LAW OF MARRIAGE. (Hansard, 3 September 1835)

Lord Brougham

presented a Bill to amend the laws of Marriage, Legitimacy, and Divorce. Circumstances had occasioned him to delay the measure. When he formerly mentioned 1308 the subject, a cause of great importance (Warrender v. Warrender) was pending, and until judgement were given, there was a manifest inconvenience in legislating on the subject; for any discussion of the subject among those in their legislative capacity, who were in the exercise of their judicial functions, had to pronounce upon the appeal would have been objectionable. The case was disposed of yesterday, and the Bill he presented would, if passed into a law, apply an appropriate remedy to the evils arising from the present state of the law on this subject. It was to be lamented, however, that the period of the Session rendered it impossible to proceed further than reading the Bill a first time, printing it, and leaving it for discussion hereafter. It was, at the same time, his duty to state shortly the principles upon which the measure was framed. Their Lordships were aware, generally, of the diversities between the English and Scotch law relating to marriage and divorce, and of the mischievous consequences which resulted. By the law of England, no marriage was valid unless solemnized according to the provisions of the Marriage Act. By the Scotch law, any parties of the legal age—fourteen and twelve respectively—might contract a valid marriage by declaring their consent per verba de presenti, or by promising to intermarry, and then cohabiting; and such present consent, or promise with subsequent cohabitation, being proved by legal evidence, all the Scotch Courts allowed them to be conclusive of the matrimonial contract having been completed. This state of the law had often been lamented by those who considered it mischievous and grossly inconsistent, that the same party who, until he attained the age of twenty-one, was incapable of affecting in any manner the most inconsiderable portion of his landed property, or binding himself in almost any way, should be suffered, by an improvident marriage hastily contracted, to incur the most important of all obligations, transmitting to the issue of a designing, and possibly a profligate woman, the inheritance of the highest honours and the most ample possessions. On the Scotch law, however, he did not ask their Lordships to make any change. Neither would he stop to examine its consequences, further than to observe, that a law to one kind of society, might in another be mischievous; 1309 while the manners of a community might become adapted even to a bad law; so that it would not be right to condemn the Scotch Marriage-law merely because it would be wholly inapplicable to the other part of the empire. The Scotch were attached to this branch of their jurisprudence; and he was not going to meddle with it. But it was quite another thing to permit the difference which existed between the Marriage-law of the two countries, to open a door for the evasion of the Marriage-law of England. Whoever holds that the English law was right, and the Scotch law right for the two countries respectively, must admit that it was wrong to permit the one law to be made the means of committing frauds upon the other, so as to make the provisions of one law a nullity. Even he who regarded the English law as bad for England, must desire that it should be altered by the Legislature for the benefit of all, instead of being allowed to bind only those who could not afford to evade it. A minor could not marry in England without the consent of his parent or guardian, or giving sufficient notice to them, by the publication of bans; but he had only to go to Scotland, and he could be married the instant he crossed the border. Suppose, for argument's sake, the English law were ever so bad, this was not the right way of changing it; for the evasion of its provisions can only be easily made by persons who lived near the border, or were in easy circumstances if they lived at a distance from Scotland. The evasion, therefore, could only be partial; and if the law were bad, the largest number of the people must still be subject to its provisions. He would, however, not be understood to doubt that the fundamental principle of the English law was a sound one, whatever might be said of the means by which it was carried into effect. Some control upon the improvident marriages of boys and girls was essential to the well-being of society. The control which the law of England intended to maintain, failed in consequence of the Scotch law not giving a similar control; and it failed in the very cases where it was most wanted,—where wealth and weakness on the one hand, and needy rapacity on the other, were most likely to produce mischief. The first branch of the measure he had to lay on their Lordships' Table, was directed to remedy this great 1310 evil. Ever since the celebrated cases of Crompton v. Bearcroft before the Delegates, and Ilderton v. Ilderton in the Common Pleas, the English Courts—contrary to Lord Mansfield's opinion—had recognised the validity of marriages contracted in Scotland, by parties going thither for a momentary residence, with the express purpose of escaping the provisions of the English