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Wright's Exrs. v. C. of G. Bk., 1880, 7 R. 527, 138, 147, 148, 167, 238, 239

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ABBREVIATIONS.

The following text-books are referred to by the name of the Author :

Bishop on Marriage, Divorce, and Separation.

Burge's Commentary on Foreign and Colonial Laws.

Dicey on Domicil.

Phillimore's International Law.

Westlake's Private International Law.

Story on the Conflict of Laws.

Fraser on Husband and Wife is cited as Fr.

Where the defender's name is the same as the pursuer's it is referred to by the initial letter-e.g., Baker v. B.

ERRATA.

Page 10, line 5, for Act 1600, c. 29, read c. 20.

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12, note 6, for Shaw v. Att.-Gen., 2 P.D., read 2 P. and D.

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13, note 10, for Portsmouth, 1 Hagg., read 1 Hagg. E.R.

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105, note 5, for 2 L.R., P. and D., read L.R. 2 P and D.

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384, note, for Dalhousie v. M'Donall, read M'Douall.

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397. The statement as to the necessity for twenty-one days' residence in

Scotland by one of the parties for the validity of an irregular marriage entered into by foreigners, does not extend to an irregular marriage by promise, subsequente copula.

421, line 15, for status as a rule must be, read must not be.

CHAPTER I.

THE CONSTITUTION OF MARRIAGE.

Definition of Marriage.—Marriage is the voluntary union for life of one man and one woman, to the exclusion of all others, entered into in some form recognised by the lex loci as sufficient.1 It is not merely a civil contract, but is rather a status, the gate of which is a contract. The contract once validly made, the parties must accept the incidents and consequences attached by the law of the man's domicile to the status of marriage. In the words of Sir James Hannen,2 "very many and serious difficulties exist if marriage be regarded only in the light of a contract. It is, indeed, based upon the contract of the parties, but it is a status arising out of a contract, to which each country is entitled to attach its own conditions, both as to its creation and duration."

Christian Marriage. The lawful union of a man and woman, in any Christian country, confers upon them the status of husband and wife throughout Christendom. But such an union in a country in which polygamy is lawful, will not be recognised by our Courts as marriage, unless the intention of the parties to contract a Christian marriage be clearly proved. The expression, "Christian marriage," used in many of the cases, imports no more than the kind of marriage recognised in Christendom; and a marriage, celebrated in Japan, between a domiciled Englishman and a Japanese woman, was held valid in England, on evidence that the forms of the lex loci had been.

1 Its nature is discussed by Lord Penzance, in Hyde v. H., 1866, 1 P. and D. 130; by Stirling, J., in re Bethell, 1888, 38 Ch. D. 220, and see case of Warrender there cited; and by Lord Robertson, Ferg. Div.

Cases, 397; cases of Edmondstone,
Forbes, and Levett, 1816.

2 Sottomayor v. De Barros, 1879, 5 P.D., at p. 101.

3 Cases of Bethell and Hyde, supra.

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complied with, and that the union was essentially monogamous, so that neither spouse, during its continuance, could lawfully contract a second marriage.1

Who are capable of Matrimonial Consent ?-Before the status of marriage is acquired, there must be complete legal evidence of the consent of parties to enter into it. There must, therefore, be capacity in both to give consent. The following disabilities are recognised by the law of Scotland :

GROUNDS OF NULLITY.

(1.) Nonage.

age of

Males below the age of fourteen, and females below the twelve, are by our law-in this following the Roman-incapable of matrimonial consent. The rule, malitia supplet aetatem, is not applied to this case, and it is irrelevant to plead that the parties, though under age, are puberes, and that the alleged marriage has been consummated.2

The union of pupils may be converted into marriage if they continue to cohabit after attaining minority, in circumstances which lead the Court to infer that matrimonial consent has been exchanged. The same sort of evidence will be required. as in other cases of marriage proved by cohabitation and habite and repute.

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The question has been mooted whether, if a pupil go through a form of marriage with a person of full age, the contract can be declared null at the instance of the adult person as well as of the pupil. In England, it is said by some old writers, that both are bound until the pupil arrives at the age at which consent may be given. When this period is reached, the contract may be annulled at the instance of either. But this, it is submitted, would not be held in Scotland, where the contract is void ab initio. Coke, in the passage referred to, says that it is "an inchoate and imperfect marriage." Blackstone says the elder may resile, for both must be bound or neither.

(2.) Impotence.

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Physical incapacity for sexual intercourse is a ground for 1 Brinkley, 1890, 15 P.D. 76. 4 Blackstone, p. 407 (Kerr's Ed.),

2 Johnston v. Ferrier, 1770, M. 8931. i. 151, § 2; Co. Litt., 33 a.

3 Ersk. i. 6, 2.

GROUNDS FOR ANNULLING MARRIAGE-IMPOTENCE.

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annulling marriage, at the instance of the potent spouse.1 But the impotent spouse cannot, it is thought, crave declarator on the ground of his or her own incapacity. This, however, cannot be said to be finally settled. In Halfen v. Boddington,2 Sir James Hannen spoke of it as an open question. It has been supposed to have been determined by Sir John Nicholl in Norton v. Seton,3 but in that case the impotence was not clearly proved, and the long delay of the petitioner in raising the suit made it appear probable that the plea was insincere. Dr. Lushington did not regard the decision as settling the general principle.1 It was held in Ireland, by the Court of Appeal, in a case where the woman repudiated the relation of wife and the obligations of marriage, that the impotent husband was not barred from proving that there was no verum matrimonium.5

If there is potentia copulandi the marriage will not be annulled, though fruitful intercourse may be physically impossible. And the impotence must have existed at the date of the marriage. It has been said that it must be incurable, but this is not now law. In a recent case, in England, the medical evidence was that the woman was impotent, but might be cured by an operation, involving no great risk. This she declined to undergo, and the marriage was set aside. The tendency of modern decisions in England has been to relax the rule. Sir James Hannen says the impediment to intercourse must be physical, and it must not arise from the wilful refusal of the wife to submit to her husband's embraces.7 In this case that learned judge granted decree, on proof that attempts at intercourse produced hysteria in the wife, and that consummation would have been impossible without force. The wife refused to submit to inspection, and the nature of the case excluded corroboration of the husband's evidence. A very wide door is thus opened to collusion. If the husband alleged hysteria on the wife's part, and she did not defend the action, any childless marriage might be thus annulled. safer rule seems to be to insist on proof that the woman is virgo intacta.

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5 A. v. A., 1887, 19 L.R. Ir., 403. 6 L. v. L., 1882, 7 P.D. 16.

7 H. v. P., 1873, 3 P. and D. 126.

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