like other personal actions, abates on the death of either party, and cannot be brought by or against the deceased's executors or administrators unless special damage, and that of a very exceptional nature, and affecting the money value of the contract to the fee, is alleged. ^ Either plaintiff or defendant has a right to a jury.* The action cannot be tried in the County Court except by consent of both parties.^ (6) The Promise The promise must be a reciprocal one, and binding both parties, otherwise it cannot be sued upon. There temporal benefit for loss whereof, and breach of tie promise action lay iu the Temporal Courts. RoUe, Abr., tit. Actions, fol. xxii., par. 20 ; Holder ot Holcroft v. Dkkeson (1673), Free, pt. 1, 95, and 347 ; and per Bowen, L. J., Finlay v. Chirney (1888), 20 Q. B. D., 494, p. 505, C. A. 1 Hansard, vol. ccxlv. , pp. 1867-1889. Generally throughout Europe the law is substantially what Lord EterscheU's resolution would have made it here, but the American Law is the same as our own. 2 See Harrison v. Gage (1698), 1 Ld. Raym., 386 ; and at Chester Assizes, July 1892, a man recovered £40. 3 Chamberlain v. ]\'illiamson (1814), 2 M. & S., 408; Finlay v. Chirney (1888), 20 Q. B. D., 494, C. A.; the birth of a child, and getting wedding clothes, is not sufficient special damage, ib. ■> R. S. C, Ord. XX. 36, r. ii. s County Courts Act, 1888, 51 & 52 Vict,, c 43, s. 56, Sec. 1 (6) BREACH OF PROMISE OF MARRIAGE 411 is, however, an exception to tliis rule ; for an infant can sue for breach of promise of marriage,^ although he or she cannot be sued for a promise made during infancy.^ The promise need not be in express words, but may be evidenced by the unequivocal conduct of their friends and relations, that a marriage is to take place. Neither need the promise be in writing, although letters are the most usual evidence in corroboration. Also, the engagement is binding although no precise time for completion by marriage is fixed ; for, in such case, the law presume a promise to intermarry within a reasonable or convenient time.^ A promise of marriage by the defendant in considera- tion that the plaintiff would have connection with him is void ; but if he renewed his promise after the illicit intercourse had taken place, it would be binding. If the parties are related within the prohibited degrees so that their marriage would be invalid, the promise is void, and affords no ground of action.^ A promise by a married man is valid, because his wife might have died.* Corroboration. — A peculiar legal feature of this action is that it has been specially enacted that no plaintiff " shall recover a verdict unless his or her testimony shall be corroborated by some other material evidence in support of such promise." ^ Corroborative evidence is usually supplied by the plaintiff's friends or relations, or by letters from the defendant ; letters from the plaintiff 1 Holt V. Ward (1732), 2 Str., 937. 2 Coxhead v. MuUis (1878), 3 C. P. D., 439 ; Northoote v. Doughty (1879), 4 C. P. D., 385 ; Holmes v. Brierley (1888), 36 W. R., 795 C. A. ; and see Chap. XIV, s. 5 (a), p. 463. 3 Harrison v. Cage (1698), 1 Ld. Raym., 386, 387. ^ Wild V. Harris (1849), 7 C. B., 999 ; Milward v. Littlewood {1850}, 5 Ex., 775. 5 32 & 33 Vict., c, 68, s. 2 ; and as to corroboration, seepost, p. 416, 412 PROMISE OF MARRIAGE, SEDUCTION, ETC. Chai- Xii charging the defendant with promising to marry her, which the defendant does not answer, do not amount to an admission against him, or to evidence corroborative of the promise.! (c) Defences'^ The nsual defence is to deny the promise. It is also a ground of defence that, after promise, the plaintiff discharged and absolved the defendant from his promise, and the performance thereof.^ And the fact of their having been, for a considerable period, a total cessation of intercourse and correspondence between the parties, is evidence in support of this defence.* It is also a defence that the promise was obtained by fraudulent concealment of the plaintiff's previous circum- stances and life ; and it is under this head that it is frequently alleged that the defendant subsequently discovered that the plaintiff was unchaste, and on this account the defendant broke off the engagement. But the fact that the plaintiff did not tell the defendant that at the time of the defendant's promise she was engaged,^ or that she had been previously insane, is no defence," unless such concealment be fraudulent. A plea that the defendant, after the promise, became afflicted with a disease which made him incapable of marriage without great danger to his life, and, therefore, unfit for the married state, is bad in law.^ It would, 1 Wiedemann v. Walpole (1891), 2 Q. B., 534, C. A. 2 See Bullen and Leake, 4tli ed., vol. ii., p. 267, tit. Marriage ; an see ante, p. 409, n. 1. 3 King v. Qillett (1840), 7 M. & W., 5.'>. i Dams V. Bomford (1860), 6 H. & N., 245 ; and see Colvin v. Johnstone (Nov. 14, 1890), 18 R., 115. 5 Beachey v. Brown (1860), B. B. & E., 796. 6 Baker v. Cartwright (1861), 30 L. J., C. P., 364. 7 Eall V. Wright (1858), E. B. & E., 746, Ex. Ch, Sec. 1 fe) BREACH OF PROMISE OF MARRIAGE 413 however, appear that a plea that the plaintiff was, subsequent to the promise, discovered to be impotent or suifering from an abscess, would be a good defence. ^ A Protestant defendant apparently might lawfully, if acting bond fide, refuse to be married by a Eoman Catholic priest, or to sign the condition of a dispensation as given in Appendix 3. (d) Daviages The damages are peculiarly a matter for the jtiry. And it often happens that even by public performers large sums are recovered. It is very rare that a new trial has been granted for excess of damages, although in one recent case £10,000 damages were reduced to £6500.^ In ascertaining the measure of the damages, the jury are not limited to the mere pecuniary loss that the plaintiff has sustained, but may take into consideration her injured feelings and wounded pride.^ The fact that the defendant had seduced the plaintiff under the promise of marriage may be given in evidence in aggrava- tion of damages, the jury considering her to return home in a dishonoured position.^ (e) Return of Presents If wedding presents are made either by the intending husband and wife to each other, or by strangers to either the man or the woman, it appears to be the law that if such marriage does not take place the presents can be recovered back by an action, because they were given subject to the implied condition subsequent that the 1 See Atchinson v. Baker (1797), 2 Peake, 103. 2 Kncmles v. Duncan, see the Times, Jan. 30, p. 13, aud 31, p. 4, 1891. 3 Berry t. Da Costa (1866), L. R, 1 C. P., 331 ; Mayne on Damages, 4tli ed., pp. 458-461 ; and .see Millington v. Loving (1880), 6 Q. B. D., 190, C. A. 414 PROMISE OF JLARRIAGE, SEDUCTION, ETC. CiiAr. XII marriage should take place, which condition is not fulfilled. In favour of strangers this would apply for whatever reason the marriage did not take place. As between the intending spouses it would only apply when the recission was by consent, or where it was the donee who was in default ; for if the donor had broken off the engagement, he would be in the position of one who, by his own act, has made the fulfilment of the condition impossible, therefore such donor in default cannot recover back his presents. '^ Sec. 2. — Sbduotion This action can only be instituted by the employer of the woman seduced, whether that employer be her father or any other person. The action can never be brought by the woman herself, whose remedy is by action for breach of promise of marriage, or for an affiliation order. This action cannot be tried in a County Court. ^ The gist of the action is loss of service brought about by the defendant's act. Therefore, in order that the father may make out his cause of action, he must prove that she was in his service ; therefore, if she is in service, and employed by some one else, the father cannot sue. If she is under age, unmarried, and living at home, she is prima facie presumed to be in his service ; but if over twenty-one, some proof of actual service must be given ; 1 See Lord Hardwicke's judgment, Robinson v. Gumming (1742), 2 Atk., 408 ; Anon, cited Freeman, 214 ; Young v. Burrill (1576), Gary, 77, where the plaintiff recovered back a gold pomander from the woman ; and see Co. Lit., 204a / and in Law's Resolutions of Women's Rights, 1632, hk. ii., sec. 32, it is stated that if the engagement is hroken off, the man can get the presents back, but si osculum intervenerit he can only get back half; but in either case the woman can get back all. 2 County Courts Act, 1888, 51 & 52 Vict., c. 43, ». 56. skc. 2 SEDUCTION AND AFFILIATION ORDER 415 but any participation in household duties, e.g. making tea, is evidence of service.^ Either party has a right to a trial by jury.^ The jury will be right in giving liberal damages though the actual money loss in service may be slight.^ The discharge in bankruptcy of the defendant does not release him from liability under a judgment for damages in this action.* Sec. 3. — Affiliation Obdee° The mother of a bastard, if single, or if married, living separately, can summons the alleged father before the PoUoe Court of her district (see pp. 361, 362); and on proof of paternity, the woman's evidence being corrobo- rated, such Court can order that the father shall pay a sum not exceeding five shillings a week till the child attains sixteen or dies previously.^ The father's bank- ruptcy does not determine his liability under the or^er.* As to the custody of the child, see post, p. 435 ; as to liability under the Poor Law, see post, pp. 447, 448 ; as to a bastardy order against a clergyman, see pp. 429, 430. 1 See Clerk and Lindsell on Torts, pp. 158-162 ; Roscoe's Nisi Prius, Evidence ; and Evam v. Walton (1867), L. E., 2 C. P., 615 ; Terry v. Hutchinson (1868), L. R., 3 Q. B., 599 ; Sedges v. Tagg (1872), L. E., 7 Ex., 283 ; Appleby v. Franklin (1885), 17 Q. B. D., 93. The plaintiff can declare either in case or in trespass ; Chamberlain v. Hazelwood (1839), 7 DowL, 816; for pleadings, see BuUen and Leake, 4th ed., vol. i., p. 463 ; tit. Master and Servant, vol. ii., p. 423. See Rules of Supreme Court, App. A, pt. iii., sec. iv., Indorsements of Writ; App. C, sec. vi., No. 9, Statements of Claim ; App. B, sec. 6, Defences. 2 R. S. C. , Ord. 36, r. 2. 3 Mayne on Damages, 4th ed. , pp. 461-464. •1 53 & 54 Vict., 0. 71, .■5. 10. ^ The number of illegitimate births registered in 1890 was 38,412, and in the proportion of 46 to 1000. See Reg. Gen. 's Report, p. ix. 6 7 & 8 Vict., c. 101 ; 8 Vict., u. 10 ; 35 & 36 Vict., o. 66 ; 36 & 37 Vict. , c. 9 ; and see Fisher's Digest, tit. Bastard ; L. R. Digest, Current Index ; and Stone Justice's Manual, tit. Bastardy ; and Saunders on Affiliation. As corroboration, see M'Kinven v. M'Miller (Jan. 13, 1892), 19 R. 369, and ante, pp. 411, 412. CHAPTEE XIII EFFECT OF NULLITY, DIVOECE, ETC. 1 . Decree of Nullity, . 2. Void Marriage, 3. Decree Absolute for Dissolution, . (a) Cessation of Coverture, (b) Remarriage of di- voreed Persons, 4. Decree nisi for Dissolu- tion, .... 416 417 420 420 421 422 5. Separation, Protection Order, etc., . . 424 [a] Judicial and Magis- terial Separation, . 424 (b) Protection Order, 425 6. Divorce a inensa et thoro, 426 7. Adultery and other Mis- conduct, . . . 427 8. Ecclesiastical Puuisli- ments, .... 429 Sec. 1. — Decree of Nullity The effect of a decree of nullity, which was the only divorce a vinculo that the old Ecclesiastical Courts could pronounce, was that the parties ceased to be husband and wife.^ If the marriage is declared null, there is no dower ^ or curtesy, and the husband's life interest in his wife's lands determines.^ Still, if the husband has, prior to the decree, done acts, these, being executed, shall stand good, such as receipt of rent, alienation of personality ; * but such wife can set aside the husband's leases of her land and enter thereupon.^ 1 See Chaps. V, VI. The decree may have the incidental effect of validating a subsequent marriage, see ante, pp. 34, 220, 235. 3 Co. Lit., 32a. •5 lb. , 235a ; this includes land given in frank marriage, which shall revert to the wife in estate tail ; see 2 Dy , , 1476 ,• Webbe and Potter case (1583), Godb., 18. 4 Brook, N. C, 32 Hen. VIII, and pp. 54 and 63 ; Oland's case (1602), 5 Co. Eep., 1166. =■ G-recneley's case (1610), 8 Co. Rep., 716, 73a. Seu. 1 DECREE OF NULLITY 417 If land is given in tail to a man and his wife, and the heirs of their bodies, and their marriage is declared null, each takes a freehold, for the law will not expect a re- marriage. ^ Also, as to goods, if a wife is divorced a vinculo, she shall have hack any goods which were given by her father in marriage with her and are undisposed of.^ Also, where the wife was divorced, and appealed from the sentence, and meanwhile died ; her husband, administer- ing her goods, was sued as executor de son tort.^ The husband thereby ceases to be liable for his wife's debts contracted antecedent to the decree ; for if a wife becomes single by operation of law, it is the same as if she had always remained single.* As to testamentary bequests, where a testator left a legacy to his wife " as long as she should continue his widow and unmarried," and subsequent to the date of the will she obtained a decree of nullity for the testator's impotence, and he then died leaving her surviving, she was held not entitled to the legacy as above given.^ Sko. 2.^- Void Marriage i^ There is a distinction between void and voidable marri- ages. A voidable marriage is good and valid till a decree of nullity has been pronounced (see pp. 204, 212, 222); a void marriage requires no sentence, but may, at any time, in any proceeding, or merely by the act of the party, be treated as invalid. So a bigamous marriage is void ah initio 1 Lampets case (1613), 10 Co. Bep., 46a, 50&. ■i Anon {I5i7], 1 Dy., 13a. 3 Meier v. Southcot (1564), 2 Dy., 1056. ■• Anstey v. Manners (1818), Gow, 10. 5 In re Boddington (1884), 25 Cli. D., 685, C. A. f> And .?ee s. 1, supra, Decree of Nullity. 27 418 EFFECT OF NULLITY, DIVORCE, ETC. Chap, xiii by Spiritual as well as Common Law, and they are not husband and wife de facto?- As to what marriages are void or voidable, see ante. Chaps. II, V, and VI ; but it may be said that now there are only two grounds of nullity by which a marriage is voidable, not void, i.e., impotence or force (see pp. 23-28, 222). So where, in defence to an action on a covenant made in consideration of marriage, the defendant pleaded that the marriage was null and void by reason of impotence, without stating that it had been avoided by the sentence of any Court, or that either of the parties had elected to treat it as void, it was held a bad plea.^ Although formerly there were other grounds of nullity, e.g., pre-contract, and relationship, which made a marriage voidable, yet now all other grounds except impotence and force render a marriage absolutely void. So a marriage void under Lord Lyndhurst's Act, because contracted by the testator with his deceased wife's sister,^ does not, although there had been no decree of nullity, revoke a pre- vious will;* and probate of the will of a woman who went through such a marriage will be granted as of a "spinster." ^ As to the validity of a settlement on a void marriage with a deceased wife's sister, the cases are conflicting ; but it seems that where the settlement is expressed to be made in consideration of the marriage, such settlement is invalid, and may be set aside. ^ 1 Riddlesden v. Wogan (1602), Cro. Eliz., 858. 2 Cavell V. Prince (1866), L. R., 1 Ex., 246. 3 See Chap. II, pp. 30-32. i Re Smith (1853), 1 Spinks, Ecc. k Ad., 105. 5 Re Dixson (1855), 2 Spinks, Ecc. & Ad., 206 ; and see Southall v. Jones (1859), 1 Sw. & Tr., 298. 6 Pawson V. Brown (1879), 13 Ch. D., 202 ; Ayeist v. Jenkins (1873), L. R., 16 Eq., 275 ; Ckapmanv. Bradley (1863), 33 Beav., 61, 4 De G., Sir. 2 VOID MARRIAGE 419 A woman who had gone through the ceremony of marriage with her deceased sister's husband may take benefits under his will under a bequest to the " wife," this being designatio personx.'^ Also where a woman, believing herself to be a widow, married the testator, she took a bequest by him to her as his wife.^ Also, where a divorced woman had remarried before the limited time, she took under a power in a settlement as a wife.^ If a married woman remarries bigamously, and makes a settle- ment on such marriage, her real first husband's marital rights will prevail against such settlement.* In case there is no settlement, the property remains vested in either spouse free of any marital right ; but if the supposed wife has countenanced her supposed hus- band, selling the goods to a stranger, she and the stranger believing the marriage valid, it seems doubtful whether she could recover back her goods from such stranger.^ If the marriage is void, the parties can give evidence against one another,^ just as a kept mistress can give evidence against her paramour ; ^ still, if a woman believes that she is married to the prisoner, she may be, if not acquitted, yet discharged without punishment, when J. & S., 71 ; Coulson v. Allison (1866), 2 Giff., 279 ; Ford v. De Pontes (1861), 30 Beav., 572 ; and see Thompson v. Thomas (1891), 27 L. R. Ir., 451. 1 Pratt V. Mathew (1856), 22 Beav., 328. * , 2 Petts in re (1859), 27 Beav., 576. ' Dolby V. Powell (1862), 30 Beav. , 534 ; as to marriage on decree nisi, see pp. 422-424. J Agar v. Blethyn (1835), 2 C. M. & R., 699. If the money was the wife's separate property (see Chap. IV, p. 188), she might, of course, do what she pleased with it. 5 Waller v. Drakeford (1853), 1 E. & B., 749. 6 Wells T. Fletcher (1831), 5 C. & P., 12 ; ii. v. Young (1851), 5 Cox C. C, 296. As in bigamy, the second spouse is an admissible witness for or against the prisoner ; see book on Evidence, and jjosi, p. 477. " Bathews v. Galindo (1828), 4 Bing., 610. 420 EFFECT OF NULLITY, DIVORCE, ETC. chap. xiil indicted for consorting, liarbouring, and assisting the prisoner, her supposed husband. ^ Sec. 3.— Dbckeb absolute fok Dissolution (a) Cessation of Coverture A divorced woman, whether she has been petitioner or respondent, keeps her name acquired by marriage until she acquires another by repute.^ As regards one another, the parties cease to be husband and wife as soon as the decree is made absolute. The divorce does not make the marriage void ab initio, it merely terminates the relations of husband and wife from the time of divorce.' Therefore, the wife cannot after the divorce sue the husband for an assault committed during coverture, for then they were one person.' Also the former husband cannot be sued for his former wife's torts, if the action was commenced after, although the injury was committed previous to the decree for dissolution. "• The husband's marital rights to property cease, and therefore if a reversionary interest of the wife's, untouched by any settlement, falls into possession after the decree, she is absolutely entitled to it free from his marital rights.^ Also the wife forfeits her right to dower even although the decree was obtained on her own petition on account of her husband's cruelty and adultery." As to 1 R. V. Good (1842), 1 C. & K., 185 ; and see R. v. Ilassall (1826), 2 C. & P., 434. 2 Fended v. Goldsmid (1877), 2 P. D., 263 ; and see re Hay (1865), L. E., IP. &M.,51. 3 Phillips V. Barnett (1876), 1 Q. B. D., 436. < Capel V. Poioell (1864), 17 C. B., N. S., 743. •'> }mkinsnn v. Gibson (1867), L. E., 4 Eq., 162; Wells V. Malbon (1862), 31 Beav., 48 ; Heath v. Lewis (1864), 4 Giff., 665 ; Prole v. Soady (1868), L. E., 3 Ch., 220. ^ Framptonv. Stephens (1882), 21 Cli. D., 164; as to the husbaud's curtesy, see pp. 185, 186, 416, 428. Sec. 3 („) DECREE ABSOLUTE FOR DISSOLUTION" 421 settlements, neither a decree for dissolution nor adultery by itself invalidates a marriage settlement, and the guilty party does not forfeit his or her rights thereunder,i and even a covenant for the settlement of after acquired property coming to either party during the coverture continues.^ As to testamentary bequests ; on a devise of land to a husband and wife for life, and then to their children, and subsequent to the testator's death the wife is divorced for her adultery, here the husband took the whole annuity ; ^ also where a testator made a bequest to his son for life, and after his decease to any wife of his son during her life, and the son married a woman whom, on his own petition, he subsequently divorced, and he died without having married again ; it was held that the divorced wife was not entitled to the bequest.* In probate and administration, a wife who has been divorced for her adultery has no right to be appointed administratrix.^ (&) Remarriage of Divorced Persons ^ On the decree absolute being pronounced, it is lawful 1 Evans v. Carringtcm (1860), 2 D. F. & J. , 481, App. ; Fitzgerald v. Chapman (1875), 1 Ch. D., 563; Burton v. Sturgeon (1876), 2 Ch. D., 318, C. A. ; as to power of the Probate and Divorce Division to vary, see ante, Chap. XI, p. 396. 2 Hamilton v. H. (1892), 1 Ch., 396, pp. 403, 404. 3 Knox V. Wells (1864), 2 H. & M., 674. ■* In re Morrieson (1888), 40 Ch. D., 30, disapproving Bullmore v. Wynter (1883), 22 Ch. D., 619 ; and see N. v. M. (1885), 1 Times Reports, 523 ; the ratio decidendi in in re Aforrison was that tlie son might have niarried again another wife who would have heen unquestionably entitled. If the son had died before the decree absolute, the divorced wife would have been entitled ; see Stanhope v. S. (1886), 11 P. D., 103, C. A. 5 Re Nares (1888), 13 P. D., 35. * As to Theology on the marriage of divorced persons, see post, Appendix 2, pp. 577-590, 422 EFFECT OF Is'ULLITY, DIA'ORCE, ETC. CnAp. XI 1 1 for either party to marry again as if the prior marriage had been dissolved by death. i But "no clergyman in holy orders of the Church of England or Ireland shall be compelled to solemnise the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnis- ing or refusing to solemnise the marriage of any such person : provided always, that when any minister of any church or chapel of the United Church of England or Ireland shall refuse to perform such marriage service between any persons who, but for such refusal, would be entitled to have the same service performed in .such church or chapel, such minister shall permit any other minister in holy orders of the said United Church, entitled to officiate within the diocese in which such church or chapel is situate, to perform such marriage service in such church or chapel." ^ This section only permits a clergyman to refuse the guilty respondent; the petitioner who has succeeded in having his marriage dissolved has the same right as any other unmarried person to compel a clergyman to solemn- ise his or her marriage. The section does not exempt the clergyman from remarrying the successful petitioner.^ Sec. 4. — Degree Nisi for Dissolution A decree nisi does not put an end to the marriage ; the legal status of husband and wife continues, and the 1 See 20 & 21 Vict., c. 85, ■- 57, and 31 & 32 Vict., c. 77, s. 4. Originally the remarriage was postponed till after the time for appeal- ing had expired ; see Chichester v. Mure (1863), 3 Sw. & Tr., 223 ; Rogers v. Halmshaw (1864), 3 Sw. & Tr. , bW ; but now the decree • being nisi, and the appeal being from the decree nisi, see ante, p. 242, the result is that immediately on the decree absolute, either parties can remarry ; as to remarriage on decree nisi before decree absolute, see post, p. 423. 2 20 & 21 Vict., c. 85, ss. 57, 58. 3 As to compelling a clergyman to solemni.se, see Chap. II, pp. 58, 59, Chap. XV, p. 471, s. 1 (a) ; as to the practice of the Church of Englaml in remarrying the guilty respondent, see^osi. Appendix 2, Sec. 4 DECREE NISI 423 woman is subject to coverture.^ So if one of the spouses remarried before the decree was made absolute, the second marriage is void ; - also sexual intercourse meanwhile by one of the spouses with a stranger is adultery,^ but inter- course between the husband and wife is not adultery,* but will amount to condonation.^ Still as between the parties the Us is at end.^ As regards property, if the decree nisi is subsequently made absolute, and the decree absolute reflects back on the decree nisi in such a manner that when pronounced its effect on the subject then in question was the same as if it had been pronounced at the time when the decree nisi was made ; and, consequently, anything done in the interval was subject to the danger of being set aside by the decree being made absolute. And in that case an attempt by the husband's creditor to get possession of the wife's property by obtaining a stop-order on it between the decree nisi and absolute was declared ineffectual, and the wife entitled to the fund unencumbered.^ If, how- ever, the decree nisi is not made absolute, as, e.g., because the petitioner dies, the respondent continues to be the wife, 1 Ellis V. E. (1883), 8 P. D., 188, C. A. ; Norman v. Villiers (1877), 2 Ex. D., 359, C. A. 2 Chichester v. Mure (1863), 3 Sw. & Tr., 223; NoUey. N. (1869), L. R., 1 P. & M., 691 ; Wickham v. W. (1880), 6 P. D., 11 ; and see De ThorenY. The Attorney-General (1876), 1 App. Ca., 686, of which the facts are given, post, Chap. XVIll, s. 2 (c) ; formerly there was a further time beyond the decree nisi, during which it was forbidden to remarry ; see ante, p. 422, n. 1. 3 Hulse V. //. (1871), L. E., 2 P. & M., 259. 4 Moore v. M. (1892), the Times, July 16, p. 16 ; but like other con- donation, it is subject to reviver, ih. ; and see pp. 272-282, 426. 5 See ante. Chap. Vll, p. 272 ; the petition will be dismissed. « Latham v. L. (1861), 2 Sw. & Tr., 299; Ousey v. 0. (1875), 1 P. D., 56 ; Midwinter v. M. (1892), P., 28, p. 35. 7 Prole V. Soady (1868), L. K, 3 Ch., 220, observed in Hulse v. H., ubi sup. 424 EFFECT OF NULLITY, DIVORCE, ETC. Chap, xm and, as in this case, will take a bequest by tlie petitioner's father to his son's " wife." ^ Sec. 5. — Sbpaeation and Protection Oedeb, etc. (a) Judicial and Magisterial Separation ^ In every case of judicial separation the wife shall, from the date of the sentence, and while the separation continues, be considered as a feme sole with regard to her property, both as to acquiring it and disposing of it while alive, or when dead by her will ; and she has the full powers of a feme sole as to contracting, suing, and being sued ; and the husband shall not be liable for her torts and contracts, except he fails to pay alimony ; in which case she can pledge his credit (see ante, p. 179). If the wife again cohabits with her husband, she shall thereafter be entitled, for her separate use, to all property to which she was entitled when the cohabitation was renewed.^ A decree for judicial separation has the same force as the divorce a mensa et thoro previously given by the Ecclesi- astical Courts.* As to property, the wife is entitled to personalty sub- sequently accruing, and unaffected by any settlements, as her absolute property, and free from the husband's or his creditors' rights.^ 1 Stanhope v. S., ubi sup. 2 See Chap. VIII, p. 352 ; a separation order has the same effect as a judicial separation, Chap. IX, s. 3, p. 366. 3 20 & 21 Vict., c. 85, ss. 25, 26 ; and see Jficol v. X. (1886), 31 Ch. D., 524, C. A. ; but now a married woman has during cohabitation many of these privileges under the Married Women's Property Acts ; see ante, Chap. IV, p. 188. ii /J., s. 7 ; as to cases decided in decree a mensa et thoro, see post, p. 426. 5 Johnson v. Lander (1869), L. R., 7 Eq., 229 ; in re Insole (1865), L. E., 1 Eq., 470. Sf,c. (r,) SEPARATION AND PEOTECTION ORDER 425 111 probate and administration, a wife wlio for her husband's fault lias obtained a judicial separation is not, it would seem, thereby disentitled to have granted to her administration of his effects on his death. i {h) Protection Order The effect of such order is that a wife's earnings and property acquired since the desertion belong to her as a feme sole for her separate use, free from her husband's marital rights ; and she can sue and be sued as if she had obtained a decree of judicial separation.^ Therefore, if a reversionary interest of the wife, un- touched by any settlement, and not reduced into posses- sion, accrues to her since the desertion, the wife will be absolutely entitled to it.^ The order is retrospective, going back to the commence- ment of the desertion ; therefore she had a right to property acquired before the protection order, but during the desertion ; and a will so made disposing of property so acquired is valid, and entitled to probate.* For the order gives the wife power to make a will, where she otherwise would not be entitled.^ If, however, the pro- tection order was improperly obtained, the husband can 1 IMer, in re (1873), L. E., 3 P. & M., 50. 2 20 & 21 Vict., c. 85, s. 21 ; the causes for obtaining such order are explained ante, Chaps. VIII and IX, pp. 358, 361 ; the subsequent pro- vLsions of the Married Women's Property Act, 1882, giving every wife separate property (see ante, Chap. IV, p. 188), render a protection order comparatively useless (see Chap. IX, pp. 362, 363). 3 Jficholson v. Drwry Company (1877), 7 Ch. D., 48 ; Ewart v. Ohubb (1875), L. B., 20 Eq., 454 ; Coward and Adam's Furchase, ib., 179 ; Kingslei/s Trusts (1858), 26 "Beav., 84 ; Cookev. Fuller, ib., 99. ■1 Goods of Ann Elliott (1871), L. R., 2 P. & M., 274 ; but as to right of suing, the order is not retrospective. Midland Railway Co. v. Pj/e (1861), 10 C. B., N. S., 179. ^ See Manual in this series on Wills and Intestate Succession, by J. Williams, 426 EFFECT OF NULLITY, DIVORCE, ETC. CnAP. xili apply, even after the wife's death, to have it discharged ; whereon the will becomes invalid, and the husband can obtain revocation of probate. ^ If the wife dies intestate, the husband is not entitled to administer of her goods, and the children's guardian will be appointed.^ An adverse result of the protection order is that the wife becomes disentitled to pledge the husband's credit for necessaries.' Sec. 6. — Divorce a Mensa et Thoro A divorce a mensa et tlwro did not destroy the relation of husband and wife ; if either party married again, such party was guilty of bigamy ; * and sexual intercourse by either with a stranger was adultery.^ If husband and wife, subsequent to the decree of divorce, became recon- ciled and cohabited, no remarriage was necessary, and the cohabitation amounted to condonation ; ^ but till such re- conciliation is proved, the divorce is presumed to continue.'' She was still &feme convert, and could not be sued as a feme solefi On a divorce a mensa et thoro, the ordinary legal pre- i Mahoney v. M'Carthy (1892), P., 21 ; Mudge v. Adams, 6 P. D., 54 ; and see ante, Chaps. VIII and IX, as to discharging order, pp. 359, 364. 2 Goods of Stephenson (1866), L. R., 1 P. & M., 287 ; Goods of Weir, (1862), 2 Sw. &Tr., 451. 3 Tempany v. Halmoill (1858), 1 F. & F., 438. ■* Porter's case (1637), Cro. Car., 461. 5 Lautour v. The Queen's Proctor (1864), 10 H. L. C, 685 ; Ritchie V. B. (1861), 4Macq., 162. 6 Seller v. S. (1859), 1 Sw. & Tr., 482; Stephens v. Totty [1603), Cro. Eliz., 908. ' Underhill v. Brooke (1595), Cro. Eliz., 352. 8 Lewis V. Lee (1824), 3 B. & C, 291 ; and see Chamlers v. Donald- son (1808), 9 East, 471. Sec. c, divorce A MENSA ET THORO 427 sumption that wife's domicil is the same as the husband's fails.i As regards probate and grant of administration, if the husband has obtained a divorce from his wife for her adultery, on his death the next of kin will be preferred to the widow.2 Also where a wife, who has been divorced for her own adultery, is next of kin to an intestate, the administrator was ordered to pay to the husband direct, without requiring the divorced wife's concurrence. ^ The husband of a divorced wife could give a good release to the executor for his wife's legacy.* As to dower being lost by elopement in adultery, see infra. Sec. 7. — Adultery and other Misconduct Adultery, even though established by a verdict, does not' put an end to the relation of husband and wife.^ As to dower,^ in 1285 it was enacted by the Statute of Westminster the Second that a woman eloping with an adulterer is barred of her dower unless the husband willingly condone the adultery and cohabit again with her;" and this is so even though the adultery was brought about by her husband's gross misconduct.^ No miscon- 1 WilHmns v. Dormer (1852), 2 Bob. Ec, 505; and see ante, Chap. IV, pp. 165, 166. 2 Re Jones Davies (1840), 2 Curt., 628 ; Pettifer v. James (1717), Bimb., 16 ; and see Williams on Executors, 8tli ed., vol. i., p. 424. 3 CooTc V. Co^vper (1758), 2 Lee, 504. * Stephens v. Totly (1603), Cro. Eliz., 908 ; tliis would only liold if the legacy was not the wife's separate property by settlement or under the Married Women's Property Act, 1882. 5 Needhmnv. Bremner{lS66), L. E., 1 C. P., 583. 6 As to what is dower or free bench, see Manual on Real Property, by A. R. Rudall and C. Slagg ; and on Wills and Succession, by J. Williams. 7 13 Ed. I, c. 34, .still in force ; see Revised Statutes, vol. i. 8 Bostock v. Smith (1864), 34 Beav., 57 ; and see Hethrington v, 428 EFFECT OF NULLITY, DIVORCE, ETC. Chap, xm duct during widowliood or remarriage forfeits dower ; but as to free bench,i in some manors tliere is a custom that it lasts only during chaste viduity and is lost on unchastity.- But a husband eloping does not forfeit his estate by the curtesy.^ As to settlements and the wife jointure, her adultery does not forfeit her right thereunder or relieve her hus- band from his covenants,* in fact, it has no effect on it whatever, and husband and wife retain their previous rights thereunder unaltered,' unless it is varied by the Graham (1829), 6 Biiig., 135; Woodward v. Dmcse (1&61), 10 C. B., N". S., 722 ; Hawarthy. Herbert (1554), 2 Dy., 106i; but a divorce without eloiiement does uot forfeit dower, Lady Stowell (1605), Godb., 145 ; dower is also forfeited by a decree for dissolution of marriage (see ante, p. 420). ^ See note 6, sn-pra. 2 Doe on the demise of Askew v. A. (1809), 10 East, 520 ; and see a humorous account of such a custom in the manor of East and West Enborne, Berks, given in the Spectator, Nos. 614, 623, whereby the free bench was restored, notwithstanding unchastity, if the widow rode into Court on a black ram, saying tliese words — "Here I am. Riding upon a blaclc ram. Like a whore that I am ; And for my crincum crancum. Have lost my biuoum banoum ; And for my tail's gain Have done this worldly shame ; Therefore I pray you, Mr. Steward, let me have my land again." A similar custom prevails in the manors of Chadleworth in Berks, and of Torre in Devonshire. Cruise's Digest of the Law of Eeal Property, tit. Copyhold. 3 Sidney V. S. (1734), 3 P. Wms., 269 ; and as to curtesy, see pp. 185, 186, 416. * Sidney v. S. (1734), 3 P. Wms., 269 ; Buchanan v. B. (1809), 1 Ball & B., 203; Jee v. Thiirlow (1824), 2 B. & C, 647 ; Doneraile v. I). (1734), 1 Coop. t. Cot., 534 ; and see ante, p. 421. 5 Evans V. Carrington {I860), 2X>. F. & J., 481 ; Fearony. Aylesford Earl of, (1884), 14 Q. B. D., 792, C. A, o ' Sue. 7 ADULTERY AND OTHER JIISCONDUCT 429 Probate and Divorce Division vmder tlieir statutory power; see Chap. XI, p. 396. But adultery by a wife usually forfeits her equity to a settlement as to all money coming to her husband in right of his wife ;i and e conversoii the husband is divorced for his adultery, the wife will have the whole fund settled on her in opposition to his marital right.^ Adultery by the wife also prevents her from pledging the husband's credit if she elopes from the house or is expelled by the husband, but not if she continues to cohabit with him.' When the wife possessed lands or reversionary interest in personal property, and the husband was separated from his wife by mutual consent or under a divorce a mensa et thoro, or under a sentence of transportation, the Court, could dispense with the husband's concurrence and allow her to alienate such property by her own act.* Sec. 8. — Ecclesiastical Punishments Adultery and immorality has always been and still is punishable in the Ecclesiastical Courts, whether com- mitted by persons in holy orders or laymen ; see ante, pp. 10, 32, 231, 310, 311, 350. 1 See Moore v M. (1737), 1 Atk. , 272 ; Watkytis v. II'. (1740), 2 Atk, , 96 ; Lee v. L. (1758), Dick, 321, 806 ; Greedy v. Lavender (1850), 13 Beav., 62 ; Barrow v. B. (1854), 18 Beav., 529 ; Lewin's Trust (1855), 20 Beav., 378 ; Walts t. Shrimpton (1855), 21 Beav., 97, and see p. 186. 2 Barrow v. B. (1854), 5 De G. M. & G., 782 ; and see Head v. II. (1745), 3 Atk., 293, 547 ; Gilchrist v. Cator (1847), 1 De G. & B., 188. 3 See ante, Chap. IV, pp. 179, 181 ; and see Wilson v. Glossop (1888), 20 Q. B. D., 354, C. A. J 3 & 4 Will. IV, c. 74, s. 91 ; 20 & 21 Vict., c. 57 ; and see re Rogers (1865), L. K., 1 C. P., 47 ; Andrews (1866), 19 C. B., N. S., 371 ; e:c parte Murtha RoUnson (1869), L. R., 4 C. P., 205 ; and see cases noted on the statutes. 430 EFFECT OF NULLITY, DIVORCE, ETC. chap, xm As to clergymen (exclusive of bisliops), the Clergy Dis- cipline Act, 1892, provides, if either a bastardy order is made on a clergyman, or a clergyman is found in a divorce or matrimonial cause to have committed adultery, or an order for judicial separation is made against a clergyman in a divorce or matrimonial cause (see ante, Chap. VIII, p. 352), or a separation order is made against a clergyman under the Matrimonial Causes Act, 1878 (see ante, Chap. IX, p. 364), then, after the date at vchich the order or finding becomes conclusive, the preferment (if any) held by him shall v^^ithin twenty-one days without further trial be declared by the bishop to be vacant as from the said date, and he shall be incapable, save as in this Act mentioned, of holding preferment. ^ Also immorality is a ground of complaint for which, under and in accordance with that Act, a clergyman may be deprived or suspended.^ But a protection or maintenance order (see ante, pp. 358, 361, 368), or an order for restitution of conjugal rights or jactitation (see Chap. X), made against a clergy- man, are not offences under the Clergy Discipline Act, 1892. Convocation has made a Canon which has received the Eoyal Assent by Letters of Business regulating ecclesi- astical procedure under the Act. 1 55 & 56 Vict., u. 32, s. 1, and see F. H. L. Errington's Clergy Dis- cipline Act, 1892, with rules, etc. 2 Ih., s. 2 and seq. CHAPTEE XIV INFANCY 1. Powers of Parent, . (a) Father and Mother of Legitimate Child, . Custody, Religion, Education, . Chastisement, Services and Earn inys, Mari'iage, . Property, . Mother's Rights, ip) Father and Mother of a Bastard, (c) Forfeiture of Parental Rights by Miscon- duct or Waiver, Jurisdiction of the Court, Moral Misconduct and Cruelty, . Atheistical and Im- moral Principles, . Divorce, Waiver by Separation Deed, Waiver by Adoption, . Waiver by Conduct, . Retnoving from the Jurisdiction, . 432 432 432 433 433 433 433 434 434 434 435 435 435 437 439 44] 441 443 444 444 2. Duties and Liabilities of Parent, . . . .445 (a) Care, .... 445 (6) Maintenance, HT (c) Education, . . 449 3. Office, Powers, and Duties of Guardians, . . 449 {a) Appointment of Guar- dians, . . 449 Appointmentby Father, 449 Appointmentby Mother, 450 Appointment by Court, 450 Flection by Infant, 453 Guardian by Tenure or Custom, . . . 453 (b) Powers and Duties of Guardians, . . 463 Custody, . . 453 Religion and Edaca- tion, . . . 454 Maintenance, . 455 Property, . . 455 Marriage and Chastity, 455 4. Cessation of Minority, . 457 (a) Age of Majority, . 457 (b) By Emancipation, 458 (c) By Marriage, . . 469 6. Powers, Disabilities, and Liabilities of an Infant, 459 1 See Simpson on Infancy, 2nd ed., 1890 ; Eversley's Domestic Rela- tions, 1885 ; Schouler's Domestic Relations (Amer.), 1870. 432 INFANCY CriAi'. XIV (a) Contracts, . Infants Relief Act, 1874, Xecessaries, Apprenticeship and Service, . Statutory Restrictions on the Employment of Children and Young Persons, Education, . Marriage and Settle- ments, Trade Debts, Representation of Ma- jm-ity, 469 459 460 460 462 463 463 464 464 (6) Acts, . . 464 Sales and Leases, . 464 Gifts, . . . .465 Wills, . . 465 Commercial Transac- tions, . . . 465 Presentation to Living, 465 (c) Capacities, . . . 465 Public Office, . 465 Witness^ . . 466 Executor and Agent, 466 (d) Liability for Injuries, 466 Civilly, . . .466 Criminally, . . 467 (e) Remedies by and against Infant, . 468 Sec. 1. — Powers of Parent (a) Father and Mother of Lerj/timate Cliild Custody. — The father, where he has not waived or for- feited it (see (c), p. 435), has an absolute right to the custody of his children, even as against the mother ; and he can remove an infant at hreast from the mother, and take it abroad ; and if he denies the mother access to the chUd, the Court has no jurisdiction to enforce it.i The father can enforce his rights to the person of his child by habeas corpus ; and its delivery to the father 1 R.v. DeMaiineville {180i), 5 Bast, 221. An applicatiou was subse- quently made to the Court of Chancery, when Lord Eldon restrained the father from removing it from the jurisdiction, but refused to divest the father of the custody and deliver it to the mother ; De Manneville V. De M. (1804), 10 Vesey, 52 ; Re Halcewill (1852), 12 C. B., 223 ; Hope V. II. (1854), 2 Eq. Hep., 1047 ; and see re Agar Ellis (1883), 24 Ch. D., 317, C. A. ; but by 36 & 37 Vict., c. 12, the Court can order that the mother of a child under sixteen shall have access to it ; and see in re Taylor (1876), 4 Ch. D., 157 ; but this power seems never to have been exercised, except in cases of the father's miscouduct, as to which see post, p. 436. Sec. 1 („) POWERS OF PARENT 433 under an order of the Court may be effected by the " Sergeant-at-Arms attending the Court." i ReJiijion. — The father has an absolute right to deter- mine the rehgion in which his child shall be brought up, notwithstanding any promise he may have made previous to marriage or at any other time, as to the bringing up of the children. 2 Education. — The father can also select a school or tutor for his child ; and it is by delegation of the father's authority that the schoolmaster has a right to chastise the child.^ Cliastisement. — A parent may chastise his child in a reasonable manner,* and this right is expressly saved by the Prevention of Cruelty to and Protection of Children Act, 1889.^ But where, in exercise of this right of chas- tisement, IMrs. Montagu, a lady of position, had killed her little daughter, by having tied her up in a locked dark cupboard for five hours, the mother was convicted of man- slaughter, and sentenced to twelve months' imprisonment." Services and Earnings. — A parent, it would appear, so long as the child remains at home, and is maintained by him, has a right to his services, and it is on this ground that a father has a good cause of action for the seduction of a daughter (see ante, Chap. XII, p. 414) ; but it seems 1 G. V. L. (1891), 3 Ch., 126. 2 Inre Agar Ellis(l%l%), 10 Cli. D., 49, C. A. ; i» re &B»ia»i (1888), 40 Ch. D., 200 ; in re Violet Serin (1891), 2 Ch., 299, C. A. ; Barnardo v. M'Hugh (1891), 1 Q. B., 194, A. C, 388 ; Alicia Race (1857), 1 H. & M., 420, n. ; see the previous stage in this case, R. v. Clarke (1857), 7 E. & B., 186 ; and see: post, p. 454. 3 Agar Ellis (1882), Law Eeports, 24 Ch. D., 317, C. A.; Fitzgerald 1, Xorthcote (1865), 4 F. & F., 656 ; and see 52 & 53 Vict., c. 44, s. 14, reserving and recognising the teacher's right to chastise the child. See Manual on Education, by J. Williams, quoting Hull v. Hayleybvry ; and see post, pp. 449, 454. i Hawliins' Pleas of the Crown, tit. Surety of the Peace, sec. 23. 5 52 & 53 Vict., c. 44, s. 14. See the Tiincs for April 5, 1892, p. 10, z8 43i INFANCY Chap. XIV doubtful whether he can take the child's earnings gained by service to a stranger, though this is the law in Am erica J Marriage. — The father's right to object or consent to his child's marriage has been jsreviously discussed (see ante, p. 52) ; he has also an interest in having the child's marriage declared null and void (see ante, p. 229). Further, he is the proper person to advise his daughter in all matters relating to the preparation and provisions of her marriage settlement.^ Property. — As to the property of his child, a father has no right to it ; if he enters into possession of land, he will be regarded as the child's bailiff, and have to account for the rents and profits he has received ;S and as to per- sonalty, if he receives the income and, u fortiori, the capital, unless it be expressly given by the Court and by the trustee to him for maintenance, he will have to refund it ; ■* and his estate may be sued for such conversion after his death by the child. ^ Mother's Rights. — As to the mother's rights, it will have already been made clear that during the husband's life she has none,^ except in case of such husband's misconduct ; after the husband's death she is, by the Guardianship of Infants Act, 1886,'' a necessary guardian (as which see_pos^, pp. 449, 450). 1 Simpson on Infants, 2nd ed., p. 180 ; Schonler's Domestic Rela- tions, p. 344 ; Parsons on Contracts, 6tli ed., vol. i., p. 309. 