MARRIAGE LAWS

Dominion, Volume 13, Issue 305, 18 September 1920, Page 9

MARRIAGE LAWS

REVIEWED BY CHIEF JUSTICE

INTERESTING CASES CITED

In view of the present controversy touching the projected amendment to .the marriage legislation of New Zealand, special interest attaches to a statement of the'law on the subject which was made by the Chief Justice (Sir Robert Stout) on Thursday. His-Honour made the statement whon giving judgment in «n action in which was involved the 'yalildity of a marriage between a Maori woman and ft white man.

His Honour said: "Tho first Act or ordinance providing for the manner in which marriages were to be celebrated in the colony was passed in 1817. It did not purport to deal with what were known as marriages according to tho Maori custom, but such marriages were never treated as valid, as the Maori custom allowed polygamy and also separation or divorce without any legal procedure. Many Maoris had more than one wife, but a marriage according to Native custom between a European and ft Maori has never been recognised in New Zealand as a valid marriage. How far the English law regarding marriages became the law of New Zealand has never been expressly deoided, but it has been assumed that it was applicable. "The Ordinance passed in 1812 (No. 11) contains,-in its preamble, the following passage: 'Whereas marriages have in divers cases been solemnised within the colony by ministers of the Christian religion not'episcopally ordained: andwhtreas doubts exist whether nccordilng to the common law of England (whereby marriages in the colony are governed) any' marriage be good and valid unless the same have been solemnised by. ii minister episcopally ordained. Be it declared and enacted by the Governor of Now Zealand, with the advice and consent of the legislative Council! thereof, 68 follows: (1) All marriages heretofore solemnised and all marriages herenftei to be solemnised by any minister of any Christian denomination, who had not or Bhall not have received episcopal ordination, are and shall be as good and valid to all intents and purposes as if the said minister solemnising the same had received such ordination.' Effect of a Religious Ceremony., "It may be mentioned that in interpreting the common law which became part of the law of tho United States so far as the circumstances thcro warranted it, it was never held that the validity of a marriage depended upon the episcopal ordination of the clergyman who performed the ceremony. On the. contrary, marriages wilthout any religious ceremony and without the presence of a clergyman have been held to bo valid if the contracting parties both consented to marriage. It has never beon - held in the State 9 that a marriage was invalid because it was ' not celebrated by a clergyman. By our English Laws Act, 1858, it was enacted that the laws of England as existing on January 14, 1840, were, so far as was applicable to the circumstances of this colony, to bodeemed and taken to be iin force therein on and after that day, and were to continue to be therein applied 'to administration of justice accordingly. ' ... "The Marriage Ordinance of 1842, already cited, stated that doubts' existed as to whether a marriage had to be solemnised by a minister episcopally ordained, in order to make it valid. It seemed to assume that it was necessary for the ceremony to bo performed bv a clergyman; but that view was not taken in the United States. It may be pointed out that the question whether an episcopally ordained . clergyman was necessary,' even in the United Kingdom, was not finally settled until 1843, when the case of Regina. v. Millis, 10 CI and F. 534. In adjudicating upon that case, three of Their Lordships were of opinion that the marriage, which had * been solemnised by a Presbyterian minister in Ireland, was a valid one, and the remaining three held it to be invalid. The charge was one of bigamy, but as the Court was equally divided in opinion, indgment went ih favour of the accused, and the marriage was held invalid. The Cuncll of Trent. "In Beamish v. Beamish, E9 H of L. Cas. 274," continued His Honour, "a very elaborate judgment was delivered by Mr. Justice Willes on the. question what constituted a valid marriage at common law. The House of Lords held there that the decision in Regina v. Millis was not applicable to a case where the presence of a minister in holy orders could not be obtained. In the early days of this colony the presence of a minister in holy orders was often impossible, and marriuges had to be celebrated by clergymen who wore not episcopally ordained. Mr. Justice Willes, in Ilia judgment in the case referred to, eaid: 'The general law of Western Europe before the Council of Trent seems clear. The effect of marriage, namely, the mutual consent of competent pei* sons to teko one another only for man and wife during their joint lives, was alone considered necessary to constitute true and lawful matrimony in tho contemplation of both Church and State.' "The Council of Trent sat without interruption from 1545 till 1564. Its decrees wera confirmed in 1504 and came into operation in the Roman Catholio Church on May 1 of that year. Mt. Justice Willes cited a large number of anthoritites in support of the general proposition that I have quoted, and he also observed: 'Even if there were no witnesses .present at such a marriage, that created a difficulty of proof only and did not affect its validity/ In Catterall v. Catterall, 11. Jur. 914, i't was held that a marriage in New South "Wales between two persons, neither.of whom was a member of the Presbyterian Church of Scotland, by an ordained minister of that church was valid. It appears from that viow that Regina v. ■Millis was incorrectly decided, but tho decision there was of course binding upon the Court which decided Catterall ,v, Catterall. Dr. Lushington, who decided the latter case, said, in the course of hte judgment: "Throughout the wholo of our colonies at various times and various places, if I were to hold that the presence of a priest in the orders of the Church of England was necessaTy to the validity of a marriage, I should bo going the length of depriving thousands of married couples of a right to resort to this Court for such benefit as it can give in the caso of adultery or cruelty.' "Bishop, in his learned treatise on marriage, states tho American view, which is that Regina. v. Millife was incorrectly decided and that no clergyman was necessary at all, even at common law, in order to render a marriage valid.'

