MARRIAGE LAW AMENDMENT BILL. (Hansard, 19 May 1856)

LORD BROUGHAM,
in moving that the House should go into Committee on this Bill, said that he intended to withdraw the clauses relating to divorce and legitimacy, finding, unfortunately, that he had no chance of carrying them on the present occasion. The Bill would, therefore, be reduced to one single but most important object. It would not alter the marriage law of Scotland at all, but it would give protection to the marriage law of England by preventing that gross evasion of it which the conflict of the laws of the two countries occasioned. He might mention, as an example of the evils of the present 323 system, that in one border parish, the population of which during the last half century had increased in the proportion of three to four, the number of marriages during the same period had decreased from eighty to thirty. He had been furnished with a return, from which he found that the number of Gretna-green marriages in the year 1855 amounted to 747. He had also seen a statement signed by nineteen reverend clergymen of the Church of England, of the Roman Catholic Church, and of the Church of Scotland at Berwick-upon-Tweed, affirming that the evils to which the morals of the people were subject by this practice of border marriage were such, that it was impossible to describe to what degree bigamy, seduction, and bastardy were encouraged in that district. He held that the Scotch law, even for Scotchmen and Scotchwomen, was in a state exceedingly unsatisfactory; but there appeared to be a fixed and rooted opinion to the contrary in Scotland, and therefore he did not propose to deal with that question in the present measure. His impression was, that their Lordships would do a wise thing by confining themselves, for the present, to the improvements to be effected by this measure—acting upon the principle, which was not confined to Scotland, of getting what you could and keeping what you got. In France there was also this maxim—"If you cannot get what you like, like what you can get." Upon this principle he had limited his endeavour upon the present occasion to protecting the law and the people of England; the Bill, therefore, would be confined to irregular marriages, striking out those clauses which related to divorce and legitimacy. It was, he felt, a grievous thing to leave the law of divorce in such a state of conflict, and the courts in such a condition as made it an impossibility to administer the law satisfactorily. This, he felt, was the consequence of his being obliged to limit the Bill to the single point of marriages in fraud of the English law. There were cases nearly connected with their Lordships' House in which the uncertainty of the legality of the marriage of the parties might by no remote possibility arise. It was not quite certain that even a Scotch judgment of legitimacy would not be reversed when it came up to their Lordships' House by way of appeal. The Scotch law held that the parties to an English marriage were entitled to marry again after a Scotch divorce. But, if after such a divorce one 324 of the parties married again in England, he would be liable to be prosecuted for felony, and, as Solly was, to be convicted and pass twelve months in the hulks because he had been so ill-advised as to contract the second marriage in England, and not in Scotland. In England the issue of such a marriage would be considered bastards. Having failed himself in his endeavours to remove this conflict by the Bills presented in 1835, and by the present Bill as originally framed, he hoped and trusted that the exertions of some one else would be attended with better fortune—he should be satisfied if by the present Bill he could effectually protect the law of England from constant evasion. This was the object of the petition which he had presented from the Cumberland magistrates. That county and Northumberland suffered most from the conflict of the marriage laws. But its evil effects were experienced generally.

LORD CAMPBELL
thought the Bill would not add to the lustre of the name of his noble and learned Friend, because it would not accomplish what it professed to do. His noble and learned Friend proposed that those marriages which he called irregular marriages should not be legal unless the parties had been domiciled for three weeks in Scotland. He (Lord Campbell) believed that this would be no remedy at all, but would be the cause of a great deal of fresh doubt upon the subject. His noble and learned Friend had introduced a new element of doubt as to regular and irregular marriages. What was an irregular marriage? If an Episcopalian bishop performed a marriage in Scotland, that he believed would be an irregular marriage. Marriages could not be legally performed by an Episcopalian within the realm of Scotland. All such marriages were irregular, and any persons so married might be summoned before the Court of Session and be rebuked for living as man and wife without being regularly married. A marriage by a seceding minister would not be a legal marriage. Strictly speaking it must be a minister of the Established Church, after the due proclamation of bans. However, the whole marriage law of Scotland was involved in the utmost doubt and uncertainty, and he did not think his noble and learned Friend would effect any great remedy by this Bill, and that he would only introduce new difficulties into the question if he carried it. It 325 would not operate in mitigation of the evils complained of, and he hoped, therefore, his noble and learned Friend would not press it.

§ THE EARL OF ABERDEEN
would give the Bill his cordial support. Though he desired to preserve as it was the law of Scotland affecting marriage, he had not the least wish to throw any obstacle in the way of preventing evasion of the law of England, and he admitted that something ought to be done to correct the evil of border marriages. In his opinion the present Bill was well calculated to reduce the evil complained of, and in its amended form he would be quite ready to support it. With regard to marriages in Scotland, all were held irregular that were not solemnized after the proclamation of bans, and the contracting of an irregular marriage subjected the parties to ecclesisastical censure, and, he believed, to penalties, though it was valid in law; but, after the publication of bans a minister of any denomination could perform the marriage ceremony. He could not admit the accuracy of the description given by the noble and learned Lord, and he would only say that the marriage law in Scotland was in accordance with the wishes of a people at least as intellectual as themselves.