2 Tucker v. Bennett (1887), 38 Ch. D., 1, C. A. 3 Thomas v. Thomas (1855), 2 K. &J.,79; M'allv. Slanwicki:\.m), 34 Ch. D., 763 ; and see in re Hobhs (1887), 36, ib., 553. -1 Wilson V. Turner (1883), 22 Ch. D., 521, C. A. = Concha v. Murriela (1889), 40 Ch. D., 643, C. A. 6 See the discussion in Tristram Shandy, bk. ii., chaps. Ixiv., Ixv., whether a mother is akin to her son. For the theory that the father is nearer akin to the child than the mother, see Aeschilus, Eumenides, V. 661 and seq. ; Euripides, Orestes, v. 552 and seq. ; and Bntler and Dindorf's notes. 7 49 & 50 Vict., ^. 27, s. 2. Sec. 1 (M POWERS OF PARENT— BASTARD 435 (&) Father and Mother of a Bastard A bastard child has no guardian, hut — '' It is now settled, after some llnctuatiou of opiuiou, that the mother of an illegitimate child has uprwia facie right to the custody of the child lip to the age of fourteen, in preference either to the reputed father or to any other person." And in determining who is to have the custody of and control over an illegitimate child, the Court will, in a proper case, give the same effect to the mother's wishes in respect of the care, maintenance, and education of the child as it gives to the wishes of the father of a legiti- mate child in those respects. ^ And in one case the Common Pleas, upon habeas corpus, ordered an illegitimate child to he delivered to the mother, although the father might be better able to educate and maintain it, and had undertaken to do so, and notwithstanding that their order might be of great prejudice to the child.^ But the Court has a control over the mother, and would deprive her of the custody for the like reason for which they would interfere with the paternal rights, i (t) Forfeiture of Parental Rights by Misconduct or Waiver. Jurisdiction of the Court, etc. — The Court of Chan- cery, representing the Crown as parens piatrix, had peculiar original jurisdiction over infants to act for their benefit, and therein to control the right of the father to the custody.^ 1 R. V. Barnardo {Jones's case) (1891), 1 Q. B., 194, C. A. ; but although the House of Lords (1891), A. C, 388, affirmed the Court of Appeal, it doubted whether the legal rights of the mother of a bastard were equivalent to those of the father of a legitimate child ; and see re Ullee (1886), 53 L. T., 711, 54 ib., 286, C. A. 2 Ex parte Ann Knee (1804), 1 New Rep., 148. " See^os^, s. 3, pp. 450, 451. 436 INFANCY Chap, XIV This jurisdiction has been increased by successive statutes, beginning in 1839 with Serjeant Talfourd's Act, 2 & 3 Vict., c. 54,1 giving the Court of Chancery an absolute discretionary power as to the custody of the infant, on the application of the mother, up to the age of seven ; and this age was raised to sixteen by 36 Vict., c. 12, repealing and re-enacting Serjeant Talfourd's Act. Under these Acts the Court was bound to consider the paternal right, the marital duty, and the interest of the children. 2 And in an application to give over the custody to the mother under this Act, the Court acts on different prin- ciples, and grants it more readily than if it were to inter- fere with paternal rights, the mother not appearing.^ Further powers as to the custody of infants were con- ferred on the Courts by 49 & 50 Vict., c. 27, s. 5, and 54 & 55 Vict., c. 3, and by other statutes (see post, pp. 437-445), meeting special cases. But even a Court of Common Law has had a discretion to refuse a habeas corpus to deliver the child to the father, if it would be to the great disadvantage of the child, as in a case where the father is living with a mistress in open immorality; and now Common Law Courts have con- current jurisdiction with Courts of Equity, and in exer- cise of that jurisdiction the rules of equity are to prevail.'' As to how this jurisdiction will be exercised, the Court of Appeal lately laid down that the Court will not interfere with the father in the exercise of his paternal authority except where, by his gross moral turpitude, he 1 Exparte Bartlett (1846), 2 Coll. C. C, 661. 2 See per Jessel, M. E., in re Taylor (1876), 4 Ch. D., 157 ; and see ill re Ethel Brovm (1884), 13 Q. B. D., 614 ; and see the judgment of the Privy Council, Smart v. S. (1892), the Times, Ang. 1, p. 9. 3 In re Elderton (1883), 25 Ch. D., 220. 4 In re Golds-worthy (1876), 2 Q. B. D., 75. Sec. 1 (c) POWERS OF PARENT— FORFEITURE 437 forfeits his rights, or where he has by his conduct abdicated his paternal authority, or where he seeks to remove his children, being wards of Court, out of the jurisdiction without the consent of the Court ;i or, as was laid down in another case — "The Court must be satisfied that the father has so conducted himself or placed laimself in such a position as to render it, not merely better for the children, but essential to their safety or welfare in some very serious or important respect, that the father's acknowledged rights should be interfered with ; — mere incontinence or habits of intemper- ance will not of itself justify the interference of the Court."^ The misconduct may be actual moral misconduct or iiTeligious opinions. Moral Misconduct and Cruelty. — As to the former, the leading case is Lord Eldon's decision whereby he deprived Mr. Long Wellesley of the custody of his children on 'the ground that he was keeping np an adulterous connection, and had actually taught the children vicious and blas- phemous habits. And by the Criminal Law Amendment Act, 1885, where a father or mother has caused, encouraged, or favoured the seduction or prostitution of a girl under sixteen, the Court has power to divest such father or mother of all authority over her, and appoint any person willing to take charge of her to be her guardian until she has attained twenty-one. ^ And by the Prevention of Cruelty to and Protection of Children Act, 1889, where a person having the custody or control of a girl under sixteen or a boy under fourteen has been convicted under that Act of wilfully ill-treating, 1 In re Agar Ellis (1883), 24 Ch. D., 317. 2 In re Goldsworthy (1876), 2 Q. B. D., 75. 3 Wellesley v. The Duke of Beaufort (1827), 2 Russell ; afl'. by the House of Lords, 2 Bligh, N. S., 124. 4 48 & 49 Vict., c. 69, s. 12. 438 INFANCY CnAi-. XIV neglecting, abandoning or exposing, or causing the ill- treatment, etc., of such child in a manner likely to cause such child unnecessary suffering or injury to its health, or of any offence involving bodily injury to the child, and punishable with penal servitude, or bound over to keep the peace towards such child, any person may bring such child before a Petty Sessional Court ; and the Court, if satisfied on inquiry that it is expedient so to deal with the child, may order that the child be taken out of the custody of such person and committed to the charge of a relation of the child, or other person being willing to undertake such charge, until it attains the age of fourteen years, or if a girl, sixteen years ; and may order the parent to contribute to the maintenance of the child. But no order is to be made unless a parent of the child shall ha\'e been proved party or privy to the offence.-' But the Act does not affect the right of parental chastisement.^ Further, the Custody of Children Act, 1891,^ provides— " Where the parent of a child applies to the High Court or the Court of Session for a writ or order for the production of the child, and the Court is of opinion that the parent has abandoned or deserted the child, or that he has otherwise so conducted himself that the Court should refuse to enforce his right to the custody of the child, the Court may, in its discretion, refuse to issue the writ or make the order ; " and " where a parent has abandoned or deserted his child, the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a fit person to have the custody of the child." And by the Poor Law Act, 1889, it is provided — " Where a child is maintained by the Guardians of the Union, and was deserted by its parents, or if the parent is imprisoned in respect of an offence committed against a child, the Guardians may at any time resolve that such child shall be under the control of the Guardians until 1 52 & 53 Vict., 0. 44, ss. 1-5. 2 lb. s. 14 ; and see ante (a), p. 433. 3 54 Vict., u. 3, ss. 1 and 3. SEC. 1 (c) POWERS OF PARENT— FORFEITURE 439 it readies the age, if a boy, of sixteen, and if a girl, of eighteen years ; and thereupon until the child reaches that age all the powers and rights of such parent in respect of that child shall, subject as in this Act mentioned, vest in the Guardians." i A Police Court may, however, upon proof that the child was not maintained by the Guardians and deserted by the parent, or it would be for the benefit of the child, divest the Guardians of the custody and return it to the parent. 1 But the religious education of the child is not to be changed or affected. ^ Atheistical and Immoral Principles. — By the original jurisdiction the Court of Chancery deprived a father of the custody of his children on the ground of his profess- ing atheistical and immoral principles. As in the well-known case of the poet Shelley, Lord Eldon, L. C, refused to deliver to Shelley the custody of his children, then living with the maternal grandfather, "Westbrooke, Shelley having avowed himself an atheist, and written and published books in which he blas- phemously derided the truth of the Christian revelation, and denied the existence of a God as the Creator of the universe ; and further deserted his wife and unlawfully cohabited with another woman. The Lord Chancellor after distinguishing cases in which the father's principles had not been called into 'activity or manifested in such reprehensible conduct in life, and cases in which those principles, though called into activity, nevertheless did not in the probable range and extent of their operation put to hazard the children's happiness and welfare, and. insisted that Shelley's was a case where — "The father's principles cannot be misunderstood, in which his con- duct, which I cannot but consider as highly immoral, has been 1 52 & 53 Vict., c. 56, s. 1. 440 INFANCY CnAr. XlV established in proof, and established as the effect of these principles ; conduct nevertheless which he represents to himself and others, not as conduct to be considered immoral, but to be recommended and observed in practice, and as worthy of approbation. I consider this, therefore, as a case in which the father has demonstrated that he must and does deem it to be matter of duty, which his principles impose upon him, to recommend to those whose opinions and habits he may take upon himself to form, that conduct in some of the most important relations of life, as moral and virtuous, which the law calls upon me to consider as immoral and vicious — conduct which the law animadverts upon as inconsistent with the duties of persons in such relations of life, and which it considers as injuriously affecting both the interests of such persons and those of the community. " ^ And in the case of Mi's. Besant, wife of the Eev. Frank Besant, where a deed of separation had heen executed, giving the custody of the daughter to the mother, but subsequent to such deed Mrs. Besant had published an atheistical book and delivered atheistical lectures, and further written and published a book called the " Fruits of Philosophy," which a jury found to be calculated to deprave public morals, and other similar books which the Courts of Appeal considered disgusting to decent English men and women, as violations of morality, decency, and womanly propriety ; the Court of Appeal, while consider- ing the first ground of atheistical belief sufficient to deprive Mrs. Besant of the custody, as by reason of this the child would be brought up, not in the father's belief ; further, on the second ground, considered it their duty to the ward to prevent her, by being brought up with the mother, running the risk of being brought up in opposi- tion to the views of mankind generally as to what is moral, decent, womanly, and proper; and the Court, therefore, notwithstanding the separation deed, restored the custody to the father.^ And in a case where father and mother had been 1 Shelley v. Westhrooke (1817), Jacob, 266. 2 In re Besant (1879), 11 Ch. D., 508, 621, C. A. S>x. 1 (c) POWERS OF PARENT— FORFEITURE 441 members of the Agapemone, a religious sect localised in a large building near Weymouth, believing that the Day of Judgment had commenced, and that prayer was therefore unnecessary, and Sunday was the same as other days, and in pursuance therefore the society played hockey on Sunday, and where the mother, becoming pregnant and insubordinate, was expelled from the society but the husband remained a member, Kindersley, V. C, restrained the father from taking possession of the child, i Divorce. — Where there is a petition for judicial separation, restitution, nullity, or dissolution of marriage, the Court can make orders for the custody of children. ^ Also under the Guardianship of Infants Act, 1886, the Court has power, when making a decree for judicial separation or divorce, to declare that the guilty parent is unfit to have the custody ; and in such case such guilty parent shall not, on the death of other parent, be entitled as of right to the custody or guardianship of the children. 3 Also under the Matrimonial Causes Act, 1878, where the husband has been convicted of an aggravated assault and the wife has obtained a separation order from the magistrate, the magistrate may further order — " That the legal custody of any children of the marriage under tlie age of ten years sliall, in the discretion of the Court or magistrate, lie given to the wife." •> }yaiver by Separation Deed. — An antenuptial agree- ment between husband and wife as to the religion and custody of the children is void.'' 1 Thomas v. Roherls (1850), 3 De G. & S., 7.58. 2 20 & 21 Vict., c. 85, s. 35 ; see Chap. XI, p. 404. 3 49 & 50 Vict., c. 27, s. 7 ; and see s. 13 ; and see in re G. (1892), 1 Ch., 292 ; and see Chap. XI, p. 404. * 41 Vict., u. 19, s. 4 ; and see pp. 364-368. 5 Andrews r. Salt (1873), L. R., 8 Ch., 622. 442 INFANCY Chap. XIV A post-nuptial agreement between husband and wife, usually contained in a separation deed whereby the father divested himself of the custody of the children and handed them over to the mother or some other person, was held to be void as contrary to public policy ; but just as separation deeds were by the development of law after long hesitation enforced (see ante, Chap. IV, p. 200), so now by express statute ^ it is provided — " No agreement, contained in any separation deed made between the fatlier and mother of an infant or infants, shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother : provided always, that no Court shall enforce any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto." So where in a separation deed between a Eoman Catholic husband and a Protestant wife;, it was agreed that the husband should not contribute to the support of the female infant, and the husband covenanted that the wife should have the absolute custody and control of the infant without any interference by him, it was held that the wife was entitled to the absolute control of the education (religious and otherwise) of the infant, notwithstanding the father desired the infant to be brought up in the Roman Catholic religion. ^ But in default of any stipulation as to religion, the infant must be brought up in its father's religion ; so, where Mrs. Besant (for statement of case, see aide, p. 440) wished to bring up her daughter, who was under the provision of a separation deed in her custody, as an infidel, the father being a clergyman of the Church of England, the Court, acting to protect tlie father's right, and also in the interests of the infant on the ground 1 36 Vict., u. 12, s. 2. 2 Condon V. Vollum, W. N., 1887, p. 121, SEr. 1 (c) POWERS OF PARENT— FORFEITURE 443 that she ought not to be brought up an atheist, deprived the mother of the custody and restored it to the father notwithstanding the separation deed.^ And the same course was followed in another case where the mother, who, under the provisions of a separation deed had custody of the child, took to immoderate drinking to such an extent as to incapacitate her for considerable periods of the day from exercising any control over herself or her actions.^ Waiver by Adoption. — An agreement by father or mother with a stranger to give up their parental rights is not binding and is revocable at pleasure,' though the Custody of Children Act, 1891,* enacts that — " Where a parent lias allowed his child to be brought up by another person, school, or institution, at the person's, etc., expense, for such a length of time and under such circumstances as to satisfy the Court that the parent "was unmindful of his parental duties, the Court shall not make an order for the delivery of the child to the parent unless the parent has satisfied the Court that, having regard to the welfare of the child, he is a lit person to have the custody of the child." And further, in case the child, after being brought up by another person, is redelivered to the parents, the Court may, in its discretion, order such parents to repay -the whole or part of the costs properly incurred bringing up such child. Still, as the law stands, it is impossible to stipulate with a parent to adopt a child so as to obviate altogether the possibility of such parent reasserting his parental rights. Lord Meath introduced, in 1889 and 1890, a Bill to legalise the adoption of children, but owing to 1 In re Besant (1879), L. E., 11 Ch. D., 508, C. A. 2 Carnegie's case, cited in re Besant, ubi siijo. 3 See R. Y. Barnardo, Tye's case (1889), 23 Q. B. D., 303, C. A.; U., Gossage's ease (1890), 24 Q. B. D., 283, C. A., H. L. (1892), W. N., 132 ; id., Jones's case (1891), 1 Q. B., 194, C. A., and A. C, 388. i 54 Vict., c. 3, ss. 3, 6. 444 IXFANCY Chap. XIV the continued strenuous opposition of the Lord Chan- cellor, Lord Halshury, arguing that to sanction such benevolent scheme of substituting a foster parent anxious to adopt for a real parent anxious to abdicate, was ' Acting contrary to tlie oardinal principles of tlie law of England," this very useful measure, which had received the support of Protestants and Catholics, had to be withdrawn. ^ Waive?- hy Gondud. — Still, the Court of Chancery was in the habit, when a father had deliberately accepted a condition which was for the benefit of his children, — whereby another person had purchased the right of bringing them up, and the father for many years had acquiesced in the children obtaining these benefits, ex- ceeding what they would have had if brought up witli him, — of exercising its discretion by restraining him from taking possession of such infants.^ It may be said by a lay reader that the exercise of such jurisdiction seems to legalise adoption, which, as previously explained, is void and without legal effect. In answer to this it may be said, that such jurisdiction is entirely discretionary, and therefore no fixed rule can de laid down about it. But, in truth, this part of the law is anarchic, and in conflict with the habits of English folk, among whom, according to the ordinary experience of mankind, adoption frequently takes place, and it would seem to be the immediate duty of the Legislature to legalise such a custom. Removing from the Jurisdiction. — If the child is a 1 See Hansard's Parliamentary Debates, vol. cccxxxviii., pp. 502-51J, vol. cccxliii., pp. 1.385-1406. - Lyons v. Jjlenldn (1821), Jacob, 215, the leading case on the subject, where Lord Eldon allowed children to remain with an aunt who for many years had maintained them ; and see re Ulke (1886), 53 L. T., 711, 54 L. T., 286, C. A. Sue. 1 « POWERS OF PARENT- FORFEITURE 445, ward of Court the father has no right to remove it out of the jurisdiction, for there used to be a strict rule that a ward might not he taken out of jurisdiction without leave, such leave being only given in oases of necessity ; but now leave may be given without a case of necessity being shown, the Court having only to be satisfied that the step is for the benefit of the ward, and that there is suEBcient security that future orders will be obeyed. 1 Sec. 2. — Duties and Liabilities op Parent (a) Care That "a tvoman is the common carrier of her unborn child" has very recently been laid down by an Irish judge; 2 but, apart from the criminal liability for abortion,^ it would seem difficult, as well as grotesque, to hold the parents liable in damages to the child when born, for acts done by them or for accidents occurring during the period of gestation. It is the moral duty of a mother to suckle her infant children unless some grave and lawful cause prevents her.'' It seems doubtful whether at Common Law there is any legal obligation on parents to take care of and protect their children ; but the Prevention of Cruelty 1 In re Callaghan (1884), 28 Cli. D., 186, C. A. 2 Per O'Brien, J., in Walker v. 6. N. R. (1891), 28 L. R. Ir., 69, p. 84 ; but the learned judge, in thus extending parental liabilities, falls short of the period to which Dr. Sterne would carry back tlie obligation by insisting on the mutual duty that is incumbent on father and mother of taking care that the homunculus is duly begotten ; see Tristram Shandy, bk. i., chaps, i. to iii. 3 See 24 & 25 Viet., c. 100, ss. 58, 59. " Epitome of the Moral Theology of Benedict XIV, tit. Mater, selected by Mansi, Arclibishop of Luca ; bound up with Liguori, Moral Theology. But not in the presence of a .stranger ; see ante, pp. 319, 320. 446 INFANCY Cba.-. XIV to and Protection of Children Act, 1889, after repealing s. 37 of the Poor Law Amendment Act, 1868, by virtue of which several of the Peculiar People have been punished for not supplying medical attendance to their children, and convicted of manslaughter when the child died in consequence thereof, ^ enacts — ''Any person over sixteen years of age "who, having tlie custody, control, or charge of a child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, wilfully ill- treats, neglects, abandons, or exposes such child, or causes or pro- cures such child to be ill-treated, neglected, abandoned, or exposed in a manner likely to cause such child unnecessary suffering, or injury to its health, shall be guilty of a misdemeanour and punishable " '^ by fine or imprisonment, or both, with power to increase the fine where the offender was interested in the death of the child.^ The same Act - further enacts, that — ''Any person who (a) Causes or procures any child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, to be in any street for the purpose of begging or receiving alms, or of inducing the giving of alms, whether under the pretence of singing, performing, or offering anything for sale, or otherwise ; or "{b) Causes or procures any child, being a boy under the age of fourteen years, or being a girl under the age of sixteen years, to be in any street, or in any premises licensed for the sale of any intoxicating liquor, other than premises licensed according to law for public entertainments, for the purpose of singing, playing, or performing for profit, or offering anything for sale, between ten r.M. and five A.M.; or "(c) Causes or procures a child under the age of ten years to be at any time in any street, or in any prenjises licensed for the sale of any intoxicating liquor, or in premises licensed, according to law, for public entertainments, or in a circus or other place of public amusement to which the public are admitted by payment, for the purpose of singing, playing, or performing for profit, or offering any- thing for sale, — " 1 31 & 32 Vict., c. 122, s. 37 ; /?. v. Dmctes (1875), 1 Q. B. D., 25 ; JR. V. Mnrby (1882), S Q. B. D., 571. 2 52 & 53 Vict., c. 44, ss. 1, 3. Seo. 2 fa) DUTIES AJfD LIABILITIES OF PARENT 447 Sliall, on conviction by a Court of Summary Juris- diction, be liable to a fine not exceeding £25, or not more than three months' imprisonment, or both.^ But the section provides that a Police Court may license the employment of a child over seven in a theatre, etc., where proper provision is made for the health and kind treatment of the child, and the child is fit to take part. But, apart from the criminal liability under these Acts, it seems very doubtful whether a parent is under any civil liability to the child for negligence,^ though for actual injuries inflicted by such parent he would be liable like any other tort feasor. (b) Maintenance ■'It is now "well established that, except under the operation of tlie Poor Law, there is no legal obligation on the part of the father to maintain his child, unless, indeed, the neglect to do so should bring the case within the criminal law. Civilly, there is no such obligation." 3 By the Poor Laws, if a child becomes chargeable to the parish, going on the rates, its father and grandfather, and its widowed (if married, then only in case she has separate property) mother and grandmother might be compelled to contribute to its support, whatever the age of the child might be. As to bastard children, an unmarried woman is liable under the Poor Laws for the support of her bastard * child till such child attains sixteen, 1 52 & 53 Vict., c. 44, s. 3. '- There is no actual case on tliis point, but the subject is most elaborately discussed in a recent learned work on Negligence, by Mr. T. Beven, pp. 154-156, where that text writer is considering how far the contributory negligence of the parent debars the child from recovering against the third party for any injury such child may have .suffered. 3 Per Cockburn, C. J., in Bazeley v. Forder (1868), L. R., 3 Q. B., 559. i 43 Eliz., u. 2, s. 6 ; 4 & 5 Will. IV, c. 76, s. 66 ; 45 & 46 Vict., c. 75, s. 21. 448 IXFAXCY Cdap. XIV or until tlie mother marries,^ when her husband hecomes liable to maintain his wife's bastards born previous to marriage. 2 The putative father of a bastard child may also be made to contribute to its support.* But until the child became chargeable no such obligation arose. ^ So where a very rich Jew had an onl}' daughter who was converted from Judaism and became a Christian, whereon her father turned her out of doors, and refused to allow her any maintenance, and the Sessions made an order that the father'should allow her 20s. a month ; but the King's Bench quashed the order, because it was not alleged that she was poor, or likely to become chargeable to the parish.^ But where a child is living with and supported by its father, maintenance is frequently allowed to the father and always to the mother out of the infant's property by the Court.*' The cost of past maintenance is granted to the father more rarely and with greater difficulty. Trustees of infants' property have also power at their dis- cretion to allow maintenance to an infant's parent." It is a clear principle of law that a father is not under any legal obligation to pay his son's debts. "In point of law a father wlio gives uo authority and enters into no contract, is no more liable for goods supplied to liis son than a brother or an uncle, or a mere stranger "would be. ... If a father does any specific act, from which it may reasonably be inferred that he has authorised his son to contract a debt, he may be liable in respect of the debt so contracted ; but the mere moral obligation on the father to maintain his child affords no inference of a legal promise to pay his 1 4 & 5 Will. IV, 0. 76, s. 71. "- lb., s. 57. 3 -Soft 36 Vict., 0. 65. ■I Peters v. C'owie (1877), 2 Q. B. D., 131. 5 St. Andrews Undershaft v. Jacob Mendez de Brela (1702), 1 Lord Raymond, 699. 6 Uamlock v. JI. (1881), 17 Ch. D., 807. ' Conveyancing Act, 1881, 44 & 45 Vict., c. 41, s. 43; see post, p. 455, where the section is quoted. Sec. 2 (6) DUTIES AND LIABILITIES OF PARENT 449 debts ; aud, " said Lord Abinger, C. B., "one ought not to put upon his acts au interpretation which abstractedly and without reference to tliat moral obligation, they will not reasonably warrant." i Howevei', in certain oases where father and mother are living separate and the children are with the mother, it has heen held that the mother has implied authority to pledge the father's credit for necessaries.^ As to power of Divorce Court to order maintenance for children, see pp. 404-408. (c) Education Neither is there any legal obligation on a father to educate his children ^ except under the Elementary Edu- cation Acts, 1870 to 1891. The Act of 187C enacts, " It shall he the duty of the parent of every child to cause such child to receive efficient elementary instntction in reading, writing, and arithmetic." ^ Sec. 3. — Office, Powers, and Duties of Guardians (a) Appointment of Guardians Appoint'inent by Father. — By 12 Car. II, c. 24, passed on the abolition of feudal tenures, which had previously provided for the wardship of infants, power was given by ss. 8, 9 to a father to appoint by will or deed, but not verbally, a guardian for all his children, including posthu- mous children, being under twenty-one and not married. Previous to the Guardianship of Infants Act, 1886, the father only, and not the mother, could appoint a guardian ; and such testamentary guardians appointed by the father 1 Per Lord Abinger, C. B., and Parker, B., in re Mortimore v. Wright (1840), 6 M. & W., 482 ; see Chitty on Contracts, 12th ed., p. 207. 2 See Chitty on Contracts, 12th ed., pp. 207, 208, 282. 3 39 & 40 Vict., c. 79, s. 4 ; see Manual on Education, by James Williams, pp. 186, 188 ; and see Chitty on Contracts, p. 207. 29 450 INFANCY Chap XIV were entitled to the custody and control of the infant as against the mother. But by the Guardianship of Infants Act, 1886, it is provided that — " Oil the deatli of tlie father of an infant, and in case the father shall have died prior to the passing of this Act, the mother, if snrviving, shall be the guardian of such infant, either alone, when no guardian has heen appointed liy the father, or jointly with any guardian appointed by the father."' ApjMintment hy Motlier. — The same Act further pro- vides — ' The mother of any infant may by deed or will appoint any person or persons to be guardian or guardians of such infant after the death of herself and the father of such infant (if such infant be then unmarried) ; and where guardians are appointed by both parents they shall act jointly. The mother of any infant may, by deed or will, provisionally nominate some iit person or persons to act as guardians of such infant after her death jointly with the fatlier of such infant ; and the Court after her death, if it be shown to the satisfaction of the Court that the father is for any reason unfitted to be the sole guardian of his children, may confirm the appointment of such guardian or guardians, who shall thereupon be authorised and empowered so to act as aforesaid, and make such other order in respect of the guardian.ship as the Conrt shall think right. "2 And every such guardian under this Act shall have the same powers as a guardian under 12 Car. II, c. 24, appointed hy the father. ^ Guardianship is a trust, and cannot be assigned. If there are several testamentary guardians and one dies, the office does not determine, but goes on to the survivors ; aliter as to guardians appointed by the Court, see post, p. 453. Appointment hy Court. — The jurisdiction of the Lord Chancellor to appoint guardians grew up soon after 12 Car. II, c. 24, by his providing for cases where the 1 49 & 50 Vict., c. 27, h. 2. 2 /6., o. 3 ; and see in re G. (1892), 1 Ch., 292. 3 n., s. 4 ; and see re M'Gralh (1892), 2 Ch., 496. •^Ec. 3 (.a) DUTIES OF GUARDIANS 451 father had omitted to appoint a testamentary guardian, the first recorded instance being in 1694. "^ This becoming established, the Court of Chancery was accustomed on application made to appoint a guardian to the infant for the protection of his or her person and property in case where he had no legal guardian, or where the legal guardian, including the father, was un- willing or unfit to act. 2 Instances of this interference with the father have already been explained ; see aiifi', p. 435-445. This original jurisdiction has from time to time been increased by statute ; see ante, pp. 436-438, 443. The Guardianship of Infants Act, 1886, provides — ' ' When uo guardiau has been appomteJ by the father, or if the guardian or guardians appointed by the fatlier is or are dead, or refuses or refuse to act, the Court may, if it shall think fit, from time to time appoint a guardian or guardians to act jointly with the mother ; " and the Court. . . " may in their discretion, a.s being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if they shall deem it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed. "^ The application under this Act may be either to the High Court or to a County Court (see s. 9). And by the Criminal Law Amendment Act, 1885, where it is proved that a father, mother, or guardian has 1 See Hargraves' note to Coke upon Littleton, SSb; but a more ancient origin has been ascribed to it as existing originally in the Chancellor before the Court of Wards was erected by 32 Hen. VIIl, c. 46, and on the dissolution of that Court reverting to the Chancellor ; see per West, C, in More/an v. Dillon (1724), 9 Mod. Eep., 135; JSyre v. Shaftesbury, Countess of (1722), 2 Peere Williams, 103, 119 ; and see per Lord Hardwicke, C, cited Amb., 302, n. ; and Smith v. S. (1746), 3 Atk., 304. 2 See Butler v. Freeman (1756), Amb., 301 ; Wellesley v. W. (1828), 2 Bli., N. S., 124 ; Stephen's Commentaries, tit. Guardian and Ward. 3 49 & 50 Vict., c. 27, ss. 2 and 6. 452 IXFAXCY Chap. XIV caused, encouraged, or favoured the seduction or prostitu- tion of a girl under sixteen, the Court can divest such person of all authority over the girl, and appoint any person willing to take charge of lier to be her guardian till she attains twenty-one.^ A Court of .STimmary jurisdiction has power under the Prevention of Cruelty to and Protection of Children Act, 1889, where a parent or other person having custody of a child has been guilty of grave offences towards it, to appoint some other person to have custody and charge of such child. 2 And when, under the Poor Law Act, 1889 (as quoted, pp. 438, 4.39), a Board of Guardians have by resolution vested in themselves the custody of a child, the Police Court may divest them of such custody and return the child to the parent. ■* Further, a Police Court, where a husband has been convicted of an aggravated assault on the wife, can give the custody of the children to such wife ; see pp. 366, 441. As to whom the Court will appoint, the Court regards only the interests of the infant, and appoints whomever it thinks will take best care of the infant. And it considers, as between conflicting claims, the nearness of relationship. Also the wishes of father or mother, even if informally expressed, will be paid attention to. If the infant is of years of discretion, its wishes will be attended to, and the guardian whom it prefers will be appointed. If a foreign Court has appointed a guardian to children who appear to be foreigners, the Court will not interfere by appointing an English guardian* 1 48 & 49 Vict., c. 69, s. 12. 2 52 & 53 Vict., u. 44, s. 5 ; and see ante, pp. 445-447. J TZi., c. 56. J In re Hourffoise (1889), 41 Cii. D., 310, C. A. Sec. 3 fe) DUTIES OF GUARDIANS 453 As to determination of the guardianship. If several guardians are appointed, and one dies, the guardianship determines and ceases; aliier a.a to testamentary guardians, see ante, p. 450 ; but usually the surviving guardians are reappointed. If a female guardian other than the mother marries, the guardianship also determines. Election by the Infant. — Also an infant can, where he has no guardian, appoint a guardian to himself, it seems, by deed.i But even if such guardian is appointed by the infant, application can still always be made to the Court to appoint a guardian ; for such an appointment by the infant cannot supersede the authority and duty of the Court, and the guardian appointed by the Court supersedes and overrides the elected guardian. ^ A guardian appointed by an infant has no power to assent to the infant's marriage, and in general his powers are undefined.^ Guardian hy Tenure or Cudom. — It is outside the scope of this work to discuss obsolete and rare forms of guardianship, such as guardianship in chivalry ; guardian- ship in socage ; guardianship by custom, as in the city of London, where there was a Court of Orphans ; * and by the custom of Kent, or by custom in a manor.^ (b) Powers and Duties of Guardian Custody. — The guardian of an infant has a right to the 1 See Davidson's Prucedents of Conveyancing, 3rd ed., vol. v., pt. ii., p. 666, where a precedent of a deed for appointing a guardian is given ; and see, too, the authorities there given in a note as to tliis kind of guardianship. 2 Curtis V. Rippon (1819), 4 Mad., 462. 3 In re Brown (1881), 18 Ch. D., 61, C. A. 1 Frederick v. F. (1731), 1 Bro. P. C, 253 ; saved by 12 Car. II, c. 24, s. 9. 5 See Ratclig's case (1592), 3 Co. Eep., 37ffl. 454 INFANCY Ce,u.. xiv custody and possession of the infant's person.^ If the infant goes to a house or person he disapproves of, and forbids her to visit, as in the case where a young lady of position went to a tavern kept by a relation, the guardian may send a police constable to bring her back.^ The guardian has a right to select a school for the infant ; and if the infant refuses to go back to school, the Court wUl compel him. And in one instance, Avhen an infant was a Cambridge undergraduate, who absented himself and refused to return, Lord Macclesfield sent him to the university in the custody of his own tipstaff, who was further ordered to keep him there.^ Reh'ijion and Education. — It is a settled rule that the child is to be brought up in the religion of the father.* The only exception is, that where an infant ward is of sufficient age and intelligence to have received and formed, and has received and formed, other religious impressions and convictions, strong and apparently fixed, the Court shrinks from the consequences of any attempt to disturb them.s S"either, if the control of child becomes vested in the guardians under the Poor Law Act, 1889 (see the section quoted, ante, pp. 438, 439), have the guardians power to have it brought up in a religion different from the father's." 1 R. V. Clarke (1857), 7 E. & B., 186. - Fleming v. Pratt (182-3), 1 L. J. K. B., 0. S., 194. 3 Hall V. H. (1749), 3 Atk., 721 ; Tremaiii's case (1720), 1 Strange, 167 ; and see ante, p. 43-3. ■> See Violet Xevin (1891), 2 Ch., 299, C. A. ; and see Alicia liace (1857), 1 H. & M., 420, u., where the Court of Chancery altered the result of the decision of the Queen's Bench on Jiabeas corpus, 7 E. & B., 186 ; and see p. 433. = Per the Court of Appeal i« re Besant (1879), 11 Ch. D., 508, p. 519 ; and see in re Scanlan (1888), 40 Ch. D., 200 ; and see re M' Carnal knowledge is defined by 24 & 25 Vict., c. 100, s. 63 ; and see -fi. V. Lines (1844), 1 C. & K., 393 ; R. v. iV'Rwe (1838), 8 Car. & P., 641 ; n. V. Hughes (1841), 9 C. & P., 752. ■> 48 & 49 Vict., c. 69, s. 4. 5 lb., s. 5. 8 See ante. Chap. XIV, p. 467. ' See Chap. IV, pp. 167-173, and p. 479 ; and now under the Criminal Law Amendment Act, 1885, 48 & 49 Vict., c. 69, s.s. 2, 3, of procuring his wife, see \>. 479. Sec. G rape 481 Also, a woman cannot be convicted of committing rape on a man.i Sec. 7. — Protection fob Young Persons ^ The Criminal Law Amendment Act, 1885, raised the age up to which young females are protected from seduc- tion, the effect of the statute being to enact that if the prisoner has had intercourse with a young girl under the age, the fact that she consented is no defence ; if she did not consent, the prisoner can, of course, be prosecuted for rape. The age for consent to abduction is eighteen ; and the taking, or aiding in taking, a girl under eighteen, for an immoral purpose, out of the possession and against the will of her father and mother, or other person having lawful charge of her, is a misdemeanour, and punishable with two years' imprisonment; but it is a good defence that the prisoner had reasonable cause to believe that the girl was over eighteen.^ If the girl is under sixteen, the law is more stringent. As to abduction, see ante, s. 2, pp. 474, 475. Defilement of a girl under thirteen is felony, punish- able with a maximum term of penal servitude for life ; but if the prisoner is under sixteen, the Court, instead of imprisoning, may order him to be whipped, and sent to a reformatory.* Defilement of a girl under sixteen is a misdemeanour punishable with two years' imprisonment ; but it is a defence that the prisoner had reasonable cause to believe 1 Taylor's Medical Jurisprudence, 2nd ed., vol. ii., p. 471. 2 48 & 49 Vict., c. 69 ; and see Mead and Bodkin's Criminal Law Amendment Act, 1885. 3 S. 7. * S. 4. 31 482 CRIMES CnAP. XV the girl was over sixteen ; and the prosecution must he commenced within three months after the commission of the oifence. It is said in the text-hooks that if the girl under sixteen incites the prisoner to the offence, and suhmits to it, she too is guilty of an offence.^ Procuring a girl under twenty-one, not a prostitute or immoral character, to have immoral intercourse with any other person, is a misdemeanour punishahle with two years' imprisonment ; but for a prosecution under these sections of the Act there must he corroborative evidence.^ As regards indecent assaults, if the girl is under thir- teen, consent is no defence.' The recent Betting and Loans Infants Act, 1892, con- stitutes the sending of letters or circulars, etc., to an in- fant, inviting him to bet or borrow money, a misdemeanour, punishable, on indictment, by three months' imprisonment, or £100 fine, or both; or, on summary conviction, by imprisonment for one month, or £20 fine, or both.* 1 S. 5. 2 Ss. 2 and 3. ^ 43 & 44 Vict., ^. 45, s. 2. 55 Vict., c- 4, CHAPTER XVI jrODERN EOMAN CATHOLIC CANON LAW 1. Indissolubility of Mar- (i) Ordo, 498 riage and Law, 484 [j] Ligamen, . 498 2. Jurisdiction and Proce- Sponsalia, 498 dure, . 486 Marriage, 498 3. Grounds for Nullity, with Ciiril Divorce, 499 Modern Instances, 489 (k) Publica Jionestas, 500 (a) General, 489 (I) Affinity, . 501 (b) Mistake or Fraud [m) Impotence, 503 (Error), 490 («) Fcn-m by Decree of (e) Conditio, . 491 Council of Trent, 605 [d) Votum, 491 Marriage by Proxy, . 507 (e) Consanguinity [Cog- (o) Abdiiction (Raptus), 508 natio), 492 (p) Dispensatio super Spiritual Kelationship, 492 matrimonio rato sed (/) Crimen, 493 non consummato, 510 ig) Mixed 2Iarriages{C al- {q) Dispensatio mutri- ius disparitas), . 493 monialis. 512 {h) Consent and Force (r) Ratification, 514 ( Vis et Metus), 494 1 The Canon Law is not legally binding in the British Dominions, or (it is believed) in any other country, But Eomau Catholics consider it morally binding on them. It is the law of their Church ; no Roman Catholic priest would dare to marry persons in violation of its rules ; and if a Roman Catholic layman deceives or ever persuades a Roman Catholic priest to marry him in violation of the Canon Law, or elects to marry civilly, or in a Protestant church, that is a matter between his own conscience and his fear of spiritual censures ; see post, p. 494. The Canon Law is also historically interesting to Protestants as being, at all events to some extent, the basis of the matrimonial law of England and Scotland ; see ante, Chap. I, a,r\d post. Chap. XVIII, pp. 534, 552. 484 ROMAN CATHOLIC CANON LAW CnAr. xvi Sec. 1. — Indissolubilitt op Maebiage and Law By the doctrine of the Eoman Catholic Church, marriage is indissoluhle ; and no divorce, no misconduct of either party, will authorise a remarriage. ^ The divorce known to the Canon Law is divorce a mensa et tlioro, which only allows the parties to live separate, and does not dissolve the vinculum. The only exception to the indissolubility of a valid marriage by any post facto act is, that it being admitted by the Canon Law that a marriage between two injkles is valid, that a marriage between a Catholic and an in- fidelis is invalid, that a marriage between a Catholic and a heretic is valid, though unlawful ; yet, if an infidelis married to an infidelis becomes a Catholic, and the other spouse refuses to be converted, or if in a marriage between two Catholics one of them becomes an infidelis, then the marriage between the Catholic and the obstinate infidelis is dissolved, and not only can the fidelis remarry, or take orders, but also the infidelis can, either before or after, or without conversion, remarry.^ For taking orders or religious profession does not destroy a previous marriage.^ The Canon Law, however, recognised many " impedi- ments " to marriage, rendering a marriage de facto solemnised invalid, and for these a decree of nullity could be obtained declaring the marriage void :* and it was 1 See Sanchez, bk. a., disp. 2, where the authorities are collected. But this doctrine was only arrived at after considerable hesitation and a great difference of opinion among the Fathers. See First Report of Commission on Divorce, 1852-63 p.604], p. 5, n. (4) ; and Bishop Cozens' argument in the Duke of JS'orf oik's case (1700), 13 St. Tr. , 1283, p. 1332 ; and see App. 2, p. 577. - Sanchez, bk. vii., disp. 71-77 ; aud see pp. 23, 493. 