Abstract
Today English law attaches minimal legal significance to the engagement to marry. In some European countries there are still remnants of the canon law of the Middle Ages.1 In time of war similar provisions are frequently extended to the dependants of engaged men killed on active service. Such institutions and procedures have long been unknown in English law.
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Notes
There can be no substitute for Maitland’s incomparable account in Pollock and Maitland, History of English Law before the time of Edward I, vol. II, ch. VI, ‘Inheritance’ and ch. VII, ‘Family Law’. For a more modern detailed study see J. Jackson, The Formation and Annulment of Marriage, 2nd edn (1969).
In 1968, fourteen States of the Union and the District of Columbia still recognised the informal common law marriage: See Homer Clark, Law of Domestic Relations (1968) p. 45; Ploscowe, Foster and Freed; Family Law: Cases and Materials pp. 69, 79–83 and 125, and Foote, Levy and Sander, Cases and Materials on Family Law 2nd edn. (1976) pp. 685–6.
See D. Tolstoy, ‘Void and voidable marriages’, 27 MLR. (1964) 385.
There was considerable confusion after the reformation about the prohibited degrees of relationship, considered by Sir J. Simon P. in Cheni v. Cheni [1965] P. 85. The Marriage Act 1835 ‘for the avoidance of doubt’ declared such marriages void, instead of voidable as previously.
See Lord Greene M.R. in de Renneville v. de Renneville [1948] P. 100, 115 CA., but emphasising the risk of such a course. In para. 4 of its Report the Law Commission thinks it would ‘add needlessly to the expense to the parties and to the public’ if legal proceedings ‘were necessary before parties could regard themselves as free from a marriage which was palpably invalid’. This probably means that legal aid will not be available for a decree of nullity, which would seem desirable for anyone involved in such an invalid ceremony.
Marriage between a man and his deceased wife’s sister was legalised in 1907 by the Deceased Wife’s Sister’s Marriage Act, but the clergy might refuse to celebrate any such marriage. Not until 1921 did the Deceased Brother’s Widow’s Marriage Act legalise marriage by a woman to her deceased husband’s brother. See H. F. Morris, ‘Marriage law in Uganda: sixty years of attempted reform’, in Family Law in Asia and Africa, ed. J. N. D. Anderson (1968), for clerical opposition to such marriages in Africa. The Marriage (Enabling) Act 1960, which validated marriage by a man with his divorced wife’s sister or aunt or niece or the former wife of a brother or uncle during the lifetime of the former spouse, raised different social problems, and hardened the perimeters of the nuclear family. See 23 MLR (1960) 538.
See Phillimore J. in Hayward v. Hayward supra, p. 158. See further D. Tolstoy; ‘Marriage by estoppel’, 84 LOR. (1968) 245, and contra 24 MLR (1961) 371.
Scrimshire v. Scrimshire (1752) 2 Hagg. Con. 395, Dalrymple v. Dalrymple (1811) 2 Hagg. Con. 54, Apt v. Apt [1948] P. 83. See D. Mendes da Costa, ‘The formalities of Marriage in the Conflict of Laws’ 7 ICLQ (1958) 217.
Law Com. 42 (1971), Family Law: Report on Polygamous Marriages.
[1973] Farn. 35. See I. G. F. Karsten, ‘Capacity to contract a polygamous marriage’, 36 MLR (1973) 291.
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© 1977 Olive M. Stone
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Stone, O.M. (1977). Before the Ceremony: The Wedding Ceremony: Void and Voidable Marriages and their Effects. In: Family Law. Palgrave, London. https://doi.org/10.1007/978-1-349-86147-7_2
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