Wiki: ecclesiastical law on marriage

: From The clerk’s assistant in the practice of the ecclesiastical courts, by William Cockburn LL.B, 4th edition, pp108-128, Dublin 1792.

	CHAP. XXV. Of Matrimonial Causes.
Cause fo Contract of Marriage. Sect. 1.	IF a man has contracted matrimony, but has not solemnized it in the face of the church, and the woman denies such contract; he may sue her in a matrimonial cause, or cause of espousals; or, as it is sometimes called, a cause of contract of marriage:
Inhibition.	§2. And if the promovent is afraid that during the suit the woman may contract or solemnize marraige with any one else; he should have an inhibition inserted in the citation against her, that she should not contract marriage during the suit with any one else; nor (if contracted) procure it to be solemnized: §3. And if he thinks of suspects that the impugnant will marry a particular person, he may have an inhibition as well against the party, and that particular person, inhibiting them to marry; as against all others, inhibiting to do any thing to the prejudice or detriment of the cause pending the suit:
Restitution of Conjugal Rites.	§4. If the marriage has been solemnized, and the man forsakes the woman, or the woman the man; they may sue in a cause of restitution of conjugal rites: Adultery prevents restitution, unless a compensation, that is, the adultery of the opposite party, or a remission of the crime be proved: And so does cruelty, and such causes as annul the marriage from the beginning.
Divorce from the tie of marriage, and of Restitution of Conjugal Rites.	§5. If a man has solemnized matrimony with one, and afterwards marries another; if the lawful wife desires to be restored to her husband, she may institute a suit in a cause of divorce from the tie of the second marriage, and of restitution of conjugal rites. §6. And this suit should be instituted against the man and second woman that he married; for sentence of divorce is not valid against her, unless she be cited: And what is said of the man will hold of the woman. §7. Or, if the woman in the second marriage has a mind to have that marriage declared null, she may sue in a cause of divorce from the tie of marriage; and, from the reasons above mentioned, she here should institute the action against the lawful wife.
Persons under the age of Consent solemnizing Marriage may dissent.	§8. If persons under the age of twelve, being females, or under the age of fourteen, being males but above the age of seven years, contract and actually solemnize marriage with each other; either of the parties may dissent to the marriage, when they come to the age aforesaid: §9. And this dissent annuls the marriage, and they may marry a seond, and such second marriage shall be goo; but it is usual to dissent before witnesses, and a notary public before the second marriage; or to sue in a cause of nullity of marriage to obtain sentence for its nullity; although they may marry without it.
After they come to age giving Tokens of consent.	§10. But if after they come to the age of twelve or fourteen years they shew any signs of consent to the first marriage, by letters, by calling husband and wife, and especially by knowing each other carnally, or lying together; they cannot enter into a second marriage:
Marriage valid.	And if either of them does; the other, upon proving the consent, may obtain sentence of divorce from the second marriage, and for the validity of the first: §11. And if the man be above fourteen at the time of marriage, and the woman under twelve; the man may dissent to the marriage as well as the woman: For the consent should be mutual to validate a marriage; and the advantage of disagreement should be reciprocal: And so may the woman in the like case.
Marriages within degrees prohibited.	§12. If marriage has been solemnized between person within degrees prohibited, either party may sue to be divorced from the tie of marriage; or rather should sue in a cause of nullity of marriage.
Jactitation of Marriage.	§13. If a man shall treat of marriage with a woman, or perhaps has entered into a contract in words of the future tense with her, and she afterwards boasts of being married to him: he may sue her in a cause of Jactitation of Marriage; and so may a woman in the like case.
Impotency. Nullity of Marriage.	§14. As matrimony was ordained not only for avoiding fornication, but for the procreation of children; if there be any impotency in either party, not on account of age, but through natural impediments, so that they are prevented from having children; the party grieved has a just cause of nullity of marriage.
Separation from Bed and Board.	§15. If a man behaves cruelly and inhumanly to his wife, by abusing and beating her, or perhaps attempts her life by poison or other means; so that she cannot live in safety with him: she may sue him in a cause of separation from bed and board on account of cruelty. §16. And she may sue in the same manner on account of adultery, and so may the man in both cases vice versa. §17. If the parents or friends of a man or woman, who have been at any marriage contracted, or solemnized between them; or have known or heard of sentence being pronounced for a marriage between them, from which there was no appeal; or if there was, the appeal was deserted; shall (notwithstanding their being present, or their knowing of such marriage) keep and detain the woman; so that she cannot be cited to answer in a matrimonial cause: §18. Or if sentence upon a contract was pronounced for solemnizing the marriage, and she is so concealed by them, that she cannot be convened for the solemnizing of it: §19. Of if they endeavour by threats and persuasions to prevail upon her to deny her marriage, and to alienate her mind and affections from her husband:
Cause of Impediment of marriage.	§20. In any of these cases the man may sue them in a cause of impediment of marriage; and upon proof of the above facts being made, they are to be corrected, and punished at the discretion of the judge, and to be condemned in the costs: A woman in the same circumstances may sue likewise.