3 n., disp. 38 ; and sac post, p. 498. •> Ih., hk. vii. Sec 1 INDISSOLUBILITY OF MARRIAGE AND LAW 485 alleged by the Reformers that it was the practice of the liomau Catholic Church to vexatiously multiply impedi- ments to marriage, in order to gain fees by granting dispensations.! Instances of each of these impediments are given below, and in doing this the author has ex- cluded old and fanciful instances, and selected only from cases arising and decided in actual practice during the last twenty years. The Canon Law of the Eoman Catholic Church is that "no decree of nullity pronounced in any but a Catholic Court is recognised by the Catholic Church. . . . The decree of nullity for impotence, or for any other cause, pronounced by any tribunal what- soever external to the Catholic Church, has no validity within it, and therefore no priest could act upon such decree." 2 There seems to be no canonical reason why a Eoman Catholic should not avail himself of a decree not merely of nullity, but also of dissolution of marriage, from the High Court (say,' e.g., for his wife's adultery), and remarry thereon, if he has, previous to remarriage, obtained a decree of nullity from his own Spiritual Court. Ifeither, would it appear, does the fact that he has pre- viously obtained a decree, not merely of nullity, but even for dissolution of marriage (say, e.g., for adultery), from the High Court, at all debar him from obtaining a decree of nullity from his own Spiritual Court. In this way a decree for dissolution of marriage may become practically useful to a Eoman Catholic. ^ ^ Report of Commissiouers on Divorce, 1852-53 [1604], s. 7 ; S'i Hen. VIII, e. 38 ; 1 Eliz., u. 1 ; and see post, on Dispensations, p. 512. 2 Kindly communicated to the author by His Eminence Cardinal Manning, Archbishop of Westminster, through H. N. Bayley, 20th August 1891. 3 And staimst, pp. 496, 499, 500, 589, 590. 486 ROMAN CATHOLIC CANON LAW Chap, xvi The fontes juris authorities of the Canonical Juris- prudence, are the Corpus Juris Canonici/ the Decreta Authentioa,^ the decisions of the Eonian Catholic Ecclesiastical Courts as reported in the boolis of the Eota,i and the Acta Sancta Sedis.^ The Analecta Juris Pontifioi,* the text writers, whether Canonists or Theo- logians, such as Sanchez,^ Gury,'' Billuart,^ Liguori.® Among more modern books may be instanced Craisson, Manuale Totius Juris Canonici; Ferrari, Summa Institu- tionum Canonicarum ; Elements of Ecclesiastical Law, by S. B. Smith, D.D. (Benziger : ISaw York 1882). Sec. 2. — Jurisdiction and Procedure "All questions de sponsalihus vel de nullitate mcdii- monie, vel de separatione quoad tliorum et habitationem , belong exclusively to the Ecclesiastical Court." '^ " By Canon Law, the bishop in whose diocese the husband has a domioil is the proper judge of any matrimonial 1 For explanation of its composition, date, and contents, see Bncy- clopsedia Britannica. ^ Bulls, etc., emanating from the Papacy, and from time to time altering procedure. 3 An ofttcial periodical containing publication of the Propaganda, recording in Latin official proceedings and litigation at Rome since 1865 down to date. * A more popular treatise — a periodical work beginning from 1855 down to date. 5 De Matrimonio, by T. Sanchez of Cordova, Jesuit (Lyons, 1739), a book of the greatest authority, continually cited in the more recent litigation reported in the Acta Sanctte Sedis. o Compendium of Moral Theology, an excellent handbook of Catholic doctrine, in one volume, giving reference to all the authorities. ' Billuart, Charles Rene, Cursus Theologia;, after S. Thomas Aquinas. ^ S. Alphouso Maria de Liguori, Praxis Confesarie ; and see Migne, Jacques Paul's, Collection of Theological Writers. !> For the supreme power delegated by the Pope to the Congregation of Cardinals, see Acta, vol. x., App. III. pp. 492-50.3. Sec. 2 JURISDICTION AND PROCEDURE 487 case. If tlie parties had previously separated by mutual consent or mutual fault, the proper judge is the diocesan of the party against whom the action is moved ; if the fault of separation lies on one side, the diocesan of the abandoned party must take the case in hand." ^ " The judge must always be an Ecclesiastical judge," and there is always an appeal to Eome, when " the case would be referred either to the Cardinal-Vicar or to the Sacred Congregation of the Council, or to the Auditorium of the Sacred Palace, or to a Congregation of Cardinals specially appointed." i As to procedure, " the trial must be conducted under pain of nullity according to the rules laid down by the Canon Law. These laws have been somewhat modified since the days of Sanchez (1739). . . . The general principles are laid down by Benedict XIV in his consti- tution, "Dei Miseratione," of November 3, 1741. This constitution regards trials outside Eome and in Eome itself. ... A case of nullity would not be decided by the first judgment so as to leave the parties free to remarry. The 'defensor matrimonii,' who is always appointed by the Court, must lodge an appeal for a fresh hearing. Only when the second judgment conformable to the first has passed unchallenged, may the parties be considered free." ^ And if the procedure and formalities prescribed by the Canons and the Bull "Dei Miseratione" are not substan- tially observed, the proceedings are invalid and the judgment null ; and among the most important of these formalities is the continual intervention of the defensor ; if that is lacking, the proceedings do not become ratified and validated by his subsequent appearance, but only by 1 Kindly commxuiicated to the author by J. M'Intyre, secretary to the Roman Catholic Bishop of Birmingham ; the Bull " Bei Miseratione " is reprinted in Acta, vol. iv., App. IX, pp. 346-352. 488 ROMAN CATHOLIC CANON LAW Coap. xvi a dispensation from the Pope.i And a custom to disregard the obligatjons of the constitution, " Dei Miseratione," requiring the cause to be twice heard, is invalid.^ The more modern procedure was again regulated by an instruction issued by the Congregation, August 22, 1840. By this order the bishops are directed to conform to the Canon and the "Dei Miseratione.'' The proceedings are, with some exceptions, to be conducted in Latin ; these exceptions include the examination of witnesses and report of medical inspectors. The hearing must be always before the bishop or before his official specially appointed. The defensor must be always cited, and given notice of applications, and copies of all documents. The petitioner, the septivia manus of relations, neighbours, and other witnesses, but not the confessor, are to be examined ; but in private, and without the presence or knowledge of the other party except the defensor. Then publication is decreed. Next, the evidence for defence must be given. After the evidence is closed there follows argument and sentence. After the sentence the defensor must appeal to another judge, who will again go through the case.^ A further lengthy explanation of canonical procedure in matrimonial causes was issued in June 20, 1883, by the Holy Inquisition.'' 1 See an American case brought before the Rota, September 24, 1864, Acta, vol. i., pp. 411-421. 2 See a resolution of December 15, 1877, Acta, yoI. x., pp. 504^509. ^ See a copy of this instruction in Acta, vol. i., App. XIV, pp. 439-444 ; and see further instruction as to evidence issued, August 21, 1870, in Acta, vol. vi., App. IX, pp. 442-446 ; and a case on evidence, March 24, 1871, Acta, vol. vi., pp. 461-468 ; and see also a case as to the necessity of the defensor being present. May 19, 1888, Acta, vol. xxi., pp. 162-181 and 693-619. The procedure in nullity for im- potence is given post, pp. 503, 504. ^ Acta, vol. xviii., pp. 344-386. SF.r. 2 JURISDICTION" AND PROCEDURE 489 An account of the Eoman Catholic Courts in practice exercising jurisdiction may be found in the evidence before the Committee of Privileges, given by Bishop (afterwards Cardinal) Wiseman, who was then the Co- adjutor and Ecclesiastical Judge for the central part of England. He states that cases came before him, not merely contentiously, but also consultatively and peni- tentially.i But this evidence was given prior to the re-establishment of the Eoman Catholic Hierarchy by Papal BuU, September 29, 1851. A case may also be heard oeconomoce without advocates when the parties are poor, the Court hearing on one side the defensor, and on the other a Canonist and a Theologian. ^ In England suits are so rare, about one in three years, that the Court is not organised, and there are no advo- cates. The appeal is in every case direct to Rome, and the bishop or archbishop always sends the sentence and evidence for confirmation. Sec. 3. — Grounds fob Nullity, with Modekn Instances (a) General The Canonists have reckoned fourteen impediments that destroy and annul any subsequent marriage, each being what is described as imjpedimentum dirimens, which they put together in the following old hexametres : — "Error, conditio, votum, cognatio, criiiieu, Cultus disparitas, vis, ordo, ligamen, honestas, Si si.s afiinis, si forte coire nequibis, Si parochi et duplicis desit prEesentia testis Eupta sit niulier, parti iiec reddita tutas Hsec facienda vetant oonunbia, facta retractuut." 1 The Sussex Peerage case (1844), 11 CI. & F., 85, pp. 117-134 and 764-767. 2 See Acta, vol. i., p. 259, n. 490 ROMAN CATHOLIC CANON LAW CHAr. xvi But none of these, it is believed, except cultus dis- paritas (see pp. 23, 484, 493), occurring subsequent to a marriage, will suffice of themselves to annul a previous marriage. These grounds will be treated seriatim in order. (5) Mistake or Fraud {Error) A mistake in the person annuls a marriage ; that is to say, when a person intending to marry Agnes finds that in fact he has married Julia. But error in the "quality" of the person rarely annuls the marriage, although in some case an error of quality will amount to an error de persona. The following case will explain : — Seius, a Greek, enlisted as a volunteer in the Eusso- Turkish War. He was billeted in the house of Titus, a Greek Catholic, and fell in love with his daughter, Caia, aged fifteen. Seius represented he was of noble birth, very wealthy, and of good moral character ; and Titus, although he made some inquiries at a reference given by iSeius, believing these representations, allowed him to marry Caia, which otherwise he would not have done unless he believed the representations. The marriage took place, and the representations turned out wholly false, because Seius was of bourgeois extraction, had very small means, and was of bad character, as was proved by his infecting Caia witli a disease. A few months after marriage he deserted his wife Caia, and married again. Caia sued for nullity on account of error, which was refused, as it was only error de qualitate, not error de persona. ^ 1 Acta, vol. i., pp. 257-266, December 29, 1862 ; and see ih., App. X, pp. 371—377, at error persona: et error qualiiatis, wliere tlie doctrine is discussed. Sec. 3 W GROUNDS FOE. NULLITY 491 (c) Conditio When consent to marriage is obtained under a false condition, sucli marriage may be declared void. Livius, tlie son of Horatius, a very rich Greek, fell in love with Caia, a poor Catholic girl. Horatius brought Caia into his house to act as a servant, but Livius became more and more in love with Caia, who was very beautiful, and as Horatius opposed the marriage, sexual intercourse ensued. Horatius threatened to send his son away to Africa, Livius, to keep possession of Caia and avoid Horatius' anger, devised with Caia and N. a scheme whereby Caia should be married to N., a servant who, in consideration of being paid by Livius a month's stipend, was instantly to hand over Caia to Livius. The mar- riage between Caia and N. took place in church, and immediately afterwards Livius took Caia away to Kome, where he cohabited for years with her, and issue was born, who were brought up as Livius' children. Caia and JST. never, cohaljited or even saw one another since the celebration of the marriage. At last Livius wished to legalise his coanection with Caia, and for that purpose to have her marriage with N. declared null. The Court declared nullity on the two grounds of conditio, and also that there was no real consent to the marriage.^ (d) Vofum^ A solemn vow of chastity on entering a religious order annuls any subsequent marriage, but a simple vow of chastity does not. The Pope can dispense with either.^ 1 Augu.st 29, 1868 ; Acta, vol. iv., pp. 6.'i-74. 2 See post, Ordo, p. 498. '■' Gury, Tractatus de Matrimonio, Caput 6, Articulus 1, 4 ; Articulu.s 2, sec. 2, puiictum 2. There are no cases on this point reported in the Acta ; but see lu.structions, vol. xviii. , p. 368. 492 ROMAN CATHOLIC CANON LAW Chap. XVI (e) Consanguinittj {Corjnatid) Eelationship up to the fourth degree creates a diriment impediment ; and on the relationship being properly proved, and its being further proved that no dispensation was obtained, the complainant will be absolutely entitled to a decree of nullity.^ The degrees of consanguinity are given in the tree of relationship in the end of Corpus Juris Canonici ; and, besides, all the ascending and descending line includes collaterally third cousins. Degrees of canonical relationship in the ascending and descending line are counted like as civil law, but in the collateral degree they are counted as related to each other in the same degree that they are removed from the common ancestor. For instance, the brothers and sisters of P. being removed in the first degree from the common ancestors, are related in the first degree to P. In the unequal collateral degree it is counted according to the distance of the more remote from the common ancestor. For instance, P. and the daughter of his greal^greatuncle are related unequally and collaterally, therefore the more remote must be taken. P. is the more remote from the common ancestor and greaf>great-grandfather, to whom he is related in the fourth degree, therefore they are related in the fourth degree. Sjiiritual Relcdionsliip also nullifies marriage. This is constituted by being godfather or godmother to a child, and prevents marriages, not merely between the child and its godparents, but also between the godparents themselves 1 See a case, June 8, 1889, Acta, vol. x.\ii. , pp. 220-237, and Angu.st 13, 1870, Acta, vol. vi., pp. 101-108, where it was laid down that the Court will give credit to baptismal and marriage registers in proof of relationship till contradicted ; and see, further, the Instruction issued b y the Inquisition, .June 20, 188-3, as proof and evidence in this case, Acta, vol. xviii., pp. 352-354, 376, 377. Sec. 3 M GROUNDS FOR NULLITY 493 and between a godparent and the child's father and mother. So in a certain case Nioolasus promised Anna, the wife of Joseph, who was ill at Eome, to be godfather to Siricas her son. Nicolaeus, not being able to be personally present, asked Hyppolitus to take his place, who consented. Soon after, Anna's husband died, and JNioolseus married the widow. The marriage was declared null and void.i (/) Crimen Adultery or homicide of a spouse committed by con- spiracy against a former spouse prevents any valid marriage between the criminals. As regards the adultery, it is necessary that it should be with regard to a valid marriage, known to both parties, and the adultery must be fully consummated and accompanied with a promise of marriage after the death of the injured spouse. As regards homicide, the spouse must be actually killed, there must be a joint conspiracy, and the homicide must be committed with intent to intermarry. Under these con- ditions previous homicide or adultery annul a subsequent marriage between the guilty parties.^ ({/) Mixed Marriages (Oultus disparitas) That is to say, a marriage between a person baptized and an unbeliever unbaptized is void ; this does not apply to mere heretics.' But mixed marriages between Eoman Catholics and heretics are generally forbidden lest the Eoman Catholic spouse might be converted, although if 1 June 11, 1881, Acta, vol. xiv., pp. 411-421. 2 Gury, Tractatus de Matriniouio, Caput vi., Articulus ii., sec. 2, punctum 6. There are no cases on this point reported in the Acta, bnt see vol. vi. , p. 107, u. •^ Gury, Tractatus de Matrinionio, Caput 6, Articulus 2, .sec. 2, punctum 7 ; and see ante, pp. 2-3. 484, as to a spouse subsequently be- coming infidelis. 494 ROjrAX CATHOLIC CANON LAW CnAi-. xvi they take place they are valid. But upon conditions guarding against such conversion to heresy, and with a view to the conversion of the heretic, and further with a stipulation that all the issue should be brought up Catholics, they are sometimes allowed. ^ No priest would marry a Roman Catholic to a non- Catholic without a dispensation. In England a priest's presence is not essential for the marriage of a Roman Catholic (see post, p. 506) ; but if a Roman Catholic is married by a registrar or Protestant minister the marriage is " clandestine," though canonically valid and yet divorce- able, see pp. 499, 500, 590. (h) Consent and Force ( Vis et Metus) Consent. — '\A1ien it is said that marriage is constituted by the consent of the parties, it is meant that it must be a free and willing consent, not compelled by fear, force, or duress ; and a marriage so brought about is nuU and void. The force and coercion referred to as obtaining an unwill- ing consent, maj"^ be either actual force and fear or moral force and pressure. And in considering their effect, the person on whom they are exercised must be reckoned, whether a young man or a girl or an old man. The party impugning the marriage must show that the force, actual or moral, must be such and sufficient as would have produced that effect on an ordinary man or girl. And a marriage brought about by such force and coercion does not become, at all events since the Council of Trent, validated by subsequent cohabitation, even although accompanied with birth of issue. ^ 1 See Cardinal Autonelli's Instructions, dated Nov. 15, 1858, Acta, vol. vi., pp. 456-460 ; and as to mixed marriages, see also a declaration by the Inquisition, Acta, vol. xxiii., pp. 700-703. For a copy of the dispensation now in use for a mixed marriage, see post, App. 3. 3 Acta, vol. ii., p. 20 ; and see generally as to eviclence and proof of Sec, (A) GROUNDS FOR NULLITY 495 How mucli the force, whether actual or moral, must he, is best shown by the instances following : — A French girl, Caia, who had lost her father, was put to a girls' school, but from the age of twelve showed signs of weak- ness of intellect. Her mother, thinking after medical advice that her daughter's health might be thereby improved, wished to marry her to Titus, a wealthy, stupid, elderly debauchee. Caia strongly objected to the marriage, and said she would never marry him, avoided liim as much as she could, and when he asked her, said she would consider it. In order to escape the marriage she ran away to Paris, but, was brought back crying. The mother and a cousin pressed her by prayers and threats to marry Titus, in particular saying that if not they would shut her up in a distant and remote house. On the day of the wedding, being brought with her relations to the bridegroom's house, she several times said she would not marry Titus, and would say no at the ceremony. At the civil ceremony before the Mayor she asked the official if she could then say " no " on being asked if she consented, and that official by mistake said she could not. After this, at the ceremony, fixing her eyes on her mother, she said " yes.'' At the religious ceremony she stopped at the door of the church, and her cousin pushed her on, and then the religious ceremony took place. The marriage was declared null.^ And metus reverentialis, the filial respect when the parent puts pressure on the child by threats, cruelty, or importunity to marry, is a frequent cause of nullity. In a recent case, Aloysia, aged eighteen, had married Ernest, the impediment of vis and metus, Instruction, issued June 20, 1883, by the Holy Inquisition, Acta, vol. xviii., pp. 356-359, 379-381 ; and see post, pp. 505, 506, 508. J June 10, 1865, Acta, vol. ii., pp, 6-20, 496 ROMAN CATHOLIC CANON LAW Cbap. xvi aged fifty, under strong pressure by her father, an official of overbearing temper. The marriage was very unhapi^y, and the wife for some time became a lunatic, and was in the madhouse at Ivry. She recovered and went into a convent. Then after her father's death she left the convent, and taking advantage of M. ISTaquet's divorce law, recently passed, got a civil divorce and remarried Geoffrey, a soldier. Then she applied for a nullity, alleging the impediment of metus, and the marriage was declared null by the Ecclesiastical Court at Paris, and the sentence affirmed by the Congregation of Car- dinals at Eome.i And in another case where a fraudulent priest had got up a marriage, and himself celebrated it at midnight, in order to prevent his own nephew marrying the woman, and the husband and wife never cohabitated, nullity was granted.^ And again, a stepmother, Elisa, who was a strong woman and a public gymnast in Egypt, by threats made her stepdaughter, Adelia, aged fourteen, marry a man of forty, Peter, by threatening her, and taking her to the church at night. Adelia went off into convulsions after the ceremony, and was, ill for several days. A civil separation followed, and Peter getting all her property into his hands, spent it. The marriage was declared null although twenty years had elapsed, and there was some evidence of consummation. ^ 1 May 4, 1889, Acta, vol. xxii., pp. 85-103. This case shows that the fact that the complainant has previously obtained a civil divorce and remarried on it, does not stop such complainant from suing toi nullity before the Ecclesiastical tribunah As to metus reverentialis, which seems a very frequent ground for nullity, see Acta, vol. viii., pp. 677-593. 2 April 17, 1869, Acta, vol. iv,, pp. 513-522. " Feb. 22, 1890, Acta, vol. xxiii., pp. 23-40. Sec. 3 (A) GROUNDS FOR NULLITY 497 Also if actual armed military force is employed to compel the marriage, it will te void. If there is some just and lawful reason for using force it will be valid, but not if the party is thrown into gaol and to get out ho marries. 1 In this, Aloysius, a rough young Italian farmer, made love to Anna, and in forty days, having had connection with her, agreed to marry, and the banns were put up. Then discovering that Anna was five months gone in preg- nancy by another man, he breaks off the match. He was arrested by the Carabineers and brought before the civil officials, who threatened him to make him marry ; and being afraid he consented, whereupon he was instantly taken by force with the Carabineers to the church and married, and then with the bride Anna brought back to a house her parents had assigned to them. They slept together that night ; there was continual quarrels during the two months' cohabitation, when Anna having been delivered of a child, Aloysius absconded. The marriage was declared void.^ But it must be proved that the compulsion was in- flicted with a view to, and the fear must be felt as a motive towards, entering into the marriage. Count Antony, aged twenty-two, had married in 1865 Countess Anna, also twenty -two. They lived fairly happily together for five years, when the Countess eloped to Paris with her paramour. The Count got a civil divorce, and they never again cohabitated. Then in 1889, the parents of both parties being dead, the Count sued for nullity. Considerable evidence was brought forward to show the very harsh and overhearing conduct of the Count's father, threatening to disinherit him ; but it was not proved that the father had applied pressure 1 Dec. 18, 1869, Acta, vol. v., p. -348. 2 /j.^ p. 343. 32 498 KOMAN CATHOLIC CANON LAW Ceap. xvi towards, and tried to force on this particular marriage, so nullity was refused. ^ (i) Ordo Orders validly assumed annul any subsequent marriage." (j) Ligamen A previous tie, either of marriage or spoiisalia, creates an impediment. Sponsalia. — A question as to the impediment of sponsalia usually arises from the party alleged to be bound wishing to marry; whereof the party alleging sponsalia endeavours, by instituting a suit, to stop the marriage, which is inhibited at once until the Court is certified, destatu libero, of the party alleged to be bound. A mere vague promise of marriage does not constitute sponsalia. The sponsalia must be proved by a clear promise and repromise. Sponsalia will often be presumed from sexual intercourse with a woman of virtuous con- duct ; but indifference on the part of the parents to their daughter's seduction will be evidence rebutting such presumption.^ Even secret sponsalia creates an impedi- ment {se,e. post, p. 501). Marriage. — As to previous tie of marriage, this exists unless it has been declared null by the sentence of a Canonical Court, or put an end to by the death of the party. As to the termination of the first marriage by 1 May 10, 1890, Acta, vol. xxiii., pp. 140-154. 2 Guiy, Tractatus de Matrimonio, Caput 6, Articuhis 2, see. 2, punctum 2 ; there are no recent cases on this jMint reported in tlie Acta, but see Instruction, vol. xviii., p. 368. 3 Jan. 28, 1865, Acta, vol. ii., pp. 142-147; April 29, 1871, Acta, vol. vi., pp. 519-526, vol. viii., p. 316. Skc. 3 0) GROUNDS FOR NULLITY 499 death, the death must be either proved or presumed from long absence.! jjj gome cases it is incumbent on those wishing to be married to prove that they are free from any previous tie.^ Civil Divorce. — As to the remarriage of persons whose marriage had been declared null, and dissolved by a civil tribunal, the Canon Law and practice of the Catholic Courts must be closely examined. If the marriage has been declared mill by the Civil Court on account of an impediment known to the Canon Law, the Canonical Court somewhat encourages a previous reference to the Civil Court, and the proceedings in the Civil Court should be given in evidence in the Canonical Court. If the Civil Court, however, has dissolved the marriage on account of reasons not known to the Canon Law, as, e.g., adultery, the Canonical Court eyes suspiciously any previous reference to the Civil Court ; indeed it is said, in part of the Instruction, that in this case the parties are in some degree estopped from proceeding for nullity in the Canonical Court, but in practice a civil divorce for such a ground frequently precedes a Canonical suit for nullity. But if the prior marriage has been contracted heretic- ally, and not before a Catholic priest, the Canonical Court will inquire closely into its validity, to see, for instance, if the parties have been baptized.^ But the most recent pronouncement of the Holy 1 See Instructions by S. Congregation and by S. Inquisition, Acta, vol. vi., pp. 436-446 ; and see furtlier Instruction by the Inquisition, June 20, 188-3, Acta, vol. xviii., pp. 360-364, 382-386. 2 See tlie most recent Instruction, August 29, 1890, Acta, vol. xxiii., pp. 189-192, quoted i>os<, p. 590. ' Instructions by the Inquisition, June 20, 1883, Acta, vol. xviii., pp. 360-364, 382^386 ; for a case where the petitioner for nullity had obtained previously a civil divorce, see ante (h), p. 496. 500 ROMAN CATHOLIC CANON LAW Cdap. xvi Inquisition rather tends to relax this stringency, and extend greater favour towards the remarriage of persons divorced for adultery. For it lays down, if two heretics marry according to their own rites, or a Catholic and heretic, or two Catholics marry according to heretical or civil rites, under a civil system which admits divorce, even although they may have superadded subsequently to the civil or heretical rite a Catholic ceremony, yet, because they married under a system admitting divorce for adultery, such civil or heretical marriage is on that account void, and the parties when civilly divorced may be properly remarried by a Catholic priest, i (k) Puhlica honestas The impediment of publica honestas arises from pre- vious marriage or sponsalia with a relation of either party. It frequently coexists with the impediment of affinity, as explained jjosi", pp. 502, 503. The impediment of publica honestas arising from valid sponsalia mu.st be distinguished from that of ligamen arising from sponsalia or marriage, for in ligamen it is alleged that the sponsalia or marriage are still subsisting (see ante, pp. 498, 499, Liga- inen); but as regards the impediment of public honesty it is legally immaterial whether or not the sponsalia have been put an end to, whether by mutual consent or death the impediment still exists, unless removed by dispensation. The impediment extends only to those in the first degree of consanguinity, i.e. parents and children, brothers and sisters of persons with whom sponsalia existed.^ As regards a marriage, the impediment arises from a mar- riage that may be invalid from lack of consummation, 1 See Acta, vol. xxiii., pp. 700-703, issued in the part for Juue 1891. 2 Feb. 28, 1885, Acta, vol. xviii., pp. 210-219. Sec. 3 (fc) GROUNDS FOR NULLITY 501 but not from a marriage invalid from want of consent, or from a civil marriage (see post, p. 506) ; and when it arises from marriage it extends to fourth degree. As regards sponsalia, the impediment arises, not merely from public, but also from private and secret sponsalia, and when arising from sponsalia only extends to the first degree.i As to dispensations from the impediment of public honesty, see piost, p. 514. Public honesty undispensed with was one of the im- pediments to the marriage of Henry VIII and Catharine of Arragon (see piost, App. 5). (l) Affinity Affinity may be defined as the tie between persons whose relations have had sexual intercourse. The tables of the persons whose affinity creates an impediment is set out in the end and Appendix to the first volume of Corpus Juris Canonici. At the present day only the first genus of affinity creates an impediment extending to the fourth degree, ascending or descending. And in considering affinity, besides the genus and gradus, the linea, whether reda collateralis or obliqua, must be counted. The first genus of affinity includes, as regards a man, his wife's sister and the surviving widow of a deceased brother of his wife, and their relations by consanguinity to the fourth degree, ascending, descending, and collateral; and correspondingly as regards a woman. So if Caius, who is related to me within fourth degree of consanguinity, has intercourse with Agnes, Agnes 1 Acta, vol. ii., App. IX, where reference is to a treatise De Dispen- sationibus Matrimonialibus, by Peter Giovine ; and see an Instruction is-sued June 20, 1883, by the Inquisition as to proof and evidence in this impediment, especially as sponsalia, Acta, vol. xviii., pp. 354^356, 377, 378, 502 EOMAN CATHOLIC CANON LAAV Cuap. XVI becomes affinis to me in the first genus, and in tlie same degree as my relation is related to me. Therefore my third cousin being related to me in the fourth degree, his wife is affinis to me in the first genus and the fourth degree. But if Sempronius, who is affinis to me in the first genus, has intercourse with Lucia, Lucia becomes affinis to me in the second genus, so I can marry Lucia. For instance, if my wife had a sister who died leaving a widower, and he remarried and died, I could marry his widow.^ And, as will be seen, affinity arises, not only by marriage, but by sexual intercourse without marriage, the only difference being that affinity produced by sexual inter- course without marriage creates an impediment up to second degree only, and not to fourth degree, as would be produced by lawful intercourse.^ So previous sexual intercourse with the sister or mother of a wife creates an impediment of affinity ; but to set up this impediment sexual intercourse must be fully proved, not merely by confession of the party, but by proper witnesses, and mere kissing or lewd touching will not create affinity.^ The impediment of affinity often coexists with the impediment of public honesty, but either may exist without the other ; for instance, if I have had sexual intercourse with my wife or with a person engaged to marry me, an impediment of affinity and public honesty 1 See also Acta, vol. ii., App. V, pp. 126-128, App. VII, pp. 190-192, where the lines of affinity are set out ; and see generally Instructions issued June 20, 1883, by the Holy Inquisition as to proof and evidence in such cases, Acta, vol. xviii. , pp. 352-354, 376, 377. 2 Acta, vol. ii. , App. V, pp. 126-128 ; such sexual intercourse once constituted affinity according to the law of England, but now does not ; see ante, p. 31. 3 See a case where a husband had had previous intercourse with his niothcr-in-law, May 19, 1888, Acta, vol. xxi. , pp. 161-181 ; and another case, June 16, 1888, ib., ijp. 261-288; May 22, 1875, Acta, vol. viii., pp. 630-643, where the intercourse was with the wife's mother previous to Sec. 3 (0 GROUNDS FOR NULLITY 503 arises between me and her relations ; if I have had mere sexual intercourse without marriage or sponsalia, there is only the impediment of affinity ; if I have promised to marry a woman but had no carnal intercourse with her, then there arises the impediment of public honesty alone. Public honesty undispensed with, and affinity which had been dispensed with, were the impediments to the marriage of Henry VIII and Catharine of Arragon ; see 2)ost, App. 5. (m) Impotence In cases of impotence, the family doctors of the parties must be called as witnesses, and further, there must be inspection of both parties. This inspection is conducted as follows : — The Court appoints five medical men, to wit, three physicians and two surgeons, either selected by the parties' or by the Court itself from the most eminent to be found. The husband will then be inspected by the five doctors in the presence of the judge, the defensor matri- monii, and the chancellor. As for the wife, the judge is to select three midwives, who are to be carefully instructed by two of the doctors, i.e. by one physician and one surgeon, as to how they are to examine the wife. The wife is to be taken at a fixed time to the house of some discreet matron, and then to be put into a hot bath of clean water, in which she is to remain forty-five minutes : " Ut si forte glutino apposite verenda mulieris compressa sint, atque coarctata, ut virgo appareat, id liquesceri possit," Sanchez, bk. vii., disp. 113, No. 11. The matron and the three midwives are all to be present all the forty-five minutes, and then forthwith to examine whether the wife is virgo intada. The judge, the de- fensor, and the chancellor are to go to the house and examine each of the midwives separately, for her opinion 604 ROMAN CATHOLIC CANON LAW Chap, xvi as to the wife's virginity, and what signs of consumma- tion or hymen they observed. ^ In a suit hy the woman, if the impotence of the man is clearly established by proof of doctors, as well as by that of relations, a physical defect being patent, the woman though not a virgin, and even if she has had sexual intercourse with other men, will be entitled to a. decree of nullity. ^ There is no necessity for a triennial cohabition (the rule as to which, belonging to the older law, is now becoming obsolete) if the impotence of the party can be established by clear evidence ; such clear evidence may be afforded by the judicial examination and medical inspection of the petitioner, even though the other party alleged to be impotent refuses contumaciously to be inspected or appear. When there is a doubt as to the impotence being estab- lished, but it is proved that there is no consummation, it is the usual practice for the Court to advise a papal Dispensatio super matrimonio rato et non consummatio {&e.& post, pp. 510-512) ; but if, as in the case in question, the impotence is clearly established, the Court itself gives sentence, and there is no necessity for a dispensation.^ On giving a decree of nullity for impotence, the Covirt 1 See the Instruction of August 22, 1840, in Acta, vol. i. , App. XIV, pp. 439-444 ; and see generally an Instruction as to procedure in case of impotence, issued June 20, 1883, by tlie Inquisition, Acta, vol. xviii., pp. 365-368, 386 ; the procedure follows that described in Sanchez, bk. vii., disp. 113. The bath is sometimes, for good reasons given, omitted ; sometimes also the examination is by doctors instead of mid- wives ; but this is disapproved by the Church as immodest ; see Paul and Dionysia case, June 15, 1890, Acta, vol. xxiii., pp. 156-164 ; but if great skill is required, an inspection by doctors will be ordered, as when it is alleged that the wife is not a woman but an hermaphrodite, Joannes CioffoU v. Faustine Mauro, August 18, 1888, Acta, vol. xxi., pp. 480-502. 2 Virginia v. Victorius, Aug. 9, 1890, Acta, vol. xxiii., pp. 465-475. 3 See a case of Jan. 1, 1871, Acta, vol. vi., pp. 511-518. Sec. S (m) GROUNDS FOR NULLITY 505 is wont to forbid the party, e.g. Caius, declared impotejit from marrying again. This prohibition, however, forms only imped imentum impediens, moiiinpedimentum dirimens. Therefore if Caius does, notwithstanding the prohibition, marry Julia, such second marriage will be prima facie valid. But if the second marriage, resulting in issue, proves the Court to have been deceived in declaring the first null on account of impotence, Caius may be com- pelled, but only with the sentence of the Court, to leave Julia and return to his first wife Lucia ; unless the first marriage with Lucia had been dissolved by Dispensatio super matrimonio rato et non consummato.^ But such permission to the person alleged to be im- potent may be given, if, in fact, an inspection by doctors he is proved potent, and a second marriage so contracted after permission will be valid. ^ («) Form by Decree of Council of Trent Where the decree Tametsi of the Council of Trent has not been proclaimed, marriage is constituted by mere consent freely exchanged between persons who are by natural and canonical law competent and able to inter- marry ;5 and further, if two such persons promise to marry in the future, and carnal intercourse follows, con- sent to a present marriage is thereby constituted by an irrebuttable presumption.* 1 See a case of Jan. 24, 1871, reported, Acta, vol. vi., pp. 511-518, and in particular, note, p. 618 ; and see a curious case where the party to a marriage declared void for impotence had remarried, and the Pope dissolved the first marriage by dispensatio in order to validate the second, Jan. 25, 1873, Acta, vol. vii., pp. 491-603. 2 See an application of Feb. 1, 1868, Acta, vol. iv., pp. 198, 199. 3 Acta, vol. ii., p. 19 ; as to what is consent, see ante (h), pp. 494-498 ; and see a case noted under Conditio, p. 491. * Instruction issued from the Propaganda, Jan. 1821', Acta, vol. vi. , pp. 446-456. 50fi ROMAN CATHOLIC CANON" LAW Chap, xvi But if consent is given as a mere joke, even in the presence of a priest, it will be void.i Where the decree Tametsi of the Council of Trent has been published, the form thereby prescribed must be observed, and in these districts a civil or Protestant marriage is void and mere concubinage, and the children illegitimate. ^ The decree Tametsi requires as necessary to the validity of the marriage, that it should be celebrated in the pre- sence of the priest of the parish in which one of the parties is domiciled, or in the presence of a priest delegated by such parish priest, and in the presence of two witnesses ; and if not, the marriage will be void on the ground of clandestinity, notwithstanding that it was celebrated iona fide by parties intending it to be valid, and that cohabita- tion attended by birth of issue has followed.^ In England and Scotland the decree Tametsi has not been published,* and therefore marriage by consent being valid, the impediment of form and clandestinity is not 1 Dee. 14, 1889, Acta, vol. xxii., pp. 529-546. -' Acta, vol. iii. , pp. 243-245 ; and see Instructions issued by the Posnitentiaria Apostolica, Jan. 15, 1866, Acta, vol. i., App. XVIII, pp. 508-512 ; as to civil marriages and the answer of the Congregation of Cardinals, Jan. 19, 1889, Acta, vol. xxi., pp. 648-674. However, the children of such marriage may be legitimated ; see Acta, vol. xxiii. , pp. 332-334, July 12, 1890. A civil marriage does not even constitute an impediment publicce honestatis ; see Acta, vol. xiii. , p. 126, and ante, p. 500, 501. s Acta, vol. i., pp. 129-138. ■• See the answer of the Congregation, Jan. 19, 1889, Acta, vol. xxi. , p. 673 ; for although in England and Scotland good Catholics, by order of the bishop, marry in the presence of the priest and two witnesses, this is not necessary to validity, and the order of the bishop is merely directory ; and no such order by a bishop can affect the publication of the decree, which is above the power of a bishop, and must be settled at Rome. There still exist doubts as to the countries in which the decree Tametsi has been or is by express or implied publication in force. But the marriage of a Roman Catholic in England without a priest would be, although canonically valid, yet clandestine and divorceable ; see ante, pp. 483, 494, 500. Sec. 3 00 GROUNDS FOR NULLITY 507 further discussed. Except that if persons domiciled in a country where the decree is puUished go into another country where it is not published merely to be married, and they are not domiciled there, their marriage will be invalid. i In this case a domiciled Frenchman, Laurentius, fell in love with Agnes, an Irish girl who was living with her parents in France. His parents opposing the marriage, they eloped to England and were there married, returning at once to France. Such a marriage was shown in evi- dence (see pp. 523, 526, 529) to be void by the law of France, as made by a person under age without the con- sent of parents, but valid by the law of England. Husband and wife on -returning to France did not cohabit. The French Court declared the marriage void, and Laurentius proposed to remarry. The marriage was declared void as a fraud of the decrees of the Council of Trent. ^ Marriage hy Proxy. — Lastly, it must be said that it is not necessary that the parties or either of them should be personally present in order to contract marriage. For the consent may be interchanged either by letter or a messenger ; or there may be an ecclesiastical ceremony by proxy, so long as the proxy is properly constituted, and gives proper consent on behalf of his principal.^ 1 Acta, vol. i., pp. 385-400. 2 July 28, 1866, Acta, vol. ii., pp. 385-400; the fattier of Agnes, through the Archbishop of Dublin, -who happened to be at Rome, showed the difficulty he was in, because Agnes being married according to the law of England could not marry any one there ; however, not- withstanding strenuous arguments to the contrary, nullity was decreed. Agnes' only remedy would be on Laurentius' remarrying to get an English divorce, when she could remarry in virtue of the divorce by English law, in virtue of the nullity canonically ; and see a, similar case, ib., App. XII, pp. 434-438. 3 April 7, 1883, Acta, vol. xvi., pp. 10-27 ; June 14, 1884, vol. xvii., pp. 305-313 ; and see an American case where a son constituted his father the proxy. Acta, vol. i., pp. 411-421 ; and as to marriage, see ante, p. 22, and post, App. 4, pp. 594, 595, 508 ROMAN CATHOLIC CANON LAW CnAr. xvt (o) Abduction (Baptus) Previous to the Council of Trent, liaptus as a cause of nullity was not to be distinguished from fear and coercion. By that Council it was established that if there had been abduction, no valid marriage could be constituted between the person abducted and the abductor until the person abducted has been brought back into a place free and safe, where she could give an independent and unforced consent. But mere elopement together is not abduc- tion. ^ In one case, where a wife, Agnes, sued for nuUity against Sempronius, the facts were as follows ; — The complainant's father and mother had lived separate for the mother's fault ; and when the present husband wished to marry the complainant, the father refused his consent. The daughter, Agnes, though living with her father, being allowed occasionally to visit her mother, her mother and her governess, who were in league with Sempronius, took her to the seaside, and there brought her to Sempronius' house, from which she could not escape. The next day, having left Sempronius' house, her mother, after telling her that her father would be very angry with her, took her to an inn, which she was not allowed to leave except in company with her governess ; but Sempronius came to see her daily. In the inn she stopped under this state of coercion for some time. However, she was able to go out once to confession and once to see a lawyer, who told her there was nothing for her to do except to marry 1 See Acta, vol. i. , pp. 15-24, and App. II, pp. 54-63 ; vol. xxi. , p. 593-619 ; vol. xxiii., pp. 451-464. Some doubt appears to prevail how far a common flight, preceded by seduction and wheedling, amounts to abduction (see Acta, vol. ix., pp. 519-529, Sept. 2, 1876) in which case, owing to defect of proof, recourse was had to a Dispensatio super matrimonio, as to which, see post, p. 510. Sec. 3 (o) GROUNDS FOB, NULLITY 509 Sempronius. The governess also told her, by Sempronius' direction, tliat she must either marry him or she would have to go into a convent. Under these circumstances she consented to marry him, and the ceremony took place, lier father being present. But, according to the cele- brating priest's evidence, she seemed very sad, and the father stupefied ; in fact, as the priest said, it was more like a funeral than a wedding. After that she cohabited four years with Sempronius. But on the first possible occasion she left her husband and ran to her father's house, and by his advice went into a convent. The husband obtained a civil divorce. Nullity on the ground of abduction was granted, because not merely was there abduction in the first instance, but it never ceased by her being placed in locum iutum et liberum, though she did certain free acts ; and a marriage so contracted subject to a " public obstacle " is not validated by long cohabitation, i In another case, Lazarina, of Marseilles, aged sixteen, eloped with an ofiicer. Baron Alfred, from her convent. They visited several places, and were married, first reli- giously and then civilly. But the marriage turned out unhappily, and the husband got a full civil divorce. The wife sued for nullity ; but it being proved that there was a common arrangement between them to elope, that she ran off from the convent, and that she was, at all events, to some extent returned to a safe and free place, the nullity was refused.