The Act of Union between England and Scotland, A. D. 1707 (6 Anne, c. 2), which made one legislature, the present British Parliament, for the two countries, expressly provided that the existing law and judicial procedure of each kingdom should be continued, except so far as they might be repealed by the Act, or by subsequent legislation. The foundation of Scottish jurisprudence is the Roman law, and the canon law which is derived from it, consequently the law of marriage and divorce in Scotland differs from that of England. The status of marriage by Scottish law may be created in any one of three ways: First, by regular or public marriage celebrated in a church or private house by a minister of religion; second, by an irregular or clandestine marriage entered into without the a.s.sistance of a clergyman or any other third party, and, third, by declaration, or declarator, wherein the parties make a declaration confessing an irregular union, and are fined for the "offence," and obtain an extract of the "sentence" which answers to the purpose of a certificate of marriage.

The Scottish definition of marriage is given by Lord Penzance as follows: "The voluntary union of one man and one woman to the exclusion of all others."

IMPEDIMENTS.--Males under fourteen and females under twelve cannot marry, but if persons under age, called in the Scottish law "pupils," live together and continue to do so after both have pa.s.sed their nonage they are considered married, on the ground that there is evidence of a contract after the impediment has ceased to exist.

INSANITY.--An insane person cannot give a valid consent and therefore the insanity of either party is an impediment.

INTOXICATION.--There can be no marriage if one of the parties at the time of the formal union was so intoxicated as to be bereft of reason, but a marriage voidable on the ground of either insanity or intoxication may be validated by the consent of both parties after a return to sanity or sobriety.

CONSANGUINITY AND AFFINITY.--As to the impediments which arise from blood and marriage, the 18th Chapter of the Book of Leviticus is practically the law of Scotland. Marriage is forbidden between ascendants and descendants _ad infinitum_, and in the collateral line between brothers and sisters, consanguinian or uterine, and between all collaterals, one of whom stands in _loco parentis_ to the other. It is still an academic question whether or not the marriage of a brother and sister both born illegitimate is prohibited.

Of course, a previous marriage still subsisting is an impediment.

GRETNA GREEN MARRIAGES.--In order to put a stop to the Gretna Green marriages which have furnished material for much romance in books and much sorrow in actual life, it was enacted by 19 and 20 Vict., c. 96, that "no irregular marriage contracted in Scotland by declaration, acknowledgment or ceremony (after 31 Dec., 1856) shall be valid unless one of the parties had at the date thereof his or her usual place of residence there, or had lived in Scotland for twenty-one days next preceding such marriage."

It is manifest from all the decisions that in the absence of impediments, marriage in Scotland is const.i.tuted by interchange of consent. No formal expression of such consent is necessary. If the court is satisfied, from the whole circ.u.mstances and the conduct of the parties before and after, that they have given genuine consent to present marriage, it will be held that the marriage has been validly const.i.tuted.

HUSBAND AND WIFE.--By the common law of Scotland the legal status of a married woman is so merged in that of her husband as to leave her incapable of independent legal action. Recent legislation has, however, modified this doctrine.

DIVORCE.--The term divorce as used in this chapter means an absolute dissolution and setting aside of a legal marriage.

The Scottish courts recognize two grounds for divorce, adultery and desertion. These grounds are open to either husband or wife. The action can only be maintained by the innocent party.

ADULTERY.--The evidence must be such as would "lead the guarded discretion of a reasonable and just man to the conclusion that adultery has been committed."

If the court has jurisdiction it does not matter that the offence was committed out of Scotland.

DEFENCES.--Besides the denial of the allegation of adultery, the following are sufficient defences: 1, collusion; 2, condonation; 3, long delay in bringing the action; 4, connivance or lenocinium of the plaintiff, who is called a pursuer in Scottish procedure; 5, the honest belief that the intercourse alleged to be adultery was lawful, as when a wife enters into a second marriage in the reasonable belief that her first husband is dead.

DESERTION.--Desertion or, as the Scottish lawyers put it, "non-adherence,"

for a period of four years, against the will of the party deserted, is the second ground for divorce. Mere separation, as, for example, the absence of the husband on necessary business or his imprisonment, is not such non-adherence as will ent.i.tle the pursuer to a decree. The desertion must be a deliberate and obstinate withdrawal from cohabitation and companionship. If a wife refused to accompany her husband abroad, and he went alone, her refusal, and not his going away, would const.i.tute desertion.

FOREIGN DIVORCE.--If a native of Scotland acquires a foreign domicile, and obtains a divorce while abroad, the divorce would be recognized in Scotland if granted for either of the two causes sufficient by Scottish law.

