THE MARRIAGE LAW

Southland Times, Issue 18934, 22 September 1920, Page 6

THE MARRIAGE LAW

COUNCIL OF CHURCHES DISCUSSION. NEW CLAUSE ENDORSED. (For United Press Association.) t CHRISTCHURCH, September 21. The divorce law and the Ne Temcre decree were discussed last night by the Council of Churches, and the following resolutions were carried:—(l) The Council of Churches expresses pleasure at the determination of (he Legislative Council to introduce legislation that will prevent abuses occasioned by the operation of the Ne Temere decree in references to mixd marriages; (2) the Council of Churches, having regard to the promulgation of the Ne Temere decree in the Dominion, which in its application in the case of mixed marriages traverses the law of the land and non-Catholic churches by declaring invalid a marriage duly solemnised according to these laws, and is so used as to disturb the peace of families and break up homes, ami considering that the clause proposed in the Bill to amend the Marriage Act now before Parliament will prevent the declaration that marriages performed according to the laws of the land arc not marriages at all, and will not restrain any denomination from promulgating its views on marriage, expresses approval of the purpose of the clause, and hopes that in whatever form it may be deemed wisest, the House of Representatives will pass it into law, and so conserve the righto and liberties of all denominations.” A P.P.A. RESOLUTION. WANGANUI, September 21. The following resolution was carried at a meeting of the AA'anganui executive of the Protestant Political Association :—TThis meeting endor.-es the action of the Dominion executive in bringing before Parliament the iniquitous work of the Ne Temere Decree in this Dominion. it compliments the Rev. Howard Elliott on t lie able manner in which he presented our case to the committee, and assures the Prime Minister that m upholding the validity of marriage according to civil law and protecting the issue of such marriage from (he stigma of illegitimacy, as also in dealing with those.recalcitrant individuals who threaten to defy the proposed law, lie will have behind him not only the huge membership of the P.P.A., but the whole Protestant country.”

REMARKS BY THE CHIEF JUSTICE. The Chief Justice (Sir Robert Stout) had occasion this morning to give judgment in a case in which the legality of an alleged marriage between a Maori woman and a European was concerned. His Honor took advantage of the occasion to make some into! esting statements on the subject of the Marriage Law, as follows: How far the English law regarding marriages became the law of New Zealand has never been expressly decided, but it has been assumed that the English law would apply. The lirst Ordinance referring to marriages is No. 11, passed on 21st February, 1842. and its preamble says: Whereas marriages have in divers cases been solemnised within the colony' by ministers of the Christian religion not cpiscopally ordained: and whereas doubts exist whether according to the common law of England (whereby marriages in the colony arc governed) any marriage be good and valid unless the same have been solemnised by a minister cpiscopally ordained : Be it declared and enacted by the Or; vent or of New Zealand, with the advice ami consent of the Legislative Council thereof, as follows:(1 1 All manages heretofore solemnised am! all marriage- hereafter to lie solemnised by any minister of any Christum denomination, who hail not or shall not have received episcopal ordination, arc and shall be as good and valid to all intents and purposes as if the said minister solemnising the same hud received such ordination.

It may be slated that interpreting the common law v. hich became part of the law of the United States so far as the circumstances of the Stales warranted it, it has never been held in these Stales that the validity of a marriage should depend upon the episcopal ordination of the clergyman who celebrated it. On the contrary, marriages without any religious ceremony and without the presence of any clergyman have been held to be good if both parties consented to marriage. No slate has held that a marriage was invalid if it was not celebrated by a clergyman. By our English law# Act, 18.78, "the law of England as existing on the 14th day of January, 1840, shall so far as applicable to the circumstances of the said colony of New Zealand be deemed and raker, to have been in force therein on ami after that (lay, and shall continue to be therein applied to the administration of justice accordingly.” The Marriage Ordinance already cited of 1842 slated that doubts existed as to whether a marriage had to be solemnised by a minister episcopally ordained to make it valid. The Ordinance of 1842, however, seemed to assume that some clergyman was necessary before a marriage wits deemed valid. That was not the position taken in the United States. It may be mentioned that the question whether an episcopally ordained clergyman was necessary in a marriage even in the United Kingdom was not finally settled until 1843, when the case of The Queen v. Millis was decided. In that case three of the Lords were in favour of the marriage that had been solemnised by a Presbyterian minister in Ireland being held valid, and three were against. The charge was that of bigamy, as the man had married again; but as the Court were equally divided judgment went in favour of the accused, the marriage being held invalid.

In “Beamish v. Beamish'’ (hero is a very elaborate judgment by Mr Justice Whiles on the question of what constitutes a valid marriage at common law. In that, case it was held by the House of Lords that the decision in “'The Queen v. Millis” ,s not to be applied to a case where the presence of n minister in holy orders cannot be obtained. In New Zealand, in the early days of the colony, the presence of a minister in holy orders was impossible :n many districts, and marriages had to be celebrated by clergymen who were not episcopally ordained. In Mr Justice Willes’s judgment, ho says: “The general law of Western Km-ope before the Council of Trent seems clear. The effect of marriage—namely, the mutual consent of competent persons to take one another only for man and wife (hiring their joint lives, was alone considered necessary to constitute true and lawful matrimony in the contemplation of both Church and State.” The Council of Trent sal from 1545, with interruptions, to 15(14. Its decrees were confirmed in January, 1504. and came into force in the Catholic Church on Ist May, 15(14. The learned Judge cited a great, number of authorities to prove this general proposition I have quoted, and he said: “Even if there were no witnesses present at such a marriage, that created a difficulty of proof only, and did not affect its validity.” In Guttered! v. Catterail,” Ur I.udiingron held that a marriage in New South Wales between two persons neither of whom was a member of the Presbyterian Church of Scotland try an ordained minister of that Church was valid. It appears from Dr Lushington’s view that "The Queen v. Millis” was not correctly decided, but of course he was bound by that decision. Ha said he did not consider the case of “the Queen v. Millis” binding in the case before him. It road; “Throughout the whole of our colonies at various times and various places, if I were to hold that the presence of a priest in the orders of the Church of England was necessary to the validity of a marriage. 1 ;hould be going the length of depriving thousands of married couples of a right to resort to this Court for such benefit as it can give in the case of adultery or cruelty.” Bishop, in his learned treatise on marriage, states the American view, which is that “the Queen v. Millis” was incorrectly decided, and that no clergyman was necessary at all at common law even to be present as a witness to make a marriage valid.