^ And as to eloping with a nun being still a punishable offence, see ante, p. 23, n. 4. 1 August 27, 1864, Acta, vol. i., pp. 15-24. 2 Feb. 16, 1889, Acta, vol. xxi., pp. 593-619, and vol. xxiii., pp. 451-464 ; but in this case it was admitted that a consent to abduction obtained by fraud and stratagem does not dispose of that impedi- ment ; so that abduction may be proved although the woman was willing. 510 EOirAI\^ CATHOLIC CAKOX LAW CaAP. xvi (p) Dispensatio su2Mr matrimonio rato seel non consummato. Besides these above enumerated causes of nullity, ■whicli are litigated in tlie ordinary way, and give a right to a declaratory sentence of nullity, the Pope has power, and is wont of his discretion, for good reasons shown, to dispense the parties from and dissolve a marriage which, though valid, has never been consummated.^ This is entirely different from nullity for impotence, as to which, see ante, pp. 503-505. "When it is said that His Holiness grants this of his discretion, it appears that, although not exclusively, yet usually, this is a judicial discretion exercised after a judicial investigation, and on the advice of the tribunal. So when a party applies for a Dispensatio super matrimonio, an inquiry before the ordinary ecclesiastical tribunal is ordered, and on its judgment the Pope acts. But often when a suit is originally promoted for nullity, yet if the evidence does not come up to the required point, the tribunal, instead of declaring a nullity, advises a Dis- petisatio super matrimonio. In fact, in suits for nuUity before the Eota, the ques- tion is usually propounded in two dubia — 1. An consist de matrimonii mdlitate in casu et quaienus negative. 2. An consulendum sit SSmo pnv dispensations matri- monii rati et non consummati in casu. But a dispensation is not to be recurred to if the evidence is sufficient so that nullity can be declared Judicially as a matter of right.- 1 See passim, and in particular Acta, vol. ix., pp. 303-313, May 13, 1876, where it is laid down that to doubt of the Pope's power iu this respect is like sacrilege. = June 16, 1888, Acta, vol. xxi., pp. 261-288. Sec. s(j>) GROUNDS FOR ]SiULLITY 511 To obtain such disiDensation, not only must there be good cause shown, but non-consummation must be proved pretty thoroughly.^ Among the good reasons on account of which the Pope will exercise this dispensing power, is pressure that has been put on one of the parties so as to induce such party to enter into the marriage, although such pressure may not be sufficient to give right to a sentence of nullity.^ Other good reasons are that one of the parties suffers from a contagious and disgusting disorder, or that deadly hatred has sprung up between the parties.^ Also, where the wife * or the husband ^ refuses obstinately marital intercourse. This dispensation is sometimes granted when non- consummation is proved, but the evidence fails to make out conclusively the respondent's impotence. Caia, aged seventeen, married Livius, aged twenty- seven ; they lived happily, but her health suffered owing to the marriage not being consummated, although she was ignorant of what sexual intercourse was. Her ill-health increased till, by the inspection of doctors, her parents became aware of the reason. Their litigation commenced ceconomoce, but the proceedings were conducted regu- larly, as prescribed in cases of impotence (see p. 503). The midwives certified she was a virgin, and the doctors that they saw no visible defect, and thought him potens. Dispensatio super matrimonio was granted.'' 1 Acta, vol. ix., pp. 519-529, Sept. 2, 1876; vol. i., pp. 376-400, April 21, 1877 ; and see ib., pp. 435-450, 463-473. = Acta, vol. i., p. 421, Sept. 24, 1864. 8 May 13, 1876, Acta, vol. ix., pp. 293-313. •* May 28, 1870, Acta, vol. v. , pp. 551-554 ; and see Acta, vol. ix. , pp. 293-313. 5 June 15, 1890, Acta, vol. xxiii., pp. 166-164. 6 July 18, 1868, Jan. 23, 1869, Acta, vol. i., pp. 190-197, 374-377 ; and see P. v. P. , where the husband, after wishing to liave sodoinitical 512 ROMAN CATHOLIC CANON LAW Cnip. XYi But although a mathematical certainty of non-con- summation is not required, yet it must be some proof of non-consummation, especially when the husband is proved potent ; and if consummation is proved, such dispensation will be denied.i And in another case, where a Polish widow, Maria, on the death of her first husband, by whom she had three sons, married a soldier, Stanislaus, and she swore to non-consummation, and was shown to be apt, and the medical evidence differed as to her husband, but public rumour held him impotent, a dispensation was granted.^ (q) Dispensatio matrimonialis ^ Closely connected with impediments of positive law comes the papal power to grant Dispensatio matrimonialis, — that is to say, the power, on petition, to remove an impediment which otherwise would have prevented the parties validly intermarrying. The Disp)ensaUo matri- monialis, i.e. the permission for subsequent marriage, must be clearly distinguished from DispeTisatio super matrimonio, that released the parties from a marriage they have already entered into. The ordinary tribunal for granting dispensations is the Apostolica Dataria, but the Poenitentiaria also issues dis- pensations. Both tribunals are considered as the Pope himself. The bishops have a certain limited delegated power of dispensing, but appeal lies from them to the Dataria and Poenitentiaria.* intercourse witli his wife, and treating her with great brutality, expelled her from the house, and, she being found a virgin, the marriage was annulled, March 29, 1890, Acta, vol. xxiii., pp. 81-109 ; and see another case, ib., pp. 277-298, July 12, 1890. 1 Aloisius V. Susanna, Sept. 6, 1890, Acta, vol. xxiii.. pp. 528-551. 2 June 8, 1889, Acta, vol. xxii., pp. 262-278. 3 For a copy of a dispensation for a mixed marriage, see post, App. 3. ■» Acta, vol. vii., p. 4-30, June 28, 1873. Sec. 3 (9) GROUNDS FOR NULLITY 513 No defined limitation lias ever been placed on the dispensing power of the Pope, though the Holy See has never yet granted, and has always declined to grant, dispensations in the first degree of consanguinity, direct or collateral; as to afiinity, see post, p. 514. Episcopal dispensations are strictly governed by the limits of the jurisdiction confided to them.'^ A Papal or Episcopal dispensation may, however, be shown to be invalid and null if obtained by fraud or misrepresentation on the part of the petitioner, " per obreptionem vel subreptionem, sive bona sive mala fide." A dispensation is always presumed to be valid, and the burden of proof of fraud and mis- representation lies on those impugning the dispensation.'- "What amounts to such fraud and misrepresentation as will avoid a dispensation is a matter repeatedly discussed by the Canonists, and litigated in ecclesiastical tribun- a.ls.2 If, previous to the dispensation, sexual intercourse, which then was incestuous, has taken place between the parties, a penitentiary clause is usually inserted in the dispensation. 5 The usual reasons for which the dispensing power is commonly exercised are, shortly : because of previous sexual intercourse between the parties ; because it would otherwise be difficult for one or either party to marry. 1 Acta,vol. vii.,pp. 430, 431, June 28, 1873. The missionary bishops in Central Africa have specially extensive powers of granting dispensations, Acta, vol. vii., App. V, pp. 301-305. For the dispensing powers granted hy the Pope to the Eomish Episcopacy in England, see post, App. 6. 2 lb. ; and see Vincentius de Justis, De Dispensat. matrim, Sanchez, hk. viii. The divorce of Catherine of Arragon, see 1 St. Tr., 299, depended on the validity of the dispensation which the King's advocates impugned ; see^osi, App. 5. 3 lb., vol. ii., App. XV, pp. 493-496 ; hut its uon-disclosnre will not invalidate the dispensation, June 7, 1842, Answer to the Arch- bishop of Namur, Acta, vol. xiii., p. 568; March 27, 1886, Acta, vol. xix., pp. 20-32. 33 514 ROMAN CATHOLIC CANON LAW Chap. XVI or because a quarrel may be thereby appeased. But these reasons are not exclusive of others.^ As to affinity in the ascending or descendiag line, a dis- pensation to marry a stepmother or mother-in-law is never granted. In the collateral line a dispensation in the first degree, i.e., to marry a sister-in-law, is often granted. - Dispensations from the impediment of public honesty (see p. 500) are to be obtained from the S. Poenitentiaria for poor persons, and for others from the Dataria Apostolica. If the impediment arises from secret sponsalia, the S. Pcenitentiaria is wont to delegate the granting of it. to the confessor of the party. If the sponsalia were with father, mother, son, or daughter of the party who are related in the first degree in linea reded, the dispensation is granted more tardily than if the sponsalia were with a brother or sister.^ (r) Ratification If a marriage which is valid in point of form chances to be invalid on account of some obstacle, the question arises whether, after the impediment is removed, it can be ratified by tacit consent without a fresh celebration ; and herein a distinction is made between public or manifest and secret impediments ; as to the former, the doctors lay down that it requires a fresh celebration of marriage. The chief difficulty arises with regard to the impediment of vis and metus (see ante, p. 494) ; but it has been several times declared that in this case a fresh celebration is required.* 1 See Acta, vol. ii., App. Ill, pp. 62-64 ; and for remoteness of the place as a reason, see also Acta, Yol. ix. , p. 571 , July 8, 1876. - See Practice of S. Poenitentiaria explained in Acta, vol. ii. , App. V, pp. 126-128, App. VII, pp. 190-192, where the grades of affinity and the procedure for obtaining a. dispensation are explained ; and see App. 6. 3 See the Practice of S. Pcenitentiaria, explained Acta, vol. ii. , App. VIII, pp. 257, 258, and ib., App. XI, pp. 381-383. ^ Acta, vol. ii., App. I, pp. 52-56; Acta, vol. xii., pp. 403-422; and see a case decided June 16, 1888, Acta, vol. xxi. , pp. 226-236 ; and see ante, pp. 494, 509. CHAPTEE XVII INTERNATIONAL LAW' 1. General, .... 515 Marriages of Foreigners (a) Definition of Siib- in England, . 523 jeci, 515 4. Validity in England of {b) Domicil and Nation- Foreign Divorce or ality, . 516 Nullity, etc., 525 2. Validity in England of 5. Legitimacy in England, . 527 Marriages Abroad, 617 6. Foreign views of Mar- a) Form of Marriage, 517 riages in England or {b) Capacity of Parties, . 521 in English Embassies 3. Validity in England of and Consulates, . 529 Sbo. 1. — General (a) Definition The subject of this chapter is the validity that the English Law gives to matrimonial acts out of the jurisdiction, and to matrimonial acts done in the jurisdic- tion which are or might he invalid hy some foreign law applicable to one or both of the parties. The converse of this is the view taken by Foreign Law of acts done in England. Unhappily it sometimes happens that by result of the conflict of laws, persons may in one 1 For authorities on International Law, see Foote, Nelson, and Westlake ; on Private International Law, Wharton's Conflict of Laws (Amer.) ; Dicey on Domicil ; Calvo, Le Droit International ; Wheatou's International Law (Amer.) ; and see Piggott on Exterritoriality. 516 INTERNATIONAL LAW Csap. xvii country be held married or legitimate, and in other countries unmarried or illegitimate. This branch of law is sometimes called Private International Law/ sometimes comity, sometimes conflict of laws. It may, howe^'er, be described as comprising cases where the Court considers whether it is bound to apply its own law lex fori, or whether it should ascertain and apply the law of some other country, that other country being usually either the law of the country where " the party " is domiciled, or the law of the country where "the act " is done, lex loci aontractus. {h) Domicil and Nationality The tendency of modern jurisprudence has been to minimise the importance of nationality and magnify the importance of domicil. A Court usually inquires where a person is domiciled, not of what nationality he is. Domicil, not nationality, determines personal capacity and liability. 2 Domicil has been the object of little or no statutory regulation in any country ; it has been gradually evolved by the Courts on juristic principles, following the writings of the Publicists. The principles which ascertain domicil are somewhat intricate, and the facts constituting its proof elaborate. It is, therefore, not further the subject of treatment in this work, but the following definitions are given. "Domicil means the place or country which is con- sidered by law to be a person's permanent home."^ Domicil is " that place where a man has his true fixed 1 Westlako on Prirate International Law. - Wharton's Conflict of Law.s, cliap. i. ; and as to domicil and allegiance, see Udny v. U. (1869), L. R., 1 H. L., Sc. & D., 441. 3 Dicey on DomicU ; liia book is an elegant treatise of high authority ; see Udny v. P. (1869), vM sup. Sec. 1 (6) GENERAL 517 and permanent home and principal establishment, and to which, whenever he is absent, he has the intention of returning." i Again, "domicil is a residence acquired as a final abode. To constitute it, there must be both residence actual or inchoate, and the non-existence of any intention to make a domicil elsewhere." ^ A wife takes her husband's domicil and nationality even if the marriage turn out invalid. ^ " Foreign '' means not English, that is to say, as regards England; Scotland, as well as the British Dominions, outside the United Kingdom are considered as foreign countries. The English Ecclesiastical Courts had, and therefore the Probate and Divorce Division has, jurisdiction with respect to the marriages of English domicil subjects, wherever such marriage may be celebrated.* Sec. 2. — Validity in England of Marriages Abroad (a) Fffrm of Marriage The general rule is that, as regards the solemnities and form of the marriage, if the marriage is valid by the l&x loci contractus, it is valid in England. Lord Stowell laid down — "That the English decisions have established tliis rule, that a foreign marriage, valid according to the law of the country where celebrated, is good everywhere else ; but they have not, e converse, established that 1 Bouvicr's Law Dictionary ; and see Burrill's Law Dictionary. 2 Wharton's International Law. 3 Harvey v. Farnie (1882), 8 App. Ca. , 43; Turner v. Thompson (1888), 1.3 P. D., 37 ; and see ante. Chap. IV, pp. 165, 166. '' Sir George Hay's judgment, Harford v. Morris (1776), 2 Hag. Con., 423, p. 428 ; and see ante, pp. 223, 224. 518 INTERNATIONAL LAW Chap, xvh marriages of British subjects not good according to the general law of the place where celebrated, are universally, and under all circum- stances, to be regarded as invalid in England. It is therefore cer- tainly to be advised that the safest way is always to be married according to the law of the country, for then no question can be raised. "1 So a Sicilian marriage per verba de prsesenti, which was forbidden as clandestine and punishable, but not in- valid by the law of Sicily, was held valid in England.^ Also, a marriage at Eome of British subjects, Protestants, before a Roman Catholic priest, where the parties became Roman Catholics merely to be married, and immediately afterwards abjured Roman Catholicism, was held valid. ^ Even if persons, including minors, elope to Scotland for the express purpose of evading the English Marriage Acts, and contract marriage in Scotland by a form which would be invalid in England, but is valid in Scotland, the mar- riage will be valid.* As regards the validity of the form of the marriage, the domicil of the parties is irrelevant and immaterial ; it is regulated by the law of the country in which the marriage is solemnised, however short the time the parties may have there previously resided.^ Marriages invalid by the lex loci contractus have been generally held invalid in England, even although they might be good by the law of England, except in cases where they can be supported on the Doctrine of Extra- 1 Ruding v. Sviith (1821), 2 Hag. Con., 371, p. 390 ; Hubback on Succession, pt. ii., chap, iv., sec. 3, pp. 329-377 ; Shelford on Marriage and Divorce, chap, ii., pp. 118-153; Scrimshire v. S. (1752), 2 Hag. Con., 395, pp. 402, 416, 417. - LuJtj Herhert v. Lord Herherl (1819), 2 Hag. Con., 263. 3 Swift v. Kelly (1835), 3 Knapp P. C, 257, 4 Hag. Ec, 139. « Orompton v. Bearcroft (1767), 2 Hag. Con., 376, n., 444, 445, u. n. ; and see Hubback on Succession, p. 331 ; Shelford on Marriage and Divorce, pp. 107-118. « See Simonin v. MiMnc (1860), 2 Sw. & Tr., 67. Sec. 2 (a) VALIDITY OF MARRIAGES ABROAD 519 territoriality, under tlie Foreign Marriage Act, 1892, or otherwise. 1 So where two domiciled English suhjects, both minors, the husband being eighteen and the wife fifteen years old, eloped to France, and contracted there a clandestine marriage before a Eoman Catholic priest, which the Parliament of Paris, on various grounds, considered null and void, it was, because invalid in France, as well as for other reasons, held void in England. ^ And in a stronger case, where, according to the Com- mon Law of England, the marriage would have been valid, the parties having been married in the presence of two witnesses, at a hotel in Versailles, by a clergyman of the Church of England, using the rites and ceremonies of the Church of England ; but the marriage was invalid and void by the Code Napoleon, it was held invalid in Eng- land.^ And even in a still stronger case, where the marriage was solemnised in the English church at Ant- werp, in the presence of the consul, by a minister of the Church of England, but the marriage was not validated by 4 Geo. IV, c. 91 ; it was held invalid in England, as not conforming to the lex loci.'^ But marriages in barbarous, uncivilised, and pagan countries, according to the local rites, will not be valid in England. For a union between a man and a woman in 1 For instances of the Doctrine of Extra -territoriality, or to marriages at Embassies, Consulates, Factories, etc., see ante^ Chap. II, pp. 103-116 ; a marriage invalid by lex loci may be valid by English statutes or the Doctrine of Extra-territoriality ; Lloyd v. Petitjean {18-39), 2 Curt., 251. '' Scrimshire v. S. (1752), 2 Hag. Con. , 395 ; followed Middleton v. Janverin (1802), 2 Hag. Con., 437 ; also a case of clandestine marriage invalid by the lex loci. 3 Lacon v. Higgins (1822), SStark, N. P., 178 ; 2 D. & R., App., 38. ^ Kent V. Biirgess (1840), 11 Sim, 362 ; and see Lacy v. Dickinson (1769), 2 Hag. Con., 386, n. ; and see ante, Chap. II, pp. 112, 113. 620 INTERNATIONAL LAW Cuap. xvh a foreign country, althougli it may there bear the name of marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it be formed on the same basis as marriages throughout Christendom, and be in its essence the voluntary union for life of one man to one woman, to the exclusion of all others. In this case, where Commander Bethell, being in South Africa, married Teepoo, a Baralong girl, according to the customs of the Baralongs, a tribe having no religion, and allowing polygamy, and he refused to marry her in church, the union was considered not to amount to marriage, and the issue of Teepoo to be illegitimate.^ Also, where two English people became Mormons, a sect acknowledging polygamy, and, as such, intermarried at Utah, in the United States of America, before Brigham Young, such marriage, although both of the parties were then unmarried, and although it was valid in the United States, was con- sidered void in England. ^ Japan is considered a civilised country, and accordingly, in a case where Francis Brinkley had married Yasu Tanaka according to the forms required by the law of Japan, and it was proved in evidence that the marriage was valid according to the law of Japan, and that by such a marriage the petitioner was precluded from marrying any other woman during the marriage, it was held, on a petition under the Legitimacy Declaration Act, 1858, that the marriage was valid in England.^ As to marriages abroad in Embassies and Consulates, see Chap. II, pp. 106-113. 1 In re Bethell (1888), 38 Ch. D., 220 ; and see Armitagev. A. (1866), L. R., 3 Eq., 343; and Hubback on Succession, p. 332; and see re Ullee (1885), 1 Times Reports, 667 ; 54 L. T., 586, C. A. 2 Byde v. H. (1866), L. R., 1 P. & M., 130. 3 Brinkley v. A.-O. (1890), 15 P. D., 76. Skc. 2 (6) VALIDITY OF MARRIAGES ABROAD 521 (&) Capacity of the Parties Although questions of marriage are prima facie to he judged of hy the law of the country where they are solemnised, yet the capahility of the parties to contract must he ascertained. If one or both parties, heing domiciled British subjects, were by the law of England prohibited by a personal incajiacity frona entering into such a contract, the law of England must be applied, and the marriage will he Yoid.^ And, therefore, if either of the parties are by the law of England already married, and not divorced a vinculo, any second marriage abroad by one of them, although vaUd as to form by the lex loci, will be invalid.^ Also, the marriages of members of the British Royal Family contracted abroad contrary to and invalid by the Eoyal Marriage Acts, will, although valid by the lex loci, be invalid in England.^ For the Eoyal Marriage Act extends to prohibit the contracting of marriages, or to annul any already contracted, wherever the same may be contracted or solemnised, either within the realm of England or without. Such marriages are not merely invalid as regards succession to the Crown, but alto- gether null and void, and issue illegitimate.^ As to marriages abroad within the prohibited degrees, their validity depends on the domicil of the parties. If persons domiciled in England contract a marriage abroad 1 Conway v. Beazley (1831), 3 Hag. Ec, 639, p. 652. ^ Conway y. Beadey, ubi sup.; re Dixson (1855), 2 Spinks, Ecc. & Ad., 205 ; Dolphin v. Rohins (1859), 7 H. L. C, 390 ; Shaio v. Oould (1868), L. R., 3 H. L., 55; Shaw v. The Attorney-General (1870), L. R., 2 P. & M., 156; Briggs v. B. (1880), 6 P. D., 163; Bonaparte v. B. (1892), Times, Aug. 1, p. 9, Aug. 2, p. 10 ; and see post as to validity of foreign divorces, p. 525. * Heseltine v. Lady Augusta Murray (1794), 2 Ad., 400, n. ; Sussex Peerage case (1844), 11 CI. &F.,85 ; and see ante. Chap. II, pp. 117-121. 522 INTERNATIONAL LAW Chap, xvii which is forbidden by the law of England, the House of Lords have laid down that it will be invalid in England although it might be valid by the law of the country where it was solemnised. So where a domiciled Englishman married in Holstein, where such a marriage was valid, his deceased wife's sister, also a domiciled Englishwoman, the marriage was held invalid and void in England. ^ The same rule applies even though one only of the parties is English. For where a person who was a native of Hesse Cassel, but who had become a domiciled naturalised Englishman, married at Frankfort his deceased wife's half-sister, the marriage was declared invalid in England notwithstanding that the woman was domiciled at Frank- fort, and that by the law of Frankfort and of Hesse Cassel such a marriage was valid. The Court said that if the man was incapacitated by the law of his domicil from entering into the marriage, the fact that the woman was domiciled at Frankfort had no effect. There could be no valid contract unless each was competent' to contract with the other. 2 It, however, appears that the prohibitions of oonsan- guinity and affinity do not apply to marriages in a colony where a different law exists, if both parties to the mar- riage are domiciled in that colony.^ However, as yet no case has been decided upholding the validity of a marriage, and the legitimacy of the issue of such marriage, if the marriage is forbidden as incestu- 1 Brook T. B. (1861), 9 H. L. C, 193 ; as to what are the prohibitei.1 degrees, see Chap. II, pp. 30-32. 2 Mdte V. il/. (1859), 1 Sw. & Tr., 416 ; the principle of the decision in this case is inconsistent with Sutto'inayer v. De Barros (1879), 5P. D., 94, where the fact that one only of the parties was domiciled in a country — Portugal — whose law forbade the marriage, was held in- sufficient to make a marriage in England null ; see jjosi, pp. 523, 524. ' Brook V. B. (1861), 9 H. L. C, 193. Sec. 2 (« VALIDITY OF MARRIAGES ABROAD 523 ous by the law of England. But, on the contrary, the House of Lords, on a Scotch appeal, decided in 1859 that the issue of a marriage in England between a man and his deceased wife's sister, previous to Lord Lyndhurst's Act, and not annulled by a decree of the English Ecclesi- astical Court, could not be considered as legitimate so as to inherit land in Scotland, although sach issue were legitimate in England, the reason of the decision being that such a marriage was considered criminal, and forbidden by the law of Scotland, and could not be recognised.^ Sec. 3. — Validity in England of Maebiages of eoreignbrs in england Generally, as to marriages of foreigners in England, a marriage between a foreigner and an English subject, or between two foreigners, is considered valid in England if in confirmity with the English Law. So where two domiciled French subjects eloped to England for the purpose of evading the law of France, and contracted a marriage in England, which for want of the consent of parents, required by the law of France, was invalid in France, and was declared null and void by a French Court, still the English Court considering that the parental consent was part of the ceremony of the marriage, and not a matter affecting the personal capacity of the parties to contract marriage, declared such marriage valid. ^ If, however, the parties are by the law of their domicil under a personal incapacity, their marriage being by the law of their domicil void and incestuous, their marriage contracted in England will be considered by the English Courts invalid. In one case, two domiciled Portuguese 1 Fenton v. Livingstone (1859), 3 Macq. H. L., 497. 2 Simonin v. Mallac (1860), 2 Sw. & Tr., 67 ; and see post, p. 529. 524 INTERNATIONAL LAW Ceap. xvii who were second cousins, and therefore by the law of Portugal prohibited to marry except after a papal dis- pensation, intermarried in England, their marriage was declared void. But this decision only applies when both the contracting parties are at the time of the marriage domiciled in a country whose municipal law prohibits such marriage.^ And in this very case, where it subsequently was proved that the husband was domiciled in England, the marriage was upheld ; so the former decision cannot be relied as an authority for setting aside a marriage in England between a foreigner and an English subject on the ground of any incapacity not recognised by the law of England.^ Also where two Irish persons married in England were validly divorced in Cape Colony, where they were domi- ciled, the effect of the divorce being to annul the existing marriage and restore the parties to the position of unmarried persons, the remarriage of the guilty respondent and co- respondent in England was held valid, notwithstanding that the law of the colony prohibited the marriage of the guilty party so long as the innocent party remained unmarried. The reason of the decision was that the Court deemed this prohibition was a personal disability not applying after the respondent left the jurisdiction of the colony and settled in England.^ As to marriages of foreigners in England at Embassies and Consulates not conforming to the English Law, 1 Sottmnayer v. De Barros (1877), 3 P. D., 1, C. A. ; the converse case is Brook V. B. (1861), 9 H. L. C, 193, where the marriage in Denmark of a domiciled Englishman with his deceased wife's sister, a domiciled Englishwoman, was declared void ; see ante, p. 522. 2 Sottomayer v. De Barros (1879), 5 P. D., 94 ; the reason of this decision is inconsistent with Mette v. M. (1859), 1 Sw. & Tr., 416 ; see ante, p. 522. 3 Scott v. A.-O. (1886), 11 P. D., 128, explained WarUr v. W. (1890), 15 P. D., 152. Sec. 3 MARRIAGE OF FOREIGNERS IN ENGLAND 525 foreign nations usually authorise their diplomatic agents to celebrate marriages ; ^ but it seems doubtful how far the law of England will recognise a marriage at a foreign Embassy or Consulate in England, if one or, still more, both of the parties to a marriage is not a subject of the country in whose Embassy or Consulate the marriage is celebrated. 2 Sec. 4. — Validity in England op a Eoreign Divorce OE Nullity, etc. In a recent case, the House of Lords laid down that " The English Courts will recognise as yalid the decision of a competent foreign Christian tribunal dissolving the marriage between a domiciled native in tlie country where such tribunal has jurisdictiou, and an Englishwoman, when the decree of divorce is not impeached by any species of collusion or fraud. And this though the marriage may have been solemnised in England, and may have been dissolved for a cause which would not have been sufficient to obtain a divorce in England." ' In this case the husband was always, both at the time of marriage and divorce, a domiciled foreigner, and therefore the wife by marriage took his domicil.^ If, however, the husband is not domiciled in the country whose tribunal grants the divorce, more especially if he went there for the purpose of obtaining a divorce, the divorce will be invalid.* 1 Calvo, Le Droit International, vol. ii., sec. 798. 2 Pertreis v. Tondear (1790), 1 Hag. Con., 136; and see ante, pp. 6.3, 106, s.zidi post, p. 529. 3 Harvey v. Farnie (1882), 8 App. Ca., 43 ; Turner v. Thmnpson (1888), 13 P. D., 37, overruling M'Carthy v. Decaix (1831), 2 Russ. & My., 614. See also RyoM v. -R. (1816), 2 Phillim., 332, where a Danish divorce was held good ; Warrender v. W. (1835), 2 CI. & F., 488 ; and Heath v. Lewis (1864), 4 GifF., 665 ; and Argent v. A. (1865), 4 Sw. & Tr., 52 ; Scott v. A.-U. (1886), 11 P. D., 128, in which last three cases a colonial divorce was held good. 4 Dolphin V. Robins (1859), 7 H. L. C, 390; Pitt v. P. (1864), 4 626 INTERNATIONAL LAW Chap, xvii In any case, the foreign tribunal must expressly purport to dissolve by its divorce the British marriage. ^ The French Courts usually decline divorce jurisdiction over foreigners.^ As to the validity in England of a sentence of nullity pronounced by a foreign Court on the marriage in England of foreigners domiciled abroad, there are conflicting decisions. In an earlier case, where two domiciled French subjects had come over to England to contract marriage and immediately after returned to France, and the French Court pronounced their marriage in England invalid, because contracted by minors without consent, the English Court declined to follow the French Court's decree of nullity, and declared the marriage valid. ^ In another case, a domiciled Englishwoman had married at Southsea an American citizen. They cohabited in America till a Colombian Court declared the marriage void on account of the husband's impotence. Hannen, Pres., held the American decree of nullity was good and valid.* A Pope's decree of separation between married jsersons wishing to enter religion, would, it would seem, have no eff'ect unless the parties were domiciled at Eome at the time of the separation ; or such decree was valid by the law Macq., 627 ; Shaw v. Gould (1868), L. R., 3 H. L., 55 ; S/iaiv v. A.-G. (1870), L. R., 2 P. & M., 156 ; Briggs v. B. (1880), 5 P. D., 163 ; and see the earlier cases of li. v. Lolled/ (1812), Russ. & R. , 237 ; Conway v. Beadey (1831), 3 Hag. Ec, 639 ; Sinclair v. S. (1798), 1 Hag. Con., 294 ; and see C'oUiss v. Hector (1875), L. R., 19 Eq., 334 ; Bonaparte V. B. (1892), the Times, Aug. 1, p. 9 ; Aug. 2, p. 10. 1 Birt V. Boutinez (1868), L. B., 1 P. & M., 487. 2 Goubler^. G. (1892), P., 240. 3 Simonin v. Mallac (1860), 2 Sw. & Tr., 67 ; if the marriage had been solemnised in France, even between English subjects, and declared void by a French Court, the English Court would have accepted and followed the French Court's sentence ; see ante, p. 519. ■1 Turner v. Thompson (1888), 13 P. D., 37. Sec 4 VALIDITY OF FOREIGN DIVORCE 527 of their domioil.^ If, liowever, such decree was pro- nounced followmg and in accordance with the previous vohintary consent of both parties to separate and enter religion, it would he supported as a separation agreement, and so he a good defence to a suit for restitution.^ Sec. 5. — Legitimacy in England The general rule i.9, the law of the domicil of a deceased person governs the succession to personal property ; ' hut if the " successor " is by the law of his own domicil legitimate, he will be entitled to share in the distribution of personalty here, although by the English law illegitim- ate.* The usual instance of children, illegitimate by the law of England, succeeding, is where such child has, by the law of its domicil, been legitimated by the subsequent marriage of its parents. As to this the Lord Chancellor in the House of Lords laid down — "The status of the child — with respect to its capacity to he legitimated by the subsequent marriage of its parents — depends wholly on the status of the putative father, not on that of the mother. . . If his domicil be Scottish, or of any other country allowing legitimation, though the mother be English at the birth, the putative father is capable of legitimating the child. The foreign law, though deeming the child to be filius nullius at birth, yet recognises the father as such at the moment of his acknowledging the child, either by marriage and formal recognition, as in France, or by marriage only, as in Scotland. 5 Legitimatio jper subsequent, matrimonium is the law of Scotland {see post, Chap. XVIII, pp. 550, 551); it is also 1 CoHMdly V. C. (1851), 7 Moore P. C, 438. 2 See Chap. X, p. 376. 3 Doglioni v. Crispin (1886), L. R., 1 H. L., 301. •1 GoodTnan's Trusts (1881), 17 Ch. D., 266, C. A. ; in re Grove (1888), 40 Ch. D., 216, C. A. ; Skottowe v, Young (1871), L. K., 11 Bq., 474. s Udny v. U. (1869), L. B., 1 Sc. & D., 441, p. 447 ; and see Fraser on Parent and ChUd, 2nd ed., pp. 45-64 ; and see an article in the Law Times, Nov. 16, 1889, vol. Ixxxviii., p. 42. 528 INTERNATIONAL LAW Chap, xvii the law of France, and in several cases a French child so legitimated has heen admitted to take personalty in England;! ajj,j gg g^^g according to the law of Holland, ^ or Switzerland.' It is immaterial where the child is born, even if it is born in England or any other country where legitimation by subsequent marriage is not the law ; still, if its father was domiciled in a country whose law permitted legitima- tion, the child may be legitimated though born a bastard.* But it appears to be the more correct opinion that the father must be domiciled in a country permitting legitima- tion at the date both of the birth of the child and of the subsequent marriage. For in a case where the father, and therefore the child, was domiciled in England at the date of the child's birth. Lord Chancellor Hatherley said — " I have myself held, and so have other judges In the English Courts, that according to the law of England a bastard child whose putative father was English at its hirth, could not be legitimated by the father afterwards acquiring a foreign domicil and marrying the mother in a country by the law of which a subsequent marriage would have legitimated the child. ... I do not think that the English Law can recognise a capacity in any Englishman, by a change of domicil, to cause his paternity and consequent power of legitimation to be recognised."^ This rule of succession as to personalty does not apply to succession as heir to land. For a person born out of wedlock, although legitimated by subsequent marriage, according to the law of his domicil, cannot succeed to land 1 Skottowe v. Young (1871), L. R., 11 Eq., 474 ; but see Boyes v. Bedale (1863), 1 H. & M., 798 ; Wright's Trusts (1856), 2K. & J., 595. 2 Goodman's Trusts (1881), 17 Ch. D., 266, C. A. 3 In re Grove (1888), 40 Ch. D., 216, C. A. < In re Grove (1888), 40 Ch. D., 216, C. A., where the child was bom in England. 5 Cdny v. U. (1869), L. R., 1 Sc. & D., 441, p. 447 ; and see Wright's Trusts (1856), 2 K. & J., 595 ; in re Grove (1888), 40 Ch. D., 216, C. A. Sec. 6 LEGITIMACY IN ENGLAND 529 ill England.! And e converso, a domiciled Scotsman father, a bastard son, legitimated by subsequent marriage, according to the law of Scotland, cannot succeed as heir to his son's English land if such son die intestate.^ Sec. 6. — Foreign views of Mabriages and Divorces IN" England and Marriages at English Embassies AND Consulates.^ It sometimes happened that when a foreigner had con- tracted a marriage in England with a British subject, that the Foreign Courts subsequently declared such marriage void because not contracted with the consent of the parents.* In 1889 a convention was come to with the French Eepublic whereby a French Consul could give a certificate that the legal notices required by the French law had been given, and a marriage following thereon would be valid. 5 As to Belgium, a similar convention was in 1882 arrived at.^ As to marriages celebrated at a British Embassy or Consulate where one or both of the parties is not a British subject, the French Courts usually consider such marriages nuU and void.'' 1 Birtwhistle v. Vardill (1840), 7 CI. & F., 895. 2 Don's Estate (1857), 4 Drew, 194. 3 As to International Law, see Calvo, Le Droit International, 4tli ed., vol. ii., sees. 749-817 ; Clunet's Journal du Droit International Prive, tit. Mariage and Divorce ; Westlake's Private International Law, 3rd ed., chap. iv. ; Wharton's Conflict of Laws, 2nd ed., chap, iv., sects. 126-239«. * For France, see Code Civil, Articles 170, 171. 5 See Herstlet's Treaties, vol. xvii., pp. 414-417 ; London Gazette, 1886, April 23, pp. 1962, 1963. 6 See Herstlet's Treaties, vol. xvii., pp. 256, 267 ; and see London Gazette, 1889, Feb. 5, vol. i., pp. 665-667. ' Calvo, Le Droit International, vol. ii. , sees. 798-803 ; Este v. Smyth (1854), 18 Beav., 112 ; and see the Marriage Laws Commission, 1867 34 530 INTERNATIONAL LAW Cdap. xvil As to divorce, the Frenoli Courts recognise the validity of a divorce of a marriage celebrated in France, if regularly obtained in the country where the parties are domiciled, ^ and they usually decline to exercise divorce jurisdiction over foreigners.^ [4059], pp. 189 and seq., the evidence of the Eight Hon. Edmund Hammond, Under Secretary of State for Foreign Affairs ; and for the converse case, see Pertreis v. Tondear (1790), 1 Hag. Con. ,136. By the Foreign Marriage Act, 1892, 55 & 56 Vict., c. 23, s. 19, power is given to a marriage officer to refuse to solemnise a marriage inconsistent with International Law. By the Order in Council under the Foreign Marriage Act, 1892, restrictions are placed on the solemnisation of Consular marriages between British subjects and aliens ; see ante, pp. 63, 106, 108, 524, 525. 1 Calvo, Le Droit Interuatioual, vol. ii., sees. 806-817 ; and see Appendix to Pitt v. P. (1864), 4 Macq., 627, pp. 649-677 ; and De Ricci V. DeR. (1891), P., 378. 2 Goulder v. G. (1892), P., 240. CHAPTEE XVIII 1. Regular Marriages, 531 3. Registration, . 547 {a) Ministers Qualified to 4. Proliibited Degrees, 648 solemnise, 531 5. Legitimacy, 550 Established Church, . 531 [a) General, 550 Episcopalians, . 532 [b] Legitimatio XHr subse- Other Priests and quens Matrimonium, . 550 Ministers, 532 6. Matrimonial or Consis- Quakers and Jews, 532 torial Law and Reme- (6) Form of Marriage, 532 dies, 551 2. Irregular and Clandestine (a) General, 551 Marriages, . 534 (6) Xidlity of Marriage, . 552 (a) General, . 534 Uamages, . 553 Residence, . 534 [c] Divorce a Vincido, 553 (5) Per verba de prwsenti. 535 Adultery, . 554 Mental Reservation hy Desertion, . 554 one Party, 540 Jurisdiction, 554 Consent obtained hy Custody of Children Fraud, . 540 c^nd Aliment, . 555 (c) By Habit and Repute, 541 (d) Separation and Law {d) Per verba de futuro Burrcrws, . ^ . 555 ( Promise of Marriage) («) Adherence, . 556 subsequente copinla. 546 7. Property and Divorce, . 656 Sec. 1. — Eegulab Marriages (a) Ministers qualified to solemnise Established Church. — Ministers of the Established 1 Fraser on Husband and Wife, 2nd ed. , 1878 ; Fraser on Parent and Child 2nd ed. , 1866 ; Report of the Royal Commission on Marriage, Pari. Paper, 1867, 68 [4059] ; and see Report of a Select Committee on Marriage, Scotland, Pari. Paper, 1849, R., 310 ; Bell's Principles of the Law of Scotland, 9th ed., 1889. 631 532 SCOTLAND Chap. XVIII Church of Scotland, it heing the National Church, have the right to marry validly persons of any religion. Such regular marriage in facie eedesix must he preceded hy hanns ; the jsroclamation thereof being inter sacra, and forming part of the Church discipline, the civil power supporting the ecclesiastical authority.^ Or, hy the Marriage Notice (Scotland) Act, 1878, a regular marriage hy a minister may he celebrated on a registrar's certificate, which is of equal authority to certificate of proclamation of banns. ^ Before 1712 the solemnisation of marriage by any other person than a minister of the Established Church was prohibited under severe penalties, and deemed clandestine and irregular. Episcopalians. — Clergymen of the Episcopal Church were then first allowed to solemnise marriages ^ only after the " banns have been duly published three several Lord's days in the Episcopal congregations which the two parties frequent, and in the churches to which they belong as parishioners by virtue of their residence," ^ or the marriage may take place after the registrar's certi- ficate.* Other Priests and Ministers are also empowered to celebrate marriages after proclamation of banns ^ or a registrar's certificate.^ Quakers and Jews can also intermarry on a registrar's certificate.'^ (&) Form of Marriage "It is not necessary that regular marriages in Scotland 1 Mutton V. Harper (1876), 1 App. Ca., 464. 2 41 & 42 Vict., c. 43. a IQ Anne, c. 10. 4 41 & 42 Vict. , c. 43. 5 4 & 5 Will. IV, c. 28. Ml & 42 Vict., u. 43. '76.,s. 5. Sec. 1 ft) REGULAR MARRIAGES 533 should be solemnised in any particular form, or at any particular place or time. The presence of any minister of religion at the time of solemnisation, wherever it takes place (or in the case of Quakers and Jews, of their proper officers), entitles them to the character of marriage in facie ecclei^ise., and (except in the cases of Koman Catholics and Protestant Episcopalians, whose general practice is to marry in their churches or chapels) they are, in fact, usually solemnised in private houses, and indiscriminately at all hoiirs of the day." i These provisions, however, are merely directory, the only nullifying statute being Lord Brougham's Act (see post, p. 535). So non-compliance with the legal condi- tions of regular marriages as to banns or otherwise, may subject the parties to statutory penalties (a minister, clergyman, or priest celebrating a marriage without proclamation of banns or registrar's certificate is liable to a penalty of £50 2), but "cannot effect the validity of the interchange of consent as constituting marriage ; the utmost effect of such non-compliance being to make the marriage irregular. " ^ Even a marriage in facie ecdesix may be set aside as a nullity if the Court is satisfied that the parties had no real matrimonial intention, and never regarded the ceremony as binding. ^ 1 Royal Commission on Marriage, 1868, Report, pp. xvii, xviii. 2 41 & 42 Vict., i;. 43, s. 12. ^ Jolly or Macneill v. M-Qregor (1&'2S,), 3 Wils. & Sh., 85, 2 Bli., N. S., 393, cited in Steuart v. Roiimon (1875), L. R., 2 Sc. & D., 494, p. 534 ; and .see post, pp. 537 and seq. 534 SCOTLAND Ciiai-. XVIII Sec. 2. — Irkegular and Clandestine JIarriages (a) General By the ancient law of Scotland adopting the Ante- Tridentine Canon Law, irregular or clandestine marriages contracted by the parties openly or secretly, without the intervention of any minister of religion or religious ceremony, are undoubtedly valid,i although by certain old statutes, persons contracting irregular or clandes- tine marriages were liable to penalties. ^ What facts are sufficient to evidence or constitute such irregular marriage have been so frequently discussed in the last twenty-five years on appeals to House of Lords, that little uncertainty remains as to the law. The general effect of these decisions is that the facts to con- stitute a marriage must be strong and conclusive, and that a person cannot be married by accident or against his or her will. The expediency of this law and its effect on morality have been gravely doubted, and the Royal Commission on Marriage of 1868 reported adversely to it.