A History of Matrimonial Institutions, Vol. 3 of 3Howard, George Elliott
History
A History of Matrimonial Institutions, Vol. 3 of 3
Howard, George Elliott
Families; Marriage -- History
two or three other cases the statute appears to take their presence
for granted.
[663] BODINGTON'S KELLY, _French Law of Marriage_, 12.
[664] By the law of 1875 marriages are thus celebrated before
the local _Standesbeamten_: KOHLER, _Das Eherecht des bürg_.
_Gesetzbuches_, 16, 17, 55 ff.
[665] Counting Hawaii which was not included in chap. xvi.
The license system is uncertain and complex in many of its features.
To guard against the clandestine marriage of minors, an affidavit
from either the bride or bridegroom ought to be made obligatory in
all cases, instead of leaving its requirement to the discretion
of the officer, as is now usually the practice where there is any
provision at all regarding the matter. In several instances the age
below which parental consent is required is still too low; and the
laws of some states are entirely silent on the subject. Throughout
the country the limit for each sex ought to coincide with the
attainment of legal majority.[666] More care should be taken to
prevent deception when consent of parent or guardian is produced in
writing. At the very least, in harmony with the requirement of many
states, the affidavit of one witness to the signature should always
be made obligatory; and in every such case it might be well as a
guaranty to exact a license bond.[667] There is a still graver fault
in the license laws of nearly the whole country. Nowhere, except in
Porto Rico, is there any adequate provision regarding notice or the
filing and trial of objections to a proposed marriage. Maine and
Wisconsin have each made a start in requiring the certificate or
license to be procured five days before the celebration. No other
state, except New Hampshire[668] and New Jersey in the case of
non-residents, seems to have provided for such a delay; and in all
cases apparently, except Porto Rico, the license is issued at the
time the notice of intention to marry is filed.[669] All this is
contrary to sound public policy. The notice of intention should be
recorded for a reasonable period, say ten days, before issuance of
the license; and during this term it should be officially posted,
and also published in the newspapers--not merely concealed in the
register or published at the discretion of the official, as is
now the usual course. Objections might then be filed, and in case
of need tried in a court clothed with proper jurisdiction, before
the celebration were allowed to proceed. Under the existing state
legislation it would be difficult, certainly awkward, to stop a
proposed marriage on the ground of alleged legal impediments.
To make an objection effective, it might be necessary either to
"anticipate the notice" or to interrupt the nuptial ceremony.[670]
There is also much confusion, and uncertainty regarding the
place of obtaining the license and that of making return. In no
instance is a definite term of residence for either the man or the
woman prescribed; and this is a fruitful source of clandestine
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