Bound By Our Statutes. "The people of this country, however, ore hound by our marriage statutes, and thp Act in force, with amendments, at the time of thte alleged marriage, was the Act of 1851, which provided that the celebration of marriage should be regulated in accordance therewith and registry offices were set np and officers appointed to enforce its provisions. Notice of an intended marriage wa3 required to 1)6 given to tho registrar of the district in which it was to tako place on the form ennexed to tho schedule of the Act, and this notice was entered in the Marriage Notice Book. With tho exception of the registrars, the only persons who were authorised to perform marriage ceremonies _ were clergymen, and the registrar's certificate had to bo delivered to the officiating minister before the marriage was solemnised. The marriage then had to be registered, failure to do so rendering tho officiating minister liable to a penalty to bo recovered in o summary manner. Section 30 contained the following declaration: 'If any persona shall knowingly and willingly inter-marry on or after the said first day of January, 1855, without certificate from tho registrar, or in the presence of an officiating minister or registrar when the presence of an officiating minister or registrar is necessary under this Aot, the marriage of Bucli persons shall be null and void.' "There was also a provision to the effect that nothing in the Aot should npply to any marriage which had been contracted otherwise than according to the provisions thereof between two perBODB who were both, of the aboriginal t«o». It was operative, homer, In re-

spect of marriages between persons of either race in such districts as tho Governor might appoint." His Honour then passed on to deal particularly with tho case which was the subject of his judgment. SUPPORT FOR ARCHBISHOP O'SHEA. By Telegrnnn—Presa Association. Wanganui, September 17. At a meeting -of the St. Mary's Parish Committee of the Catholic Federation, held yesterday, it was unanimously resolved to placo on record the branch's high appreciation of the firm stand taken by Archbishop O'Shca towards. the proposed amendment of the Marriage Act, and to assure him of absolute loyalty in whatever action he considers it necessary to take in the matter. A PRESBYTERIAN OPINION. By Telegraph—Press Association. Hokitika, September IG. The Westland Presbytery passed tho followJng motion unanimously: "That Presbytery is of opinion that the amendment to the Marriage Act now beforo Parliament is urgently needed to protect from interference parties who have been lawfully married, and would strongly urge that such amendment be passed into law." The following resolution has been unanimously passed by tho Petone branch of the United Christian Association: "That this annual meeting of members ei the United Christian Association of Petone, comprising. Presbyterians. Methlodists, Church of Christ, and Baptists, while admitting the right of tho Roman Catholic Church to teach, and discipline its own members according to the doctrinos of that Church, realises that in cases of mixed marriages the rights of non-Roman Catholic parties must be protected. This meeting, therefore., expresses its hearty approval of the action of the Legislative Council in the adoption of a clause to be added to the Marriage Amendment Act, and urges tho House of Representatives to pass the clause in its original form." . The resolution is to be forwarded to the Prime Minister, the member for the district, and tho Minister of Internal Affaire.