^ Residence. — The following statutory restriction, passed in 1856, has been placed on these irregular marriages, requiring on pain of nullity as follows, — twenty-one days residence. " Before this statute, it was very common for English persons to contract clandestine marriages in Scotland, at Gretna Green and other places, immediately after crossing the border, a practice which this Act has effectually suppressed." * 1 Eeport of Royal Commission on Marriage, 1868, pp. 16 and 17. 2 Act of 1698, c. 6 ; and see Fraser on Husband and Wife, 2nd ed. , vol. i., p. 255 ; astoregistrationof a conviction thereunder, seepost, p. 548. = Pari. Paper, 1867-68 [4059], pp. 27-34. ■* Report of Royal Commission on Marriage, 1868, p. 16 ; and see the Sec. 2 (a) CLANDESTINE MARRIAGES 535 The Marriage (Scotland) Act, 1856, conimonly called Lord Brougham's Act, provides — "After December 31, 1856, no irregular marriage contracted in Scot- land by declaration, aclcnowledgment, or ceremony shall be valid unless one of tbe parties iiad, at the date thereof, his or her usual place of residence there, or had lived in Scotland tor twenty-one days next preceding such marriage, any law, custom, or usage to the contrary notwithstanding. " i The twenty-one days' residence required by this Act means twenty-one full days completed, the day running from midnight to midnight, as was decided in the following case. Miss Lawford and Mr. Davies, intending to contract a clandestine marriage, left London for Scotland by the train which was timed to pass Berwick- upon-Tweed at 4 A.M. on the 1st of July 1870, and they arrived at Edinburgh about 6 a.m. of that day. After remaining in Scotland until the 21st of July following, they, between 11 and 12 a.m. of that day, contracted a marriage by declaration before the registrar at Edinburgh. It was held by Sir James Hannen, after hearing evidence of Scotch Law, that the parties had not lived in Scotland for twenty-one days next preceding the marriage, and that, therefore, it was invalid. ^ (6) Pel' verba de prxsenti "B"othing more is necessary to constitute actual marriage by the law of Scotland than a present intercharge of con- sent, in whatever manner given, to become husband and wife. If this be done without due publication of banns or without the intervention of a minister of religion, it is irregular ; and it falls equally within this category, whether the consent is declared in the most open and speeches of Lord Brougham and debates in the Commons, Hansard, 3rd series, vol. cxli., p. 1587; vol. cxlii., pp. 205, 322,2159 ; vol. cxliii. , p. 997. 1 19 & 20 Vict., li. 96. 2 Lawford v. Davies (1878), 4 P. D., 61. 536 SCOTLAND Chap. XVIII authentic manner before a Ju.stice of the Peace, or before a civil registrar, or before any unauthorised person taking upon himself to celebrate marriages (as used to be the practice at Gretna Green), or in the most secret and private manner between the parties themselves, with or without witnesses, and with or without any subsequent open acknowledgment or matrimonial consent." ^ The constitution of a marriage per verba de jjrxsenti was the subject of a most learned and elaborate disserta- tion by Lord Stowell in 1811 in the celebrated Dalrymple case,2 and in 1813 in the House of Lords on a Scotch appeal by Lord Eldon, L. C., presiding on the woolsack." In these cases it is laid down after distinguishing verba de prxsenti and de futiiro (as to which latter, see post, p. 546) that a contract ^e?' verba de pree.senti constituted ipsum matrimonium ; that it was not necessary that it should be consummated consensus non concubiius facit matrimonium, and that such consent and contract need not be in writing, but may be proved by parol evidence. In the case before the House of Lords marriage was con- stituted so as to give right of widowhood to the woman, and legitimacy to children then born by these words of present consent exchanged between a man and his then mistress ; the man contemplating suicide at the time, and committing it immediately after the words were spoken.'' A written declaration of marriage de prxsenti signed by both parties, and delivered by the man to the woman, conclusively establishes the contract. In this case a youth of twenty married his mother's housemaid, three years older than himself ; the covirtship having been ' Report of the Royal Commission on the Laws of Marriage, 1868, p. xviii. 2 Dalrymple v. D. (1811), 2 Hag. Con., 54. = M'Adamv. Walker {ISi^), 1 Dow, 148. Sec. 2 (6) CLANDESTIXE MARRIAGES 537 carried on in the kitchen, and the connubial relation only known to the coachman and other servants of the family. The husband, when awoke to his error, treated and represented the whole affair as a jest. The woman pro- duced the following declaration written by the man on the fly-leaf of his Bible, which he delivered to her : — " I James Ogilvie Tod Forster, take thee, Jessie Grigor, to be my wedded wife from this day henceforth until death us do part ; and thus do I plight thee my troth. " I, Jessie Grigor, take thee, James Ogilvie Tod Forster, to be my wedded husband from this day henceforth until death us do part ; and thus do I plight thee my troth. " Jambs Ogilvie Tod Forster. Jessie Grigor. "September 2, 1865." Intercoirrse followed between the parties. The House of Lords held that the marriage was proved. ^ The consent must be real, mutual, and with the intention on both sides of constituting a marriage. A consent given in form but not in fact as to a sham marriage imports no validity. ' ' The most expre.ss declarations, oral or in writing, by botli parties tliat they are husband and wife, will not make thera so imless the jndge is satisfied that the inward Intention of their minds was in accordance with these outward words or acts. This has been held, not only as to declarations in the past, but even as to I'crha. de prcesenti, whicli, if sincerely spol^en, would have themselves constituted a marriage. " - This principle was applied and illustrated by a decision in 1875 of the House of Lords on a Scotch appeal of which the facts were as follows : — Major William George 1 Forster v. F. (1872), L. R., 2 Sc. & D., 244 ; and see Hamilton v. B. (1842), 9 CI. & F., .327, although it was therein stipulated that the marriage was to be temporarily liept secret. 2 The Royal Commission on the Laws of Marriage, 1868, p. xx ; and see Imrie v. I. (Nov. 26, 1891), 19 R., 185. 53S SCOTLAND Chap, xyiii Druminond Steuart was tlie lieir of a baronetcy and of a large estate in Scotland. He had served as an officer in the 93rd Highlanders throughout the Crimea and the Indian Mutiny, and was a V.C. On his return to Scot- land he fell into drunken and dissolute habits. He had cohabited with two women, by each of whom he had had an illegitimate child. He was rarely sober, and was continually drunk in low company, and in that state attracted attention and violated decency in public places. In 1865, when nearly forty, he made the acquaintance of and became familiar with Margaret Wilson, then sixteen, the daughter of a fishing-tackle maker in Edinburgh, in whose house a supper was given, Feb. 13, 1866; the party consisting of the Major, the father and mother of Margaret Wilson, her elder brother, and her friend a Mrs. Kellet. After supper the father said to the Major, " I am getting a bad name with your staying so long in my house among my three daughters." The Major answered, " I will show you what I can do to shut up people's mouths. I am poor now, and cannot marry ; but I will marry her in Scotch fashion." Whereupon the Major went down on one knee, took a wedding- ring from his pocket, put it on Margaret's finger, and said, " Maggie, you are my wife before heaven ; so help me, God ! " They then kissed each other ; and Margaret said " Major ! " The health of the couple was drunk, and the entertainment was closed by the Major and Margaret being " bedded " according to an obsolete Scotch fashion. The Major and Margaret Wilson lived together for some weeks after the supper festivity, and at several periods subsequently ; but there was no continuous matri- monial cohabitation ; nor did they represent each other to third parties as husband and wife — the Major invariably repudiating the marriage tiU on his deathbed he appeared. Sec. 2 ft) CLANDESTINE MARRIAGES 539 but somewhat doubtfully, to admit it, being then in a fit of delirium tremens. A son was born in 1867 which the mother registered as illegitimate. The Major died in 1868, whereupon she claimed alimony for the boy as a bastard ; and she signed receipts for the allowance, not as a widow, but as a spinster. In 1871 she married Lieutenant Eobertson, and in 1872 her child died. She sued for declarator of marriage. The House of Lords, reversing the decision of the Court of Session, held that no marriage was contracted ; it appearing clearly that no real marriage was then intended by either of the parties, although the ultimate maturing of matrimony and legitimation under Scotch Law of any issue that might be procreated in the interval was hoped for and confidently anticipated by "Maggie'' and her friends.! The establishment of a marriage per verha de prxsenti privately interchanged requires a considerable body of conclusive evidence.^ And the fact that the parties previous to the alleged consent had cohabited in con- cubinage, and that subsequent thereto one of the parties had publicly married and the other had intended or been willing to marry, will make the establishment of private clandestine marriage still more difficult.- Aoknowledgment also has considerable evidence of consent per verba de prxsenti, as also of a marriage by habit and repute; as to which, se,Q post, pp. 541-546. The baptism and registration of a child of the alleged marriage as legitimate is evidence in favour of its validity.^ 1 Sleuart v. Robertson (1875), L. R., 2 Sc. & D., 494; and see Robertson v. Crawford (1840), 3 Beav., 102. 2 Dysart Peerage case (1881), 6 App, Ca., 489. 3 See ante. Chap. Ill, pp. 140-142, but it is not conclusive ; see Dysart Peerage case, ubi sup., p. 533. 540 SCOTLAND Chap, XVIII A second marriage unexplained between the same parties throws doubt on the existence of the first. ^ Mental Reservation by one Party. — " Altliougli where both parties agree that the apparent contracts shall be nothing more than a farce, or as a mere cover ami blind for another purpose than marriage, the Court will not hold the transaction to be marriage, yet if only one of them have this intention, and tlie other truly mean to contract marriage, no mental or difi'erent intention on the part of the first not stated to the other will have the effect of invalidating the contract." = For, said Lord Stowell, it cannot be the law *'that in snch a transaction a man shall use serious words, expres- sive of serious intention, and shall yet afterwards be at liberty to aver a private intention, reserved in his own breast to avoid a contract which was differently understood by the party with whom he con- tracted." 3 Consent obtained by Fraud. — This will rarely avail to annul a marriage unless there is force or duress, or it is exercised on a person weak in mind or young in years (see ante, Chap. II, pp. 23-28). But in one instance the law of Scotland recognised the fraud may be practised on a person of mature years, the law being that a promise given in ssstu amnris did not constitute marriage ; and this proved, may suffice to annul the marriage. " For example, a woman gets a man into some retired place for the purpose of carnal connection, and there, before this is allowed to proceed, she obtains from him a promise of marriage, and cupula immediately follows. She has, at the same time, two or three witnesses stationed so as to hear the promise, but concealed from the man. The consent here has been obtained in xstu amoris, without any intention on his part, she well knowing it, of entering into marriage, and where, if he had known ■ that 1 Shedden v. Patrick (1869), L. R., 1 Sc. & D., 470, pp. 512, 513. " Fraser on Husband and Wife, 2nd ed., p. 436. ■> Dalri/uijilc v. D. (1811), 2 Hag. Con., 54, p. 107, and cited with apjiroval in the House of Lords, Dysart Peerage case (1881), 6 Ajjp. Ca., 489, p. 493. Sec. 2 tt) CLANDESTmE MARRIAGES 541 there were witnesses to the transaction, he would not have made the promise. The marriage, therefore, being brought about by the fraudulent contrivance of the woman, the Court has refused in such cases to sustain it." 1 ('-■) By Habit and Repute "'Habit and repute,' or tlie reputation of being married persons, acquired among relatives, friends, and acquaintances by i^erwons living together as husband and wife, is often spoken of as if it were another distinct mode of contracting marriage in Scotland. This, however, is not a correct view of the law ; such reputation does not constitute, but is merely evidence of marriage." ^ The presumption of marriage from habit and repute is laid down in the text writers to have arisen from the statute of 1503, enacting that a widow who was, during her husband's life, held and reputed his wife, shall enjoy her terce till it is proved by the opposer that she was not a lawful wife.^ Cohabitation with the required repute as husband and wife is proof that the parties between themselves have mutually contracted the matrimonial relation. It demon- strates that exchange of consent which alone constitutes marriage in Scotland. The law of habit and repute, however, is not peculiar to Scotland, although in countries where the facilities of marriage are less than in Scotland the evidence to establish the marriage must he stronger.'' Eepute alone will not suffice, there must be cohabita- 1 Fraser on Husband and Wife, 2nd ed., p. 460, citing Ilarvie v. Inglis, 19th Feb. 1839, 15 S., 964 ; 1 D., 636. 2 The Eeport of the Royal Commission on Marriage, 1868, p. xx ; and see De Thoren v. The Attorney-General (1876), 1 App. Ca., 686. 3 Thompson's Statutes, vol. ii., p. 243, 1503, o. 77 ; Fraser on Husband and Wife, 2nd ed., vol. i., p. 393. ^ The Breadalbane case, Campbell v. C. (1867), L. E., 1 Sc. & D., 182 ; approved in the Dysart Peerage case (1881), 6 App. Ca., 489, p. 549 ; and see ante, Chap. Ill, pp. 140-142. 542 SCOTLAND Chap XVIII tiou with repute ; not mere intercourse by visiting, but a living together. 1 But although "the law of Scotland accepts the contmuous cohabita- tion of man and "womah as spouses, coupled with the general repute of their being married persons, as complete evidence of their having deliberately consented to marry; in order to sustain that infennoe their coluibitation "must be within the realm of Scotland. Cohabitation furth of Scotland will not constitute marriage, although it may be com- petently founded on either as corroborative evidence of a ceremony in Scotland, or as evidence that a ceremony proved to have taken place in Scotland was truly intended by the parties as a present interchange of matrimonial consent. " ^ The cohabitation also must have endured for some considerable time — several years ; ^ and a cohabitation of only a month in Scotland will not suffice.^ "The cohabitation under the married character must be uniform and consistent, for a few instances in which a man behaves to a woman as his mistress will do away a thousand in which he addresses her as his wife. A man without the least thought of marriage may behave to his mistress as if she were his wife, may not choose to contradict her before strangers who call her such, nor to exj>ose at all times the nature of the connection. " * Describing a woman as a wife for the sake of decency does not evidence a marriage. Lord Watson said acknowledgments at a hotel or a shop are valueless as evidence, and, pei' se, not more conclusive of marriage than of concubinage. " When a man takes his mistress with him to an hotel, or goes with her to a shop to buy baby linen, the probability is that he will prefer describing her as his wife to explaining her true position. "^ If a man elopes with a married woman and cohabits 1 Fraser on Husband and Wife, 2nd ed., p. 401 ; and see the Dysart Peerage case, ubi sup., p. 539 ; and see Chap. Ill, pp. 139-142. - Lord Watson's judgment, Dysart Peerage case (1881), 6 App. Ca., 489, pp. 537, 538. 3 Fraser on Husband and Wife, 2nd ed. , p. 400. " Royal Commis.sion on Marriage, 1868, Report, p. xxi. 5 Dysart Peerage case (1881), 6 App. Ca., 489, p. 552 ; and see ante, Chap. Ill, pp. 139-142. Sec. 2 W CLANDESTmE MARRIAGES 543 with her, this on the death of the husband may ripen into marriage. For the House of Lords has laid down that— * ' A connection commencing in adultery may, on ceasing to be adul- terous, become matrimonial by consent, and may be evidenced by habit and repute, the parties being at liberty to intermarry. The alteration in the character of the connection, from adultery to matrimony, need not be indicated by any public act, or by any observable change in the outward demonstration. Nor is it necessary to prove the specific period when the consent was interchanged." i In this case, which decided the inheritance and title to the vast estates of the Marquis of Breadalbane, the facts were as follows : — In 1781, James Campbell of the Glenfalloch family, an ensign in the 40th foot, then stationed at Bristol, became acquainted with Eliza Maria Blanohard, the young wife of a middle-aged grocer named Ludlow. With James Campbell she eloped from her husband, who did not long survive her departure, for he died in 1784. The guilty parties, however, proved con- stant and true to each other. In 1782 they went to America with James Campbell's regiment, he representing her as his wife. In 1783 an elder brother of James Campbell, writing from Scotland to another brother in America, stated that "he had had a letter from James in America," and that "he and Mrs. Campbell were both well," the writer adding "that he had not seen her, but that she was exceeding well spoke of." In February 1784 (a month after Ludlow's death), James Campbell and Eliza Marie Blanchard arrived in England with his regiment, which returned from Canada. It was then open to them to join hands, but they abstained from doing so. In 1788 they had a son, their eldest, named William 1 The Breadalbane case, Campbell v. C. (1867), L. R., 1 Sc. & D., 182; followed De Thorenv. The Attorney-General (1876), 1 App. Ca., 544 SCOTLAjSTD Chai-. xviii John LamlDe Campbell, and the question was as to his legitimacy. After many wanderings in England they settled ultimately in Scotland, the country of James Campbell's domicil. Eesiding there constantly from 1793 till his death in 1806, they were universally reputed to stand towards each other in the sacred relation of hus- band and wife, although no regular marriage was ever shown to have taken place between them. Dreading, apparently, the effects of a public matrimonial celebration (which they knew was unnecessary in Scotland, and which might have roused suspicions, and instigated inquiry into the nature of their original connection), they seemed to have relied throughout on the familiar doctrine of habit and repute, and they did everything in their power to satisfy its requirements. They passed themselves off uniformly, unequivocally, and constantly as husband and wife ; and they were received, and treated, and regarded as such by all their relations, associates, friends, and acquaintances ; no one expressing or entertaining a doubt that the tie which bound them together was that of matrimony. The woman on James Campbell's death administered his estate, and claimed and received from the Horse Guards a pension as his widow till her death in 1823. Their eldest son, the said W. J. L. Campbell, and their younger children were deemed legitimate, and in 1812, W. J. L. Campbell, on the death of his uncle succeeded without opposition or question as heir of entail to Glenfalloch, which he enjoyed till his death, when it devolved on his eldest son, John A. G. Campbell, the respondent. In 1862, when the succession to the vast Breadalbane inheritance was in question, his cousin, Lieut. C. W. Campbell, the appellant, raised the question of W. J. L. Campbell's legitimacy, which he had not raised over the insignificant Glenfalloch Se.-. 2 (c) CLANDESTINE MARRIAGES 545 succession. If W. J. L. Campbell was legitimate, i.e., if James Campbell and Eliza Maria were married, W. J. L. Campbell's son, the respondent, was admittedly the Breadalbane heir; but if not, the appellant was admittedly entitled. The Plouse of Lords, affirming the decision of the Lord Ordinary and of the Court of Session, held that the marriage was proved ; that, therefore, ^V. J. L. Campbell was legitimate; and the respondent, John A. G. Campbell, the Ereadalbane heir.i This case was followed and applied shortly afterwards, and the principle laid down that — " Wlieu a marriage ceremony has taken place in Scotland, the parties being ignorant of an impediment afterwards removed, and when believ- ing themselves to he validly married, they lived together for years as husband and wife, and were regarded as such by all that knew them, the marriage was held to have been established by force of habit and repute, without any jjroof of mutual consent by verbal declaration." - In this case, AV. E. "W. Wall had obtained, July 1, 1862, a decree nisi for dissolution of marriage from the Divorce Court at Westminster, and July 16 following remarried at Glasgow. This marriage, having been solemnised before the decree absolute, and the expiration of the time for appealing, was invalid (see ante, Chap. A^II, pp. 249, 288, and Chap. XIII, p. 423). Both honestly believed there was no impediment to their marriage, and they constantly cohabited as husband and wife, and were everywhere regarded and treated as such in Scotland, Ireland, and England till W. Wall's death in 1867. Of this marriage four children were born. On a petition under the Legitimacy Declaration Act, in England the opinion of the 1 The Breadalbane case (1867), L. R., 1 Sc. & D., 182 ; the successful claimant's son, on his father's death in 1871, made out his right before the Committee of Privileges to be a Scotch peer ; Breadalbane Peerage Chiim (1872), L. R., 2 Sc. & D., 269. = De Tlioren v. The Attorney-General (1876), 1 App. Ca., 686. 35 546 SCOTLAND Chap. XVIII Court of Session being taken, it was held as tlie liabit and repute doctrine, that before the birth of the eldest son the parents had become married persons, and the validity of the marriage as established by habit and repute, with- out interchange of verbal matrimonial declaration, and the decision was affirmed by the House of Lords.i This principle of habit and repute would validate the marriage of a supposed widow or widower, taking place say in 1870, when the spouse supposed to be dead, as a matter of fact, survived till 1873, but the parties were ignoi'ant of this, and cohabited till 1880. A marriage by habit and repute which had been prima facie conclusively established, may be refuted by strong evidence, such as that of a subsequent marriage between the parties, which, if unexplained, wholly cuts away the ground for such prior marriage.^ (d) Per verba de futuro {Promise of Mamage) subsequente copula " Under this category of cases, the law of Scotland, as it is commonly understood, practically treats persons as married "who have never inter- changed any present contract to become thenceforth husband and wife. A mere promise of future marriage is, according to the present law of Scotland, of no greater force or effect than a similar promise in England or Ireland ; and mere carnal intercourse, without more, is in Scotland, as in England or Ireland, concubinage and not marriage. Even to carnal intercourse, preceded by a promise of future marriage, no greater etfect is ascribed, unless such promise is proved — (a) by writing under the hand of the party, or (6) by his or her confession upon oath. If it were given ever so publicly, in the presence of any number of credible wit- nesses, the testimony of such witnesses could not be received to prove it for the purpose of making the subsequent intercourse marriage. But to mere carnal intercourse, if preceded — (a) by a written promise of future marriage, or {h) by a promise a/tenoards confessed upon oath, the effect of marriage is practically given. In a proceeding taken to estal^lish marriage upon this ground, the defender may be called upon 1 De Thoren v. The Attoi-ney-General (1876), 1 App. Ca., 686. 2 Shedden v. Patrick (1869), L. R., 1 Sc. & D., 470, pp. 512, 513. Sec. 2 (,0 CLAB-DESTINE MARRIAGES 547 to confess or deny the promise on oath, if he has not in the meantime contracted marriage with any person other than the pursuer. But he cannot be put to his oath for such a purpose when the effect would be to invalidate another subsequent marriage. This protection is not given by the law to the innocent victim of the later marriage, if the other mode of proof, viz., writing, is resorted to. In that case, the promise subsequente copula will invalidate the later marriage, however solemnly it may have been contracted, and however secret the previous promise and the intercourse following upon it may have been kept." i But both tlie promise and the copula must take place in Scotland.^ " But it is stdl a doubtful and unsettled point in the law of Scotland whether the concurrence of these two facts ( promise and cum subsequente copula) is sufficient without more to constitute marriage, or whether they merely constitute such a case of precontract as to be capable of being enforced on the principle of specific performance by a Court of justice, and to be a diriment impediment in the meantime to a marriage between either parties to such a precontract, and any other person not a party." If this latter opinion is correct, the marriage cannot be established after the death of either party.^ Sec. 3. — Eegistkation There are no regular ecclesiastical marriage registers in Scotland, but a system of civil registration was estab- lished by 17 & 18 Yict., c. 80, and 23 & 24 Vict., c. 85. As to regular marriages, the parties intending to con- tract must obtain from the district registrar a schedule containing the particulars. They must produce this, 1 Report of Royal Commission of 1865 on Marriage, p. xix. ; and see Sonyman. v. Campbell (1831), 2 Dow & C, 265 ; Forster v. F. (1872), L. R.,2Sc.&D.,244;andseetwoScotchcases, Surtees v. Woih erspoon (Jan. 26, 1872), 10 M., 866 ; Malay v. M'Adam (Jan. 9, 1885), 12 R., 431 ; the rule of law as to evidence is preserved by 37 & 38 Vict., c. 64, s. 3. 2 Yelverton v. Longworth (1864), 4 Macq. H. L., 745. = Report of Royal Commission on Marriage, 1868, p. xix ; this doubt is expressly left open ; Malay v. M'Adam (Jan. 9, 1S85), 12 R., 431. 5iS SCOTLAND Ca,u-. xviil according to the Irisli system (see Cliap. XIX, pp. 564, 5G5), for the officiating minister, and at the ceremony it is to be signed by him, the parties, and two witnesses, and returned by the parties within three days to the district registrar. But the system does not work well, the poorer classes sometimes forgetting to return the certi- ficate. The parties can, but rarely do, require the presence of the registrar at a regular marriage ; if they do, he registers it at once. As to irregular marriages, by 17 & 18 Vict., c. 80, ss. 48, 49, persojis convicted (see ante, p. 534) of an irregular marriage are authorised and required to register the marriage in the parish where the conviction took place, and the magistrate is required to give notice of the conviction to the district registrar. Also after a decree of declarator by a comi^etent Court, the irregular marriage may be registered. Also under Lord Brougham's Act, 19 & 20 Vict., c. 96, ss. 2, 3, parties who have contracted an irregular marriage may, within three months after such marriage (not later), jointly apply to the Sheriff or Sheriff-Substitute of the county where the marriage was contracted ; and on being satisfied of the fact of the marriage, he may grant a warrant to the registrar to register the marriage. Registers so kept are legal evidence.^ Sec. 4. — Prohibited Degrees Previous to 1558 the prohibitions of consanguinity and affinity as obtaining in the Canon Law were the law of Scotland. At the Eeformation two statutes were passed in 1567 as to prohibited degrees. The former (c. 15) punishing incest, which was defined as carnal inter- ' See Report of Royal Comiiiissiou oil Marriage, 1868. p. xxiii. Si-.-. 4 PROHIBITED DEGREES 549 course Avitli persons Avithin the prohibited degrees, as coutiiincd in Lev. xviii., with death. ^ The second Act (c. 16), which was an enfranchising one, declared all mar- riages lawful except those forbidden by the law of God, as contained in Lev. xviii. Interpreting these provisions, it is the law of Scotland that as regards consanguinity all persons related in the ascending or descending line, how- ever remotely, are forbidden to marry; and in the collateral line, brother and sister, uncle and niece, nephew and aunt, whether on the father or mother's side, are forbidden to marry. The Scripture is silent as to, and no case has yet been decided, whether granduncle and grandniece, grandannt and grandnephew, can inter- marry. - As affinity, marriages are forbidden between a man and his deceased wife's sister or deceased brother's widow. '^ In fact, so strong is this prohibition, that in a case where a man had married in England his deceased wife's sister, previous to Lord Lyndhurst's Act, and no decree of nullity had been obtained in the life of the parties, so that the issue were legitimate in England, yet the Scotch Law, as laid by the House of Lords on appeal, refused to recognise such issue as legitimate, and declared them unable to inherit land in Scotland.* More distant rela- tions by affinity, such as an uncle's widow, are also forbidden. The prohibitions apply to the half-blood as well as full-blood, both as to consanguinity and affinity, 1 In 1705 a woman was executed for marrying her deceased sister's husband, Tunnahill v. Drysdale, 1 Hume, 449 ; and as late as 1846, an uncle and niece who had intermarried were sentenced to fourteen years transportation, the Lord Advocate having restricted the libel from the criminal part, R. v. Stewart and Wallace, 2 Broun's Justiciary Reports, 540, cited 3 Macq. H. L., 634. 2 Fraser on Husband and Wife, 2nd ed., vol. i., pp. 104-119. 3/6., pp. 119-130. •1 Fenton v. Livingstone (1859), 3 Macq. H. L., 497. 550 SCOTLAND Chap. XVIII and include illegitimate relations, it appears. But carnal intercourse doe.s not create affinity. ^ Lord Lyndhurst's Act does not apply to Scotland. ^ Sec. 5. — Legitimacy (a) General Children born of a mother who was at the time of the marriage lawfully married are legitimate, and this pre- sumption of legitimacy {pater est quern nuptise. demon- strant) can only be rebutted, as in England, by very strong evidence.^ Also by a principle of the Scotch Law, children of a void marriage may be legitimate if the putative marriage was contracted bond fide by one party.* (b) Legitimatio per subsequens inatrimoniwn Children born bastards, i.e., the result of intercourse of unmarried persons, maybe legitimated by the subsequent marriage of their parents. But it seems that in order that legitimation may take place, it is essential that the parents, at the time of the conception or birth of the child, should have been under no legal impediment to intermarry. So children born ex damnato coitu out of 1 Fraser on Husband and Wife, 2nd ed., vol. i., pp. 130-134. 2 5 & 6 "Will. IV, c. 54, s. 3. 3 Barclay's Digest ; Bell's Principles, sees. 1624, 1626; Bell's Dictionary, tit. Legitimacy ; Uanhier v. Q. (1877), 2 App. Ca., 723 ; ReiA v. Mill (Feb. 8, 1879), 6 R., 659 ; Montgomery v. M. (Jan. 21, 1881), 8 R, 403 ; Tennent y. T. (July 18, 1890), 17 R., 1205 ; Fraser on Parent and Child, 2nd ed., pp. 1 and seq., chap. i. ; and see ante, Chap. Ill, pp. 146-162. ' Bell's Principles, sec. 1625 ; Bell's Diet., tit. Legitimacy ; Fraser on Parent and Child, uhi sup., p. 22. The same is the rule of the Canon Law ; see Sanchez, bk. iii., disp. 42, 43 ; and of the Code Napoleon, Code Civil, Articles 201, 202, Sec. 5 (6) LEGITIMACY 551 an adulterous intercourse cannot, according to this prin- ciple, be legitimised hj the subsequent marriage of their parents. 1 A deathbed marriage is sufficient to legitimise the previously born issuo.^ If the father is domiciled in Scotland (either at the time of the birth of the child or of the subsequent marriage, it is doubtful as to the date at which the domicil must be ascertained), neither the place of the child's birth, nor of the subsequent marriage, nor both, are material. So if a domiciled Scotchman has an ille- gitimate child born in England, and then marries the mother in England, or in any other country outside Scotland, still such child will be legitimated by the law of Scotland ; ^ but if the father is domiciled in England, although by birth a Scotchman, and the marriage be solemnised in Scotland, still the child is by the law of Scotland illegitimate.* Sec. 6. — Mateimonial oe Coksistoeial Law and Eemedibs (a) General Previous to the Eeformation matrimonial causes, in- cluding legitimacy, were in Scotland, as in most of the 1 Fraser on Parent and Child, 2nd ed., chap, ii., p. 32 ; Bell's Prin- ciples, sees. 1626, 1627 ; Bell's Dictionary, tit. Legitimacy. ■■i Lauderdale Peerage case (1885), 10 App., 692 ; M'Adam v. Walker (1813), 1 Dow, 148. 3 Munro v. M. (1840), 7 CI. & F., 842 ; Udjiy v. U. (1869), L. R., 1 So. & D. , 441 ; the Lauderdale Peerage case (1885), 10 App. Ca. , 692 ; the decision in Sheddan or Shedden v. Patrick (1803), 1 Macq. , 535, L. R., 1 Sc. & D., 470, must have gone on the fact that the domicil of the father was in a country where there is no legitimation ; see Fraser on Parent and Child, 2nd ed., chap, iii., pp. 45 and seq. ; and see, too, an article in the Law Times, Nov. 16, 1889, vol. Ixxxviii., p. 42., and anie, pp. 527-529. * Munro v. Saunders (1832), 6 Bli., N, S., 468 ; Strathviore Peerage 652 SCOTLAND cnAi'. xviir rest of Europe, subject to tlie Ecclesiastical tribunals, i.e., tried in tlie Bishops Courts, by judges known as " com- missaries " or " officials," with an appeal to the Eota at Eome. At the Reformation in 1563, the Commissary Court of Edinburgh was established, with jurisdiction over all Scotland in cases of marriage, divorce, and bastardy. The appeal from the Commissary Court was to the Court of Session. The way in which the Com- missary judges acted was much complained of, because of the delays injustice and extortion in fees. In 1830, by 11 Geo. IV, and 1 Will. IV, c. 69, ss. 31-37, the matri- monial jurisdiction of the Commissary Court of Edinburgh was abolished and transferred to the Court of Session. How far the Canon Law as a body was in force in Scotland is a matter of discussion. The law now ad- ministered is much the same as that in force before the Reformation, i.e., based on Scottish provincial councils, the Canon Law modi&ed by statute and interpreted by the Courts.! This law and these actions are known as " con- sistorial." ^ (6) Nullitij of Marriage A marriage can be declared null, in the same way as in England, on account of similar diriment impediments, such as nonage, insanity, non-consent, previous marriage, and relationship.^ case (1821), 6 Paton, App., 645, where the domicil of the father, tlie birth and the subsequent marriage being English, the child was held disentitled to inherit a Scotch peerage ; and see ante, pp. 527-529. 1 See Fraser on Husband and Wife, introductory chapter. 2 lb. ; and see 24 & 25 Vict. , c. 86, s. 19 ; and see Fergusson's Reports in the Consistorial Courts of Scotland. 3 Bell's Princixiles, sees. 152-3, 1525, 1527 ; for instances of lack of consent, see ante, pp. 534-551 ; as to relationship, see ante, p. 548 ; see Fraser on Husband and Wife, 2u(l ed., vol. i., pt. i., chap, i., Iiupedi- ments to ilarriage, and chap. ix. ; and see ante, in this book. Chap. II, s. 2, pp. 23-34, and Chap. VI. Sec. g (« COXSISTORIAL LAW AND REMEDIES 553 Impotence is also a ground for nuUitj^; but the suit must be instituted by one of the parties.^ There is also an impediment peculiar to the law of Scotland, the impediment of adultery. By the Act of 1600 all marriages contracted with the paramour by per- sons divorced on account of his and her own adultery, are null and void, and the issue illegitimate. But in order that such adultery may bo a bar, it must be judicially established by a decree of divorce by a Scotch Court, in which decree the paramour must be named.^ In other cases an adulterous intercourse may ripen into marriage (see ante, pp. 542-546). The validity or invalidity of marriage may be estab- lished by a decree or declarator of marriage, of declarator of nullity of marriage, declarator of legitimacy and Ijastardy, declarator of putting to silence.^ Damafjes.—A woman entrapped into marriage with a man already married, is entitled to damages from the person guilty of the wrong, and in one case £2000 was awarded.* (f) Divorce a vinculo ^ Previous to the Eeformation marriage was indissoluble. 1 Bell's Principles, sec. 1524 ; Fraser on Husband and Wife, 2nd ed. , chap, i., sec. 3, p. 81 ; and see &'. v. J/. (1885), 10 App. Ca., 171 ; and see ante. Chap. V. - Bell's Principles of the Law of Scotland, see, 1526 ; Fraser on Husband and Wife, 2nd ed., vol. i., pt. i., chap, i., sec. 6, p. 140. By Canon Law adultery is a "crimen," which is diriment impediment to marriage; see ante, Chap. XVI, p. 493. As to the adulterer being made co- defender, see p. 554. 3 Fraser on Husband and Wife, 2nd ed., vol. ii., pt. vi., sec. 2, p. 1238. * lb., p. 139. 5 For statistics of divorces in Scotland between 1857-88, see Pari. Paper, 1890, 162 ; the average number of divorces granted for ten years, since 1879, is seventy-nine to eighty per annum. The Lord Advocate has never intervened. For divorces between Nov. 1836 to Nov. 1841, see Report of Divorce Commission, 1852, 3 [1604], 554 SCOTLAND Chai-. xviii On the Keformation of religion, which, as recognised by- law, took place August, 24, 1560 — Divorce for adultery hy husband or wife, though not introduced by statute, was held by the Courts to be part of the Commom Law of the country. Condonation, or remissio injuriarum, connivance, lenocinum, or collusion, is a bar to the remedy. But recrimination or similar offence committed by the com- plainant, or cruelty or desertion by the complainant, is no bar. Damages may be claimed against the adulterer, who by 24 & 25 Vict., c. 86, s. 7, may be made a co- defender, i Notour adultery by Act of 1551, c. 12, of 1563, c. 10, and of 1581, c. 7, was punishable with death; but these statutes and the penalty for them are now obsolete. Divorce for Desertion. — By the Act of 1573, c. 1, as interpreted by the Scotch Courts, wilful and malicious desertion by either spouse, persisted in for four years, is a ground of divorce a vinculo.^ Jurisdiction. — Owing to the jurisdiction assumed by the Scotch Law, it sometimes happens that persons whose marriage has been dissolved by a Scotch divorce are held pp. 73, 74 ; during these five years ninety-five divorces a vinculo were granted, of -vvhicli more than a third were at the suit of the wife. Almost all the litigants were of the humbler classes, only one of the Scot9h gentry being in the list. 1 Fraser on Husband and Wife, 2nd ed., vol. ii., pt. v., pp. 1129 and seq. ; Bell's Principles, sees. 1530-1534 ; but condonation in Scotch Law is final, and not subject to reviver; Collins v. C. (1884), 9 App. Ca., 205 ; and see ante, Chap. VII, p. 272. If the paramour co-defender is named in the decree, he cannot marry the adulterous wife, see ante, p. 553. - Fraser on Husband and Wife, 2nd ed. , vol. ii. , pt. v. , pp. 1207-1215 ; 24 & 25 Vict., c. 86, s. 11 ; and see Bell's Principles, sec. 1535 ; Paterson v. P. (1850), 3 H. L. C, 308 ; Harvey v. Farquhar (1872), L. E., 2 H. L., Sc. & D., 192 ; Watson v. W. (March 20, 1890) 17 R., 736, Sec 6 (<•) CONSISTORIAL LAW AND REMEDIES 555 in England still under the bond of the prior marriage, though in Scotland they are free to remarry. For it is Scotch Law that a sentence of divorce may be pronounced hy a Scotch Court between persons domiciled outside Scotland, but residing there for some short period, as it is said, forty days, or perhaps simply resorting there for the express purpose of obtaining a divorce. But the English doctrine, that the English Court will only recognise a foreign divorce between persons domiciled in the country whose Courts grant such divorce, results in a conflict of law between England and Scotland.^ Custody of children and aliment may be provided for on a decree for divorce or separation in a similar way as in England.^ (d) Separation ^ and Law Burrows A decree of separation analogous to judicial separation may be obtained by either spouse for adultery or cruelty.* If husband or wife, while still cohabiting, wish to obtain protection against the violence of the other, he or she can swear a law burrow against the offender, and then such 1 See Report of Marriage Commission, 1868, pp. v, xxvi ; Fraser on Husband and Wife, 2nd ed. , pt. vii. , chap. ii. , pp. 1271 and seq. ; Warrenderv. W. (1835), 2 CI. & P., 488; Pitt v. P. (1864), 4 Macq., 627 ; Harvey v. Farnie (1882), 8 App. Ca., 43 ; Low v. L. (Nov. 19, 1891), 19 E. 115 ; Bonaparte v. B. (1892), tlie Times, Aug. 1, p. 9, Aug. 2, p. 10 ; and see ante, Cliap. XVII, pp. 525-527. 2 24 & 25 Vict., c. 86, s. 9 ; Sxjmincjtcm v. S. (1875), L. R., 2 Sc. & D., 415; Thomson v. T. (July 3, 1990), 17 R., 1091; and see Chap. XI. 3 For Statistics of Judicial Separation in Scotland from 1857 to 1888, see Pari. Paper, 1890, 162 : about fourteen or fifteen per annum are granted. ■• Fraser on Husband and Wife, 2nd ed. , vol. ii. , pt. iii. , chap. iii. , pp. 877 and seq. ; Bell's Principles, sees. 1540, 1540a; the leading case in which cruelty was defined by tlie House of Lords is Paterson v. P, (1850), 3 H. L. C, 308, 556 SCOTLAXD Chap. XVIII offender must give caution not to ill-use tlie complaining spouse.i (e) Adherence The Sootcli equivalent to the English action for restitution of conjugial rights is a claim for adherence which is competent to hushand and wife ; but, unlike the English action, it never could he enforced by imprisonment." Sec. 7. — Property and Divorce Originally in Scotland, as in England, the goods of the wife belonged to the husband. This was termed communio bononcm, but it did not include heritable ^iihjeds in land, etc., or paraphernalia, woman's dres.'^, etc., or the wife's peculiiLm. The Married Women's Property (Scotland) Act, 1881, much on the lines of the English Act, gives the wife back her own property.^ The rights of either spouses in the other's property after death are not here discussed.* The effect of divorce on property, whether it be for desertion or adultery, is, that the innocent spouse is entitled to all legal rights as if the other had died, and the guilty spouse forfeits all claims under a marriage settlement or by way of succession.^ 1 Fraser on Husband and Wife, 2nd ed., vol. ii., pt. iii., chaji. iii., p. 910. - lb., cliap. ii., p. 867. = 44 & 45 Viet , c. 21 ; and see Englisli Law, Cliap. IV, s. 2, pp. 184-191. ■• See Manual in tliis series on Succession, by J. Williams. ^ Han-ey v. Farqvhur (1872), L. R., 2 Sc. & D., 192; Fraser on Husband and Wife, 2nd ed., pt. v., sec. 2, p. 1216. CHAPTEE XIX IRELAND Marriage, 557 Mixed Marriages of [a] History of Law of Roman Ccdholicsand JIarriage, 557 Protestants, . 563 Common Law, 557 Civil Marriages, 564 Po2Kry Arts, 658 [c) Registration, 564 (h) Existing Law of Mar- 2. Matrimonial Remedies, 565 riage, .... 559 [a] Nullity and Restitu- Protestant Episco- tion, .... 565 palians, . ^59 [b] Divorce a menscc et Protestant Noncon- thoro, .... 566 formists, . 560 (c) Action for Criviincd Preshyterio,ns, 560 ConverscUion, 567 Other Religious Bodies, 560 (d) Legislative Divorce, . 568 Quakers and Jews, 561 (e) Property and Miscel- Roman Catholics, 562 laneous, 568 Sec. 1 . — Maeeiage (a) History of the Law of Marriage The Common Law of England and Lreland are the same, and by this marriages celebrated by an ordained clergy- man of the United Church of England and Ireland, or by a clergyman of the Church of Eome, were valid, even although irregularly solemnised in a private house and without banns, etc.^ 1 Slockhridge v. Quicke (185-3), 3 C. & N., 305; Smith- \. Maxwell (1844), 1 C. & P., 271 ; Adams v. A. (1858), 1 Dr. t. Nap., 247 ; a.s to Roniau Catholic marriage.s, see ante, p. 78, post, p. 562. 558 IRELAND Chap. XIX Marriages by any Nonconformist minister, not episco- pally ordained, or per verba de prxsenti, were void, as was decided in 1843 by the House of Lords ;i but an Act was immediately passed validating existing marriages pre- viously celebrated by Presbyterian or Protestant Dis- senting ministers, except where such marriage had previously been declared void by any Court of competent jurisdiction, or if either of the parties had lawfully inter- married with any other person, or any marriage as to which there was then pending a criminal proceeding.^ Popery Acts. — Numerous Acts for the repression of Popery were passed in the last century, imposing penalties on Eoman Catholic clergymen celebrating marriages between Protestants and Eoman Catholics. And 19 Geo. II, c. 13, declared all marriages celebrated by a Eoman Catholic clergyman, between a Protestant and a Catholic, were null and void. This provision of this Act was not repealed till 1870, by 33 & 34 Vict., c. 110, s. 39.