THE MARRIAGE LAW.

Otago Witness, Issue 902, 13 March 1869, Page 2

THE MARRIAGE LAW.

Perhaps the strangest paradox in our social life is the fact that in many cases a man cannot always tell whether lie is married or not. One may remain for years, in the belief that he is married, and may at last awake to find that in the judgment of a Court of Law he is a single man. The belief may hava been founded on facts that' more or less appeared to warrant it. The Yelveuton case is the latest illustration of the uncertainty which may still ■exist on ,<>uch a point. Whether Miss Tiieiiksa Loxgwokth was or was not the lawful wife of the Hon. '.Major Yelverton. is a question which may be said to h&ve puzzled die most experienced lawyer in the United Kingdom. No one can' avoid the conclusion that the law which tolerates such a condition of uncertainty on a question of such importance, must be lamentably defective. It reminds us of the not very distant period when ' the law of nuUTiag-e in England was ; so defective a* to euronrage the most infamous abuses. Little; more than a ut-utury ago, dissolute minislerp of religion could earn a living by •celebrating unlawful marriages. Till a very recent date, Gretna Green was one of the niQ!>t popular of estab-

lished institutions. Ten or twelve years only have passed since it became unlawful for Darby and Joan to ride off in a post chaise for the purpose of being married by a blacksmith. In the present day, society seems to have becomcgAvare that marriage is too important '^matter to be trifled with. The Legislature has been moved to look into the state of the law with a view to its reform. A certain amount of reform has already been effected. But all that has been done yet is a mere instalment of what has to be done in the future.

The difficulty of dealing satisfactorily with the manifold evils and inconveniences of the present system has led to the appointment of a Royal Commission by Her Majesty. Three Lord Chancellors of England, the Lord Justice General of Scotland, with a dozen or so of rather less eminent celebrities in the legal and political world, were recently directed to enquire into the subject, and to recommend a new Law for the United Kingdom. Their Report was presented to both Houses of Parliament two or three months ago. The disquisitions it contains are enlivened by a marked conflict of opinion between the Lord Justice General of Scotland and his brother Commissioners, as to the merits of the Scotch Law. The latter condemn it, as Englishmen invariably do : the former seems to regard it as the most commendable, if not the most perfect, of all marriage laws in the world. And while the Lord Justice General maintains the excellence of the Scotch law, he picks the English law to pieces with equal zeal. That law is, in his opinion, ' the law of all others most opposed in theory to enlightened social policy.' Englishmen usually regard the essential principle of the Scotch law with very strong repugnance. They see nothing to admire in a law which looks upon a niei*e expression of willingness to become man and wife, as a sufficient substitute for the solemn ceremonies of religion. To this objection, the Lord Justice General replies that, in the first place, the evils attributed to the Scotch law are much exaggerated by Englishmen ; and in the second place, that whatever the evils may be, they are more than outweighed by the blessings which now from it. The greatest of these blessings is the absolute certainty which all Scotchmen enjoy, in the matter of marriage. To dispense with forms and ceremonies is, in Scotland, to ensure absolute certainty. The chief distinction between the Scotch and English laws on the subject is, that while the former dispenses with forms and ceremonies, the latter insists on them. Hence the certainty of the one. and hence the uncertainty of the other. Another prominent advantage secured by the Scotch law is, the legitimacy of children born before the celebration of marriage between the parents. This principle — that subsequent marriage should remove the stain of bastardy — has never been recognised by the English law : nor do the Royal Commissioners recommend its recognition now. The Lord Justice General protests strongly against the views of his brother Commissioners on this point. But he stands alone in his protest ; and there is no probability that either of the two leading 1 principles of the Scotch law to which we have alluded, will be recoo-aL=ed by the Imperial Parliament. It is° another question, however^ whether any alteration will be made in the Scotch law in these respects.

The Commissioners state in precise terms five distinct principles which, 'in their judgment, should regulate the law of marriage. The first is, that^all legislation on such a subject should aim at°the maximum of simplicity combined with the maximum of certainty. The second is, all possible facilities should be afforded for the eefebratjon of marriage, especially among the poorer classes, so far as may be consistent with Securingcorrect information preliminary to the marriage contract, and with^ ensuring due evidence of the marriage contracted.' The third in, that the State should discourage sudden and clandestine marriages. The fourth is, that the State" should be absolutely impartial and indifferent as between the members of different denominations, founding

its legislation \ipon the necessity and duty of regulating the civil conditions and effects of marriage. Tho fifth and last is, that the State should associate its legislation with the religious habits and sentiments of the people, and obtain as far as possible the religious sanction for the marriage contract.'- Eroin theoretical principles the Commissioners proceed to practical recommendations. These are, as might be expected, many and complicated, especially as legards the conditions under which the marriage contract shall be sanctioned. The most important amendments they suggest, are the abolition of bans, as well as of fees, stamps, and compulsory payments. Bans and fees are notorious obstacles in the way of marriage. No one likes to have his intended marriage proclaimed aloud, and no one likes to pay fees even on the occasion of his marriage. The Commissioners did not leave the colonies out of sight in their deliberations. It appears that the law of marriage is open to still heavier objections in the colonies than it is in the United Kingdom. Each colony has its own law • and no attempt has been made to harmonise the laws which are now in force in the colonies, on the subject of marriage and divorce. The resvilt is apparently so bewildering that the Commissioners did not venture on any recommendations for the improvement of colonial law.