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Marriage And Divorce

Marriage may be accomplished in many ways: (1) By the publication of
banns; (2) by an ordinary licence; (3) by a special licence; (4) by the
Superintendent-Registrar's licence; (5) by a special licence granted by
the Archbishop of Canterbury in consideration of the payment of the sum
of 25. Then, for persons having a domicile in Scotland, there is the
marriage by repute. The consent of the parties, which is the essence of
the contract, may be expressed before witnesses, and it is not requisite
that a clergyman should assist, but it is essential that the expressions
of consent must be for a matrimonial intent. 'Habit and repute'
constitute good evidence, but the repute must be the general, constant,
and unvarying belief of friends and neighbours. The cohabitation must be
in Scotland.

Any irregularity in the marriage ceremony or the non-observance of any
formality will not invalidate the marriage, unless it were known to both
the contracting parties. If a man were married in a wrong name the
contract would still be valid if the wife were unacquainted with the
deception at the time. If the person who officiated were a bogus
clergyman, the marriage would hold good if the contracting parties
supposed him to be a properly ordained priest. In a case in which a
marriage was solemnized in a building near the church at a time when the
church was undergoing repairs, and where during such alterations Divine
service had been performed, it was held that the ceremony was good. To
all intents and purposes marriage comes under the 'Law of Contract' (see
Anson, W.R., Bart.), and the law looks to the intention rather than to
the actual details. All marriages between persons within the prohibited
degrees of consanguinity or affinity are null and void. This prohibition
extends both to the illegitimate as well as the legitimate children of
the late wife's or husband's parents. A marriage with a deceased wife's
sister is now legal in Great Britain and the Colonies, and is recognized
in most foreign countries. A common device with people within the
prohibited degrees is to get married abroad, but such marriage is
strictly speaking inoperative, and the children of such union are
illegitimate. Practically, however, it is a matter of no importance, for
when people live together and say they are married, they are accepted at
their own estimate.

A man can obtain a divorce from his wife if he can prove that she has
been guilty of adultery since her marriage. This may be established by
inference. Obviously, it is difficult in the majority of cases to
establish by ocular demonstration that adultery has been committed. But
given evidence of familiarity and affection with opportunity and
suspicious conduct, a jury will commonly infer it.

A woman cannot obtain a divorce from her husband for adultery alone. She
must prove adultery plus cruelty, or adultery plus desertion without
reasonable cause. Failing this, she may be able to prove either bigamy
or incestuous adultery. Legal cruelty is a very comprehensive term, and
does not of necessity mean physical violence. If the husband as the
result of his infidelity were to give his wife a contagious disease,
that would constitute cruelty. Taking a more extreme case, if a husband
were to have connection in her house with his wife's maid, that would
probably be held to constitute cruelty, as it would tend to lower her in
the eyes of her servants.

A wife can obtain a judicial separation if she can prove (1) adultery,
(2) cruelty, or (3) desertion without reasonable cause for two years. If
a husband is away on his business, as, for example, the case of an
officer ordered abroad, that is not desertion. For a woman to get a
judicial separation, it is sufficient if she can prove one variety of
matrimonial offence, but for a divorce she requires more than one.

The jury may find that Mrs. A. has committed adultery with Mr. B., but
that Mr. B. has not committed adultery with Mrs. A. The explanation is,
that a wife's confession is evidence against herself, but not against
another person. You can confess your own sins, but not another's.

The Divorce Law of Scotland differs materially from that of England. In
Scotland there is no decree nisi, no decree absolute, and no
intervention by the King's Proctor. Instead there is a single and final
judgment, and when a decree of divorce is pronounced the successful
litigant at once succeeds to all rights, legal and conventional, that
would have come to him or her on the death of the losing party. If the
husband is the offender, the wife in such circumstances may claim her
right to one-third of his real estate; and if there are children, to
one-third of his personal property, and to one-half if there are none.

=Voidable Marriages.=--If a man and woman go through the marriage
ceremony, such a contract is null and void under the following
circumstances: (1) Where bigamy has been committed; (2) if one of the
parties were insane at the time of marriage; (3) where the plaintiff is
under sixteen years of age; (4) when the marriage has not been
consummated or followed by cohabitation; (5) when one of the parties was
incapable of performing the marital act (impotent, and such not known by
the other at the time); (6) when drunkenness had been induced so as to
obtain consent; (7) concealment of pregnancy at the time of marriage.

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