FORBIDDEN MARRIAGES

New Zealand Herald, Volume LXVI, Issue 20366, 21 September 1929, Page 14

FORBIDDEN MARRIAGES

MR. H. G. R. MASON'S BILL.

DECEASED WIFE'S SISTER.

OLD PARLIAMENTARY BATTLES.

If tho Legislative Council follows tho House of Representatives and passes Mr. H. G. R. Mason's Marriage Amendment Bill, permitting marriage with a deceased spouse's nioco or nephow, as tho caso may be, the civil law of Now Zealand will diverge still further from that of the Anglican and Roman Catholic Churches, which have always forbidden such unions. Until nearly half a century ago tho "Table of Kindred and Affinity," found on tho last page of tho Book of Common Prayer, represented exactly the New Zealand law on tho subject of forbidden degrees in marriage. In 1880 the first divergence was made, when marriage with a deceased wife's sister was permitted. For somo reason, perhaps becauso there was no general demand for it by tho femalo sex, Parliament delayed until 1900 before passing a bill to allow marriage with a deceased husband's brother. Except that four items out of 60 aro printed with a line through them to show tho divergences mentioned, tho Prayer Book table is reproduced substantially, oven to the material parts of its headline, on tho back of tho official form to bo filled in by an applicant for a marriage licence. It is described as "a table of kindred and affinity wherein whosoever aro related are forbidden (in Scripture and our laws) to marry (together)," tho official form omitting tho words in parentheses. Mr. Mason's bill has tho effect of striking out four more items, which happen to be thoso at the bottom of tho page. Authority o! Leviticus.

Tho table, which is often spoken of in a jocular way, because it begins with tho proposition that "a man may not niarrv his grandmother," prohibits marriage with relations by blood or affinity within what are called the first, second and third degrees. Obviously a man may not marry an ascendant or descendant, or a sister or half-sister. He is also for good reason debarred from marrying an aunt or niece.

As regards affinity, or relationship by marriage, Church law takes the view that, marriage having made husband and wife one person, a man may not marry any of his deceased wife's relatives nearer in blood than ho can of his own,' that is,' within tho third degree. Conversely, a man may not marry tho widow of his own relati%'e by blood within tho third degree. The ecclesiastical law is generally deemed to bo based on tho 18th chapter of Leviticus. Early canon law forbade marriage within the seventh degree, but tho Lateran Council in tho 13th century made changes which permitted marriage within tho fourth degree. Tho basic English civil authority on the subject is a statute of Henry VIII., which onacted that "no prohibition, God's law except, shall trouble or impeach any marriage without the Levitical degrees." Theso had been specified in earlier statutes. Strange to say, the New Zealand Marriage Act, 1908, makes no reference to tho prohibited degrees, though it specifically permits marriage with a deceased wife's sister or deceased husband's brother. The annual index to the laws of New Zealand, however, cites a statute of William IV., which apparently is the present-day authority on the subject in this country, having regard to the two more recent exceptions.

The Maori Point of View.

Tho first measure to permit marriage with a deceased wife's sister was introduced in tho House of Commons in 1841. The House passed no fewer than 18 such bills (twice without a dissentient), only to have them thrown out by the Lords. Meanwhile moro than a dozen British possessions made the innovation, tho first being South Australia. Eventually, in 1906, tho Imperial Parliament found it necessary to pass a bill to recognise, in Britain, marriages of this kind contracted elsewhere in the Empire. The anomaly then became very obvious, and in the following year, after much controversy, a, Deceased Wife's Sister Marriage Bill passed both Houses, tho bishops in tho Lords voting against it. Marriage wjth a deceased husband's brother, however, was not made permissiblo until 1921. Tho strugglo in New Zealand was very similar, but not so prolonged. Several times tho Lower House passed a bill and the Legislative Council rejected it. In 1880, however, the Hon. W. B. D. Mantell, of Wellington, took tho initiative in tho Council, which, after rather close divisions at various stages, carried tho third reading by 14 votes to 9. In the House of Representatives three out of tho four Maori members voted against tho bill, on the ground that it would allow tho Maoris to revert to one of their savage customs—one which tho missionaries had taught them to give up The fourth momber, Major Wiremu To Wheoro, said frankly that ho liked the old custom, and as far as tho pakehas were concerned it was a mattor for thera to settle among themselves.

Eugenics and Society.

Tho bill was finally put through by a three-to-ono majority. Curiously, another measure to allow marriage with a deceased husband's brothor had been introduced in the Upper House tho samo session, but had been removed from tho Order Paper. Moro than ono similar bill was carred in the Houso of Representatives and rejected by the Council before a measure became law in 1900.

Viewing the question from a non-relig-ious aspect, it is probably correct to say that near affinity has been deemed a bar to marriage for social rather than eugenic reasons. Applying eugenic principles alono, relationship by marriage is a negligible factor in determining the suitability ol a union. On tho other hand marriages within tho prohibited dogrees aro nearly all repugnant to social usage, for obvious reasons. Even in tho caso of the deceased wife's sister and deWised hi»,band's brother there aro drawbacks. For example, a woman marrying her deceased's sister's husband is both aunt and stepmother to the children of tho first marriage, if there aro any. If' tho second wifo in turn has children their relationship to tho first family is also confusing.

Mr. Mason has lorated a second exception which can probably be justified on social grounds. It has been overlooked so long, no doubt, becauso a man and iiis deceased wife's nieco, or conversely, aro in most cases too far apart in ago for tho idea of marriage to enter their heads.