The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1892-09-23
WHAT FORMS ARE ESSENTIAL
Laws Relating to Marriage and
Their Effect Discussed.
Marriages without Witnesses, Writ
ing or Ceremony Valid In New
York, Invalid in Some Other States.

nowhere else in the world, it is possible
for man and woman to become hus-
band and wife without getting married at
all. The Territorial Legislature passed a
law in 1887 declaring that parties who
have lived together as man and wife for
year shall be considered as having been
legally married, and if either die within
the year the same result follows, and the
children are declared legitimate. Thus
by mere lapse of time union mere
tricious in its inception becomes legal
matrimony.
Many people apparently imagine that
this singular provision OF Law exists III
this State and that mere residence to-
gether is sufficient substitute for a
formal ceremony. AS matter of fact,
marriage is regarded in this State as a
civil contract, and it is absolutely essen
tial that the contract should be made be-
lore the marriage is binding.
The highest tribunal in the State has
decided that "a man and woman with
out going before minister or magistrate,
without the presence of any person as
witness, with no previous public notice
given, with no form or ceremony, civil or
religious, and with no record or written
evidence of the act and merely by words
OF the present, may contract matrimony."
The courts recognize the existence of
the right to enter into the marriage agree
ment IN whatever manner the contracting
parties see tit as fundamental principle.
1t is, however, very imprudent to con-
tract marriage without witnesses or
written evidence, as after the death of one
OF the parties 1t may be impossible to es-
tablish it by proof.
MUST USE THE PRESENT TENSE.
To make the marriage valid it is essen
tial that the agreement should be made in
words of the present tense. 1t must be,
II now take this woman whom L hold by
the hand to be my lawful welded wife,
and II now take this man to be my law
full husband 4 contract Of this kind is
binding. If the agreement is, Il will
take this woman as my lawful wife, it is
held to be merely betrothaI.
The most important testimony that can
be obtained in support OF a non-ceremonial
marriage consists of the subsequent con-
duct of the couple. Ii the man and
woman live together as husband and
wife and give themselves out as such,
and particularly if they have children,
the courts will weigh all these circum-
stances.
Where ceremony is performed by
minister an affirmative answer to the
questions from each of the contracting
parties is necessary to bind them in we'd
lock.
As marriage and divorce laws differ
more or less in all the States and Terri
tories, 1T will not do for people living out
side the State of New Y ork to follow the
formula l have given for a valid COM
mon law marriage without first ascer-
tanning what the law is in their State
A case that come before Judge Dugro
of the Superior Court last week illustrates
tins point. a young woman put in a
claim for dover in the estate of Carl AK, a
wealthy Southern tobacco manufacturers
few years ago, claiming to have been
married to him by agreement at Louis
Vile. In Kentucky, as in Delaware and
connecticut, the right of persons to marry
themselves Is taken away by express
provisions of law, and she was told to 90
about her business. She now sues to re-
cover dover in the estate of Jacob Hal
stead, New Yorker, to whom she claims
to have been married in the same man
ner. Ii she can substantiate her claim
this time she is entitled to the money.
STATE LINES, NOT MORAL ETHICS.
What would be perfectly valid mar
riage in this State would be absolutely
void if contracted in Kentucky. To q
great extent, consequently, the social
status Of the family and the propertv
right incidental to the marriage state de-
pend upon State lines rather than upon
any particular law of moral ethics.
either of the parties is incapable for want
of age or understanding of consenting to
marriage, or incompetent from physical
causes of entering into the marriage
state, or when the consent of either party
has been obtained by force or fraud. the
marriage is void from the time it's nul-
lily has been declared by court of COM
petent authority. The legal age of con
sent for contracting marriage is Is wears
for youths and Is years tor girls. Mar
riages between parents and children.
grandparents and grandchildren and be-
tween brothers and sisters of the half as
well as of the whole blood, are declared
to be incestuous and absolutely void.
AS a common law marriage is of the
same effect in this State as a ceremonial
marriage it follows that the bigamv laws
relate equally TO both. A person who
having husband or wife living marries
another is guilty of bigamy unless it can
he shown ~ that the former husband or
wife has been absent five years success
lively without being known to the accused
within that tine to be living and being
believed by the accused to be dead: or ~
that the former marriage has been pro-
nounced void, annulled or dissolved bv
the Judgment OF court of competent
jurisdiction for a cause other than the
adultery of the accused; or ~ that the
accused. IL divorced for his or her adult
cry, has received from the court which
pronounced the divorce permission to
marry again; or a. that the former hus-
band or wife has been sentenced to inn
priSonment for life.
A single man or woman who know
ingly marries a person who cannot con-
tract marriage without bigamy is pun
ishable under the law by Imprisonment
for not more than five years or by a fine
of not more than $1,000, or both.
WHEN REMARRYING Is ALLOWED.
When an absolute divorce has been
granted in this State the guilty party may
not marry again until after the death Of
the innocent party, unless the innocent
party has remarked and five years have
elapsed since the divorce was granted
and the conduct of the guilty party has
since that time been uniformly good,
when the court in which the decree was
granted may modify it by allowing the
guilty party to remarry. The marriage
of the guilty party in New York without
having the disability removed is bigamy
and punishable as such. The plaintiff
and defendant in a divorce suit are at lib
erty to remarry after a decree if they
deem proper.
1t is scarcely necessary to say, in view
OF the many conspicuous examples that
have been offered, that If a person against
whom divorce has been obtained in this
State wishes to contract a second mar
riage in New Jersey he or she may do so
with IMMUNITY. Then the charge OF big
amy would not lie and the second mar
riage would be regarded as valid here as
we'll as in the State where it was cele-
brated.
/ shall note in passing that in cases
where the divorced husband is directed
by the court 10 pay alimonY he must con-
tinue to do so, even if his divorced wife
and he both contract second marriages.
THE RIGHT TO MARRY.
While in some States the man and