AMENDMENT OF THE MARRIAGE ACT. (Hansard, 24 August 1835)

§ Sir William Follett
wished to make a few observations upon this occasion as to his intentions with regard to this Bill. Under the existing state of the law marriages, within a certain degree of consanguinity, were prohibited, and were by the Ecclesiastical Law declared void; but then the Ecclesiastical Courts did not act unless a suit were instituted in the lifetime of the parties. And what was the effect of that? Parties married within the prohibited degrees of consanguinity—lived together as husband and wife—and had children; it was at the option of any person, though in one particular mode of proceeding, to make that marriage invalid, and the children illegitimate! And worse than that, it was at the option of either of the parties, indirectly to get the marriage declared invalid. It was agreed on all hands that that was a state of the law which ought not to exist. Those marriages ought either to be declared void, or made valid altogether; and a contract of so solemn a nature ought not to be left at the mercy of the interest, or the temper of any other person. Now what did this Bill do? It made all such marriages for the future absolutely null and void, that was the main object of the Bill. Some hon. Members said that there were some particular degrees of affinity within which marriage should be permitted. Suppose that were the case, the object of the Bill was to prevent uncertainty in the Marriage Law; and the proper course, therefore, would be, to declare those marriages at once good and valid. This Bill made no such exception; though he was aware that the division the other night proceeded on the principle that there was one particular 949 degree of consanguinity within which marriage ought to be allowed, viz., the sister of a deceased wife. With respect to that particular relation, he (Sir W. Follett), believed it stood within the same degree as many other cases condemned by the Marriage Law, as the brother's wife, or the niece of the deceased wife. And although many hon. Members were of opinion that the case of the sister of a deceased wife came not within the prohibited degrees, he (Sir W. Follett) could not help thinking that, though undoubtedly many marriages of that kind had proved happy, it would lead to great evil were it to be understood that such marriages would be valid. He should be happy to offer his hon. and learned Friend (Dr. Lushington) any assistance he could give him if it were deemed advisable to alter the present prohibited degree? of consanguinity, but if it were deemed advisable to exempt one particular degree of relationship, such as that which be had just named, from those prohibitions, was it not the proper course to exempt it either by a clause in this, or by a subsequent and distinct Bill; and was it a wise system of legislation to leave the law in its present uncertain state, and yet pass a Bill making valid those marriages which had previously taken place? Now he asked his hon. Friend opposite, either to introduce the clause now, or give notice of a distinct Bill for next Session. The passing of this Bill would in no degree Obstruct such a Bill as he had described in the next Session. This Bill did not define the degrees of affinity; it only stated generally, that certain marriages should for the future be void, and did not preclude, on the contrary, it facilitated the introduction of any such Bill of exemption. He hoped, therefore, that his hon. Friend would not object to his Bill on that score. The object of the Bill was to settle the law of marriages, and prevent parties from flattering themselves with hopes of security for the future, while it contained a provision for by-gone days. And when he reflected on the condition of families at present under the uncertainty of the law, and the misery which its rejection would produce, he could not help feeling anxious that it should pass this Session, which he was afraid it would not if Clause 2 were left as amended by the Committee, and he therefore hoped the House would now give its assent to the Amendments made by the Committee on 950 that point, As the Bill stood originally, it would put the law on a sure foundation for the future, by declaring all those marriages perfectly void, leaving it at the same time in the power of any hon. Member who wished to introduce any particular exemptions to bring in a Bill for the purpose next Session. He should, under those circumstances, move that the Amendments in Clause 2 be disagreed to, which would have the effect of making all such marriages for the future absolutely null and void.

§ Mr. Poulter
contended that it was impossible at present to deal adequately with the subject under all the present circumstances. In the month of August, to pronounce affirmatively all those marriages null and void, and then in the next Session to bring in a Bill declaring some exceptions to be absolutely good and valid, appeared so inconsistent, that he could only account for it on the supposition that the second Clause was inserted as a kind of set-off, to purchase the consent of some parties to the first. It was evident they did not proceed from the same mind, and he did not consider it was a good mode of legislation to purchase the remedial part of the Bill at the expense of the second Clause; it was well known that all those prohibited degrees of affinity arose out of a statute of Henry 7th., a more absurd law than which never existed. On the whole, he must again protest against the whole of the second Clause, unless his hon. and learned Friend would strike out all the words referring to degrees of consanguinity, thus leaving it open to them in the next Session to consider the whole subject with proper deliberation.

