Wood County reporter. [volume] (Grand Rapids [i.e. Wisconsin Rapids], Wis.) 1857-1923, 1885-08-20
Washington Star.

Marriages by Consent Are Not Valid ,
Etc,
Washington Star
It is an interesting fact that the law
in this country concerning marriages
by the mere consent Of the parties, or
common law marriages as they are
sometimes called, is, at this advanced
day, still in state Of singular I'M
certainty.
Public attention in this city has
been drawn to the subject by the de-
cision IN the recent divorce case Of
Peck against Peck, published in the
Star, and some account of the law Of
the several states in reference to in
formal marriages may, therefore, be
considered timely. The decision re-
ferred to was to the effect that a mar
riage IN the District of Columbia not
solemnizqd by a clergyman, or other
person duly authorized to perform the
marriage ceremony, was invalid and
null; and IS opposed to what hither-
TO was deemed the settled law of the
district.
Insbut' three states, Kentucky, Mary
land and Massachusetts,, does it appear
to be finally and definitely settled
that g solemnjzatiOu is necessary.
There is, however, but little doubt
quired in Delaware, Maine, North
Carolina, Tennessee, Texas and posi-
bly, Connecticut.
AS concerns the presumptions of
marriage, proof of actual cohabitation
as husband and wife, acknowledgement
and recognition of each other as such
20 friends and the public, and general
reputation Or marriage, except in ac~
tons for criminal conversation, poll
lygamy and the like will suffice to
presume or evidence an actual mar
riage in nearly every community. But
in regard to what constitutes marriage
as contradlstinguished from what
evidences marriage, there is, unfor~
tunately, no such unanimity.
All the states have statutes provid>
ing for and regulating the celebration
of marriages, what permission must
be obtained or notice given before the
ceremony, who May or must perform
it,, what record of the marriage must
be made and by whom, etc., but, with
one or two notable exceptions, these
statutes are merely directory or pros
hibitory, not declaring the marriage
void, nor even implying that it shall
be void, nonconformance with their
provisions. And while it is true in
very many cases that where statute
directs thing to be done in particu
lar way is is void If done IN any other
manner, still, as respects statutes re-
latlng to marriage, this construction
has seldom been adopted. On the
contrary, the doctrine may be said to
be established that unless a statute is
mandatory, unless by express words
it goes to the validity of q marriage,
contains unmistaBable words of multi
ty, it will be construed to affect the
legality of the marriage, and not its
validity. As the Supreme Court says
statutes only prescribe the mode Of
entering into the contract; they do
confer the right, though, without
question, they may take it away, but
then only when express words of null-
ity are used.-Melster VS.. Moore. Sc
u S., rs, 1877.
To illustrate: In Pennsylvania il
was once provided that ''all marriages
shall be solemnized by taking each
other for husband and wife before
twelve witnesses" Marriages were
held to be good not celebrated in ac-
cordance with the statute; and, where
mirage without a license is prohib-
tied, as is the case nearly everywhere,
it is not invalidated on account OF
failure to procure one. For disre
gardipg the statutory requirements,
however, the parties or third persons
are generally involved in penal con-
sequences, as for example, in Mary
land, where the parties and celebrant
are liable respectively to fine OF
800.
In regard to the particular point
whether good and binding marriage
may or may not be constituted By tbs
consent of competent parties, unac
companied by any religious or civil
ceremonies, the states may properly