Clandestine Marriage
It has been difficult
to delineate the boundaries between public and private interest in marriage
law. The public interest is involved in the prevention of clandestine
marriages; in requiring a license or the publication of banns as a condition
precedent to marriage; in requiring parental consent for marriages between
persons of certain ages; and in providing for the registration of marriages
in a public manner. In practice, however, the marriage laws are often a
mixture of functional administrative provisions (such as the requirement for
registration and health certificates), old customs, and religious
ceremonies. Marriage statutes were introduced in modern times to combat the
danger of clandestine marriages, which were possible under the old law in
Europe and England by some form of mutual consent. In addition to direct
proof of consent, a clandestine marriage could be established by engagement
followed by sexual intercourse (matrimonium
subsequente copula)
or by habit and repute marriage (evidence of acceptance in the community as
being married persons). Clandestine marriage was significant at a time when
a man could acquire control over the property of a woman, including absolute
ownership of much of it. The emancipation of women has put an end to the
economic advantages of the clandestine marriage, but the legislation to
which it gave rise has left an impress on the statute books.
