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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