MARRIAGE LAW.

Manawatu Herald, Volume XLII, Issue 2178, 18 September 1920, Page 1

MARRIAGE LAW.

JUDICIAL STATEMENT. REMARKS BY THE CHIEF JUSTICE. The Chief Justice (Sir Robert Stout) had occasion, at Wellington on Thursday, to give judgment in a case in which the legality of an alleged marriage between a Maori woman and a European was concerned. His Honour took advantage of the occasion to make some interesting statements on the subject of the Marriage Law, as follows; — How far the English law regarding marriages became (he law of New Zealand has never been expressly decided, but it has been assumed (hat the English law would app!y. The til’s( Ordinance referring to marriages is No. 11, passed on 21st February, 1842, and its preamble says : “Whereas marriages have in divers cases been solemnised within the colony by ministers of the Christian religion not episcopally ordained; and whereas doubts exist whether according to (he common law of England (whereby marriages in the colony are governed) any marriage be good and valid unless the same have been solemnised by a minister episcopally ordained. “Be it declared and enacted by the Oovcrnor of New Zealand, with the advice and consent of the Legislative Council thereof, as follows: — "(1) All marriages heretofore solemnised, and all marriages hereafter to he solemnised by any minister of any Christian denomination, who had not or shall not have received episcopal ordination, are and shall he as good and valid to all inten Is and purposes as if the said minister solemnising the same had received such ordinal ion.”v

It may he slated that in interpreting the common law which became part of the law of (he Failed States so far as the circumstances of the Stall's warranted it, it has never been held in these' Stales that the validity of a marriage should depend upon the episcopal ordination of the clergyman who celebrated it. On the contrary, marriages without any religious ceremony and wit lion! the presence of any clergyman have been held to he good if both parlies consented to marriage. No Slate has held thai a marriage was invalid if it was not celebrated by a clergyman. By our English Raws Act, 1.858, “the laws of England as existing on the 141 h day of January, .1840, shall so far as applicable to the circumstances of the said colony of New Zealand he deemed and taken to have been in force therein on and after (hat day, and shall continue to he therein applied to the administration of justice accordingly." The Marriage Ordinance already cited of 18-12 slated that doubt- existed as io whether a, marriage had to he solemnised by a minister episcopally ordained to make il valid. The Ordinance of 1812. however, seemed to assume that some clergyman was necessary before a marriage was deemed valid. That was not the position taken in the United (States, .It may be mentioned that (he question whether an episcopally ordained clergyman was necessary in a marriage even in the United Kingdom was not finally settled until 1843, when the case of The Queen v. Millis was decided. In that ease three of the Lords were in favour of the marriage that had been solemnised by a .Presbyterian minister in Ireland being held valid, and three were against. The charge was that of bigamy, as the man had married again, but us the Court was equally divided judgment went in favour of the accused, the marriage being held invalid, in “Beamish v. Beamish'' there is a very elaborate judgment by Mr Justice Willcs on the question of what constitutes a valid marriage at common law. In’ that ease it was held by the House of Lords that the decision in “The Queen v. Millis” is not to be applied to a case where the presence of a Minister in holy orders cannot be obtained. In New Zealand, in the early days of the colony, the presence of a minister in holy orders was impossible in many districts, and marriages had to be celebrated by clergymen who were not episcopally ordained. In Air Justice ’Willes’ judgment, he ■says: “The general law of Western Europe before the Council of Trent seems (dear. The effect of marriage, namely, the mutual consent of competent persons to take one another only for man and wife during their joint lives, was alone considered necessary to constitute true and lawful matrimony in the contemplation of both Church and Hi ate." The Council of Trent sat from 1545, with interruptions, to .1504. Its decrees were confirmed in January, 1804, and came into force in the Catholic Church on Ist May, 1505. The learned Judge cited a great

number of authorities to ])rovo this general proposition I have quoted, and he said; “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. Catternll,” Dr. Lushinglon held that a marriage in New South Wales be(ween two persons neither of whom was a member of the Presbyterian Church of Scot land by an ordained minister of that Church was valid. It appears from Dr. Lushington’s view that “The Queen v. Millis” was not correctly decided, but, of course, lie was bound by that decision. He said he did not consider the case of “the Queen v. Millis” binding in (he case before him. It read: “Throughout the whole 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 necessary to the validity of a marriage, I should he 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 case of adultery or cruelly.” Bishop, in his learned treatise on marriage, states the American view, which is that “the Queen v. Millis” was incorrectly decided, and (hat no clergyman was necessary at all at common law even to lie present as witness to make a marriage valid.