^ When the validity of a marriage was in litigation under the nullifying provision of the Act, evidence was continually produced as to whether the party was a Protestant or a Eoman Catholic ; and the question of the effect of an occasional profession of Pro- testantism or Eoman Catholicism was often considered.* Marriages by a Eoman Catholic clergyman between the parties, both of whom were Eoman Catholics, were valid if duly celebrated.* 1 R. V. MUlis (184-3), 10 CI. & P., 534 ; Beamish v. B. (1859), 9 H. L. C, 274. 2 5 & 6 Vict., c. 11.3; and see 6 & 7 Viet., u. 39 ; 7 & 8 Vict., c. 81, s. 83, by which latter Act permanent provision was made for marriages by Protestant Nonconformists, as to whicli, see post, pp. 560, 561. 2 See Yd ce lion v. Longicorth (1864), 4 Macq. H. L., 745; R. v. Taggart (1846), 2 Cox C. C, 50. See rj'Arcy v. D'A. (1887), 19 L. R. Ir., Ch., 369. 5 47 & 48 Vict., u. 68, s. 7. 566 IRELAND CnAP. XiX may be imprisoned until they purge their contempt, i.e., obey, ami agree to cohabit.^ {b) Divorce a mensa et thoro No Irish Court ever had, or now has, the power of granting a divorce a vinculo matrimonii so as to allow the parties to remarry. Previous to the disestablishment of the Church of Ireland, matrimonial causes in Ireland were tried in the Ecclesiastical Courts which had juris- diction, and granted divorces a mensa et thoro and alimony on principles similar to those of the Ecclesi- astical Courts in England (see ante, Chap. I, pp. 9-1 2). ^ The Irish Church Act, 1869, abolished all ecclesi- astical jurisdiction in matrimonial matters.^ The follow- ing year the Matrimonial Causes and Marriage Laws (Ireland) Amendment Act, 1870, transferred to and vested in Her Majesty all former matrimonial jurisdiction of the Ecclesiastical Courts, and enacted that such trans- ferred jurisdiction should be exercised in a Court of Record, called the Court for ISIatrimonial Causes and IMatters, and that the judge of said Court should be the same person as the judge of the Court of Probate. It further enacted that the Court shall proceed and give relief on principles and rules which shall as nearly as may be conformable to the principles and rules by which the former Ecclesiastical Court was guided. Generally the provisions of the Act and the powers and procedure of the Court were, except as to granting dissolution of marriage, analogous to those of the Matrimonial Causes Act, 1857, > See ante, Cliap. X, pp. 371-378 ; and see Rules of tlie Supreme Court of Judicature, Ireland (published in the volume of Statutory Rules and Orders (1891), pp. 676-1194, 0., 70, rules 3, 61. 2 Their decisions are reported in " Milward." 3 32 & 33 Vict., c. 42, s. 21. Sec. 2 (6) MATRIJIOKIAL REMEDIES 567 (see ante, Chap. VIII and XI) ; and the Court, in trying issues, has the ordinary powers of a Court sitting at Nisi Prius.i The Supreme Court of Judicature Act, Ireland, 1877, transferred the jurisdiction of the Court for Matrimonial Causes and Matters to the Probate and Matrimonial Division of the High Court of Justice.^ Eules have heen made thereunder regulating the practice.' A divorce a mensa et thoro is granted for cruelty or adultery.* (c) Action for Criminal Convermtion An Irish husband can bring an action of tort sounding in damages against a man who commit.? an adultery with his wife.^ But if the defendant, the alleged adulterer, is out of the jurisdiction, the plaintiff cannot sue him in Ireland, as service out of the jurisdiction is not allowed in actions of tort." As, however, actions crim. con. are abolished in England, and a domiciled Irishman cannot petition the Probate and Divorce Division in England (see Chap. VII, s. 1 (c), pp. 243, 244), it follows that if the wife of a domiciled Irishman commits adultery with a domiciled Englishman, the Irish husband has no remedy against the English adulterer. If the husband and the 1 33 & 34 Vict., ^. 110 ; 34 & 35 Vict., c. 49. •■= 40 & 41 Vict., 0. 57, ss. 3-6, 21, 26, 34-37, 47, 64, 71. '• Rules of the Supreme Court of Judicature, Ireland, 0., 70 ; pub- li.slied in the volume for 1891 of the Statutory Rules and Orders, pp. 676-1194. i As to what is cruelty, see M'Krerer v. M'K. (1876), I. R., 11 Eq., 26; D'Arcy v. If A. (1887), 19 U. R. Ir., Ch., 369. Generally it is granted or barred for the same grounds or reasons as a judicial separation in England (see ante, Chap. VIII, pp. 352-348), and has the same effect (see ante, pp. 421-427). 5 For an account of this action, see ante, Chap. VII, p. 255 and seq. ; and see Wilson v. Leonard (lifii), 5 Ir. Jur. 0. S., 101. 6 Eules of the Supreme Court, 0., 11. 568 IRELAND CnAr. xix adulterer are domiciled in Ireland, it is immaterial where the adultery takes j)lace.i (d) Legislative Divorce An Irish husband or wife can only get a divorce a mensa et tlioro from the Irish Court, which does not enable them to remarry. But either husband or wife can apply to Parliament to pass a Divorce Bill according to the old practice. And in 1886, where an Irish wife peti- tioned for such a Bill, the House of Loi'ds laid down, that "the same evidence which since the Divorce Act, 1857, enables the Divorce Court to pronounce a decree of dissolution of marriage, will be considered by the House of Lords sufficient ground for passing a Divorce Bill relat- ing to Ireland, where that Act does not apply. "^ (e) Propeiiy and Miscellaneous The rights and duties of husband and wife as regards property and person are generally the same as in England (see ante, Chap. IV, pp. 163-202). The Common Law and the King's Ecclesiastical Law of England were applied, and the Married Women's Property Acts, 1870- 1884 3 (see ante, pp. 184-191), extend to Ireland. In case of desertion the wife can apply for a protection order * or a maintenance order.^ 1 See Brooke v. Bush (Jan. 15, 1886), Q. B. D., Ireland, coram Master Courtenay ; in thi.s the adultery was committed on the high seas. 2 Westropp's Divorce Bill (1886), 11 App. Ca., 294; and see Hewat's Divorce Bill (1887), 12 App. Ca., 312; Gifford's Divorce Bill (1886), ib., p. 361 ; A.'s Divorce Bill (1887), ih., p. 364 ; for practice in legisla- tive divorce, see Macqueen's House of Lords' Practice ; for causes of dissolution in England, see Chap, VII, s. 1 (d), pp. 244-247. 3 33 & 34 Vict., 0. 93 ; 37 & 38 Vict., c. 50 ; 46 & 47 Vict., c. 75 ; 47 & 48 Vict., c. 14. •* 28 Vict., c. 43, similar to the English Act (see ante, pp. 358-364, 425, 426. 6 49 & 50 Vict., u. 52, extends to Ireland (see pp. 360, 361, 368-370. APPENDIX ], MARRIAGES IN CATHEDRALS AND CHAPELS ROYAL. 1 There being a commonly recei'v-ed oj)inion that marriages cannot be solemnised in cathedrals or chapels royal, the author has written to all deans of cathedrals, and the following is the information most courteously laid at his disposal by them or by their direction. In some oases cathedrals are old parish churches ; as such they retain their parochial rights unless specially divested. But generally marriages in cathedrals stopped in 1754 by the effect of Lord Hardwicke's Act, 26 Geo. IT, c. 33. Quite recently some cathedrals liave been licensed by the bishop under 20 A^ct., c. 19, s. 9, see pp. 570, 575. There was a Royal Commission appointed in 1882 to inquire into cathedral churches in England and "Wales, whose reports are printed as parliamentary papers, but the subject of marriages in cathedrals was not thereby inquired into or reported on. Bangoe Cathedral is a parish church ; the register of marriages beginning in 1673, the bann book in 1783. Communicated by Evan Lewis, the dean. Bath Abbey is the parish church of St. Peter and Paul. Marriages have been solemnised there since 1569, in which year the register begins. Communicated by 1 For hi.story, architecture, etc, see "The Cathedral Churches of England and Wales," by W. J. Loftie, F.S.A. E. Stanford, 1892. 609 570 APPENDIX 1 Tliomas Basey, the verger, by direction of Canon Brooke, the rector. Bristol Cathedbal is not a parish church or licensed for marriages, but is in the Parish of St. Augustine's. The last marriage solemnised in the cathedral was on March 12, 1754. Communicated by W. Mann, precentor and sacrist. Canterbdry Cathedral is a parish church of the precincts called the Ville of Christ Church. Two marriages took place there in January and February 1891, one by banns and one by licence. The register of marriages begins in 1583, and is published by the Har- leian Society. Communicated by E. Payne Smith, the dean. Carlisle Cathedral. Xo banns are now published or marriages solemnised in this cathedral. The cathedral and close are extra-parochial. The nave of the cathedral Avas a parish church until about thirty years ago, when a new church was built for the parish (St. Mary) which had used the nave. Communicated by AV. G. Henderson, the dean. Chester Cathedral. The south transept of the cathedral was the parish church of St. Oswald till 1881, and in it marriages for that parish were solemnised ; after which date its rights and emoluments were trans- ferred to a newly-built church. Except as for this the cathedral and its precincts are extra-parochial, and since 1753 no marriages have been solemnised in it except by special licence till 1869. It was then licensed for marriages by the bishop, December 23, under 20 Vict., c. 19, s. 9, empowering the bishop in the case of a church locally situated in an extra - parochial place to authorise in it publication of banns and solemnisation of banns for persons residing in such an extra-parochial place. Com- municated by John L. Darby, the dean. Chichester Cathedral. Banns are now published and marriages solemnised in this cathedral. The register begins in 1863 ; previous to that marriages were solemnised in the sub-deanery church. The cathedral is the parish church of the close, of which the dean is the A'icar. Communicated by F. Pigou, the dean. MARRIAGES IN CATHEDRALS, ETC. 571 Durham Cathedral. No answer. Ely Cathedral. Licensed for celebration of marriages about twenty-five years ago, at which date the register begins. It was not a parish church. Communicated, witlr the consent of the dean, by W. E. Dickson, sacrist of Ely Cathedral, and vicar of the Parish of the College of Ely. Exeter Cathedral is the parish church of the precinct of the close. The register of marriages begins October 29, 1.597. Communicated, with the consent of the dean, by "William David, priest-vicar of Exeter Cathedral, dean's vicar of the close. Gloucester Cathedral. No marriages except by special licence have been solemnised in the cathedral since the Marriage Act, 1754, 26 Geo. II, c. 33. Previous to that marriages were solemnised in it, and there is a register of marriages beginning in 1663, but no bann book. The cathedral is not a parish church. Com- municated, with the consent of the dean, by Bernard E. Eoster, sacrist of Gloucester Cathedral. Hereford Cathedral. Banns are never published in the cathedral except in the Lady Chapel, which is lent to the congregation of St. John's Parish Church, and used by them under leave from the dean as their parish church. The cathedral is not a parish church except as above, and is situated in the Parish of St. John. Communicated by George Herbert, the dean. Lichfield Cathedral is a parish church. Banns arc published and marriages solemnised in it. The first entry in the bann book is in 1863, the register of marriages beginning in 1665 ; the earlier records were destroyed in the civil war. Communicated by Edward Bickersteth, the dean. Lincoln Minster is not licensed for marriages, or a parish church. The minster yard is included in the other parishes. Marriages, therefore, can only take place in the cathedral by special licence. Communicated by W. J. Butler, the dean. Liverpool Cathedral. Banns are published and marriages solemnised here. The cathedral is also the parish church of Liverpool ; the registers date back to 1704. Communicated by Alexander Stewart, the rector. 572 APPENDIX 1 Llandafj? Cathedral is a parish church, and banns are published and marriages are solemnised constantly in it. The dean and chapter were formerly charged with parochial functions, till in 1875, when by an Order in Council, August 12th, published in the London Gazette, August 17th, p. 4135, a vicar was appointed and vested with the cure of souls. Notice of banns is to be given to the vicar ; they are published by the cathedral clergy, and the marriages solemnised by the vicar. Communicated by C. J. Vaughan, the dean, master of the temple, and taken from the Order in Council. London, St. Paul's Cathedral, see infra, "St. Paul's ; " Westminster Abbey, see infra, " Westminster." Manchester Cathedral is the old parish church of Manchester. The register begins in 1575. Marriages are continually being solemnised there. Communicated, with the consent of the dean, by J. M. Elvy, vicar and minor canon. N^ewoastle Cathedral is a parish church. The register dates back to 157 4. Communicated by A. T. Lloyd, the vicar. Norwich Cathedral. One of the side chajsels (St. Luke's) and part of the adjoining aisle are used as the parish church of St. Mary in the Marsh in the cathedral precinct, and marriages of parishioners are solemnised there in the usual way after banns or licence. Except in this place, marriages can only take place in the cathedral after special licence. Communicated by W. T. Bensly, chapter clerk, at the request of the dean. Oxford, Christ Church Cathedral. The earliest register in the Chapter House at Christ Church is a small parchment folio, bound in rough calf, and stamped with the arms of the House. On one of the first pages is written this title, " The booke of Christ Church in Oxford of all who have been christened, married, and buried since the year of our Lord 1633." The earliest marriage registered in this book is dated July 17, 1642, and the latest March 21, 1754. There is no record of marriages in Christ Church Cathedral between March 21, 1754, and May 2, 1865; the marriage register book supplied under 52 Geo. Ill, c. 146, is an absolute blank. MARRIAGES IN CATHEDRALS, ETC. 573 Duplicate register books for marriages in the present form, bound in green cloth in accordance with 6 & 7 Will. IV, c. 86, were obtained at some date, and these books are iu present use. The earliest marriage that is registered in them is dated May 2, 1865. And the author under- stands that banns are published and marriages solemnised in the cathedral for persons residing in the precincts or college. Communicated by E. W. Collin, precentor and archdeacon Palmer. Peterborough Cathedral. Marriages have Ijeen always solemnised in this cathedral. Communicated by ]M. Argles, the dean. PviPON Cathedral is and always has been an old parish church. Banns are published and marriages solemnised by the minor canons, who act as "vicar priests. The register begins at a very early date. Communicated by W. E. Fremantle, the dean. EooHBSTER Cathedral. Banns are published and marriages solemnised in the cathedral church. No part of the cathedral is or ever has been a parish church. Communicated by S. E. Hole, the dean. St. Alban's Abbey is an old parish church which retains all its rights. The register of marriages commences in Kovember 1858. Communicated by W. J. Lawrance, archdeacon and rector. St. Asaph Cathedral. Xo answer. St. David's is an old parish church for a large parish, and banns and marriages have been habitually therein published and solemnised as in any other parish church. Communicated by James Allen, the dean. St. Paul's Cathedral, London. There is no record of any marriage by banns in this cathedral. Previous to Lord Harwicke's Act, 26 Geo. II, o. 33, 1754, frequent marriages took place, but all by licence or special licence. The register begins in 1697, and goes down to 1754 ; but since then only five marriages have taken place, one in 1756,oneinl758,— in 1877 and in 1883 two Lord Mayor's daughters. Miss White and Miss Knight, and in 1883 the dean's daughter. Miss Church. All these five marriages were by special licence. The close or churchyard is in two parishes, and the cathedral is not a parish church, but 574 APPENDIX 1 extra-parochial. Communicated by E. E. Green, the dean's verger, at the request of the dean. Salisbuey Cathedral. Banns are published and marriages solemnised in this cathedral. The register begins in 1564. Communicated by H. W. Carpenter, vicar of the choir, with the consent of the dean. Southwell Minster. The marriage register goes bade to 1559, and from time immemorial this church, althougli collegiate, was also used as the parish church of South- well. Communicated by Canon J. J. Trebeok, rector of the cathedral church and prebend of saerista,and sub-dean of the cathedral. Truro Cathedral. Part of the old parish church of St. Mary forms the south choir aisle of the cathedral, and is still the parish church; see 50 & 51 Vict., c. 12. In such choir aisle marriages are usually solemnised and banns published, but with certain consents they may under that Act be solemnised and published in the other parts of the cathedral on an additional fee of i'25 to the fabric fund. Communicated by Cecil ~F. C. J'jourke, sub-dean and rector of Truro, and quoted from 50 & 51 Vict., c. 12 ; and see draft statute in the Eoyal Commission on Cathedrals. Wakefield Cathedral. Marriages are solemnised and banns published in the cathedral, which is also the parish church (All Saints) of Wakefield, and became the cathedral by Order in Council in May 1888 on the found- ing of the new see. The register dates from 161.3 and the bann book from 1754. Communicated by N. D. J. Strat- ton, the Bishop of Sodor and Man. Wells Cathedral. Banns are published and marriages solemnised in this cathedral. The cathedral is the parish church of the Liberty of St. Andrew. Communicated by G. Buckle, canon and precentor. Westminster Abbey. Marriages are only celebrated in the Abbey by the dean's permission. For marriages celebrate in Henry VII's chapel, see Burn's Parish Eegisters, pp. 147, 151. Communicated by G. G. Bradley, the dean. Winchester Cathedral. Previous to Lord liard- wicke's Act, 26 Geo. II, c. 33, 1754, marriages wore JIARRIAGES m CATHEDRALS, ETC. 575 solemnised and banns published in this cathedical, and there is a register of marriages beginning in 1603 down to 1754. There is thence no register of marriage till 1869. Then a marriage was solemnised, and there is an entry in the new register in the archdeacon's writing, " The first publication of banns since the cathedral was licensed for marriages, ^lay 10, 18G7." Since then there have been fifteen marriages, ten by banns and five by licence. The licence is under 20 Vict., c. 19, s. 9. Communicated by G. W. Kitohin, the dean. A^^ORCESTER Cathedral. J. H. Hooper, the chapel clerk, states that he is " not aware of banns having been published ; and that marriages have been solemnised in the cathedral church, though rarely of late. The register of marriages commences about 1693." York Minster. Marriages took place frequently in the cathedral till 1754, the date of Lord Hardwicke's Act, 26 Geo. II, c. 33 ; since then only two marriages, and they very recent ones, have been solemnised there by special licence. The cathedral stands in the two parishes of St. Maurice and St. Michael, Belfry. Communicated by A. P. Purey Cust, the dean. Chapels Koyal St. George's, Windsor. Marriages in abundance have taken place here, but in each case of recent years it has been by special licence. There is a special register beginning in the year 1627, or rather a memorandum book, as it is not drawn in the statutable form. In it all marriages, whether Eoyal or otherwise, are entered. Com- municated by Randall T. Davidson, the dean. The Savoy. Marriages cannot be solemnised here. The minister was convicted of so marrying.^ In Hampton Court, Kensington Palace, and Whitehall Chapels, and at the Chapel Eoyal, St. James', marriages used to be performed. The register of the latter still exists in the custody of the Bishop of London as Dean of the Chapel Eoyal. ^ 1 Ezrelationelj. Man.sfleld, C. J. , inij. v. Northjield (11i\), 2 Douglas, 6.59. 2 Burn's Parish Registers, pp. 147, 148, 151. 576 APPENDIX 1 The Chapels of the Injs^s of Couet. These cannot be used for solemnising marriages.^ A marriage by special licence took place two or three years ago in the Temple church ; there is an ancient register of marriages there solemnised, now in the custody of the Master Dean Yaughan. Lord Castleton and Farshen were there married in 1674." In Gray's Inn and Lincoln's Inn, Rolls, Serjeants' Inn and Staple Inn Chapels, marriages used to take place ; and all except the two latter have registers.^ 1 R. V. S'orthfidd, uU sup. ; Taunton v. Wybcrrn (1809), 2 Camp- bell, 297. 2 Burn'.s Pari-sh Kegi.sters, p. 164. ' Burn, np. cif., pp. 146-152. APPENDIX 2 RELIGIOUS OPINIONS AND PRACTICE AS TO DI- VORCE AND THE REMARRIAGE OF DIVORCED PERSONS Eaely Church " The opinions of the Fathers, as collecteil by Cranmer, are thus enumerated by Burnet : — ' Heriues was for putting away the adulteress, but so as to receive her again upon repentance. Origen thought the wife could not marry again after divorce. TertuUian allowed divorce, and thought it dissolved the marriage as much as death did. Euphenius did also allow it ; and Ambrose in one place allows the husband to marry again after divorce for adultery, though he condemns it always in the wife. Basil allowed it on either side for adultery. Jerome, who condemns the wife's marrying, though her husband were guilty of adultery, and who disliked the husband's marrying again, yet when his friend Fabiola had married after a divorce, he excuses it, saying, it was better for her to marry than to burn. Chromaticus allowed of second marriage after divorce ; and so did Chrysostom, though he condemned them in women so divorcing. St. Austin was sometimes for a divorce, but against marriage upon it ; yet in his " Retractations " he wrote doubtfully of his former opinion.' . . Pope Gregory denied a second marriage to the guilty person, but allowed it to the innocent after divorce. Pope Zachary allowed the wife of an incestuous adulterer to be married if she could not contain. In the Canon Law the Council of Friburg is cited for allowing the like 37 578 APPEXDIX 2 Ijrivilege to the husbands. By the Council of Elvira, a man that finds his wife intends to kill him may put her away and marry another, but she must never marry. The Council of Aries recommended it to husbands whose wives were found in adultery, not to marry during their lives ; and that at Elvira denied the sacrament to a wife who left an adulterous husband and married another; but she might have the communion when her first husband died ; so the second marriage was accounted good, but only indecent. But the Council of Milesi for- bids both man and wife to marry after divorce " (Burnet's History of the Eeformation, vol. ii., p. 91, Nares' edition).^ Eeformation The Reformatio Legum Ecdesiasticarum, drawn up by Cranmer and sub-Committee of Eight, allowed divorce for adultery by husband and wife, and that the innocent party might marry again. It never became law, but was the recog- nised opinion and sentiment of the Church of England at the time, and contains the opinions of the first Reformers ;- and see Bishop Cozens' argument in the Duke of Nor- folk's case, A.D. 1700, which proves conclusively, according to the opinion of most of the Fathers, and in conformity with the opinion of almost all the Reformed divines, that adultery works a dissolution of marriage which justifies the injured party in marrying again.^ John Milton, who may be taken as a representative of Puritan opinion, was in favour of divorce for other causes besides adultery, and allowed either party to remarry. It ought not to be tried by law, but was a matter of conscience, the magis- trate only seeing that the pecuniary conditions of the divorce were just and equal.* 1 See Report of Divorce Commission, 1852, .3 [1604], p. 5, n. 2 76., p. 4; and see Report, of Ecclesiastical Courts Commission, 1883 [c. 3760], pp. xxxii, xxxvi ; and see ante, pp. 8, 11, 12. 3 13 State Trials, 13-32; and the Report of Divorce Commission, 1852, 3 [1604], p. 5, n. ■^ Milton's Prose Works, "The Doctrine and Discipline of Divorce restored to the good of both Sexes," and " Tctrachordon Expo-sitioiis upon the four chief places in Scripture which treat of marriage or nullities in marriage. THEOLOGY OF DIVORCE 579 Church of England In 1888 there met at Lambeth under the presidency of Dr. Benson, ArchbishoiJ of Canterbury, what has been properly called the Lambeth or Pan-Anglican Conference. This Conference, under the style of the archbishops, bishops, metropolitan, and other Isishops of the Holy Catholic Church in full communion with the Church of England, one hundred and forty - five in number, put forth an encyclical letter, in which they declared, irder alia — 1 ^' Sanctity of Marriage. — In vital connection with the promotion of purity is the maintenance of the sanctity of marriage, which is tlic centre of social morality. This is seriously compromised hy facilities of divorce which have been increased in recent years by legislation in some countries. We have therefore held it our duty to reaJBrm emphatically the precept of Christ relating thereto, and to offer some advice which may guide the clergy of our communion in their attitude towards any infringement of the IWaster's rule. "Polygamy. — The sanctity of marriage as a Christian obligation implies the faithful union of one man with one woman until the union is severed by death. The polygamous alliances of heathen races .are allowed on all hands to be condemned by the law of Christ, but they present many difficult practical problems which have been solved in various ways in the past. We have carefully considered tliis question in the different lights thrown upon it from various parts of the mission- field. While we have refrained from offering advice on minor points, leaving these to be settled by the local authorities of the Churcli, we have laid down some broad lines on which alone we consider that the missionary may safely act. Our first care has been to n>ain- tain anil protect the Christian conception of marriage, believing that any immediate and rapid successes which might otherwise have beeu secured in the mission-field would be dearly purchased by any lowering or confusion of this idea." A Committee, consisting of Bishop of Chester, Dr. Stubbs (Chairman); Bishop of Bombay, Dr. Mylne; Bishop of Dover, Dr. Parry ; Bishop of Durham, Dr. Lightfoot ; Bishop of Exeter, Dr. E. H. Biekersteth ; Bishop of Huron, Dr. Baldwin ; Bishop of Maryland, Dr. Paret ; Bishop of Mississippi, Dr. Thompson ; Bishop of Quincy, Dr. Burgess ; Bishop of Singapore, Dr. Hose, was appointed to consider the subject of divorce, and they made a report; see p. 580. Besides the encyclical letter, certain resolutions were ' See the report published by the S.P.C.K. 580 APPENDIX 2 formally adopted by the Conference, and among these resolutions the Conference adopted the first three recom- mendations of the report of the Committee on Divorce as follows : — "4. (a) That, inasmucli as our Lord's words expressly forbid divorce, except in the case of fornication or adultery, tlie Christian Church cannot recognise divorce in any other than the excepted case, or give any sanction to the marriage of any person who has heen divorced contrary to this law, during the life of the other party. "(b) That under no circumstances ought the guilty party, in the case of a divorce for fornication or adultery, to be regarded, during the lifetime of the innocent party, as a fit recipient of the blessing of the Church on marriage. " (c) That, recognising the fact that there always has been a diifer- euce of opinion in the Church on the question whether our Lord meant to forbid marriage to the innocent party in a divorce for adultery, the Conference recommends that the Clergy should not be instructed to refuse the sacraments or other privileges of the Church to those who, under civil sanction, are thus married." The Committee ou Divorce in their report made a fourth recommendation which was not adopted by the Conference ; this recommendation is as follows : — " 4. But whereas doubt has been entertained whether our Lord meant to permit such marriage to the innocent party, the Committee are unwilling to suggest any precise instructions in this matter, and recommend that, where the laws of the land will permit, the deter- mination should be left to the judgment of the bishop of the diocese, whether the clergy would be justified in refraining from pronouncing the blessing of the Church on such unions." The resolutions of the Lambeth Conference were not passed into Canons, and therefore have no binding eflfect on the clergy. It is supposed that Eoyal Letters of Business would not be granted to empower Convocation to pass them into Canons. However, several bishops have taken them as a guide, and generally follow them, i.e., the Bishops of Ely, Lincoln, St. Albans. As regards the history of official action on this subject taken by the Convocation of Canterbury, the Bishop of Reading, Dr Randal, has kindly given the author the following valuable and interesting epitome : — " Upon the passing of the Divorce Acts (and during their passage through Parliament) sundry rjravamina and articuH cleri were pre- sented by the Lower to the Upper House of Convocation of Canterbury. (These may be found in the Chronicle of Convocation. ) But though these were adverse to the drift of the Divorce Acts, no action was taken THEOLOGY OF DIVORCE 581 to preserve tlie Doctrine aud Discipline of tlie Cliuroli. However, in 1873, a Code of Cauons for tlie Churcli of England, agreed npon by the two C'ouimittees of tlie Provincial Convocations of Canterbury aud York, was (in October) submitted to their respective Convocations. Canon 66 of this Code runs thus : — ' Of Divorced Persons. — The Catholic Church hath always held, and this Church doth hold, iu the words of the Divine Head of the Church, "That whosoever shall put away his wife except it be for fornication, and shall marry another, conimitteth adultery ; and whoso niarrieth her who is put away com- mitteth adultery." We therefore solemnly admonish all members of this Church not to admit to a second marriage any person who has been found gnilty of adultery during the life of the other party. ' " This is equivalent to a sanction of the remarriage of the innocent party. " These draft Canons were, by request of the Upper House, circulated amongst the clergy, that their opinions thereon might be learned ; aud these opinions having been gathered through the K. Dec. Chapters, and carefully considered, the two Committees of Canterbury and York reported again, and on February 19, 1879, presented a revised Draft of a Code of Canons, among which stands Canon LXIX : ' Of the oath or solemn declaration before licence of marriage,' in which occur the fol- lowing words ; — ' Provided always that no p)erson having ecclesiastical authority to grant such licences shall grant such licence when one of the parties intending marriage shall have been divorced by the sentence of any Court, unless the person from whom such party was so divorced be dead.' Aud Canon LXX : — 'Of Second Marriages, and when pro- hibited. — Whereas this Church has ever held that the bond of holy matrimony cannot be dissolved by any authority of man, teach- ing that "those whom God hath joined together no man may put a.sunder," we do solemnly admonish all members of this Church who are married. that they do not contract another marriage, unless the former marriage hath been dissolved by death. And we do also admonish all ministers that they do not solemnise such second mar- riages without sufficient proof that the former marriage hath been so dissolved.' These draft Canons were, however, not discussed in the Convocations, and, of course, no Letters of Business iu connection with them were applied for or granted. This revised draft, however, is valu- able, as showing what was the general opinion of the clergy upon the points. "In April 1883 a report was presented to the Lower House of Con- vocation of Canterbury, and the following resolution, based upon it, was proposed : — ' That this House deeply regrets the existence of the Divorce Acts, aud the liberty they grant for the remarriage of divorced persons, as tending to lower both the public estimate of the indissolubleness of the marriage bond and the tone of public morals, aud also as liable to cause difiiculty and endjarrassmeut to the clergy in reference to publishing the banns of divorced persons, and to ailmit- ting those who have contracted such a marriage to the Holy Com- mnnion.' The resolution was adopted by the House, with the addition of the following rider : ' Aud desires to call the attention of Church- men to the law of Holy Scripture in this respect, as expressed by the Church in Canon CVII.' [It maybe as well to remember that the existing Canons were themselves constructed after the question of a change in the Canon Law of the West had been raised by the liefor- nuttio Lerjum, which would have introduced a greater freedom of divorce and remarriage.] 582 APPENDIX 2 " The next step was the preseutatiou, on February 12, 1885, by the Lower House of Convocation of Canterbury, of an articulus cleri, praying the Upper House to take into consideration the subject of the remarriage of divorced persons, with a view to the ' putting forth of a Synodical Declaration on the. subject of the law of the Church with respect to marriage, and thus to prevent breakers of the law of the Church, through ignorance of what that law is,' The President re- ferred that articulus cleri to a Committee of the Upper House on April 29, 1885. It consisted of the Bishops of Gloucester and Bristol, Winchester, London, Hereford, Oxford, Lichfield, Llandaff, and Lin- coln, and it presented its report to the Upper House on Jidy 10, 1885, but no motion was made on the subject. On May 10, 1887, a message came from the Upper to the Lower House : 'The Upper House have this day passed a resolution that the President be requested to com- municate to tlie Lower House a coj^y of the report of the Committee of the Upper House of the last Convocation but one (1885) on the Marriage of Divorced Persons, and then directed to be laid on the table, with permission to discuss it, if they thought fit.' Thereupon the Lower House resolvcd^ — 'That the report of the Conmiittee of the Upper House on July 10, 1885, be referred to the Committee of this House on the present condition of the Mania-ge Laws.' The report of the Bishops' Committee can be found in Chronicle of Convocation. The Lower House Committee met several times, but without producing a fi.nal report, owing to great divergence of opinion on the subject of the remarriage of the innocent party. They had the advantage, in dealing with the bishops' report, of a very careful paper by the late John Walter Lea, ])repared by him at the request of the E.C.U. ; and also of a paper by 8ir W. Phillimore, and another by Canon Hoskin ; the three being contained in one pamphlet, published at the E.CJ.U. Office. While the Committee were still employed over their report, the Lam- beth meeting of bishops had appointed a Committee to deal with the question of divorce, and had, upon the report of their Committee, debated the question, and passed resolutions. It was the opinion of the Committee of the Lower House that it would be unseenjly if the House of Presbyters were to sit in judgment upon the decision of the Anglican Episcopate, and the Chairman was iustructed to move that the Lower House be requested to discharge the Committee of the task of considering the report of July 10, 1885. The House assented. " I do not give references to the Lambeth report, which can be obtained at S.P.C.K. ; but it should be noticed that it varies in some- what important matter from the bishops' report in 1885, and tends towards greater strictness. " No more action was taken by the Convocation of C'anterbury until May 1 of this year, when a gravamen on the subject of the issue of marriage licences to divorceil persons was presented by Archdeacon Bathurst. It was grounded on an extreme case of irregularity. The Bishoj? of Ely has forbidden the issue of licences in any case, whether for the guilty or the innocent, within his diocese. But a licence for such a marriage in a parish church in Ely diocese, issiied from Doctors' Commons, in the teeth of the diocesan's prohibition, and the marriage was solemnised accordingly. The history of this gravamen and matters bearing on it is contained in the report enclosed herewith. The Lower House accepted the resolution appended, and it was sent up to the Upper House, with what result remains to be seen. " I have gone at length into the history of the action (and inaction) of the Convocation of the Southern Province, because thereby I have THEOLOGY OF DIVORCE 583 referred you to the Clironiole of Convocatiou, with the necessary dates. I may mention, furtlier, that iu the Chronic;le for 1857 and foUowing years may be found a series of very valuable speeches, pro and con, which really exhaust all that can be said on the subject. You will, doubtless, be acquainted with Mr Woolsey's worl:;, " Divorce and Divorce Legislation," and with the paper by another American writer (Dr Nathan Allen) in the North American Review, June 1880. There is also a good article in Cihurch Quarterly of April 1881. I may per- haps refer you to a paper of my own in the report of the Reading Church Congress (1883), which presents my own view of the subject." " CONVOCATION OF CANTERBURY, UPPER HOUSE i " KEPORT OF THE COMMITTEE OP THE UPPER HO0SE ON THE SUBJECT OF DIVORCE "Presented to the Upper House, Friday, 10th July 1885 ' ' The Committee of the Upper House of Convocation, appointed to consider t\ni articul us cleri oi\ the subject of divorce, presented April 29, 1885, report as follows :— "1. That 'divorce and separation a thoro ei »)ie»sa ' is allowed by the Church of England (Canon 107) on the condition that the parties applying for such separatiou shall engage to live chastely and con- tinently, and shall not, during each other's life, contract matrimony with any other i:)erson. "2. That sentence of divorce a vinculo vmtrimoidi has never been pronounced by the Courts of the Church of England, and that her Canons are silent on the subject. "3. That, in regard of divorce a vinculo matrimonii in the case of adultery, the judgments of the early Councils which have enacted Canons ou this subject have not been unanimous, some permitting tlie remarriage of the innocent party, though advising against it, and some prohibiting it. "4. That the judgment of the early Catholic Fathers has varied on this subject, some allowing the remarriage of the innocent party, and some prohibiting it. " 5. That the judgment of learned members of the Cliurch of England has not always been the same : In the liefonnatio Lecjum it was recom- mended that divorce a thoro et insnsa should be abolished, and that remarriage of the innocent party should be permitted in the case of adultery. " 6. That the Council of Trent, whilst distinctly prohibiting tlie re- marriage of the innocent party, yet pronounces its anathema not directly against those who permit such remarriage, but against those who affirm that the Church of Rome errs in declaring it to be unlawful. 2 " 7. That the Greek Church recognises divorce a vinculo inatriinonii, and allows, but discourages, the remarriage of the innocent jiarty. "8. That the testimony of Holy Scripture has been adduced ou-both sides, but it appears that the majority of expositors have held that our 1 "Divorce and Remarriage, 1885, No. 193." National Society's Depository, Westminster. ^ There is historical evidence that the Tridentine Canon was so framed as-to meet the case of Greeks under Venetian rule, who claimed liberty to continue their, ancient practice. 584 APPENDIX 2 Lord's words («t. Matt. v. 32, xix. 9) are to be understood as permitting divorce a vinculo matrimonii in the one case of adultery. In regard of the question of remarriage, the teaching of Holy Scripture cannot be pronounced to be perfectly clear. It would, however, appear certain that in the case of putting away, for any cause other than adultery, neither party may marry again during the lifetime of the other ; and at least highly probable that, in the case of adultery and divorce con- sequent thereon, the remarriage of the innocent party is not absolutely prohibited. " Having due regard to these considerations, we advise this House to make the following declaration : — " 1. That, in the case where the sin of adultery shall have been fully proved before a competent Court, and a decree of divorce shall have beeu obtained, the innocent party, so set free, ought to be advised not to remarry during the lifetime of the guilty Juirty. "2. That if, however, the innocent party shall remarry, the charity of the Church requires that the ministrations of the Church should not be withheld from the person so remarried, or from the person with whom the marriage shall have been contracted. " 'i. That, iu the case of the remarriage of the guilty person, the ministrations of the Church ought not to be granted ; saving, however, to the bi.shop the power, after personal investigation, to give such direction, iu any case of peniteucc, as he shall consider most consonant with the teaching of Holy Scripture and the mind and practice of the primitive Church." The reports of the said Committee of the Lower House of the Convocation of Canterbury on the present con- dition of the Marriage Laws is as follows : — ^ ' ' Your Committee have taken into consideration the gravamen pre- sented to the Lower House by the Archdeacon of Bedford on Friday, May 1, and by the vote of the House referred to the Committee on the Marriage Laws. The gravamen was as follows : — ' Whereas it api)ears to tlie undersigned undesirable that the Church should seem to otter special facilities for the marriage of divorced persons by the issue of a marriage licence to them ; and whereas there is a diversity of opinion whether it is within the law to refuse such marriage licences ; and whereas by the issue of such licences scandal lias arisen, and is likely to ari>.e : — Keformandum: That the undersigned most respect- fully requests his Grace the President anil their Lordships of the Upper House to take such steps as they iu their wisdom may deem fit to pre- vent such scandals arising.' ' ' Your Committee have searched the records of Convocation to ascer- tain what action has been already taken by either House with refer- ence to the subject of the gravamen. Tliey And that on May 2, 18t)6, an urllculit^ deri, touching the marriage of divorced persons, was jjre.scntctl to the Upper House, and in pursuance of a resolution of that House, was, on July 2, IStiS, by order of his Grace the President, referred to a Committee of the Lower House, appointed to consider and 1 " bb91. On the Issue of Licences for Marriage of Divorced Persons, No. 25t)." Sold at the National Society's Depository, Westminster. Price 2d. THEOLOGY OF DIVORCE 585 report to Convocation as to any manner in which useful action can be taken thereon. Tlie report of this Committee was presented to the Lower House by the Chairman, the Rev. M. Gilibs, on February 25, 1869, was disicussL'd on the next day, and the following resolution, founded on the report, was passed : — ' That the report of the Com- mittee be presented to his Grace the President, and that their Lord- ships of the Upper House be respectfully requested " to take action " in manner set forth by the Committee.' The purpose of this 'action' was, first, to prevent the improper grant of licences ; and, second, to test, if necessary, the true state of the law as to the power to refuse licences ; and, to secure these objects, and especially the latter, two possible courses were pointed out : ' The officers of the Ecclesiastical Courts might be ordered to refuse the grant of a marriage licence to divorced persons. It would in such case be open to the party whose application is so refused to apply for a mayidmnus, and then the law on the point would be laid down by the judges. 2. The bishops might direct and order that whenever a licence is applied for to authorise the solemnisation of the marriage of a divorced person, a ruccnt be entered against its grant. Then the question will come before the Ecclesiastical Court, in pursuance of the provisions of the eleventh section of 4 Geo. IV, cap. 76, which enacts that "if any caveat be entered against the grant of any licence for a marriage, such caveat being duly signed by, or on behalf of, the person who enters the same ... no licence shall issue . . . until the judge has certified to the registrar that he has examined into the matter of the caveat." ' The sole object of the Com- mittee seems to have been to point out two ways, in either of which their Lordships might interpose to forbid the issxiing the licence, without any risk of injustice, even should the conclusions of the Committee be in- correct. For that their Lordships have the power was plainly, after a careful inquiry, the opinion of the Committee, who reported: 1. That no change in the practice of the Ecclesiastical Courts as to the granting of licences was made by the Divorce Act of 1857- 2. That the language of Canon CI a])pears to imply that a discretion may lawfully be used with regard to the persons to whom marriage licences are granted, and that the Act of Parliament which empowers the Archbishop of Canter- bury to grant licences, viz., 25 Hen. VIII, c. 21, does not require him to grant marriage licences to all applicants for them. 3. That the term used in the form of affidavit leading the licence and in the licence itself, '■prayed a licence,' seems to intimate that the grant of such licence is a favour conferred on the petitioner, rather than a right which may be demanded by him. 1 . . . " This report and the resolution were presented to the Upper House on June 15. 