MARRIAGES. (Hansard, 1 August 1836)

§ Viscount Melbourne
rose for the purpose of moving that certain words introduced in the Committee on this Bill on Thursday last should be omitted, and the clause reinstated in its original form. The words in 689 question were in the declaration proposed to be made by the parties at a marriage, and to the following effect:—"I. N. declare, in the presence of Almighty God and before these witnesses, that I take M. to be my lawful wife, to lire with her according to God's holy ordinance; and in the presence of Almighty God and these witnesses, I solemnly promise to be to her a loving and faithful husband, and to keep to her during life." In moving the omission of these words, it was not his wish in any way to infringe upon the sanctity of the marriage contract, and if he thought that the alteration which he proposed would have that effect he would not press it. The ground upon which he opposed the introduction of these words was, that he thought, it would be very objectionable, to many parties, to introduce a civil officer into their chapel for the purpose of taking part in the performance of a somewhat religious ceremony.

Lord Plunkett
proposed an addition, the effect of which would be, that no marriage should be invalidated on account of the omission of any of the forms prescribed by the Act. In proposing such an addition as this, he adopted the words used in the 3d and 4th of George 4th. He should not have ventured to suggest an alteration of this kind, if he had not before doing so consulted the noble and learned Lord on the woolsack and another noble Friend near him. Both were satisfied that his proposition was in accordance with the spirit of the existing law.

Lord Ellenborough
considered a question of such deep importance ought rather to be made the subject of a separate Bill, than introduced as a rider upon the present Bill.

Lord Plunkett
remarked, that till now there must either be bans or licence before a marriage was celebrated. This Act introduced a new mode without bans or licence, and that was by certificate—that certificate being guarded by previous circumstances, such as the parties living a certain time in the parish, &c, and they should be married in the presence of a registrar. It would then be monstrous—it would be a trap to innocent persons, if supposing, some of the necessary forms 690 being neglected, the marriage could be defeated. Former acts guarded the issue at the very moment that they punished the parties. A false name might be given by a party, for the purpose of imposing upon an innocent lady. Now, looking to previous provisions, it would be found that when both gave false names, both would be liable to punishment; that though they should forfeit every thing by the marriage, their issue were not to be affected by it. He submitted, that an infinite deal of mischief must follow, if some such provision as that suggested by him were not adopted. What was intended to be got rid of was, the power of declaring marriage null, if a matter of form were not observed.

§ Lord Wynford
said, that when forms were got rid of, the substance soon followed. He had not the least objection to provide for the issue not being affected by the irregularity of the parties.

Lord Ellenborough
must re-assert what he said fourteen years ago, when the marriage law was discussed in that House. What he said was this, that they ought not to allow the nullity of marriage. He said, that religious obligation was so high, that it was impossible to add anything to it; that they could not detract from the importance of the religious contract, and could set up no human law as powerful as the divine; that it was terrible to call upon parties, in obedience to human laws, to separate, when the laws of God directed them to continue united. Their Lordships then acceded to what he proposed upon this subject. He recollected the late Lord Liverpool, who exclaimed, when alluding to marriages,—"I think, as to the parties who have done wrong, you may hang them if you please, but the marriage shall remain good." He confessed, that on principle he did not dissent from the noble Lord; but he did not consider that the public were as yet prepared for such a fundamental change as the proposed alteration in the Act.

Lord Holland
considered, that if they did not agree to the amendment now suggested by his noble and learned Friend, the consequence would be the declaration of nullity of several marriages, on the ground of particular forms prescribed by this Act not being attended to. The nullity of these marriages would create scenes of misery in private families, which it would be impossible to describe. Let them recollect the situation in which such families would be placed; and let them recollect, too, the situation in which they would place 691 Parliament. If they now passed that Act, without some such clause as his noble Friend proposed, if they sanctioned the nullity of marriages, they would in a year or two have to retrace their steps, and declare those persons to be married (whose marriages had been nullified), thus altering the succession to property, and depriving others of their fair rights under the laws of the country. It had been said, and truly said, of all matters of this kind, that laws affecting the nullity of marriages were all laws against religion, virtue, and nature. As he understood the Bill, as it now stood, there could be no question that a neglect of any of the forms would effect a nullity of the marriage. He agreed in thinking, that the punishment could not be too severe upon those who wilfully and knowingly evaded the law, but let not the punishment descend upon their children. If they did not do this, the consequence might be, that a hundred years hence a man would not know what property was his, because an ancestor of his had neglected some miserable form prescribed by this Act. Such a power as that of declaring marriage null on trivial grounds was against the divine law, canon law, and common law, of this country, and the law of Europe. Consent was the only thing, that was the essence of marriage, all the rest was superstructive; they ought, then, to take care that the nullity of marriage was not to extend beyond the parents.

Lord Plunkett
observed, this law created a specific evil, and their ought to be a cure for that evil. If, however, he found the sense of the House was against him, he should not press the amendment.

§ Lord Lyndhurst
suggested to his noble and learned Friend, to have his amendments printed, and propose them on the third reading. The particular forms that he sought to have dispensed with ought to be specified.

Lord Plunkett
would accede to the suggestion of the noble and learned Lord.

§ The Lord Chancellor
had imagined that the chief difficulty his noble and learned Friend would have to contend with would be, that, in enumerating the forms, he did not omit any, because the effect might be to invalidate marriages by the omission, which the circumstances of themselves ought not to invalidate. He admitted, however, that it was desirable to determine if possible, what should be considered matters of form, and what otherwise.

Lord Ellenborough
suggested the propriety of striking out the 36th Clause. He thought it very hard to call on a lady to state her age, and if she did not state it correctly to subject her to the penalty of perjury. He had heard of some ladies being so averse to telling their age, that, when applying for Government Annuities, they had persisted in declaring themselves younger than they really were, though they knew that the consequence of their doing so was, that they must pay more.

The Bishop of Hereford
said, that the only object of the clause was to ascertain whether the party was twenty-one years of age. The purpose would be answered sufficiently if that fact was established, without knowing the precise age.