MARRIAGE LAWS.

Taranaki Daily News, 21 September 1920, Page 6

MARRIAGE LAWS.

REVIEWED BY CHIEF JUSTICE. ( INTERESTING CASES CITED, The law of New Zealand in relation to marriage was, a subject about which the Chief Justice' (Sir Robert Stout) had something to say during the course of a judgment delivered by him at the Wellington Supreme Court. "The first Act or ordinance providing for the manner in which marriages were to be celebrated in the colony was passed in 1847," he said. "It did not purport to deal with what were known as marriages according to the Maori custom, "but such marriages were never treated as valid, as the Maori custom allowed polygamy and also separation or divorce without any legal procedure. ENGLISH LAW APPLICABLE. "How far the English law regarding marriages became the law of New Zealand has never been expressly decided, but it has been assumed that it was applicable. "The ordinance passed in 1842 (No. 11) contains, in its preamble, the following passage:— '"Whereas marriages have in divers cases been solemnised within thej colony by ministers of the Christian religion not episcopally ordained; and whereas doubts exist whether according to the common law of England (whereby marriages an the colony are governed, as marriage be good and valid unless the sjime have been solemnised by a minister episcopally ordained. "'Be it declared and enacted by the Governor of New Zealand, with the advice and consent of the Legis lative Council thereof, as follows: "'(D All marriages heretofore solemnised and all marriages hereafter to be solemnised by any minister of any Ohristion denomination, who had not or shall not have received episcopal ordination, are and shall he as good and valid to all intents and purposes as if the said minister solemnising the same had received such ordination." INTERPRETATION OF COMMON LAW. "It may he mentioned that in interpreting the common law, which became part of the law of the United States so far as the circumstances there warranted it, -it was never held that the validity of a marriage depended upon the episcopal ordination of the clergyman who performed the ceremony. On the contrary, marriages without any religious ceremony and without the presence of a clergyman have been held to be valid if the contracting parties both consented to marriage. It hfte never been held in the States that a marriage was invalid because it was not celebrated by a clergyman. By our English Laws Act, 1858, it was enacted that the laws of England, as existing on January 14th. 1840, were, so far as was applicable to the circumstances of this colony, to be deemed and taken to be in force therein on and after that day, and were to continue to be therein applied 'to the administration of justice accordingly.'

EPISCOPALLY ORDAINED CLERGYMAN UNNECESSARY. "The Marriage Ordinance of 1842, already cited, stated that doubts existed as to whether a, marriage had to be solemnised by a minister episcopally ordained, in order to make it valid. It seemed to assume-that it was necessary for the ceremony to be performed by a clergyman; but that view was not taken in the United States. It may be pointed out that the question whether an episcopally ordained clergyman was necessary, even in the United Kingdom, was not finally settled until 1843. "In Beamish v. Beamish a very elaborate judgment was delivered by Mr Justice Willes on the question what constituted a valid marriage at common law. The House of Lords held there that the decision in Regina v. Millis was not applicable to a case where the presence of a minister in holy orders could not be obtained. In the early days in this colony the presence of a minister in holy orders was often impossible, and marriages had to be celebrated by clergymen who were not episcopally ordained. Mr. Justice Willes. in his judgment in the case referred to, said: 'The general law of Western Europe 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 during 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 sat without interruption, from 1546 till 1564. Its decrees were confirmed in 1564, and came into operation in the Roman Catholic Church on«3fay Ist of that year. Mr. Justice Willes cited a large number of authorities in support of the general proposition Chat I have quoted, and he also observed: 'Even if there were no witnesses present at such a marriage, that created a difficulty of proof onlj and did not affect its validity.'

BOUND BY MARRIAGE STATUTES. "The people of this country, however, are bound by our marriage statutes. The Act of 1854 provided that the celebration of marriage should be regulated in accordance therewith, and registry offices were set up and officers appointed to enforce its provisions. Notice of an intended marriage was required to be given to the Registrar of the district in which it was to take, place on the form annexed to the schedule of the Act, and this notice was entered in the Marriage Notice Book. With the exception of the registrars, the only persons who were authorised to perform marriage ceremonies were clergymen, and the registrar's certificate had to be delivered to the officiating minister before the marriage was solemnised. The marriage then had to be registered, failure to do so rendering the officiating minister liable to a penalty to be recovered in a summary manner. Section 30 contained the following declaration: 'lf any persons shall knowingly and willingly inter-marry on or after the said first day of January, 1850, without certificate from the registrar, or in the absence of an officiating minister or registrar when the presence of an officiating minister or registrar is necessary under this Act, the marriage of such persona shall be null and void.''