18t>9 ; whereupon his Grace the President (Tait) advised, and the House ordered, that the question whether ecclesiastical officers are empowered to refuse a licence sliould be referred to the Vicar-General for his opinion thereon. "The resolutions of the Lower Lionse were presented to the Upper House again on June 13, 1870, in the form of a second ariicidvs cleri, and on June 15 their Lordships heard the opinion of the Vicar-General (Sir Travers Twiss), which was summed up in effect in the following passages (Chron. of Convocation, p. 394). The Viear-General ; 'Asa matter of practice the granting of a marriage licence is covered by the Marriage Act of George IV, which superseded the Canon, and gave 1 For a decision that the issue of a marriage licence is discretionary, see ante, p. 48. 586 APPE:N'DIX 2 directions as to the couditions precedent to tlie granting of tlie licence. It is declared that a licence shall not be granted nnless certain con- ditions are complied with by the parties applying ... if no objection has been taken, and no caveat entered, the licence is granted as a matter of course.' The Bishop of Salisbury: 'Of right?' The Vicar- General : ' No, no ; as a nuatter of practice it is granted ; but if a caveat is entered— if anybody takes the opportunity of entering a caveat — he is required to attend and give his grounds/ etc. The Bishop of Chichester : ' There is one question I should like to have answered ; whether each bishop, in his own court, has the power and discretion to forbid a licence to issue if he thinks it generally advisable that it should not ? Can the bishop say, " My persuasion is that these people should not marry, and, therefore, I will give no facilities to them, and I forbid my chancellor to grant the licence." In any such case would that be a legal act ? ' The Vicar-General : ' I consider that it is within the power of a bishop to do so.' The BishojD of Winchester : 'Then your judgment is, that a bisho]^ has power to refuse to issue a licence, as the licence is in the nature of a favour T The Vicar-General : 'Yes.' . . . The Bishop of Winchester : ' What does the ordinary law of licence rest upon ? Is it custom or Act of Parliament ? ' The Vicar-General : ' On the Canon Law. There is no Act of Parliament interfering with the discretion of the bishop.' The Bishop of Winchester: 'Then there can be no doubt it rests in the discretion of the bishop to grant or refuse it. The Canon Law allows the privilege in certain cases of substituting licences for banns, and no Act of Parliament does more than limit the power. It remains, therefore, to decide whether the privilege shall or shall not remain in his name.' The President : 'It imist be considered how far a decision of this House, if pronounced, would be binding upon anybody.' " The subject was resumed on the following day, and a resolution was proposed by the Bishop of Winchester, seconded by the Bishop of London, and agreed to, that ' This House has considered a carefully- prepared report on the remarriage of divorced persons presented to it by the Lower House. This House deeply deplores the scaudal and other evils arising from the frequency of divorce, and would highly disapprove of any " favour " being shown, as alleged, towards the re- utarriage of divorceil persons which may have a tendency to encourage such evils. This House does not, however, possess any j^ower of regu- lating the proceedings of the several bishops in the administration through their courts of their respective dioceses, but each individual bishop here present is ready to give his serious consideration to the grave subject which has thus been brought before this House, and to communicate with the officers of his court thereupon, and so do his utmost to remove the evils of which complaint is made.' This was conmiunicated to the Lower House on June Ifi, 1871, as the answer to the articvlns cleri. . . Your Committee desire most earnestly to urge the House to press upon their Lordships the reconsideration of this matter, and such regulation of the issue of licences as shall avoid all possibility of misapprehension as to the judgment of the Church upon the subject of such remarriages, and all scandal arising from such issue. Believhig, as they do, that the granting or withholding licences is entirely within their Lordships' discretion, the Committee desire to express their opinion that no licences should be granted for remarriage of a divorced person, whether that person be the innocent or the guilty party. Your Cominittee ground this opinion (1) on the fact that, in tlie early Church, though in the judgmentof some there is no conclusive THEOLOGY OF DIVORCE 587 conseusiis agaiust the lawfulness of the remarriage of the inuoeeiit husband, there is a strong consensus, by the admission of all, agaiust the expediency of remarriage even in that case, and a virtual dis- couragement thereof ; (2) on the fact that our own existing Canon CVII distinctly forbids qny remarriage in case of divorce ; and that the Church of England has never, by any act or judgment of her own, departed from that principle. It appears, therefore, to your Com- mittee to be agaiust the mind both of the primitive Church and of the Church of England, as well as agaiust the judgment of those who have had special and recent experience of the evils resulting to society, that marriage licences, which are matters of favour, should be granted in an}' case of marriage after divorce. *' Your Committee carefully confine themselves in this report to the special point referred to them, in respect of which no difficulty arises from any coUisiou, real or apparent, between statute and ecclesiastical law. They regard as disastrous any action of the Church herself, in a matter where her action is entirely unfettered, which might seem to show that she thinks lightly of any breach of that which is still her law, though the law of the State has been changed. ' ' Your Committee recommend for adoption, by the Lower House, the following resolution : — " That this report be conveyed by the Prolocutor to the Upper House ; and that his Grace the President, and their Lordships the bishops, be respectfully requested to take such steps as they in their wisdom may deem fit to discountenance the continuauce of the practice of granting licences f(u- the remarriage of divorced persons during the lifetime of the partner of the former marriage. " Signed on behalf of the Committee, "J. L. BEADING, " Chairman. " June 29, 1891." In order to ascertain the actual subsisting practice, the author wrote to all the archbishops, bishops, and suffragan bishops of the Church of England, except the Archbishop of Canterbury, the Bishops of Dover, Hull, Barrow-in- Furness, Eochester, Soutliwark, Sodor and Man, and Coventry, asking if they would give him the benefit, for insertion in this book, of their opinions as to the remarriage by the clergy of divorced persons, i.e., either the innocent party or the guilty respondent with the co-respondent, or the guilty res[iondent with some stranger, and whether they had laid down any rules for the guidance of their clergy, and whether they issued marriage licences to divorced persons. The author begs to express to their Lordships his thanks for the letters which provide the following information. The Bishop of Baths and Wells, Lord Arthur liervey, 588 APPENDIX 2 D.D., refers, as expressing liis general views, to a pamphlet! he wrote at the time of the passing of the Malrimonial Causes Act, 1857. He there concludes, pp. 12 and 13— " From our Lord's expression in Matt. v. 32 it appears that the husband who divorces his wife on account of fornication does not cause her to commit adultery if she marries again. From Matt. xix. 9 it appears that he who divorces his wife on account of fornication, and marries another, does not commit adultery himself ; whereas, in every other case of divorce and remarriage, both the husband who divorces and the wife who is divorced and the man who marries the divorced woman are all adulterous. ... I think, therefore, I am justified in asserting that it is not declared in the word of God that a marriage with a divorced woman is adulterous (p. 14). I strongly iucliue, however, to the opinion that such remarriage (between persons who have been guilty of the crime of adultery with each other) ought to be made illegal. . . . (p. 19). The question, whether in any case a woman may divorce her husband, I leave wholly untouched. Scripture is quite silent ou it." The bishop declines to follow the opinions of S. Jerome and S. Augustine and other writers, as being prejudiced by the ascetic notions of the religious world and their own state of celibacy, and thinks these commentaries contra- dictory to the Scriptures, and bases his conclusions on Scripture alone. The Bishop of Bristol, Dr. Ellioott, states that his opinions are exactly coincident with the report of Upper House of Convocation ; see ante, p. 583. The Bishop of Ely, Lord Alwyne Conipton, D.D., states that generally he would be guided by the resolu- tions of the Lambeth Conference ; see ante, p. 580. He would not issue marriage licences to divorced persons. The Bishop of Lincoln, Dr. King, states that he was a member of the Committee of the Upper House of Convoca- tion on Divorce, whose report is referred to ; ante, p. 583. The Bishop of O.-^ford, Dr. Stubbs, agrees with the four recommendations of the Committee on Divorce of the Lamlieth Conference; see auli:, \\. .^)S0. As to marriage licences, he states — " I have not issued any instructions to surrogates on the subject of licences. 1 issue no such licences directly." 1 A Letter to the Rev. Christopher Wordswortli, D.D., Canon of Westminster, on the Declaration of the Clergy. By the Rev. Lord Arthur Hervey, M.A., Rector of Ickworth, with Horringer. John Murray. 1857. THEOLOGY OF DIVORCE 589 The Bishop of Reading, Dr. Eendall, most kindly gave us an exhaustive answer, which is printed p. 580. As regards his personal action, he states that, not being a diocesan bishop, he has no jurisdiction, and therefore can lay down no rules for the direction of the clergy. The Bishop of Salisbury, Dr. "Wordsworth, refers to his Diocesan Address, 1888, i)p. 28, 29. He there states he believes that Matt. v. 32 and xix. 9 allow an innocent husband to put away a guilty wife and marry another. "Biit seeing that cases of collusion are very frequent, I cannot j^ermit surrogates to grant marriage licences to divorced persons in any case, such licences being, as I explained, of the nature of dispensations or acts of favour tu persons wlio are deserving of them. Slrould any of you, dear brethren, be asked to remarry such persons, I must ask you to communicate the fact to me." i The other prelates either did not reply or wrote answers stating that they had made no rules, or declined to give any information. Nonconform ists As to the Baptists, the Rev. Joseph Angus, D.D., President of the Regent's Park College, gives the following information : — "As a Body, we have given no deliverance ou the questions you raise. Generally speaking, we accept the decisions of a court of law — even when they run counter to ecclesiastical opiuion ; and admit the distinction which the law makes between the man and the woman when guilty of unchastity, though deeming the sin of unfaithfulness to be alike in both cases. Divorce on grounds of incompatibility of temper and loss of affection we generally deem unscriptural and mischievous. Those who hold these views generally deem them to be consistent with Scripture teaching, rightly interpreted. " The author wrote to several other prominent Wesleyan and Baptist ministers as to their opinions and practice in remarrying divorced persons, and as to divorce generally, but received no answer. As regards the Roman Catholics, it is a current notion that they refuse utterly to recognise divorce, or to remarry 1 Four Addresses delivered to the Clergy and Cliurchwardens of the Diocese of Salisbury at his Primary Visitation in the months of April and May 1888. By John Word.sworth, D.D., Bishop of Salisbury. Simpkin, Marshall, & Co. 590 APPENDIX 2 divorced persons. But this idea is not entirely correct, as will appear from the following quotation from a very recent pronouncement by the Holy Inquisition : — "Ex S. Giiug. S. E. U. Inquisitionis. "Dubia quoad adsistentiam super quibusdam matri- moniis, exhibita a Vicario Apostolico Sandoviceu." To the inquiry as to the propriety of remarrying divorced pjersons, the answer is — "Ad sextum et septimuni nou licere, nisi coustet matrimouium ftiisse nullum, sivt; ob legem divertii in pactum deductam, sive ob aliquid aliud dirimens canonicum impedimentum. " ^ 1 Acta S. Sedis, vol. xxiii.,pp. 700-703 (unbound, pt. xi., June 1891) ; and see ante, pp. 499, 500. APPENDIX 3 FORM OF DISPENSATION FOR A MIXED MAR- RIAGE BETWEEN A CATHOLIC AND A NON- CATHOLIC USED IN THE ARCHBISHOPRIC OF WESTMINSTER HEEBEETUS DEI ET APOSTOLICjE SEDIS GRATIA AECHIEPISCOPUS-ELECTUS WESTMON ASTEEIEIS^ SIS A''iRTUTE facultatum a SSmo. Domino l^Tostro LEONE Divinia Providentia PP. XIII. ISFolsis die mensis anno 189 benigne oonccssarum, dispensationem super impedimento mixtx rcliginnis^, ob justas gravesque expositas cansas, in Domino concedimus, quatenus Catholic matri- monium cum , acatholio baptizat licite contrahere possit ; previa tamen pro- missione triplici rite obteuta^ — 1° scilicet a parte Catholica, de prole utriusque sexus in Catholicse Eeligionis sanctitate educanda, et de non comparendo coram ministro lifBretico ; 2° a parte acatholica, de libero exercitio religionis parti Catholicse perniittendo, et de permittenda etiam Catholica, 1 N.B. — Sacerdotes omnes monemus hanc dispensationem ea con- ditione concedi, lit nulla prorsus maneat donee triplex supradieta promissio, modo a Xoh's prc/scripto, ohtenta fuerit. Prmscribiviics autem nt promissiones prima et secanda. fiant nominihis in 2'ci-gina seouenti subscripis, tertia rero saltern viva voce fiat. 591 592 APPENDIX 3 prolis utriusque sexus educatione ; 3° a parte Catholica, de conversions compartis acatholio® pro viribus curanda : omissis insuper solemnitatibus et benediotione nuptiali, ao servatis omnibus qua in matrimoniis mixtis servari debent. Datum Westmonasterii, die De mandate Emi. Dni. mei Archiepiscopi. Promises to be signed before the Marriage To be signed by the Catholic Party I, the undersigned, do liereby solemnly promise and engage that all the children, of both sexes, who may be born of my marriage shall be baptized in the Catholic Church, and shall be carefully brought up in the know- ledge and practice of the Catholic Eeligion ; and (accord- ing to the instructions of the Holy See) I also promise that my marriage in the Catholic Church shall not be preceded nor followed by any other religious marriage ceremony. [Sigriature) To he signed by the non-Catholic Party I, the undersigned, do hereby solemnly promise and engage that I will not interfere with the religious belief of 1 , my future ^ , nor with 8 full and perfect liberty to fulfil all ^ duties as a Catholic ; and that I will allow all the children, of both sexes, who may be born of our marriage, to be baptized in the Catholic Church, and to be carefully brought up in the knowledge and practice of the Catholic Eeligion. (Signature) Date 1 Insert the name. " Wife or husband. 3 jjer or his. DISPENSATION FOR MIXED MARRIAGE 693 Ego infrasoriptus fidem facio matrimonium inter prse- dictos, virtute hujus prsesentis dispensationis, in Ecclesia hao die mensis anno 189 , omnibus piomissionibus rite obtentis, ac servatis omnibus servandis, coram me fuisse celebratum. * cito remittetur, in Archivo ArcUiepincopali servandum. 3S APPENDIX 4 FORM OF SOLEMNISATION OF MARRIAGE BY PROXY 1 The following words ^Y^iTe tlie form used at the solemnisation of the marriage hy proxy of Margaret Tudor, daughter of Henry A^II, to the King of Scot- land, James I"\^. The marriage was celebrated hy the Archbishoi? of Glasgow at the Eoyal Manor of Eichmond, January 27, 1503, the King of Scotland being rejiresented by the Earl of Bothwell as his proxy : — ^ " I, Patrik Earll of Bothwyl, Procuratour of the right Exellent, right High and mighty Prince James By The Grace of God King of Scotland, my Soverayne Lord, having sufficent Authority, Power, and Commandement to contract Matrimony Per verba de Presenti, in the ]*^ame of and for my said Soveraigne Lord, with thee ]\Iargaret, the Eirst begotten Daughter of the right Excellent, right High and mighty Prince and Princesse Henry by the Grace of God King of England, and Elizabeth Queene of the same, as by the Procuratory of my said Soveraine Lord, at this present tyme openly red and published, more playnly appearith hy virtue of 1 For marriages by proxy, see ante, pp. 22, 507. - MS. formerly belonging to Thomas Hawley Clareucieux, Kiiig-at- Arma, now at tlie Herald's College, " JM. 1, fo. 846," in the catalogue there. The Queen of Scotland's journey to Scotland is described in another MS., "1 M. 13, fo. 76." both MSS. are printed in Hearue's Leland's Collectanea, 1776 ed., vol. iv., pp. 258-300. The author begs to thank Dr. George W. Marshall, Rouge Croix, for his trouble and courtesy in allowing him to copy the MS, , aud helping him to read it. 594 MARRIAGE BY PROXY 595 the same Procuratory, and as Procurator of my said Sovereigne Lord Jamt-s King of Scotland, and in his Xame and Belialf, and by his Speciall Comandement, contract Matrimony with tliee Margaret, and take thee into and for tire Wieft'e and Spous of my said Soveraine Lord James King of Scotland, and all nthir, for thee, as Procurator forsaid, forsakith Induryng his and thyne lyfes naturall, and thereto as Procurator forsaid, I plight, and gives thee his Faythe and Truthe, by Power and Autoritie foresaid committed and given to me. " I, Margaret, the First begotten Daughter of the right Excellent, right High and mighty Prince an< spiritualis : prcetcrquam inter patrinum efc baijtizatam, vel matrinam et baptizatum. *** (ttuamqnam conimimiter (exct-ptis matrinioniis supra II, n. 2, indicatis) nequeat pro eodem matrimonio super duplici impediniento dispensatio dari, per facultatem tamen extraordinariani potest nonuunquaro, justis gravibusque accedentibus causis, in casibus quibusdam urgentioribus dispensari, quamvis duo vel plura simul concurrant ex prsedictis impedimentis dirimentibus, sive ejudem sive diversce sint speciei, etiam concurrente impedimento mixtfe religionis. II^DEX Abduction, canonical impediment to marriage, 507-509 crime of, 474, 475 ground for nullity, 26, 27 impediment, canonical, to mar- riage, 507-509 nullity, ground for, 26, 27 Absence, presumj^tion of death from, 144-146 ; and see Desertion, Separation Abstinence, marital intercourse, from, 75, 167- 173 Access, children, to, guilty respond- ent deprived of, 407 mother given, 432 proof of non-access, 148-152 Act of Parliament, see Table of Statutes, divorce by, 17, 18 Actress, breach of promise brought by, 413 ; husband of, should take special care, 291, 303 seduce, conspiracy to, 474 Adherence, action for, in Scotland, 556 Adoption, child of, 443, 444 Adulterine bastardy, 146-162, 550 Adultery generally, 309-323 bar, divorce, to, 288-292 judicial separation, to, 356 magisterial separation, to, if uncondoned, 365, 366, 369 marriage, to, in Canon Law, 493 in Scotland, 553, 554 nullity, to, is not, 219, 233 Adultery, restitution of conjugal rights, to, 374, 375 bigamy witli, 349 charge of, is cruelty, 311, 323 child, birth of, proves, 317 clergyman, by, is ecclesiastical offence, 311, 429, 430 cohabitation, 318, 319 confession of, as evidence, 257, 306, 307 crime, is not, 310 cruelty, may constitute, 311, 323 curtesy, not forfeited by, 428 decree ?i?^ i, after, aud before decree absolute, 288, 313, 423 definition of, 311-315 desertion, ripening into, 247, 311, 342, 343 divorce a ijiensa et tlioro after, 426 divorce, bar to, 288-292 grounds for, when, 244-247, 309-323 dower, forfeited by, with elope- ment, 427, 428 drunkenness during, 303, 304, 313 makes a probable, 320 ecclesiastical court, punishable in, 310, 311, 429 effect of, 179, 180, 427-429 equity to settlement lost by, 186, 429 evidence of, 309-323 familiarity, acts of, presuming, from, 317-320 forfeiture, working, 427-429 606 INDEX Adultery, identity, proof of, in, 321-323 incestuous, 349, 350 insanity, during, 314 Ireland, in, action for, 567, 568 judicial separation, bar to, 356 ground for, 246, 247, 352-355 letters, evidence of, 321 lunacy, during, 314 magisterial separation, bar to, if uncondoned, 356 marriage, bar to, in Canon Law, with promise, 493 in Scotch Law, 553, 554 ripening into, in Scotland, 542- 546 notour, 554 nullity, not a bar to, 219, 233 pecuniary, penalties for, 394-396, 427-429 petititioner, of, 288-292, 356, 365, 366, 369 presents, evidence of, 320 presuming, 315-321 prostitutes, with, 306, 308, 320, 321 ravishment of wife is not, 256, 313, 314 restitution of conjugal rights, is bar to, 374, 375 ship-board, on, 320 solicitation of, 315, 319 venereal disease, as evidence of, 318, 331, 332 Advent, marriage in, 65 Affidavit, divorce and nullity, peti- tion verified by, 213, 225, 247 evidence by, 305 marriage licence, for, 49, 50 AfBliation order, 415 Affinity, 5, 7, 8, 30-32, 349, 350, 411, 418-420 canonical degrees of, 501, 502 dispensation, 514 Scotland, prohibited degrees in, 548-550 Age, impotence, in suits for, im- material, 205, 206, 219 marriage, at, stating, 80, 81 for, 29, 30 statistics of, 29 Aggravated assault, magisterial separation for, 361, 365 Aggravation, damages of, breach of promise of marriage, 413 divorce, 257-259 Alimony generally, 380-392 ; and see Table of Contents, Chai^. XI, 380 ; and see Mainten- ance cessation of, 386, 387 chastity, condition of, 391, 392 divorce in, 380-385, 387-392 ; and see Maintenance enforcement of, 381-383 forfeiture of, on unchastity or remarriage, 391 guilty wife, to, 385, 387, 390, 391 impotency, in suit for, 214 jactitation, none in, 379, 383 judicial separation, in suits for, 381, 385 386 magisterial separation, in, 361, 366, 367, 369, 370 ne exeat regno, enforced by writ of, 382 nullity, in suits for, 214, 235, 236, 381 pendente lite, 383-385 permanent, 385-387 proportion, permanent, 386, 387, 390 temporary, 384, 385 restitution of conjugal rights, in, 377, 383, 385, 392-394 separation, magisterial, in, temporary, 383-386 unchastity, forfeited by, when, 391, 392 Ambassadors' chapel, marriage in, abroad, 106-110, 629 in England, 63, 524, 525 INDEX 607 America, divorce, in statistics of, 238, 239 cruelty, matrimonial, in, 170, 325, 326 valid in England, 526 Angus, Dr., Baptist minister, opinion of, on divorce, 589 Antenuptial pregnancy, 27, 155- 162, 312, 347 seduction by husband, 298, 299 unchastity, 312 Appeals generally, 242, 422 delegates to, formerly, 6, 7 Rome, to, 3, 6, 7, 487-489, 552 Apprentice, infant, 460-462, 468 Assault, aggravated, magisterial separation for, 361, 365 husband, by, on wife, 173, 174, 190, 478, 479 ; and see Cruelty •wife, by, onhusband, 174, 325, 326, 478, 479 ; and see Cruelty Assizes, divorce issue can be tried at, 248 judicial separation cannot be tried at, 352, 355 restitution of conjugal rights can- not be tried at, 373 Authorities, xiii, 16, 17 Canon Law on, 485, 486 infancy, on law of, 431 International Law, on, 515 Scotland, 531 Authority, husband of, 174—178 Bangok Cathedral, marriages may be solemnised in, 569 Banns generally, 37 -46 false names in, 38-41 forbiddiug, 43, 45 names for, 38—41 presumption of publication, 46 publication of, 43, 45, 46 residence for, 41, 42 Scotland, in, 42, 532, 533 statistics of, marriage by, 37 Banns, three months after, marriage must be, 46 Baptists, divorce, opinion and prac- tice on, 589 Bars, absolute divorce, to, 261-286 adultery, divorce, to, is discre- tionary, 288-292 judicial separation to, 356 magisterial separation, to, if uncondoned, 365, 366, 369 maintenance order, to, 369 nullity, to, 219, 220, 233, 234 restitution of conjugal rights, to, 374, 375 age, when, 219 collusion, divorce to, is absolute bar, 282, 283, 365 condonation, 272-282 connivance, divorce to, is abso- lute bar, 268-272 cruelty, divorce to, is discretion- ary bar, 292, 293 judicial separation, to, 356, 357 nullity, 220, 233, 234 restitution, 375 delay, divorce to, is, 293-295 judicial separation, 358 nullity, to, 217, 218, 233, 234 desertion, divorce to, is, 295-297 judicial separation, isnot, to, 357 discretionary bars, divorce, 286-304 divorce to, absolute, 261-286 discretionary, 286-304 estoppel by, 219, 232-235, 285, 286, 357, 358 insincerity, when, 218, 219, 375, 376 judgment by, 219, 234, 235, 285, 286 judicial separation, to, 356-358 magisterial separation, to, 365, 366, 369 maintenance order, to, 360 neglect, wilful, is discretionary bar to divorce, 297-304 608 INDEX Bars, nullity, to, 217-220, 232-235 restitution of conjugal rights, to, 374-376 separation deed, when, 220, 284, 285, 357, 358, 368, 386 Bastard and Bastardy — adulterine, 14B-162, 317 legitimation of, 511, 527-529, 550 maintenance of, 447, 448 mother's liability for maintenance of, 447, 448 order, 415 special, 4 Bath Abbey, marriages may be solemnised in, 569, 570 Bath and Wells, Bishop of, opinion on divorce, 587, 588 Bed, marriage blessing, 75 Bedding, obsolete Scotch fashion, 538 Bigamy, 33, 34 bar, is not, to nullity, 220 conviction for, effect of, 132, 133 crime of, 475-477 divorce, with adultery, ground for, 349 marriage, proof of, in, 125, 126, 140, 143 nullity for, 33, 34, 132, 133, 221 bar, to, is not, 220 proof of marriage in, 125, 126, 140, 143 Bishop, certificate of, 2, 223 Bishops, opinions of, on divorce, 587-589 Breach of promise of marriage, 409-414 ; see Table of Cou- tents. Chap. XII, 409 corroboration necessary, 411, 412 damages, 413 death abates action, 410 defences, 412, 413 promise, proof of, 410^12 seduction, aggravation, 413 Bristol, Bishop of (Dr. EUicott), his opinion on divorce, 588 Bristol Cathedral, marriages cannot be solemnised in, 570 Burden of proof, 124, 125 Camera, hearing in, in divorce no lawful, 248 judicial separation allowed in, 355 nullity suits in, allowed, 213, 225 Canon Law, authority of, 2-6, 16, 17 differences from, 3-5 Modern Roman Catholic, Chap. XVI, 483-514 Canons, Church of England, of, 8, 9 Canterbury Cathedral, marriages may be solemnised in, 570 Carlisle Cathedral, marriages can- not be solemnised in, 570 Catharine of Arragon, divorce of, App. 5, 596-602 Cathedrals, marriages in, App. 1, 569-575 Catholic, etc., see Boman Catholics Caveat, license, church, for mar- riage, against, 50 registrar's certificate as licence, grant of, against, 84, 85 Certificate, Bishop, of, 2, 223 marriage, of, 134 forgery of, 472-474 registrars', for marriage, 85, 86 Church of England marriage, for, 58, 88, 94 Certified copy, 134 forgery of, 472-474 Chapels, Inns of Court, of, mar- riages in, 576 Nonconformist, registered for marriages, 88-91 Ireland, 564 Royal marriages in, .575 Chastisement, chUd, of, 433 wife, of, 173, 174 Chastity, after decree absolute, con- dition of, 260, 391, 392, 402 INDEX Chastity, after decree nisi, 288, 313, 423 solicitation of, ecclesiastical of- fence, 310 ward of, 455-457 _ '^ Chester Cathedral, marriages may be solemnised in, 570 Chichester Cathedral, marriages may be solemnised in, 570 Child, generally, 431^69 ; see Table of Contents, Chap. XIV, 431, 432 ; and see Custody, Father, Guardian, Infant, Minor, Mother, Parent, Ward abduction of, 455-457, 474, 475, 477 access, mother, to, 432 respondent sometimes deprived of, 407 actions by, 467-469 adoption of, 443, 444 bastard, custody of, 435 ; and see Bastard care of, 445^47 chastisement of, 433 chastity of, 451, 452, 455-457, 481, 482 cruelty to, in wife's presence, cruelty to wife, 329 custody of, 432, 433, 435 divorce, in, 404-408, 441 ; and see Custody nullity, in, 236 ; and see Cus- tody petitioner entitled to, 406 respondent deprived of, 407 third party, given to, 407, 408, 437, 451, 452 earnings of, 433, 434, 460-462, 468 action for, 468 education of, 433, 449, 454, 463 evidence of, 308, 465 father, duties of, 445-449 liability for maintenance of, 447, 448 Child, fatlier, rights over, 432-435, 449, 450, 454 forfeiture, 435-445 — maiiitenance of, 447-449, 455 ^marriage of, 42, 50, 52-55, 410, 4ir,~4^4, 455-457, 463 settlement by, 192, 463,464 mother, duties of, 445-449 guardian, apijointing, 450 liability for maintenance ol', 447, 448 riglits of, 432, 434, 435, 436 nursing, 319, 320, 445 parent, duties of, 445-449 forfeiture of rights, 435-445 misconduct of, 435-445 powers of, 432-435, 449, 450 property of, 434, 455, 464, 465 prostituted, 437, 451,452 religion of, 433, 454 seduction of, 414, 415, 4-37, 451, 452, 455-457 services of, 433, 434 settlement, marriage, 192, 463, 464 Church of England, divorce, opinions and practice on, 579-589 marriages, according to rites of, 34-77 service of, 66-75 statistics of, 34 privileges of, 1 Churches where marriage may be solemnised, 43, 44, 59-64, 569-576 Ireland, 559, 560, 561, 563 Scotland, 533 Clandestine marriages, Scotland, 534-547 registration of, 548 Clergyman, adultery, etc., by, 429, 430 deacon may solemnise marriage, 67 divorce granted against, 429, 430 divorced persons marrying, 421, 422, 579-589 39 610 INDEX Clergyman, ordained, necessary to marriage, 66, 67, 78, 103, 557, 558 refusing tq marry, 58, 59, 421, 422, 471 sham solemnising, 66, 470, 471 Cohabit and Cohabitation — bond fide offer to resume, termin- ates desertion, 345, 346 Cohabit and Cohabitation — condonation amounting to, 278-281, 367, 368, 370, 423 connivance, when, 270, 271 decree nisi after, 423, 426 evidence of marriage, 140-142 Scotland, in, 541-547 judicial separation, after, 387, 424 marital duty to, 163-167 marriage, evidence of, 140-142 Scotland, in, 541-547 nullity in, duty to break off, 234 offer to resume, 345, 346, 376 refusal to, desertion is not neces- sarily, 343, 344 restitution, in suit for, request of, 373 stopped by offer of, 374, 376 triennial, in suits for impotence, 209, 210 Canon Law, in, 504 Colhision, absolute bar to divorce, 282, 283 judicial separation, in, 355 Colonies, marriage in, 115, 116 prohibited degrees in, 32, 522, 523 Commonwealth, marriages during, validated, 9 Communion, Holy, receiving at marriage, 74, 75 Compton, Lord Alwyne, Bishop of Ely, opinion on divorce, 588 Condonation, absolute bar, divorce, to, 272-282 adultery of petitioner, divorce in, 290, 291 Condonation, adultery of petitioner, judicial separation in, 356 magisterial separation in, 365, 366, 369 restitution in, 374 cohabitation after decree nisi is, 423 co-respondent, no bar to damages against, 256, 273. See Bern- stein V. B. (1892), P. 375 cruelty, of, 273, 281 decree nisi, marital cohabitation, after, is, 423 divorce, absolute bar to, 272-282 judicial separation in, 358 petitioner's, adultery of, divorce, in, 290-292 judicial separation in, 356 magisterial separation in, 365, 366, 369 restitution in, 374 restitution, suit for, evidence of, 276, 277, 378 reviver in, 280, 281 Scotland, in, 280, 554 Confession, adultery, of, as evidence, 257, 307 impotence, of, as evidence, 211 Confrontation, evidence by, 309 Conjugal rights, denial of, 167-173 restitution of, 166, 167, 168 171, 371-378; and see Table of Contents, Chap. X, 371 adultery, bar to, 374, 375 Assi2es, cannot be heard at, 373 condonation, as, 276, 277, 378 cruelty, bar to suit for, 374, 375 custody of children, in, 377, 393, 409 defences to, 374^376 insincerity, 375 Ireland, in, 377, 393, 565, 566 payment in lieu of, 392-394 refusal to obey decree is deser- tion, 344, 353, 377 INDEX 611 Conjugal rights, restitution of, sentence, 171, 172, 376, 377 separation deed, bar to, 376 Connivance, absolute bar to divorce, 26S-272 ; and see Neglect, etc., conducing, 297-304 judicial separation in, 358 Scotland, in, 544 Consanguinity, 5, 7, 8, 30-32, 222 Ireland, in, 565 Roman Catliolics, among, 491-493 Scotland, in, 548-550, 552 Consent, absence of, invalidates marriage, 23-28, 222 condition, as to a will, 19 fraud, obtained by, 27 Scotland, in, 540, 541 indecent assault, to, age for, 482 marriage by, 3, 4, 103, 104 Canon Law, in, 494—197, 505, 507-509 Scotland, in, 534-547 parents, of, to marriage, 14, 15, 42,43,52-55,81,82,83,84,85 sexual intercourse, etc., to, age for, 481, 482 Conspiracy to marry, 28, 29, 474, 477 Consulate, marriage at, abroad, 106-110, 529 in England, 63, 524, 525 Consultation, writ of, 1 ; and see 18 Ed. I in Table of Statutes Consummation, marriage, of, 167-173 refusal of, 207, 20S, 261, 303, 348, 349 Contract of marriage, 409-414 old suit on precontract, 3, 9, 10, sponsalia for Roman Catholics, 498 Control, ivife, of, by husband, 174-178 Convict, desertion, is not giiilty of, 341 husband of, though deserting, granted a divorce, 296 Convict, not debarred from suing for divorce, 297, 298 respondent, 292 spouse of, not entitled to leave, 296, 348 wife of, though adulterous, given divorce, 292 Convocation, divorce, action and report of, on, 580-587 Corroboration, 411, 412, 415, 546 Co-respondent, generally, 255-261 condonation no bar to suing, 256, 273. See Bernstein v. B. (1892), P. 375 costs against, 255, 261 damages against, 257-259 death of wife no defence to, 256, 257 defences of, 255-257 dispensing with, 255 evidence against, 257 of, 307, 308 female cannot be, 190, 254, 255 infant, 252, 255, 466, 468 list of, 255 numerous, when husband, though adulterous, given divorce, 292 paramour of husband, 190, 254, 255 Costs, co-respondeut, given against, 255, 251 wife usually entitled to, whether successful or not, 402, 403 Coverture, proof of, 124, 128 Crimes, generally, 470-482 ; and see Table of Contents, Chap. XV, 470 abduction, 474, 475 adulterer or adulteress, killing, 332, 478 betting with young person, 469, 482 bigamy, 475- 477 conspiracy to marry, 474, 477 Criminal Law Amendment Act, under, 481, 482 612 INDEX Crimes, elopement, 474, 475 husband kUling ivife, 332, 478 litisband and wife, between, 162, 163, 478-480 infant, by, 466, 467 marriage, connected with, 470-474 marry, conspiracy to, 474, 477 procuring wife, 474, 479 rape, 480, 481 ravisher of wife, husband may kill, 478 seduce, conspiracy to, 474 venereal disease, husband giving to wife, 479 wife killing or assaulting husband, 478-480 young persons, protection of, 466, 467, 469, 481, 482 Criminal conversation, action for, in Ireland, 567, 568 old law in England as to, 255, 256, 258 Criminal Law Amendment Act, 437, 451, 452, 481, 482 ; and see Table of Statutes Cruelty, generally, 169-183, 323-337 adultery as, 332 America, in, 170, 326, 326 bar, divorce, to, 292, 293 judicial separation, to, 356, 357 restitution of conjugal rights, 375 charge, false, of misconduct, 332 children, to, is cruelty to wife, 329 desertion, excuse for, 347 divorce, bar to, is, 292, 293 dragging wife by hair, 329 drunkenness, by and during, 330, 336 ejecting wife, 329 food, insufficient supply of, is not, 182 hair, dragging by, 329 judicial separation, bar to, is, 356, 357 Cruelty, lunacy arising from, 328, 336 maintenance, insufficient, is not, 182 marital intercourse, refusal of, is not, 171, 332 moral, 332-336 prostitutes, bringing, to conjugal domicile, 332 provocation to, 336, 337 spitting in face is, 332 venereal disease, infection with, 331, 332 wife, by, to husband, 325, 326, 478, 479 Curtesy, husband's, 185, 186 divorce and adultery, effect of, on, 428 nullity, efl'ect of, on, 416 Custody, children, of, generally, 404-408, 431-459; and see Table of Contents, Chap. XIV, 437 adoption, as to, of, 443-445 cruel parent deprived of, 437-439 divorce, in, 404-408 father entitled to, 432, 433, 435-437 forfeiture of right to, by mis- conduct, 435-445 guardian's right to, 453, 454 jactitation, in, no power to give, 379, 404 judicial separation, 404-408 magisterial separation, in, 366, 441 mother's right to, 432, 434, 435-437, 441 nullity, in, 236, 404^408 parent deprived of, 435-445 petitioner entitled to, 406 respondent deprived of, 407 separation deed regulating, 441-443 third party, given to, 407, 408, 437-439, 451,452 INDEX 613 Damages, adultery, for, 2ri7-261 apportionment of, divorec, in, 259-261 breacK of promise of marriage, in, 413 criminal conversation in Ireland, in, 567, 568 divorce, in, 257-261 Ireland, in action for crini, con., 567, 568 judicial separation, in, 354 marriage invalid, entrapped into, in Scotland, 553 Scotland, divorce, in, 554 Scotland marriage, invalid for, 553 seduction, in, 415 settling, divorce, in, 259-261 Deacon can solenmise marriage, 67 Death, presumption of, from absence, 144-146 Roman Catholic Canon Law, in, 498 Deceased relative, statement by, 129, 138, 139 Deceased wife's sister, marriage with, 31, 521-523 Decree absolute, divorce, in, 249, 250 effect of, 420-422 nullity in, 34, 213, 214, 224, 225, 416, 417 registration of, 34, 249 Decree nis-i, adultery after, 288, 289, 313 cohabitation after, between spouses, 280, 423 divorce, in, 249 effect of, 422-424 nullity, in, 34, 213, 214, 225 remarriage, void upon, 289, 423 Scotland, in, may become valid, 545, 646 rescission of, 261-267 Definition, adultery, of, 311 condonation, 269, 274 Definition, connivance, 269 doniicil, 516, 517 marriage, of, 21-23 Bei Miseratione Bull, 487, 488 Delay, divorce, in suing for, 293-295 impotence, in suit for, 217, 218 judicial separation, no bar to, 358 nullity, in suit for, 217, 218, 233, 234 Delegates, appeal to, 6, 7 Desertion generally, 337-349 adultery excuses, 346, 347 ripening into, 246, 247, 342, 343 with ground for divorce, 214, 337, 338 bar, divorce, to, 295-297 judicial separation to, is not, 357 Desertion, commencement of, 342, 344, 345 cruelty excuses, 347 divorce, bar to, 295-297 ground for, co\ii>led with adultery, 244, 337, 338 drunkenness no excuse for, 348 excuses for, 346-349 imprisonment is not, 34] nor excuses, 296, 297, 298, 348 judicial separation, bar to, is not, 357 ground for, 353 maintenance order for, 181, 360, 361, 368-370, 568 marital intercourse, refusal of, is not, 171, 348, 349 non-consummation, excuse for, 348, 349 pledging husband's credit, author- ises wife to, 179-181 protection order for, 358-364, 425, 426 refusal, marital intercourse, of, excuse for, 171, 348, 349 to resume cohabitation is not, 343, 344 to obey order for restitution constitutes, 344, 353 614 INDEX Desertion, restitution of conjugal rights, remedy for, 371-378 separation is not, 338, 339, 343, 344, 362 deed, inconsistent with, 339- 341 turning into, 341, 342 termination of, 345, 346 Detective, private, evidence of, 303, 304, 308 misconduct of, 303, 304 Discretionary bars, divorce to, 286- 304 adultery, 288-292 cruelty, 292, 293 delay, 293-295 desertion, 295-297 neglect, wilful, and misconduct conducing to adultery, 297- 304 Dispensation, Roman Catholic, for marriage generally, 7, 8, 511- 514, 591-593, 596-604 Catharine of Arragon's marriage, for, 596-602 marriage from, by Pope, 509-511 mixed marriage, for, 591-593 power to grant, 603, 604 Dissenters, see Nonconformists Dissolution of marriage, see Di- vorce Divorce generally, 237-351 ; see Table of Contents, Chap. VII, 237 a mensa et thoro, 11, 12, 238, 239, 426, 427 Ireland, in, 566, 567 abroad, 525-527, 630 absolute bars to, 267- 286 adultery, discretionary, bar to, 288-292 ground for, 244.-247, 309, 310 incestuous, ground for, 244, 245, 349, 350 petitioner of, discretionary, bar to, 288-292 Divorce, alimony in, 380-392 ; and see Table of Contents, Chap. XI, 380 ancient law of, 11, 12, 17, 18, 238, 239 Angus, Dr., opinion of, on, 589 appeal in, 242 Baptists, opinion of, on, 589 bars, absolute, to, 267-286 discretionary, to, 286-304 bestiality, ground for, 350, 351 bigamy, with adultery, ground for, 244, 245, 349 Bishops, opinion of, on, 587-589 children, custody of, 404^08 ; see Cliildren and Custody Church of England, opinion of, with regard to, 579-590 collusion, absolute bar to, 282, 283 condonation, absolute bar to, 272-282 connivance, absolute bar to, 268- 272 Convocation, acts and opinion of, on, 280-287 co-respondent, 255-261 costs in, 255, 261, 402, 403 countercharges in, 282, 286, 304 Court, constitution and establish- ment of, 17, 240-242 judgment of, 130-132 jurisdiction of, 223, 224, 243, 244, 517 cruelty, bar to, 292, 293 ground for, coupled with adultery, 244-247, 323-337 custody, children of, in, 404-408 ; see Children and Custody damages in, 255-261 death abates, 250, 252, 253 except against co-respondent, 256, 257 decree absolute in, 249, 250 effect of, 420-422 registration of, 34, 249 nisi, 249 INDEX 615 Divorce, decree, nisi effect of, 422 424 delay, bar to, 293-295 desertion, bar to, 295-297 discretionary bars to, 286-304 early Chnrcb, opinion of, on, 577, 578 Ecclesiastical jurisdiction in, abolisbed, 238-240 effect of, 420-424 estoppel to, 285, 286 evidence in, 305 -351 executor cannot sue for, 252, 263 Fathers, opinion of, on, 577, 578 foreign, 625-527, 530 Gladstone, Mr., opinion of, on, 12 grounds for, 244- 247 guardian suing for, 252 history of, 11, 12, 17, 18, 238, 239 incestuous adultery ground for, 349, 350 Inquisition, Holy, pronouncement by, on, 498," 499, 589, 590 insanity with regard to, 252, 314, 328, 336, 337 intervention in, 261-267 Ireland, in, 567-668 judges of, 241, 242 judicial separation turned into, 245-247, 296 jurisdiction, 243 foreign, 525-527, 531 Scotland, in, 554, 555 jury in, 248 legislative, 17, 18 Ireland, for, 568 maintenance in, 380-392 ; see Table of Contents, Chap. XI, 380 marriage after, 34, 420-424, 521, 525-527 Eoman Catholics, for, 484, 485, 498, 499, 589, 590 Scotland, in, 545, 546, 653, 654 statistics of, 34 proof of, in, 127, 128, 226, 227, 247 Divorce, minor suing for, 252 neglect, wilful, etc., bar to, 297- 304 Nonconformist opinion on, 589, 590 nullity, defence to, 220, 226, 227, 247 old law as to, 11, 12, 17, 18, 238- 240 orders, enforcement of, 250, 251, 381-383 petition, 247 petitioner for, 251-253 procedure in, 247-251 proof in, 267 marriage, of, 127, 128, 226, 227, 247 Queen's Proctor, intervention of, 261-267 rape, ground for, 244-246, 350 Reformers and Reformation, opinion of, 8, 11, 12, 678 Scotland, in, 552-554 religious views on, 577-690 remarriage after, 34, 420-424, 521, 525-527 Roman Catholics, for, 484, 485, 498, 499, 589, 590 Scotland, in, 545, 546, 553, 554 Roman Catholic views on, 484, 485, 498, 499, 589, 590 Scotland, in, 553-555 separation deed, when bar to, 259, 271, 272, 275, 284, 285, 339-341 sodomy, ground for, 244, 245, 350, 351 statistics of, 34, 237- 239 Scotland, 553, 554 theology of, App. 2, 677-690 trial, 248 undefended cases, 247, 248, 267 waiver of, 246, 284, 285, 295 Domicil, 165, 196, 243, 244, 426, 427, 516, 617, 525-527 616 INDEX Dower, 185 adultery and elopement forfeits, 427, 428 divorce, effect of, on, 420 nullity, effect of, on, 416 Drunkenness, adultery dnring, 303, 304, 313, 320 cruelty by otlier spouse no excuse for, 174, 292, 337 desertion by other spouse no ex- cuse for, 348 husband of, 330, 336 marriage during, 28, 29, 477 rape dnring, 314 wife, of, 174, 292. 313, 320, 337, 348 Duress invalidates marriage, 23-28 Durham Cathedral, marriages in, ."i71 Ecclesiastical Law and Courts — adultery punishable there, 310 311 divorce jurisdiction abolished, 11, 12, 238-240 practice not binding in, 287 fornication there inmishable, 310, 311 former jurisdiction of, 1-7. 