law. He did not propose to alter that, but he wished to put those who went to Scotland with such a view, and their parents and guardians, as nearly as possible, in the situation in which they would have been had they remained in England. It might be required that they should reside for a certain time in Scotland, before they could contract a valid marriage. To publish bans a fortnight at least was necessary; and he should fix upon three weeks as the time of residence before the parties could legally contract marriage. That would afford sufficient opportunity of pursuit and search. Their Lordships would observe, that this would give a better notice in some respects than the bans, for the flight would be at once known; whereas the bans might be published in a parish remote from the residence of the parent or guardian, and no one know of it. Upon the whole, this provision might be considered as placing the parties to a runaway marriage, upon nearly the same footing as they would be were they to remain in England. The first provision of the Bill was, that no marriage contracted in Scotland, should be valid either in Scotland or England, unless both parties were Scotch by birth, or generally domiciled in Scotland, or lived there for three weeks next preceding the marriage; so that the law would remain as at present, with respect to all marriages really and bona fide Scotch, and would only be changed so as to prevent, by English parties, a fraudulent evasion of the English law. No Scotch person, nor any person whether Scotch or not, residing generally in Scotland, or even temporarily in Scotland, would be affected by the change. Those only would be affected who went thither for the purpose of evading the laws of England, and even to them the old Scotch law of marriage would be applicable, after a residence of three weeks. Upon the same principle of not meddling with the Scotch law, as to bona fide proceedings, and only altering to prevent fraud- 1311 ulent evasions of the English law, the second branch of his measure was framed. The law of the two countries differed more respecting divorce, than respecting marriage. In England, the contract was indissoluble; by no proceeding in any Court scould divorce à vinculo matrimonii be decreed. If persons were lawfully married, adultery, desertion, or anything else supervening, was no ground for dissolving the marriage; the only proceeding known to the law, in such cases, was divorce à mensa et thoro; and hence a new law must, in each case, be made to divorce parties on the ground of adultery. In Scotland such divorces were part of the law, and were decreed by the Courts—formerly by the Commissary or Consistorial Court, now by the Court of Session, to which the jurisdiction had been transferred. In consequence of this state of the Scotch law, parties resorted to Scotland with a view to procure a dissolution of a marriage, just as they went thither with a view to the celebration of marriage, the law in England not allowing either. He proposed to frame upon those principles a provision similar to the one for preventing frauds upon the Marriage Act in order to prevent frauds upon the law of divorce. This was more necessary than even the former branch of the Bill, because there was a direct conflict between the law of the two countries respecting divorce. Parties married in Scotland, who could not marry in England without consent, contracted a marriage valid in both countries. Parties divorced in Scotland, were recognized by the Scotch law, as single persons, and might marry again in that country; but in England they were held by the decisions of the Courts (never yet affirmed by their Lordships) to be still married. Their Lordships upon the general question had never given a solemn judgment; nor had it ever been determined, when an English marriage had been dissolved in Scotland, and the parties had contracted other marriages in Scotland, those marriages were void in England, although it was decided by all the Judges in Lolly's case, that a subsequent marriage, contracted in England, was void, and the party contracting it, guilty of felony. The conflict between the two laws on this point, affecting questions of legitimacy, was productive of serious evil; and the provision of his Bill to which he was adverting, would put an 1312 end to it, without altering the Scotch law in cases of bona fide Scotch divorces. The law of England might be bad, but the Legislature ought not to allow individuals to evade it by having recourse to the law of Scotland. The second branch of the Bill, provided therefore, that no sentence of the Scotch Court should dissolve any marriage not contracted in Scotland, unless the husband be a Scotchman, or usually residing in Scotland; or unless both husband and wife shall have resided in Scotland for a year next preceding the commencement of the suit instituted to obtain the divorce. This alteration, like the former, would affect no Scotch person, nor any other person, whether Scotch or not, residing generally in Scotland, nor even any person, whether Scotch or not, who resided temporarily in Scotland. It would only affect those who went to Scotland for the purpose of evading the laws of England, and even they would receive the protection of the Scotch law of