A History of Matrimonial Institutions, Vol. 2 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 2 of 3
Howard, George Elliott
Families; Marriage -- History
Such remained the state of the law until the appearance of Lord
Lyndhurst's act in 1835.[284] This statute declares, because "it
is unreasonable that the state and condition of the children
of marriages between persons within the prohibited degrees of
affinity should remain unsettled during so long a period" as the
joint lives of the parents, therefore "all marriages which may
hereafter be celebrated between persons within the prohibited
degrees of consanguinity or affinity" ought to "be _ipso facto_
void, and not merely voidable;" and accordingly it is so enacted.
With respect to existing unions of this kind a distinction is
made between "affinity" and "consanguinity." Marriages within the
forbidden degrees of affinity already celebrated may not "hereafter
be annulled for that cause by any sentence of the ecclesiastical
court," unless pronounced in a pending suit; while existing
marriages within the prohibited degrees of consanguinity are not so
exempt.[285] Voidable wedlock in the sense here employed[286] thus
disappears from the English law, except in those minor cases where
"canonical" impediments are still recognized.[287]
[Footnote 284: 5 and 6 W. IV., c. 54; also in HAMMICK, _Marriage
Law_, 281. Compare HANSARD'S _Parl. Debates_, 3d series, XXXVIII,
203-7; XXX, 661, 662. In general, see GEARY, _op. cit._, 10, 11,
32; BURN, _Ecc. Law_, II, 501_c_-501_e_; HAMMICK, _op. cit._,
32, 33, 23; ERNST, _Marriage and Divorce_, 183, 184; LUCKOCK,
_Hist. of Marriage_, 300-307; JEAFFRESON, _op. cit._, II, 264-66;
BISHOP, _Marriage, Divorce, and Separation_, I, §§ 288, 289, 753;
_Tracts Issued by the Mar. Law Defence Union_, II, 91-104.
The act extends to Ireland. "By the law of Scotland the
distinction between void and voidable marriages was never
recognized, all marriages within the prohibited degrees being
void _ab initio_."--HAMMICK, _op. cit._, 33 n. _a._]
[Footnote 285: This liberal exception, mainly in favor of
existing unions with a deceased wife's sister, is of course
denounced by writers such as LUCKOCK, _op. cit._, 305, as a
"mischievous concession and compromise principle."]
[Footnote 286: For the special senses in which the term is used
see the discussion of BISHOP, _op. cit._, I, §§ 252-92, already
cited.]
[Footnote 287: The only surviving canonical impediment for which
a marriage may be voidable, but not void, is impotence. The same
principle is also applied to marriages secured by force: GEARY,
_op. cit._, 34, 203 ff., 212; HAMMICK, _Marriage Law_, 48, 49.]
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