The chief impediment to contracting a law-ful marriage is the existence of the husband or wife of a previous marriage alive and undivorced. The ceremony of a second marriage is a mere nullity, and of no effect, under such circumstances.
The knowledge that there is a former undivorced husband or wife living at the time of the second marriage constitutes the offence of bigamy.
Persons who have been divorced have not the right to re-marry after the decree nisi has been pronounced; they must wait until the decree has been made absolute, which is generally after an interval of six months from the passing of the decree nisi.
If they marry between the decree nisi and the absolute dissolution of the marriage, they render themselves liable to' be prosecuted for bigamy. Neither party can, of course, marry after a judicial separation without committing this offence.
When the husband or wife of a person has been continuously absent for seven years, and nothing whatever has come to the notice of such person to indicate that the missing husband or wife is still living, the law allows a person, under such circumstances, to presume the death of the missing party, and to contract a second marriage, describing themselves as a widow or a widower as the case seems to indicate.
Should, however, the absent spouse return the second marriage becomes absolutely null and void, and the returning party is in a position to enforce all his or her claims to a continuation of conjugal rights. No prosecution for bigamy can follow after a marriage contracted under such circumstances.
As the consent of a free agent is a necessary part of the contract of marriage, it follows that the marriages of lunatics and idiots who are not capable of consenting to anything are void. And it may be said that the marriage of an idiot is invariably void because an idiot is a person who is mentally incapable from his birth. But the marriage of a lunatic, not under a commission of lunacy, during a lucid interval is valid. In order to support such a marriage it would be necessary to prove that there was an absence of all delusion on the part of the lunatic at the time of contracting the marriage. In the case of a marriage by a lunatic found so by inquisition, and placed under the care and custody of the Lunacy Commissioners, the ceremony would be absolutely null and void. The insanity of either party which does not develop till after marriage will not invalidate the contract; nor does it, at present, afford grounds for a divorce.
If an impediment exists and is incurable, marriage cannot take place, and the contract will be annulled. Application must be made to the Divorce Court for a decree of nullity, which will have the effect of placing the parties in exactly the same position as they were before they went through the ceremony.
A marriage when either party is restrained by force or error is invalid, and a marriage may be rendered void on the ground of fraud, but no deception concerning the fortune, condition in life, or personal qualities of the parties will invalidate the marriage.
As already pointed out, consent is necessary, therefore a marriage cannot be contracted in error. This destroys one of the favourite situations in fiction where the heroine, to escape a marriage which is obnoxious to her, gets some friend to impersonate her at the altar. The bridegroom, generally represented as a person of objectionable character who is tied to the wrong person for life, by way of punishment for his misdeeds, would have little difficulty in having such a marriage annulled.
A condition imposing a general restraint of marriage is void, and so also is a condition amounting to a probable prohibition. If, therefore, a legacy is left to a daughter on condition that she remains unmarried, the condition would be set aside and she would receive her legacy free from all restrictions. In a case where a legacy was left to a girl conditional on her not marrying a man with an estate less than 500 a year, it was held that the condition practically deprived her of any chance of getting married, and the court refused to enforce it. But restraint is allowable if it does not import an absolute injunction to celibacy. Therefore conditions prohibiting people from marrying under a certain age, or marrying a certain person, or altering their religion, or marrying below their station in life are valid. Where a marriage is prohibited without the consent of a trustee, such consent must not be corruptly or unreasonably withheld, and if the marriage appears to be a proper one it will be allowed to take place. A restraint imposed on a second marriage is good; a man can make the enjoyment of his fortune by his widow conditional On her not marrying again.
A marriage brokerage contract is a contract to bring about the marriage of certain parties, in the event of which one of the parties to the marriage brokerage contract is to receive some pecuniary recompense by way of commission or reward. Such contracts have always been regarded with disfavour and are not enforceable at law.
Marriage is regarded in law as a valuable consideration sufficient to support a promise. Therefore if a man promises before marriage to leave certain property by will to his wife and then attempts to dispose of it in another manner, that is a distinct breach of contract.
In a case where an old gentleman when writing to congratulate his nephew on his intended marriage, promised to pay him an annual allowance until his nephew's practice at the Bar reached a certain figure, it was held that his letter amounted to a request that his nephew should marry the lady and afforded good consideration for his promise.
A wife cannot be convicted of any larceny, burglary, forgery, or for uttering forged notes or base coin if the offence is committed in the presence of her husband, as she is presumed to have acted under his coercion and is held excused. But the presumption may be rebutted by showing that in fact she was not acting under coercion. In treason, murder, homicide, perjury, and in misdemeanours generally the presence and coercion of her husband will not excuse her.
On a charge against husband and wife for stealing, the wife may be found guilty as well as the husband, if the evidence shows that she was not acting under his control. On a charge of receiving stolen goods jointly with her husband it must be made clear whether she received the property from her husband, or if not, whether she received it in his absence.
A contract for the future separation of a married couple cannot be enforced because it is illegal and void, such a state of things ought not to be in contemplation and may give inducements to the parties not to perform duties in the fulfilment of which society has an interest. But a contract providing for the separation of husband and wife is valid if made in prospect of an immediate separation. If, after the separation deed has been executed, the separation does not take place, the deed becomes worthless. It is usual in a separation deed to insert a dum casta clause, but it is not absolutely necessary that it should be inserted, and when not inserted will not be implied.
Once the wife of a comic singer attempted to prosecute her husband for libel because he had inserted an advertisement in the " Daily Telegraph " suggesting that she was not his wife but his mistress; the summons was refused, and it was held that the Married Women's Property Acts do not enable a married woman to take criminal proceedings against her husband for libel.
There appears to be little room for doubt that previous to the Reformation a solemn promise between competent parties to marry each other, either then and there or at some future time, when followed by cohabitation, constituted a valid marriage, and that in cases where connubial relations did not follow on the promise, the agreement was sufficient to render a subsequent marriage by either party to another person voidable.