divorce, after a year's residence. There might be some doubt whether or not a longer period ought to be fixed; but he was inclined to think, upon the whole, that a year was sufficient; for they must take care while they interposed obstacles to parties acquiring a temporary domicile with a fraudulent design, that they did not obstruct the remedy which the Scotch law should, according to its established principles, provide in all cases of bona fide residence. Forty days now gave a domicile sufficient to confer jurisdiction of divorce on the Court, and that period was inadequate to prevent the evasion. A year would prove sufficient; but that point might be the subject of after-consideration. There might also be a provision extending to all marriages, contracted as well in foreign countries as in England. Certainly he was inclined to make the law general, but upon that point he had not formed a settled opinion. The third branch of the measure referred to the legitimacy of children which of course depended upon the validity of the marriage of their parents, or upon the relation as to time between their birth and that marriage. According to the law at present, a child might be held legitimate in Scotland and bastard in England, if he were the issue of a marriage contracted in England by a party divorced in Scotland, from the ties of a prior English marriage. That 1313 had never been decided, but the Scotch Courts had questioned Lolly's case in its application to Scotland; and they might deem the issue of such a marriage legitimate in Scotland. He was at least quite certain that they would hold the issue of such a second marriage legitimate in Scotland, if it were contracted in Scotland; and equally certain that they would be in the right. In England such issue might be held bastard; because, though the question had never arisen, the opinion of lawyers inclined that way. That could not however be stated as certain; though on such a momentous subject as the validity of marriages, and the legitimacy of children, no doubt should be suffered. The different laws which made a person legitimate in one country, and bastard, or of doubtful legitimacy in the other, was pregnant with evil; and it would be remedied in future by the second branch of the Bill, already explained. No divorce could be valid in Scotland which would not also be valid in England. But as to past divorces, and the validity of the marriage had after such divorces the doubts would still exist. He proposed, therefore, after the example of the Marriage Act of 1822, and the Marriage Act of the present Session, to provide, by a Clause declaratory as well as enacting, that all marriages and all divorces in Scotland, whether already had, or hereafter to be had, should be valid also in the other dominions of the Crown. There was still another conflict between the laws of the two countries remaining to be provided for. By the Scotch Law, marriage subsequent to the birth of a child legitimated that child, provided the parents could have intermarried prior to the birth. This principle of the civil law, was propounded by the Prelates to the Barons at the Parliament of Merton, and they refused to change the law of England in the words so often quoted,—and not seldom, give me leave to say,—with a view to prevent many a rational improvement. The child born in England before the marriage of its parents is therefore illegitimate; and the ante-nuptial child born in Scotland might be held illegitimate in questions touching English rights. In a case under the consideration of their Lordships, by writ of error, the Judges have held, that such a child was bastard in England when he claimed a real state; while the same child had been 1314 held legitimate in Scotland, and had taken real estates as the heir to his father. Such a conflict must be put an end to at once, and all children hereafter born in Scotland, legitimate by the Scotch law, should be legitimate in other parts of the King's dominions. The Bill was on this point made declaratory as well as enacting, the law being doubtful; and it was also made retrospective as regarded children born; but not retrospective as regarded pending suits, and a Clause would, at least, be introduced to save these. He had further to state, that a provision of considerable importance was contained in the measure, with a view of facilitating the proof of Scotch marriages and preventing doubts as to the requisite period of residence having elapsed before the contract. The sheriff of the county in which any marriage shall be contracted (he being the judge ordinary of the district) was authorized to certify, after having duly satisfied himself, that the parties were married, and did reside in Scotland during the time required by law; and his certificate being entered by the Sheriff-clerk in a book to be kept for the purpose, an office copy of such entry was made conclusive evidence of the validity of the marriage in all Courts within the dominions of the Crown. He knew that in Scotland, the state of the registry—if indeed, any registry existed, was such as would give a great advantage to those who had their marriages recorded by the Sheriff. The noble Lord concluded by earnestly requesting their Lordships' attention to the Bill during the recess.