THE LAW OF MARRIAGE BILL.

New Zealander, Volume 9, Issue 783, 15 October 1853, Page 3

THE LAW OF MARRIAGE BILL.

(From the "Sydney Herald,” September 24.) If any law ought to be so clear and explicit that every person of common sense may understand its meaning, it is surely the law of marriage. In this respect the Bill originally produced by the Select Committee of our Legislative Council was singularly defective. So wanting was it in perspicuity, that even many well-in-formed persons totally misapprehended b9tU ife

letter and its spirit. That Bill, however, has been very wisely withdrawn, and substituted by another, to which the same objection does not apply, and which appears to us to be as liberal and comprehensive a measure as the nature of the subject admits. Its object is to meet all conceivable cases, and to do this with the least possible interference with existing usages. It imposes no estraints upon marriage but such as are necessary for guarding that solemn engagement froin abuse, and for securing legal proof of the fact of its solemnization. Any persons who may lawfully intermarry will be enabled under the proposed law to do so according to the dictates of their own consciences, whether they regard marriage as a religious ordinance, or as nothing more than a civil contract. . The machinery of the bill is a system of civil registration, applicable alike to all future marriages within the colony. The main olyects or this system are three ;—to prevent unlawful marriages from taking place—to facilitate marriages against which no lawful impediment appears to exist—and, where a marriage has been solemnized, to furnish the clearest and most conclusive evidence of the fact. For the purposes of the Act, the colony is to be divided into districts, each its appointed registrar, and deputy under the supervision of a Registrar-General, resident in Sydney. In every case of an intended marriage, one of the parties must deliver to the Rgistrar of the district within which such party shall have dwelt for not less than seven days next preceding, a written notice in the form set forth in one of the schedules, stating the name, age, profession, or condition, and usual dwelling-place of each of the parties, and the building within which, and the minister by whom, the ceremony is to be performed. This notice is to be filed and copied into a hook in the Registrar’s Office, and be open to public inspection at all reasonable times, and without fee. Before entering it in a book, however, the Registrar is to satisfy himself, from some credible person known to him, that the several particulars set forth in it are true, in addition to an affidavit to that effect made and subscribed by one of the parties. A copy of the notice is theu to be affixed in some conspicuous place in the Registrar’s Office; and, where one of the parties is under age, a copy of it is to be sent by_ him, within twenty-four hours, to all other registrars in the same district, who are likewise to affix it in some conspicuous place. The matter then stands over for twenty-one days from the delivery of the notice ; and if in that interval the marriage be not forbidden by any parent or guardian, and no caveat be lodged against it, the Registrar proceeds according to circumstances. In the simplest of cases, for instance, where both parties are resident in Sydney, and desire to be married in St. James’s Cliurcn, he signs and delivers to one of the parties a certificate, setting forth the several particulars, and endorsing thereon a memorandum to the effect that the parties have complied with the provisions of the Marriage Act, and “ there is therefore no civil impediment to their being married at the place within specified,” namely, Saint James’s Church.

In the case supposed, the Registrar has now completed all the preliminaries of the marriage, so far as concerns the civil law, and has nothing farther to do except in witnessing and registering the transaciion. Whether the incumbent of St. James’s Church is or is not bound to solemnize the marriage after his receipt of the certificate, the bill does not say. All it does say is, that if he knowingly and wilfully solemnize a marriage without a Registrar’s certificate, and not in accordance therewith, he shall be guilty of felony, and on conviction shall be liable, at the discretion of the court, to a fine not exceeding 500?., and imprisonment not exceeding a term of years not yet named. The Bill being silent, then, on the point just referred to, the inference we draw from its silence is this; that the clergyman would be no more bound to marry the parties upon their producing the certificate, than lie is now bound to many parties applying to him under the law as at present existing. All the forms and solemnities, all the lules and regulations, of his Church, whether prescribed by canon, by rubric, or by settled usage, would remain in just as full force as now. Not one of them would be impaired or interfered with. The only effect of the certificate is to declare that in the proposed marriage there is no civil impediment. Whether there be any religious or ecclesiastical impediment, it will be for the clergyman to judge and decide, as freely and conscientiously as at present. And if no such impediment appeal*, he may proceeed as he proceeds now. He may still insist upon a strict observance of the ordinary usages of his Church, such as the publication of banns, or the production of a licence granted by the proper ecclesiastical authorities. His system of registration, too, may be continued as at present. The register kept by the Registrar is for purely civil purposes, and is not intended to supersede or interfere with registers kept for ecclesiastical purposes. The case we have been putting is a type of all other cases in which the parties wish to be married in their own places of worship, by their own ministers, and according to the rules or usages of their own religious communion. The rights of conscience are nowhere touched. The principles of religious liberty—or, if you will, religious restraint—in the solemn transaction which most Christians designate “ Holy Matrimony,” are neither invadetl nor questioned. The Bill, if passed into a law, will in this matter leave Churches, and ministers, and congregations just uhere and as it found them. All that has to be regretted is, that instead of leaving us to draw these conclusions from its silence, the bill does not expressly say that such is its meaning, and that such will be its operation.

The twelfth clause might he so simplified as to make its meaning more obvious and consistent. It states under what circumstances a marriage may be solemnized by the Registrar himself. But they all resolve themselves into the declared wish of the parties, the only distinction being, that in schedule C reasons are given why the wish is entertained, while in schedule D the wish is stated without the assignment of any reason. According to one schedule, it would seem that if a church and clergyman of the,denomination to which the parties belong are within convenient reach, the ceremony must not be performed by the Registrar, and the parties must needs be married by the clergyman, or not at all. Here is a show of compulsion which seems unnecessary and inoperative. In the case of persons conscientiously attached to’the church of which they profess to be members, compulsion would be unnecessary,since they would choose the church marriage as a matter of course. In other cases the intended compulsion would be inoperative, since the parties would have only to take refuge from the restraints of schedule C by placing themselves under the wing of unfettered schedule D.* A valuable feature of the bill is its care for the property of minors against designing men marrying them for the sake of their wealth.

On the whole, we think this measure is one which ought to give general satisfaction, and probably would do so if its intended non-interference with existing ecclesiastical usages were distinctlystated in the declaratory clause.

• Schedule D is in these words:— *» We, the undersigned and within named (A. B. and C. D.) do hereby declare that we both desire that our marriage may be solemnized by the Registrar of the District within mentioned.”