Dr. Lushington
was satisfied, from experience, that if they passed the Bill in its present form, and allowed marriages voidable for the future to continue, they would increase the number of these marriages between persons within the prohibited degrees at least tenfold. They insured to these parties all the rights appertaining to marriage, and held out an inducement to all men and women to place themselves in this state of uncertainty. It would be better on every account at once to declare such marriages void. He objected to proceeding with a general measure till they had had time to consider it in all its bearings on society. One of the great objects in a Marriage Law was to take care that it was recognised by all other 951 states; he feared, however, that many continental states would not be brought to acknowledge marriages contracted between parties within certain degrees of consanguinity. If once they threw a doubt on the state of the Marriage Law in this country, they would produce the greatest mischief. He thought that the suggestion of the hon. Member for Bridport should be acceded to, that all marriages of this nature, up to the day on which the Bill passed, should be valid; but that all such contracts entered into after that day should be void. The adoption of the former principle would put an end to a great many cruel cases of hardship. He hoped the wishes of the hon. Member for Bridport would be acceded to.

§ Mr. Divett
could not consent to alter the Clause with a view to prevent the Bill being thrown out in the other House. He considered it to be a most improper compromise, and could not conceive that they would discuss the Bill under more favourable circumstances hereafter than now. On the whole, as it was impossible at present to go into the consideration of the Marriage Law, so as to define accurately what should hereafter be the degrees of affinity, he could see no reason, nor justice in rejecting the Bill without that Clause; and in thus refusing to do an act of justice to the unfortunate persons now in a state of uncertainty and suspense. He should, therefore, resist the proposition of the hon. and learned Member for Exeter.

§ Dr. Bowring
said, that when the rejection of a Clause would peril a Bill so beneficial, he could not make up his mind to do so, and thus sacrifice a certain good. With respect to what his hon. and learned Friend had said as to the law of marriage on the Continent, he must, with great respect, differ from him. Whatever might be the state of the Marriage Law in those states, he was sure that their usages were very much like those of England and that marriage, within the prohibited degrees of consanguinity, were almost universal. He considered that the Bill would introduce tranquillity where all had hitherto been anxiety and unhappiness; and inasmuch as it thus accomplished a certain good with respect to marriages already solemnised, he could not with reference to the uncertain future, reject so much real benefit as the Bill would certainly produce.

§ Mr. Warburton
said, the first Clause of 952 the bill rendered it a comprehensive measure of general relief with regard to the past. With respect to future marriages (which was then the only point remaining), was it not against every principle of legislation to leave the law as it was at present? and was it not much wiser to make their marriages void, than leave them voidable? If the hon. Member for Shaftesbury had proposed a Clause making them valid, he (Mr. Warburton) would have understood him; for he went with him in principle, however in expediency he might differ from him. But he, the hon. Member, had done no such thing; he left the law as uncertain as it was at present—and he should vote for the Bill in the manner proposed by the hon. and learned Gentleman Sir W. Follett. Could his hon. Friend venture to predict that, in twenty years' time, he could bring round the right Rev.Prelates, in the other House, to consent to declare those marriages valid? And were they for that period to refuse an act of justice to those which had already been solemnized? He, therefore, hoped his hon. and learned Friend would see that it would be better to leave the law in a settled state, by declaring all those marriages void instead of leaving them only voidable, and that he would consent to the Bill.

§ Mr. Pease
said, he could not think that marriage was such a contract as should be subject to a Clause like that proposed. He was as much against marriage between persons within the degrees of consanguinity as any one; but he was not prepared to say that, after a marriage had been solemnized, it ought to be done away, because the persons who had contracted it were within the prohibited degrees.

§ Mr. Law
disagreed to the Amendment in the Committee. To throw a veil over the fact was beneficial to society; to make provision against future cases was equally so. He hoped the House would assent to the proposition of the hon. and learned Member for Exeter for restoring this Clause. Without prejudice to future legislation as to the degrees within which marriages might be contracted, he thought that, till that was done, it was charity and mercy to parties to say that these marriages should not be contracted, and should not depend on any caprice. The legislature pronounced them void to prevent injury to the parties.

§ Mr. Ewart
complained of the inconsistency of making these marriages void at one time and legal at another. Though he considered the Bill as an act of partial legislation, his hon. Friend should be satisfied with having a partial good.

List of the NOES.
Blamire, W.	O'Loghlen, M.
Brady, D. C.	Pease, J.
Bridgman, H.	Power, P.
Brown, Right Hon. D.	Poulter, J. S.
Blake, J. M.	Roche, W.
Crawford, S.	Ruthven, E. S.
D'Eynecourt, C. T.	Wakley, T.
Divett, E.	TELLERS.
Ewart, W.	Walker, C.
Lennox, Lord G.	Ronayne, D.