EFFECTS OF DIVORCE.--The judgment of divorce completely sets aside the marriage, and both parties are free to marry again. On divorce the innocent party also comes into the immediate enjoyment of all the rights in the estate of the guilty spouse, or the funds settled by the marriage contract, as if the offending party had died at the date of the decree.

Conversely, the guilty spouse loses all claim to such legal rights as he or she would have had on the death of the innocent party but for the divorce.

CHAPTER IV.

IRELAND.

Ireland like Scotland has its separate judicial system, and many of its laws differ from those of all other parts of the British Empire.

The Irish law relating to marriage and matrimonial controversies is administered under the Matrimonial Causes and Marriage Law (Ireland) Amendment Act of 1870. It is practically the same as the English law as it existed before 1857.

The Irish Act of 1870 transferred the exercise by the Ecclesiastical Courts prior to the disestablishment of the Church of Ireland to a court for matrimonial causes and a.s.signed the trial of such causes to the judge of the Court of Probate.

Under the Irish Judicature Act of 1877 this jurisdiction is now vested in the Supreme Court of Judicature and is exercised by the probate and matrimonial judge.

It is impossible to obtain a decree of divorce from the bonds of matrimony in the courts of Ireland. The only divorce decree granted is from bed and board, and amounts in effect to what is termed a judicial separation in England.

The grounds for the limited form of divorce granted by the courts are adultery, cruelty or unnatural practices.

In order to obtain a decree of complete divorce the pet.i.tioner must promote a bill in the House of Lords to dissolve the marriage and allow the pet.i.tioner to marry again, which bill must be founded upon and follow a divorce from bed and board obtained in the Irish courts.

When a pet.i.tion is presented to the House of Lords a wife must prove her husband's adultery coupled with cruelty and a husband must prove his wife's adultery and must, if possible, make his wife's paramour a party by inst.i.tuting proceedings against him for criminal conversation in the Irish courts.

NULLITY.--An action for nullity of marriage can be maintained on the following grounds: 1. Imp.u.b.erty. 2. Relationship of the parties within the prohibited degrees. 3. An existing prior marriage of one of the parties.

4. Incapacity of the parties to conclude the marriage contract, as in the event of one being a lunatic. 5. Non-compliance with marriage laws. 6.

Fraud in procuring the marriage. 7. Impotency.

CHAPTER V.

THE FRENCH LAW OF MARRIAGE AND DIVORCE.

MARRIAGE.--A man cannot contract a marriage before he has completed his eighteenth year and a woman until she has completed her fifteenth year.

However, the President of the Republic may grant a dispensation as to age upon good cause appearing.

A son who has not reached the age of twenty-five, or a daughter who has not reached the age of twenty-one, cannot marry without the consent of their parents; but if the parents disagree between themselves the consent of the father is sufficient.

If both the father and the mother are dead or unable to give consent the grandparents take their place.

Sons or daughters less than twenty-one years of age, who have no parents or grandparents, or only such as are in a condition which renders them incapable of giving consent, cannot marry without the consent of a family council.

IMPEDIMENTS.--Marriage is prohibited between all legitimate ascendants and descendants in the direct line and between persons who are connected by marriage and related in the same degree. Marriage is also prohibited between uncle and niece and aunt and nephew. The President of the Republic may, nevertheless, on good cause being shown, dispense with the prohibitions contained in the Civil Code forbidding the marriage of a brother-in-law with a sister-in-law, and the marriage between uncle and niece, and aunt and nephew.

FORMALITIES.--A marriage must be celebrated publicly before the civil status officer of the civil domicile of one of the parties. The officer of the civil status before celebrating a marriage must publish the banns twice before the door of the Maison Commune, at an interval of eight days.

The President of the Republic, and also the official whom he entrusts with this power, may dispense, for good cause, with the second publication of the banns.

FOREIGN MARRIAGES.--A marriage celebrated in a foreign country between French citizens or between a French citizen and a foreigner is valid if it is performed according to the forms customary in such country, provided always that the marriage has been preceded by the publications of the banns pursuant to the code.

The record of a marriage contracted in a foreign country must be transcribed within three months of the return of the French citizen to the territory of the Republic in the public marriage registers of his civil domicile.

VOIDABLE MARRIAGES.--The validity of a marriage which has been contracted without the free consent of both parties, or without the free consent of one of them, can only be impugned by the parties themselves or by the party whose consent was not freely given.

When there has been an honest mistake as to the personality of one of the parties the validity of the marriage can only be impugned by the person who was misled.

Such mistakes as to personality include mistakes as to quality as well as to ident.i.ty. For example, the Court of Ca.s.sation held in 1861 that where a woman had been misled into marrying an ex-convict by ignorance of the fact, the marriage was annulable.