9, 10, 11 incest punishable there, 10, 32, 231, 232, 310, 311, 349, 350, 429, 548-550 Ireland, in, 556, 557 judges allowed to be married, 7 judicial separation in practice still binding, 353 nullity, practice of, still binding, 213, 225 practice, binding, when, 213, 225, 287, 353, 373, 386 Beformatiou, changes at, 6-10, 11 Rejiorts of, 16, 17 restitution of conjugal rights, practice still binding, 373 Ecclesiastical Law and Courts — Scotland, in, 551, 552 Education, Elementary Acts, 449, 462 guardian's duty in respect of, 454 infant can bind himself to pay for, 463 parents' duty, 443, 449 right, 433, 454 Elementary Education Acts, 449, 462 EUicott, Dr., Bishop of Bristol, opinion of, on a divorce, 588 Elopement, crime of, 183, 474, 475 wife, by, 164, 167, 177-180 forfeits j)roperty rights, 179, 394-396, 427, 428 Ely, Bishop of. Lord Alwyne Comp- ton. Ills o]:>inion on divorce, 588 Cathedral, marriages may be solemnised in, 571 Emancipation, infant of, 458 Embassy, English, abroad, marriage at, 106-110, 529 Foreign, in England, marriages at, 63, 524, 525 Episcopalians, Protestant, Ireland, in, 559, 560, 563, 564 Scotland, in, 532 Equity to a settlement, 186, 189, 429 Error, marriage by, 27, 28 Roman Catholics, among, 490 Estoppel, divorce in, 285, 286, 288, , 293, 296 judgment by, 129-133 judicial separation in, 357, 358 marriage, proof of, by, 129-133, 234, 235 nullity in, 220, 232-235 restitution in, 374, 375 Evidence, affidavit by, 305 chUdren of, 308, 465 confessions, 257, 307 eo-resiiondent, of, 307, 308 INDEX 617 Evidence, corroboration, of, 411, 412, 415 detective's, 308 diary, 307 divorce, in, 305-351 identity, of, 321-323 interrogatories, 214, 236, 309 letters, 258, 321 legitimacy, of, 146-162 raaiTiage, 123-146 parents, inadmissible to bastard- ise, 151, 152 parties, of, 305, 306 prostitutes, 307, 30S relative, deceased, statement by. 129, 138, 139 relations, 308, 309 servants, 309 statement, deceased relative by, 129, 138, 139 Executor, action by or against, for breach of promise, 410 for divorce, 252, 253 for nullity, 216, 228, 229 Exeter Cathedral, marriages may be solemnised in, 571 Extra-parochial places, 42-44 Factory, Acts, 463 marriages at Britishj abroad, 110, False declaration, 40, 41, 49, 50, 81-83, 470-474 names, banns, 38-41 licence, 55, 56 Familiarity, acts of, 317-321 Father, generallj"; 433-450 ; and see Table of Contents, Chap. XIV, 432; and see Child, Custody, Guardian, Infant, Minor, Mother, Parent, Ward child, duties toward, 445-449 power over, 432-445 forfeiture of rights, 435-445 guardian, right of appointing, 449, 450 Father, marriage, child, rights over, 41-43, 52-55, 81, 84, 85, 229, 469 misconduct of, 435-445 nullity, child's marriage, right to sue for, 229 power of, 432-445, 449, 451, 454 Fathers, opinion of, divorce, on, 577, 578 Fees, banns, for, 13 certificate, for marrying, 86, 87,102 chapel, registration of, 89 consular man lage. 105, 110 licence, for, 47, 50 registrars, 88, 102 marriage, church, 71, 72, 77 Noucomforndst, 95, 102, 103 registrar, 95, 96, 102, 103 Nonconformist marriage, 102, 103 register, 76, 77 registrar, 95, 96, 102, 107 special licence, 57 Feme covert. Chap. IV, 163-202; and see Table of Conte]its, 163 ; and see Husband and Wife, Wife, etc. FUiation, proof of, 116-162 Fleet marriages, 13, 135, 136 Forbidding banns, marriage, etc.. 42, 43, 45, 50, 84, 85, 109 Force invalidates marriage, 23-27, 222, 418 Roman Catholics, among, 494- 498 Foreign marriages, 103-116, 517-523 register of, 136, 137 Foreigners, marriages of, 63, 523- 625, 529, 550, 651 Forfeitnre, adultery by, 427-430 divorce, by, 420, 421 false declaration at marriage, by, 54, 83 marriage, by false declaration, at, 54, 81, 83 parental rights, of, by misconduct, 435-445 618 INDEX Forfeiture, will, under, 19, 55 Fornication, 310, 311, 429, 430 Fraud, judgment in, 131, 132 marriage by, 27, 28 Canon Law, 490 Scotland, 540, 541 Freebench forfeited by unchastity in some manors, 428 Gladstone, Mr. W. B., opinion of, on divorce, 12 Gloucester Cathedral, marriages can- not be solemnised in, 571 Gray's lun Chapel, marriages in, 576 Greek Church, marriages in, 78, 79 Gretna Green, abolition of runaway marriages at, 534, 535 formerly valid, 618 Guardian, appointment of, 449-453 divorce, action for, by, 252 marriages, ward, of, right to assent, 41, 43, 52, 54, 81", 109, 455 nullity, suit for, by, 230 powers and duties of, 453-457 ; and see Child, Custody, Father, Guardian, Infant, Minor, Mother, Parent, Ward Habit and repute, proof of marriage by, 140-142 Scotland, in, 541-546 Hamburg, marriage at. 111 Harbouring wife, action for, 167, 183 Hardwick's, Lord, Act, generally, 12-15 ; and see 26 Geo. II, c. 33, in Table of Statutes Henry VIII, divorce of, 121, 596-602 Hereford Cathedral, marriages may be solemnised in part of, 571 Hervey, Lord Arthur, Bishop of Bath and Wells, opinion of, on divorce, 587, 588 History of Law of Marriage, 1-18 Hours, marriage for, 16, 64, 95, 109 Ireland, in, 660, 661, 563 Scotland, 553 Household management, 182, 183 Hupa essential to Jewish marriage, 98 Husband and wife generally, 163- 202 ; and see Table of Con- tents, Chap. IV, 163 ; and see Wife abortion, 479 actions between, 164, 190, 478, 479 agency, 179, 198, 199, 200 assaults, 164, 165, 169, 190 chastisement, 173, 174 cohabitation, 163-167 control, 174-178 crimes, 164, 165, 190, 419, 420, 478, 479 divorce, 237-351 ; and see Divorce and Table of Con- tents, Chap. VII, 237 effect of, 420-430; and see Table of Contents, Cliap. XIII, 416 domicil, 165, 166, 625, 526 evidence, 164, 165, 419, 477, 478 gifts between, 164 household management, 182, 183 imprisonment, 167, 174, 177, 178, 291, 292, 296, 297, 298, 341, 348 judicial separation, 352-369 ; and see Table of Contents, Chap. VIII, 352 effects of, 424, 425 killing, 173, 332, 478 liability of husband, 178-182, 190, 191 criminal, of wife, 165, 419, 420 maintenance, 178-182 order, 368-370 marital intercourse, 167-173 INDEX 619 Husbaud and wife, nullity, suit for, 203-236, 416, 420; and see Table of Contents, Cliaps. V and VI paramour of luisband, 167, 190, 254, 255 peeress, 165 pledging credit, 178-180, 182, 264 procuring wife, 172, 479 property, 184-191 Ireland, 568 Scotland, 556 prosecutions between, 164, 165, 478-480 rape, 169, 172, 256, 313, 478, 479, 480 restitution of conjugal rigbts, 371-378 ; and see Table of Contents, Cbap. X, 371 separation deeds, 200-202 settlements, 191-196, 396-402 stealing, 163, 164, 479 suits between, 164, 190, 478-480 unity, 163-167 venereal disease, 169, 330-332, 479 witnesses, 164, 165, 169, 330-332, 419, 478 Identity, adultery, 321-323 marriage, 127, 137, 138 Illegitimacy and illegitimate, 4, 5, 146-162, 435 cbildren, bequest to, 19 wife sbould be informed of, 312 Scotland, in, 550, 551 Impediments, marriage, to, 23-34 Roman Catholics, among, 483- 514 ; and see Table of Con- tents, Chap. XVI, 483 Impotence, nullity for, generally, 34, 203-220; see Table of Contents, Chap. V, 203 adultery does not bar suit for, 219, 220 age no defence, 205, 206, 219 Impotence, alimony, 214 bar to suit for, 217-220 bigamy no bar, 220 camerA, hearing in, 203, 213 cruelty no bar, 220 cohabitation, triennial, 209, 210 confessions of, 211 decree nisi, 213, 214 definition, 205-207 delay in suit for, 217, 218 desertion, excuse for, 348, 349 evidence, 208-211 incurability, 206, 207 insincerity in suit, 218, 219 inspection, 210, 211 interrogatories, 214 parties to suit, 214-216 refusal to consummate, equivalent to, 207, 208 Roman Catholics, among, 503- 505, 510-512 separate, duty to, 209 settlements, variation of, 214, 396-402 triennial cohabitation, 209, 210 voidable, not void, makes mar- riage, 34 who can sue for, 214-216 Imprisonment, desertion is not, 292, 341 nor does it excuse, 292, 296, 348 husband, of, by wife, 167 petitioner, of, 297, 298 respondent, of, 291, 292, 296 wife, of, illegal, 167, 177 Incest, 10, 30-32, 231, 2-32, 349, 350 Scotland, in, 548-550 India, marriages in, 32, 115 registration of, 137 Indissolubility of marriage, 11, 12, 17, 18 Roman Catholics, among, 484, 485 620 INDEX Infancy and infant generally, 431- 469 ; and see Table of Con- tents, Chap. XIV, 431 ; and see Child, Custody, Father, Guardian, Infant, Minor, IVIother, Parent, Ward acknowledgment by, 465 actions by and against, 467, 46S agent, 466 apprentice, 460-462, 468 bankrupt can be made, 468 bets witli, 469, 482 bill of exchange by, 465 breach of promise, 411 cliastity of, 455-457, 480, 481, 48:^; clerk of the peace, 465 company, shareholder in, 465 compromise of action, 468 contracts by, 459-464 co-respondent, 252, 255, 466, 468 crimes against, 469, 481, 482 by, 466, 467, 480 earnings of, 433 education, 443, 449, 454, 463 emancipation, 458 executor, 466 father, liability of, 447-449 fraud by, 464,"466 gifts by, 464 guardian of, 449-457 injunction against, 468 injuries by, 466, 4B7 leases by, 464 litigation by and against, 467-469 loans to, 459, 460 majority of, 457, 458 maintenance of, 447—449, 455 marriage of, 411, 434, 455-457, 459, 463 ; and see Marriage, jNIinor guardianship, whether deter- mined by, 459 settlements, 192, 463. 464 mother, 432, 434, 450 necessaries, liability, 460 Infancy and infant maiTiage, parent, 432-449 Parliament, member of, 463 property, 434, 455 receipt by, 465 religion of, 433, 454 representing himself of age, 464 restrictions on employment of, 462, 463 sales by, 464 seduction of, 411, 414, 455-457, 477, 481, 482 servant, 433, 460-462 settlement by, 192, 463, 464 shareholder, 165 Sheriff, 465 torts by, 466 trader, 464, 465 trustee, 466 warranty by, 465 will of, 464, 465 witness, 465 Inns of Court, chapels of, mar- riages cannot be solemnised in, 576 Inquisition, Holy, pronouncement on divorce, 499, 500, 590 Insane and insanity, adultery dur- ing, 314 cruelty as excuse for, 328, 336, 337 custody of, wife, 337 husband of, 328, 336 marriage during, 28, 29 nullity, suit for, by, 230 parent in relation to, child's mar- riage, 52, 53 restitution of conjugal rights no defence to, 375 shutting up a sane wife as, 329 wife, husband not entitled to custody of, 337 or to expel her, 375 ; and see Lunacy and Lunatic Insincerity, nullity in, 218, 219 restitution in, 375, 376 INDEX 621 Iiiteruatioual Law generally, 515- 630 ; aud see Table of Con- tents, Chap. XVII, 515 consul may refuse to solemnise marriage inconsistent with, 108, 630 definition, 615, 516 divorces abroad, 525-527 domicil, 516, 517 foreigners, marriages of, 63, 106, 523-525 legitimacy, 527-529 marriages abroad, 103-113, 517- 523 consul may refuse to solemnise, 108, 530 England, in, of foreigner, 63, 106, 524, 528, 629 void by reason of, 103-113, 529 nationality, effect, 516, 517 Interpretation, canon of. Marriage Acts, 35, 36, 80, 112, 115 Interveners and intervention, divorce in, 261-267 judicial separation, none in, 355 nullity in, suits for, 232 Interrogatories, divorce in, 309 infant not liable to, 468 nullity in, 214, 236 Intoxication ; see Drunkenness Ireland, 657-568, Chap. XIX ; and see Table of Contents, 557 adultery in, 566-568 civil marriages in, 664 conjugal rights, restitution of, 377, 565, 566 criminal conversation, action for, 567, 568 divorce in, 566-568 English Court cannot petition in, 243 English Divorce Court cannot sue in, 243 Episcopalian, Protestant, mar- riages, 659, 660, 563, 564 history of law of, 657, 658 Ireland, Jews, marriages of, in, 561, 562 licences for marriages, 560, 564 marriages in, 557-665 England, in, of Irish residents, 83, 84 matrimonial remedies, 585-56S mixed marriages in, 658, 563, 564 nullities in, 561, 563, 564, 565, 566 Popery Acts, 558 Presbyterians, marriages of, 660, 661 property, 568 Protestant Episcopalians, 569, 560, 663, 664 Nonconformists, 560, 661 Quakers, marriages of, 661, 562 registrar, certificate for, 83, 84, 559, 560, 561, 563 marriages by, 564 presence not requisite, 561 registration, marriages of, 564, 666 residents in, cannot divorce in England, 243 marrying in England, 83, 84 restitution of conjugal rights in, 377, 666, 566 Roman Catholics, marriages of, 562-564, 577, 578 Jactitation of marriage, 227, 378, 379 alimony, no power to give, 379, 383 custody of children, no power to give, 379, 404 judgment in, 130 Jews, adultery of, 102, 243, 311 Christian, marriage with, 23, 100, 139, 140 Canon Law on, 484, 493, 499, 500 concubines, privilege to keep, 311 622 INDEX Jews, divorce, entitled to sue for, 102, 243 Ireland, in, 561, 562 marital intercourse, duty of, 172 Marriages Act, exempted from, 37 marriages of, 23, 97, 98, 100-102 protection of law, entitled to, 102, 243 registers of, 101 Scotland, in, 532, 533 Judicial separation. Chap. VIII, 352-359; and see TaUe of Contents, 352 adultery, ground for, 352, 353 uncondoned, bar to, 356 alimony in, 380-387 bars to, 356-358 canierd, may be heard in, 355 cohabitation renewed after, 387, 424 condonation, bar to, 358 connivance, bar to, 358 cruelty, bar to, 356, 357 ground for, 352, 353 custody of children, power to order, in, 404-408 damages in, 354 deed of separation, bar to, 357, 358 delay not a bar, 358 desertion not a bar, 357 divorce, instead of, granted, 353, 354 turned into, 245-247, 295, 354, 355 effect of, 424, 425 estoppel in, 357, 358 ground for, 352-354 intervention, none, in, 355 nullity, defence of, in, 226, 227 Queen's Proctor, no right to inter- vene in, 355 penalty on guilty wife in, 394-396 procedure in, 355, 356 reversal of, 333 Judicial settlements, no power to order variation of, in, 396 Judges, Divorce Court, of, 241, 242 ecclesiastical, allowed to marry, 7 Judgment, collusion in, 131, 132, 234, 282, 283 Divorce Court, of, 130-132 estoppel, by, 129-133, 219, 234, 235, 285, 286, 288, 293, 296, 374, 375 fraud in, 131, 132, 234 nullity of, 129-133 validates subsequent marriage, 34, 220, 235 Jury, divorce, in, 248, 286 Jurisdiction, divorce, in, 243, 244, 257 foreign Court of, 525-527, 530 Legitimacy Declaration Act, under, 124 nullity in, 124, 223, 224 restitution of conjugal right, in, 374 Scotch Courts, of, 554, 555 Justice of Peace, separation, by, 360, 361 ; and see Magisterial Separation Kedushim at Jewish marriage, 98 ing. Dr., Bishop of Lincoln, opinion of, on divorce, 588 Law Burrows, making, 555, 556 Law, history of, 1-18 Legacy, divorce, eifect of, on, 421, 423,424 nullity, effect of, on, 417, 419 Legitimacy generally, 146-162, 527-529 Declaration Act, 1858, 124, 129, 225, 226, 520 Ireland, in, 565 INDEX 623 Legitimacy, Scotland, iu, 550, 551 void marriage, issue, of, 4, 147, 550 Legitimation by subsequent mar- riage, 4, 146, 527-529 Scotland, in, 527-529, 550, 551 Lent, marriages in, 64, 65 marital intercourse during, 170 Letters, evidence of, 258, 307, 321 Licence, Bishop or surrogate, from, 46-56, 584-587 affidavit, 49, 50, 472, 473 caveat, against issue of, 48, 50 consent of parents, and, 52-55 discretionary issue of, is, 48, 584^587 false names in, 55, 56 fees for, 47, 50 form of, 50, 51 Ireland, in, 559, 560, 561, 564 marriage, three months, mthin, to follow, 56, 58 names, false, in, 55, 56 old law as to, 13-15 residence for, 48, 49 registrar, from, 85-88 special, 56, 57 Lichfield Cathedral, marriages may be solemnised in, 571 Lincoln, Bishop of (Dr. King), his opinion on divorce, 588 Lincoln's Inn Chapel, marriages can- not be solemnised in, 671 Liverpool Cathedral, marriages may be solemnised in, 571 Llandaff Cathedral, marriages may be solemnised in, 571 Lunacy and lunatic, adultery during, 314 attempt to shut up wife as, 329 cruelty, a^, 328, 336, 037 custody of, wife, 337 divorce, suit for, by committee, 252 husband, 328, 336 marriage of, and during, 28, 29 Lunacy and lunatic, nullity, suit for, by committee, 230 parent of, in relation to child's marriage, 52, 53 petitioner, for, divorce, 252 respondent, to, divorce, 252 restitution of conjugal rights, no defence to, 378 shutting up sane wife as, 329 wife of, husband not entitled to custody, 337 to expel her, 375 alleged, but sane, 329 Lyndhurst's, Lord, Act, 32 ; and see 5 & 6 Will. IV, c. 54, in Table of Statutes Magistrate, jurisdiction of, 360, 361 ; see Maintenance Order, Protection Order, Separation Order Magisterial separation. Chap. IX, 360-370, 424, 425, and Table of Contents, 360 ; and see Maintenance Order, Protec- tion Order, Separation Order Maintenance, children, of, 415, 434, 447-449, 455 husband, by, of wife, 178-182 Maintenance order by magistrate, generally, 181, 368-370, 424, 425 adultery, uncondoned, bar to, 369 cessation of, 370 desertion, ground for, 368, 369 discharge of, 370 effect of, 369, 370 grounds for, 368, 369 Ireland, in, 568 separation deed, bars, 368 variation of, 370 Maintenance, permanent. Divorce Court, from, 380-383, 387-392 enforcement of, 381-383 624 INDEX Maiuteuance. forfeiture on remar- riage or uucliastity, 391, 392 guilty wife, to, 390, 391 innocent wife, to, 390 nullity, no power to order, 381 power, Court, of, 387-390 remarriage does not forfeit neces- sarily, 391, 392 separation deed does not bar, 390 unchastity does not forfeit neces- sarily, 391, 392 wife never pays, but receives, 380 Maintenance, temporary, granted by Divorce Court, 380-385 cessation of, 385 proportion about a fiftli, 384. 385 Maintenance, wife, by, of liusband, 1S2 wife, of, by husband, 178-182 Manchester Cathedra], marriages may be solemnised in, 572 Marital intercourse, 167- 173 Marriage, generally, Cliap. II, 20-121, and see Table of Con- tents, 20, 21 ; and see Chaps. I, III, V, VI abroad, 103-116, 517-523 Acts, Church of England, as to, 01-77 construction. Canon, of, 35, 36, 80, 112, 115 crimes under, 470-474 England and Wales only, apply to, 37, 80 foreign, 108-110 Irish, 557-565 Jews exempted, 37, 97-102 Xonconformists, for, 78-103 Quakers exempted, 37, 97-102 Royal Family exempted fi-om, 37, 80, 108 and see Table of Statutes adulterer or adulteress, of, 421, 422, 493, 524, 553, 554 adulterous connection, ripening into, 543-546 Marriage, Advent, in, 64, 65 age, for, 29, 30 stating, 80, 81 Ambassadors' chapel, abroad, in, 106-110, 529 in England, in, 63, 524, 525 army of occupation, with, 105, 106 bigamy, conviction for, effect of, 132, 133 proof of, in, 125, 126, 113, 144-146 Cathedrals, in, App. 1, 569-575 Chapels, Inns of Court, in, 576 Nonconformist, in, 88-96 Royal, in, 575 church, in, 43, 44, 59-64 Church of England, according to rites of, 34-77 ; and see Banns, Licence, Special Licence, Marriage Service civil, 91, 96, 97, 564 clandestine, Roman Catholic, 483, 494, 499, 500, 506 Scotland, in, 534-548 clergyman, by, 66, 470, 471, 557, 558 of, 8, 23 colonies, in, 115, 116 consent, parents of, to, 19, 42, 43, 49, 52-55, 81, 109 parties of, to, 23-28, 533, 537 consulate, abroad, in, 106-110, 529 in England at, 63, 524, 525 consummation of, 167-173 coverture, proof of, in, 124, 128 deacon, by, 67 definitions of, 21-23 district of registrar, in, 91-93 divorce in, proving, 127, 128, 226, 227, 247 drunkenness during, 28, 29 dumb persons, of, 23 duress, by, 23-28 ecclesiastics, of, 8, 23 ecclesiastical judges, of, 7 INDEX 625 Marriage, Embassy, at, 63, 106-110, 524, 525, 529 estoppel, 129-133 evidence of, 133-139 factory abroad, at, 110, 111 fees, 43, 47, 50, 71, 77, S9, 95, 102, 103, 105, 110 Fleet, at, 13, 135, 136 force, by, 23-28 foreign, 103-116, 124, 223, 224, 517-525, 526, 527, 529 fraud, by, 27, 28 Greek Churcli, at, 78, 79 Hamburg, at, 111 history, law, of, 1-16 hours of, 16, 64, 95, 96, 109, 561 identity of, parties, 127, 137, 138 impediments to, 22-34 infant, of, 455-457, 459, 463 ; and see Marriage of Minor, infro, India, in, 32, 115, 116 insanity during, 28, 29 irregular, Scotland, fsZ\r-m registration of, 648 Jews, of, 97, 98, 102-102, 532, 561, 662 ; and see Jews judgment for or against, effect of, 129-133, 416, 417 jurisdiction, 123, 124, 223, 224, 517-526 law, history of, 1-15 present, 16 Lent, during, 65 marital intercourse in, 170 licence, by, 46-56, 86-88; and see Licence lunacy, during, 28, 29 minors, of, 29, 30, 42, 43, 45, 52- 56, 81, 109 ; and see Infant statistics of, 42 niistalie, by, 27, 28 Roman Catholics, among, 490 mixed, of Roman Catholics, 494, 495, 591-593 Ireland, in, 663, 564 monlc of, 23 Marria<^', Moscow, at. 111 no consent to, 23-28 Scotland, in, 633, 537 Nonconformist, 78-103 nullity, proof of, in, 225 orders necessary for, 66. 78. 470, 471, 557, 558 outlaws, of, 23 paupers, of, 23, 43, 477 pL'digree cases, 128, 129 place for, 59-64, 88-93, 109, 5ii7- 576 pregnancy, at time of, 27, 155-162, 312 priests, of, S, 23 presumption in favour of, 36, 100, 139-146 prohibited times for, 64, 65 proof and proving, 123-133, 226, 226, 227, 247 proxy, by, 22, 69, 507, 594, 696 Quakers, of, 97-100 registers of, 99, 136 registers generally, 133-137 Ireland, in, 564, 565 Jews, of, 101 Quakers, of, 99, 136 Roman Catholics, of, 78 Scotland, in, 547, 548 ; and see Register, Registration, Regis- trar registrar's office, at, 91, 96, 97 restraint of, 18, 19 ring, 71, 72 Roman Catholics, 78, 79, 89, 92, 103, Chap. XVI, 482-514; and see Table of Contents, 482 Ireland, in, 566, 557, 662-564 Scotland, in, 632, 533 Royal Family, of, 117-121 sacrament is not, 75 St. Petersburg, at, 110, 111 sea, at, 113-115 second, disproves earlier, 540, 546 40 626 INDEX JIarriagr, service, 66-75 settlement, 191-196 infaut, by, 463, 464 settlement cases, 124, 129, 130 ship, on, 113-115 special licence, by, 56, 57, 59 statistics of, 20, 29, 34, 35, 37, 42, 46, 56, 58, 79 ; and see Statistics subsequent, disproves earlier, 540, 546 time of, 64, 65, 95, 98, 109, 561 within three nioutlis after banns, licence, etc., 45, 56, 57, 58, 93, 94, 109 traitors, of, 23 two conflicting, 126, 127 verba de 2)nf^eiiti, by, 535-541 vestry, in, 62 void, 23-24, and Chap. VI, 221- 236 ; and see Table of Con- tents, 221 effect of, 417-420 issue of illegitimate, 4, 5, 147 Scotland, in, legitimate, 550 voidable, 10, 11, 23, 24, 32, 34, 204, 212, 222 Welsh women, with, 23 witness, presence at, 66, 68, 75, 95, 96, 472 proof of, by, 138 register, signature of, 76, 96, 472 Married women. Chap. IV; 163- 202 ; and see Table of Con- tents, 163 ; and see Husband and Wife, Mother, Wife, etc. Marry, conspiracy to, 474, 475, 477 Matrimony, solemnisation of, 66-75 Meeting - house. Nonconformist, marriage in, 94-96 registration of, 88-91 statistics of, 90 ; and see Non- conformists Minor, age, 29, 30, 49, 457-459 Minor, consent of parent to marriage of, 42, 43, 50, 52-55, 81, 109, 434, 468, 464 desertion by, 296, 297, 299, 349 divorce in, 252 marriage of, 42, 43, 49, 50, 62-55, 81, 109, 411, 434, 463, 464 nullity, suit in, 229, 230 statistics of marriage of, 29, 42 ; and see Cliild, Custody, Father, Guardian, Infant, Mother, Parent, Ward Mistake, marriage by, 27, 28 Monli marriage of, 23 Moscow, marriages at. 111 Mosque, registration of, for mar- riages, impossible, 89 Mother, access to child, deprived of, 407 given, 432, 434 bastard, of, 416 435, 447, 448 custody of child, 404-408, 435, 436, 440, 441, 452 duties of, 445-449 guardian, right to appoint, 450 liability of, 445-449 maintaining child, 447-449 nursing child, 319, 320, 445 separation deed giving her custody of children, 442, 443 Mother-in-law, adultery, incestuous with, 350 antenuptial intercourse with, is not affinity, 31 Roman Catholics, among, 502 Name,?, false, banns in, 38-41 licence in, 55, 56 notice to registrar in, 82, 83 Xe exeat regno, writ of, viii, 382 Ne unque accouple, writ of, 2, 123, 124, 223 Necessaries, infant, for, 460 wife, for, 180 mDEX 627 Neglect, wilful, lUscretiouary bar to divorce, 297-304 Xew parishes, 43, 44, 62 Newcastle Cathedral, marriages may he solemnised iu, 572 Xi-si. decree, divorce, 249 effect of, 422-424 nullity in, 213, 214, 216, 22-1, 225 decree, nullity, in, effect of, 34, 216 Non-access, proof of, 148-152 Nonconformists, divorce, opinion of, on, 589, 590 marriages, 78-103 registrar's presence at, 95, 96 statistics of, 79 meeting-house, registering, 89-91 statistics of, 90 registers, 78, 135-137 Norfolk, Duke of, divorce, 18 Northampton, Lord, divorce of, 17 Notice, registrar, to, of marriage, 80-85 Notour adultery, 554 Nullity, suit for, see Chap. V, 203-220, in respect of impot- ence; Chap. VI, 221-236; for other causes, and Table of Contents, see Impotence alimony, permanent, no power to order, 381, 385 temporary, 235, 236, 383-385 bigamy no bar, 220 camer& hearing, 203, 213, 225, 235 children, custody of, in, 236, 404- 408 illegitimate, 4, 147 declaratory sentence, 224, 225 decree, 213, 214, 224, 225 effect of, 34, 220, 235, 416, 417 defence of, 226, 227 delay, 217, 218, 233, 234 discovery in, 214 Nullity, divorce, defence to, 127, 220, 226^ 227, 247 effect of, 34, 220, 235, 416, 417 estoppel in, 217-220, 232-235 evidence, impotence of, 208-211 father suing, 229, 230 guardian suing; 230 impotence for, Chap. V, 203-220 and see Table of Contents interrogatories in, 214, 236 interveners and intervention in suit for, 225, 232 Ireland, in, 565, 566 jactitation, defence to, 227, 379 judicial separation, defence to, 127, 226, 227 jurisdiction, 224, 225 lunatic, suit by, 236 marriage, proof of, iu, 225 subsequent, decree of, valid- ates, 34, 220, 235, 416, 417 misconduct, petitioner, of, no bar, 218-220, 233, 234 parents, suits for, by, 229, 2-30 petitioner for, 214r-216, 228-2-32 re,stitution of conjugal rights, defence to, 127, 128, 227, 374 Roman Catholics, among. Chap. XVI, 483-514 ; see Table of Contents, 483 Scotland, in, 552, 552 settlements, variation of, in, 214, 236 subsequent marriage validated, 34, 220, 235, 416, 417 Nun, marriage and elopement with, 23, 475, 509 Nurse, duty of mother to, child, 445 in public, indelicate, 319, 320 Outlaws, marriage of, 23 Oxford, Bishop of (Dr. Stubbs), opinion of, on divorce 588 628 INDEX Oxford, Christ Church Cathedral, marriage may be solemnised iu, 572, 573 Pabamoue, husband's, "vvife cannot recover damages from, 190 respondent, may be made, 254, 255 Parent generally. Chap. XIV, 431- 469 ; and see Table of Con- tents, 431 ; and see Cliikl, Custody, Father, Guardian, Infant, Minor, Mother, Ward atheist, 439^41 bastard, of, 415, 435 evidence of, as to, 151, 152 care, duty of, 445-447 consent, marriage, to, 42, 43, 49, 52-55, 81, 109 old law as to, 14, 15 cruelty by, 433 divorce, 404-408, 441 duties of, 445-449 education, 433, 437-439, 449 evidence of, inadmissible to bastardise, 151, 152 forfeiture of rights by, 435-445 immorality of, 436-441 liabilities of, 445-449 maintenance of child by, 447- 449 misconduct of, 435-445 nullity, suit for, by, in, 229, 230 power over child, 432-435 Parish churches, 43, 59-62, 569- 576 Pedigree suits, proof of marriage in, 128, 138, 139 Peeress loses rank by remarriage, 165 Penalties, guilty wife, on, 394-396 Peterborough Cathedral, marriages may be solemnised in, 573 Petition, alimony, for, 384, 386 damages, for, 255, 354 Petition, divorce, for, 247 judicial separation, for, 355 maintenance, for, 387 nullity, for, 212, 213, 225 permanent alimony, for, 386 restitution of conjugal rights, for, 373 payment in lieu of, 393 variation of, settlements, 397 Petitioner, adultery of, 219, 220, 234, 282-292, 356, 374, 375 bigamy of, 220, 289 collusion by, 282, 283 condonation by, 272-282 connivance by, 268-272 convict, 297, 298 cruelty of, 220, 292, 293, 356, 357, 374, 375 death of, 229, 252, 253, 397, 404 delay, 217, 218, 233, 234, 293- 295, 358 desertion by, 295-297, 357 divorce for, 251-253 estoppel against, 234, 235, 285, 286, 357, 358 insiucerity of, 218, 219, 375, 376 judicial separation for, 355 neglect by, 297-304 nullity for, 214-216, 228-232 restitution of conjugal rights, for, 373, 374 separation deed executed by, 220, 284, 285, 357, 358, 376 Place, marriage, for, 59-64, 88-93 Police court separation, 360-370 Polygamy, 33, 34, 121 Popery Acts, Ireland, 558 Posthumous birth, 152-155 Precontract, 3, 8, 9, 10, 33, 412 Pregnancy at time of marriage, 27, 155-162, 312 Icicking wife during, 329 marital intercourse during, 170 Presents, adultery, evidence of, 320 INDEX 629 Presents, return of, if engagement broken off, 413, 414 Presumption, adultery, of, 315-321 birth after marriage, 147 coercion of wife by liusbaud, 165 death, of, 144-146 domicil of wife, 165,1166, 426, 427 legitimacy, of, 146-162 Scotland, in, 550 marriage, of, 36, 80, 100, 139-146 omnia rite esse acta, 142-144 Priests, marriage of, 8, 23, 498 Prior marriage annulled validates second, 34, 220, 235 impediment of, 33, 34 Roman Catholics, among, 498, 499 Privy Council, appeal to, 7 Procedure, divorce, in, 247-251 judicial separation, in, 355, 356 nullity, in, 211-217, 223-225 Police Court separation, in, 360, 361 restitution of conjugal rights, in, 371-374 Prohibited degrees, 5, 7, 8, 30-32 Roman Catholics, among, 492, 493, 501-503 Scotland, in, 548-550 Prohibition, 1, 10 Promise of marriage generally, 8-10, 409-414 corroboration, 411, 412 damages, 413 death abates action, 410 defences, 412, 413 fraud, obtained by, 412, 540, 541 infant, by, 411, 463 man, by, 410 old law, 8- 10, 409 presents, return of, 413, 414 proof of promise, 410-412 Protestant, by, to Roman Catholic, 413 return of presents, 413, 414 Roman Catholic, 413, 498 Promise of marx'iage, Scotland, in, 546, 547, 553 seduction, etc., aggravation of, damages, 413 Proof, adultery, of, 309-323 burden of, 124, 125 coverture in, 124, 128 identity of, 127, 137, 138, 321-323 marriage, of, see Chap. Ill, 122- 146 ; and see Table of Con- tents, 122 ; and see 225, 226- 228, 247, 374 strict, when necessary, 125-129 witness, by, of marriage, 138 Prostitute, association with, evi- dence of adultery, 320, 321 evidence of, 306, 308 marriage with, 27, 298, 299 wife forced to become one, 290, 479 Protection order generally, 358-364, 425, 426 cessation of, 359, 364 desertion, ground for, 361, 362 Divorce Court, from, 358, 359 effect of, 362-364, 425, 426 Police Court, from, 360, 361 reversal of, 359, 364 Protestant Episcopalians, Ireland, in, 559, 560, 563, 564 Provocation, adultery, of, reduces murder to manslaughter, 478 cruelty, to, 336, 337 sjDitting in husband's face reduces killing wife to manslaughter, 332 Proxy, marriage by, 22, 69, 507, 594, 595 Publication, banns, of, 43-45, 59-61 Quakers, Marriage Act, exempted from, 37 marriages of, 97-100 Ireland, in, 561, 562 Scotland, in, 532, 533 registers of, 99, 100, 136 630 IXDEX Queen's Proctor, intervention of, divorce in, 261-267 jndicial separation, in, no power, 355 nullity in, 213, 225 Rape, crime of, 313, 480, 481 divorce for respondent, 350, 351 intercourse, wife, originally was, 310 wife, on, adultery, is not, 256, 313, 314 justifies husband in killing, 478 woman cannot be guilty, 313, 481 Reading, Bisbop of (Dr Randal), bis oj^inion and letter on divorce, 580-587, 589 Reformation and Reformers, cbanges at, 6-9 effect of, 8, 11, 12, 578 Scotland, in, 553, 654 opinions of, 8, 578 Refusal, clergyman, by, to marry, 58, 59, 421, 422, 471 cohabit, to, not desertion, 343, 344 consummate, nullity, 169, 207, 208, 348, 349 marital intercourse, of, 171, 303 obey, to, order for restitution, 344, 345, 392-394 Protestant, by, to marry as a Roman Catholic, 413 Registers and registration generally, 133-137 divorces, decrees absolute, of, 34, 249 Ireland, in, 559, 564, 565 Jews, of, 101 marriages, church, of, 75-77 Nonconformist, 96 meeting-house, of, 88-91 Nonconformists, of, marriage of, 78, 96, 135-137 meetinar-house, of, 88-91 Registers and registration generallj', Quakers, 99, 136 Roman Catholics, 78 Scotland, in, 547, 548 Registrar, certificate, marriage, for, 85,86 district, of, 83, 91-93 fees to, 84, 86, 88, 95, 102, 103 Ireland, in, 564 licence for marriage by, 85-88 marriage before, 91, 96, 97 notice of marriage to, 80-85 oiRce of, marriage at, 91, 96, 97 presence at Nonconformist mar- riage, 95, 96 Scotland, in, 532 marriage before, 535, 536 Relative, deceased, statement by, 129, 138, 139 Relations, evidence of, 308, 309 returning, wife, to, 209, 234, 278, 279 Relationship, 5, 7, 8, 30-32 Roman Catholics, among, 492, 493, 501-503 Scotland, iu, 548-550 Religion, child, of, 433, 439, 442, 443, 454 marriage, of, 413 Remarriage, divorce after, 34, 421, 422 religious views on, 577-596 nullity after, 34, 220, 235, 416 peeress of, with commoner, 165 widow of, 73,74, 153, 154 Rendall, Dr., Bishop of Reading, opinion on divorce, 580-587, 589 Repair, church under, 44, 62 Reports, Ecclesiastical Courts, of, 16, 17, 566 rota of, 3, 486 Repute and habit, marriage estab- lished by, 140 442 Scotland, in, 541-546 INDEX 631 Kescissiou of decree nisi for divorce, 261-267 Residence, banns for, 41, 42 certiiicate, registrar of, for, 83, 84, 86, 91-93 licence for, from liisliop, 48, 49, 56 from registrar, 84, 86, 87, 91-93 registrar, notice to, for, 83, 84, 86, 87, 91-93 Scotland, in, for clandestine mar- riage, 534, 535 Respondent, divorce, in, 253-255 death of, 250, 253, 256, 257 nullity, in, 230 death, 10, 32, 216 Restitution of conjugal rights gener- ally, 166, 167, 171, 172, Chap. X, s. 1, 371-378; and see Table of Contents, 371, and 392-394 adultery, petitioner of, bar to, 374, 375 alimony in, 383, 385 Assizes, cannot be heard at, 373 attachment for, 372, 377, 392, 393 cohabitation, offer, respondent, by, to resume, 373, 374, 376 request, petitioner, by, for, 373 condonation, as, 276, 277, 378 cruelty, petitioner, of, bar to, 375 custody of cliildren, in, 377, 393, 404 desertion, refusal to obey is, 344, 353, 377 insincerity, petitioner, of, 375, 376 Ireland, in, 377, 565, 566 marital intercourse cannot be enforced in, 171, 172, 372 nullity, defence, to, 227, 374 offer, respondent, by, to cohabit, 373, 374, 376 payment on refusal to obey, 329- 394 petition, must be by, 373 Restitution of conjugal riglit-;, petitioner, previous request to cohabit, 373 proof of marriage, in, 127, 128, 227, 374 refusal to obey sentence, 377, 392-394 desertion, is, 344, 353, 377 request, cohabitation, for, by petitioner, 373 respondent, offer to cohabit, 373, 374, 376 sentence, after, should invite petitioner home, 376 Scotland, in, 556 sentence, 376, 377 seiiaration deed, bar to, 376 Reversal, decree nisi of, 266, 267 judicial separation of, 353, 424 protection, order of, 359, 364, 425, 426 Reviver, condonation destroys, 280, 281, 282, 423 Ring, wedding, 71, 72 Ripon Cathedral, marriages may be solemnised in, 573 Rochester Cathedral, marriages may be solemnised in, 573 Roman Catliolic Canon Law gener- ally. Chap. XVI, 483-514; and see Table of Contents, 483 basis of English matrimonial law. Chap. I, 1-11 Scotch matrimonial law, 534, 551, 652 dispensations, 510-514 fornr for mixed marriage, 591- 593 power, bishop's, of, to grant, 603, 604 divorce, 484, 485, 494, 499, 600, 589, 590 marriages, Ireland, in, 557, 558, 562-564 mixed 493, 494, 563, 564, 591- 693 632 INDEX Roman Catholic marriages, Pro- testant, a, civil minister or officer before, 483, 494, 498- 500 priest, marriage of, 23 Protestant, refusing to be married as, 413 Rome, appeal to, 3, 6, 7, 552 Roos, Lord, divorce of, 17, 18 Rota, Court of, at Rome, 3, 486, 487, 552 Royal Family, marriages of, gener- ally, 23, 117-121 divorces of, 121, 596-602 exempted from Marriage Acts, 37, 80, 108 nullity suit, 121, 232 proxy, marriage by, 22, 594, 595 sovereign, suit for nullity by, 322 St Alban's Abbey, marriages may be solemnised in, 573 St Asaph Cathedral, marriages in, 573 St George's, Windsor, marriages in, 575 St Paul's Cathedral, marriages can- not be solenmised in, 573, 574 St Petersburg, marriages at, 110, 111 Salisbury, Bishop of (Dr. Words- worth), his opinion on di- vorce, 589 Salisbury Cathedral, marriages may be solemnised in, 574 Savoy, marriages cannot be solemn- ised in, 575 Saxon legislation, 3, 5 Scotland generally. Chap. XVIII, 531-556 ; see Table of Con- tents, 531 adherence, action for, 556 adultery, bar to marriage with paramour, 553, 554 divorce for, 553, 554 Scotland, affinity in, 548-550 aliment in. 555 banns in, 42, 532, 533 Canon Law in, 534, 551, 552 clandestine marriage in, 534-547 condonation in, 276, 280, 282, 554 connivance in, 554 consanguinity in, 548-558 consent, marriage by, 534-547 fraud, obtained by, 540, 541 real, must be, 533, 537 reservation, mental, by one party, 540 consistorial law in, 551-556 copula, immaterial to marriage by consent, 536 legitimation, place of, imma- terial, 550, 551 marriage on, promise of, void, 540, 541 promise, marriage, of, follow- ing, 546, 547 cruelty, bar, divorce, to, 554 separation for, 555 custody of children in, 555 desertion, adherence, remedy for, 656 divorce for, 654 divorce in, 553-556 aliment, 555 Court, 551, 552 custody of children, 555 effect on property, 556 England, marriage in, 83 Episcopalians, marriages of, in, 532, 533 evidence, marriage, of, 535-547 promise of, 546, 547 Gretna Green, marriages at, 518, 535, 536 habit and repute, marriage by, 541-546 husband and wife, property of, 556 incest in. 548-650 INDEX 633 Scotland, irregular marriages in, 534-547 registration of, 548 Jews, marriages of, 532, 533 judicial separation in, 555, 556 jurisdiction, courts of, 554, 555 law burrows in, 555, 556 marriages, clandestine, in, 534-547 registration, 547, 548 regular, 530-533 matrimonial remedies in, 551-556 notour adultery in, 554 nullities in, 551-553 prohibited degrees in, 548-550 promise of marriage in, 546, 547 Quakers, marriages of, 532, 533 recrimination, 554 registrar's certificate, marriage, for, 83, 532, 533 , marriage before, 535, 536 registration, marriages, of, 547, 548 regular marriages in, 530-533 relationship, prohibited degrees of, 548-550 repute, habit and, marriage by 541-546 residence, marriage for, irregular, for, 534-535 resident in, wishing to be married in England, 42, 83 separation, judicial, in, 555, 556 verba de futuro, subsequente copula, marriage by, 546, 547 verba de prcesenti, marriage by, 535-541 wife, position of, 556 Sea, marriages at, 113-115 Seduce, conspiracy to, 474 Seduction, action for, 414, 415 aggravation of damages, in breach of promise, 413 antenuptial, by husband, 298 Separate and separation, bar, divorce, to, 296-299 bequest, on condition of, 19 Separate and separation deed generally, 200-202 bar, alimony, permanent, to, 386 damages as to, is not, 259 divorce, to, 284, 285 judicial separation, to, 357, 358 maintenance order, to, 368 nullity, to, 220 restitution of conjugal rights, to, 376 condonation, as, 275 connivance, as, 271, 272 custody of children, as to, 441-443 damages as, to, 259 desertion, inconsistent with, 339-341, 368 varied, as settlement, 397 desertion, contrasted with , 339-344, 362, 368 duty to, divorce, in, 278, 279 nullity, in, 209, 234 impotence, in case of, duty to, 209 judicial. Chap. VIII, s. 1, 352-358 ; see Table of Con- tents, 352 ; and see Judicial Separation nullity, in suits for, duty of, 209, 234 order generally, Chap. IX, 361, 364-368 ; and see Table of Contents and Magisterial Separation adultery, uncondoned, bar to, 375, 366 aggravated assault, ground for, 365 bar to, 365, 366 cessation of, 367, 368 effect of, 366, 367, 424, 425 variation of, 367, 368 Scotland, in, 555, 556 Servant, evidence of, 309 634 INDEX Service, marriage, 66-75 Session, order of, 124, 129, 130 Settlement, equity, to, 186, 189, 429 Settlements, marriage, 184, 191-196 adultery, no effect on, 428, 429 infant, by, 192, 463, 464 provisions, usual, of, 192-194 trustees of, 195, 196 variation of, 214, 236, 396^02; and see Variation of Settle- ments void marriage, effect of, on, 418 Ship, adiiltery on, 320 marriage on, 113-115 Sin, adultery, fornication, incest, lewdness, solicitation of cliastity, whoredom, 10, 32, 231, 232, 310, 311, 349, 350, 429, 430 Sodomy, 173, 311, 312, 350, 351 Solemnisation, marriage, church, in, 58-75, 88, 97 consul, etc., by, 108-110 Nonconformist, 93-96 registrar, before, 96, 97 Southwell Minster, marriages may be solemnised in, 574 Sovereign, suits by, 121, 232, 596-602 Special licence, 56, 57 Spitting in spouse's face, 332 Statistics, age, marriage, for, 29, 42 banns, marriages, of, by, 37 births, illegitimate, of, 415 Church of England marriages, of, 34, 35, 37, 46, 56, 58 banns, by, 37 certificate of registrar, by, 58 licence, by, 46 special licence, by, 56 divorced persons, marriages of, 34 divorces, of, 237-239 Scotland, in, 553, 554 duration of divorced marriage, 241 illegitimate births, of, 415 judicial separation, of, 238 Statistics, judicial separation, Scot- land, in, 555 licence, Bishop's, marriage by, 46 special, by, 56 marriage, age for, 29, 42 banus, by, 37 certificate of registrar, by, 68 Cliurch of England rites, by, 34, 35 divorced persons, of, 34 duration of, previous to divorce, 241 licence, by, 46 minors, of, 29, 42, 51 Nonconformist, of, 79 rate, 20 special licence, by, 56 meeting-houses. Nonconformist, registered, 90 minors, marriages, of, by, 29, 42, 51 Nonconformist marriages, of, 79 meeting-houses, registered, 90 rate, of marriage, 20 Stubbs, Dr., Bishop of Oxford, opinion of, on divorce, 588 Subsequent marriage, legitimation by, 527-529, 550, 551 imexplained, disproved earlier, 540, 545 Tametsi, decree of, 505, 506 Temple, Church, marriages cannot be solemnised in, 576 Theology of divorce, 8, 11, 12, 484, 485, 494, 499, 500, 553, 554 ; App. 2, 577-590 Time, marriage, for, 64, 65 ; see Decree nisi. Decree Absolute, Delay, Hours Torts, husband and wife, against, between, arid by, 164, 183, 184, 189, 190, 191, 420 infant, by, 466 Traitors, marriage of, 23 INDEX 635 Trent, Coimoil of, form of marriage prescribed ijy, 505-507 Trial, Assizes, at, 248, 355, 373 eamei-A, in, 213, 225, 248, 249 County Court, in, 410, 414 divorce, in, 248 jury, by, 248 magistrate, by, 124 Triennial cohabitation, 209, 210 Roman Catholics, among, 504 Truro Cathedral, marriages may be solemnised in, 574 Unity of husband and wife, 163- 167 Variation of settlements generally, 396-402 forfeiture for subsequent unchast- ity, 402 judicial sei^aration, no power to, in, 396 jurisdiction in, 397 nullity in, 214, 236 Venereal disease, infection with, adultery, is evidence of, 331, 332 assault, is not, 169, 479 breach of promise, is aggravation of damages, 413 evidence of adultery, 331, 332 marital cruelty, is, 330-331 Verba de/vturo subsequente copula, marriage, by, 646, 547 Verba de pra^senti, marriage, \iy, 535-541 Verdict, 248, 285, 286, 288, 292, 293 Vestry, marriage in, 62 Void marriage, 32-34; Chap. VI, 221-236 ; and see Table of Contents, 221; and seeNuUity alimony in, 236, 383, 385 effect of, 417-420 Void marriage, issue of, illegitimate, 4, 5, 146, 236 maintenance order may be made as, 236, 404, 405 Voidable marriage, alimony in, 214, 383, 385 death validates, 215, 216 force makes, 23, 24, 222 impotence makes, 34 ; and see Chap. V, 203-220, and Table of Contents, 203 old law as to, 10, 11 Wakefield Cathedral, marriages may be solemnised in, 574 Ward generally, 449-459 ; and see Table of Contents, C'liap. XIV, 431, 432 ; and see Cliild, Custody, Father, Guardian, Infant, Minor, Mother, Parent appointment, guardian of. Court, by, 450-453 custom, bj", 453 father, by, 449, 450 infant, electing, 453 mother, by, 450 chastity of, 455-457 custody of, 453, 454 divorce, in, 404-408 divorce orders as to, on, 404-408 education of, 454 electing guardian, 458 emancipation of, 458 guardian, appointment of, 449- 453 powers of, 453-457 maintenance of, 455 majority of, 457, 458 marriage of, 455-457, 459 religion of, 454 seduction of, 455-457 Wedding ring, 71, 72 Wells Cathedral, marriages may be solemnised in, 574 Welsh women, marriages with, 23 INDEX Westminster Abbey, marriages in, 574 Widow, guardianship, right to, 449, 456 issue of legitimacy as to, 152-155 remarriage of, 73, 74, 153, 154 Wife generally, Chap. IV, 163-202 ; and see Table of Contents, 163 ; and see Child, Custody, Father, Husband and Wife, Mother, Parent, etc. adultery of, 179, 181, 309-323, 427-429, 478 agency of, 178, 179, 199, 200 alimony, 380-385; and see Alimony beating, 173-174, 323-337; and see Cruelty chastisement of, 173, 1 74 contracts of, 178-183, 190, 191, 196-200 control of, 174-178 eoTcrture, proof of by, 124, 128 crimes, 163, 164, 165, 419, 420, 478, 479 desertion of, 166, 167, 171, 178- 181, 295-297, 337-349, 353, 359-364, 368-370, 371-378, 393, 394, 554 ; and see De- sertion, Divorce, Judicial Separation, Maintenance Order, Protection Order, Re- stitution of Conjugal Rights divorce, 237-351 ; and see Divorce, effect of, 416^30 incidents of, 380 - 408 ; and see Alimony, Custody of Children, Maintenance, Pen- alties, Costs, Variation of Settlements domicil of, with husband, 165, 166, 426, 427 eqxiity to a settlement by, 186, 189, 429 guilty, payment to, 387, 390, 391 penalties on, 394-396 Wife, harbouring, action for, 167, 183 household management by, 178- 183 injuries to and by, 183, 184, 190, 191, 478, 479 judicial separation, 352-359 ; and see Judicial Separation lunatic, 329, 337 magisterial separation, 360-370, 424-426 ; and see Magisterial Separation maintenance of, 178-182 permanent, of, 380-383, 387- 392 ; see Maintenance, per- manent temporary, of, 380-385 ; and see Maintenance, tempor- ary maintenance order, 368-370 ; and see Maintenance Order marital intercourse with, 167- 173 marriage, proof of, 123-139 ; and see Table of Contents, Chap. Ill, 123 ; and see Marriage, proof of necessaries for, 180 pledging husband's credit, 178- 180, 426 Poor Laws, liability to, for hus- band and children, 182, 447, 448 relief order given, 181, 182 property of, 184-191 separate, 188-190 protection order, 358-364, 425, 426 ; and see Protection Order rank, takes her husband's, 165 rape of, 310, 313, 478, 480 restitution of conjugal rights, 371-378, 392-394; and see Restitution separation deeds, 200-202 ; and see Separation Deeds INDEX. 637 Wife, order, 360, 361, 361-368, 424, 425 ; aud see Separation Order settlements, 191-196 ; aud see Settlements equity to, 186, 189, 429 stealing from liusband, 163, 164 torts, to and by, 183, 184, 190, 191, 478, 479 will of, 184, 185,188 witness, 164, 165, 257, 305-307, 419, 420, 478 workhouse, going into or receiving relief, 181, 182 liusband or children of going into or receiving relief from, 182, 447, 448 Will, wife, of, 184, 185, 188 Winchester Cathedral, marriages maybe solemnised in, 574, 578 Windsor, St. George's, marriages in, 575 Witness, marriage in presence of, 66, 67, 68, 75, 95, 96, -172 proof of, marriage by, 138 wife as, 164, 165, 257, 305-307, 419, 420, 478 Worcester Catliedral, marriages in, 575 Wordsworth, Dr., Bishop of Salis- bury, opinion of, on divorce, 589 York Minster, marriages cannot be solemnised in, 575 MORRISON AND GIBB, PRINTERS, EDINBURGH. NO TICE. There is in tJie Press, and will be published shortly, an abridged cheap compendium of tliis Manual of the Law of Marriage and Family Relations, written by the author in collaboration with a lady of considerable literary and parochial experience, and entitled, " Woman's Rights in Wedlock ; or the Legal Position of Women as Wives, Motliers, and Owners of Property." November 1892. MANUALS OF PRACTICAL LAW. In crown 8i:o, jprice 5s. each. "It is better for a layman to go Scotsman. The Volumes now "published in this Series are : — Banking and Negotiable Instruments. By Frank Tillyaed. Bankruptcy. By Chahlbs F. Morrell. Copyright and Patents. By Wyndham Anstis Bewes, LL.B. Education. By James Williams, B.C.L., M.A. Insurance. By Charles F. Morrell. Partnership and Com- panies. By Percy F. Wheeler. Railways. By F. III. Prestox. Wills and Intestate Suc- cession. By James Williams, B.C.L., M.A. to a law-liook than to go to law." — PRESS NOTICES. "Well arranged. "—iS<. 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