Parsons clandestinely married.	§21. If any person have been clandestinely married without license obtained, or banns first published; they may be proceeded against, and compelled to do publick penance by the ecclesaistica judge from his meer office, or office promoted: And by a canon † in force in this kingdom, such persons are obliged to discover the person marrying them, under pain of excommunication; and by virtue of another ‡ canon the clergyman so marrying them (if beneficed) shall be deprived, and if not degraded. [footnote: † Can. 5 of Anne.] [footnote: ‡ Can. 52 Car. I.] §22. See the Irish statutes the 9 Gul. 3. cxxviii. The 2 Ann Sess. 1. c. vi. in part 6 Ann part of c. xvi. 8 Ann. part of c. iii. 12 Geor. I. c. iii. 9 Geor. II. c. xi 19 Geor. II. c. xiii. 23 Geor. II. c. x. against intermarriages with papists, and clandestine marriages. CHAP. XXVI. Of Proceedings in Causes of Jactitation of Marriage.
Causes of Jactitiation of marriage.	Sect. 1. CAUSES of jactitation of marriage are plenary causes; and are of the same nature of causes of defamation; with this to answer the positions of the libel; which cannot be done in causes of defamation: Because no person should be compelled to criminate himself. §2. And if the promovent proves that the party accused had boasted of his or her being married to the promovent; and if the party does not justify it be shewing the marriage, sentence is to be pronounced for the promovent: And that the impugnant rashly and unjustly boasted of such marriage; and perpetually silence is to be imposed upon him, and he is to be condemned in the costs.
Justifying the Jactitation.	§3. If the impugnant intends to justify the jactitation, he may on the day assigned him, or his proctor, to answer the libel, before contestation, give in his allegation; alledging the marriage instead of an answer; and under a protestation of the nullity, ineptitude, too great generality, obscurity, and undue specification of the said libel should contest it negatively. §4. The promovent should accept this allegation as far as it makes for his party; but as far as it makes against him should dissent by denying it to be true. §5. For such an allegation proposed frees the promovent from the burden of proving the jactitation: For if the impugnant does not prove his justification, sentence is to be pronounced against him, that he has failed in the justification, the the promovent has proved his libel, and silence is to be imposed upon the impugnant; and he is to be condemned in costs. §6. But if he proves his justification, sentence is to be pronounced for him, that the promovent has failed in the proof of his libel; and also sentence given for the marriage alledged: And the promovent is to be condemned in costs.
Defensive matter.	§7. A defensive matter, by way of justification, may be also given after contestation of suit; but if it be contrary matter, it should be proposed before the publication of the depositions of promovent's witnesses upon the libel: That the exception, that directly contrary matter is not to be proposed after publication, should have no place; although it is a question, whether in matrimonial causes, as they are favourable causes, such matter may not be proposed? §8. And if he proves his justificatoin, he is to be absolved: And it is likewise held, that if he proves the marriage, altho' it be alledged after contestation, he shall obtain sentence as before * pronouncing for that marriage; as if (as above†) it was alledged before contestation: [footnote: * Sect. 6.] [footnote: † Sect. 3.]
Contrary Matter after Publication.	§9. But if in the libel neither the certain time, or place, in which the words of jactitation were spoken are mentioned; but some time in general, as such a month or months: contrary matter may be proposed; because before publication the impugnant could not defend himself against so general an allegation; Which he may do after publication. §10. For instance, If the witnesses swore that the words were spoken in a certain place, at a certain time; he may prove that he was in another place at that time; or that such words were not spoken at that time; or that he was married to the promovent before that time.
Suit for marriage.	§11. It is the opinion of sime, that the impugnant may, during the suir for jactitation, commence a suit for his marriage, in a matrimonial cause, against the promovent, before the same judge, or another; and not alledge his marriage in justification as before: §12. But this at least argues malice in the impugnant, and an intentio to load his adversary with great expences: And it was formerly held improper, because two contrary sentences may be pronounced in such case by the same judge. CHAP. XXVII. Of Proceedings in a Matrimonial Cause.
Inhibition.	Sect. 1. IF the promovent imagines that the impugnant will contract, or solemnize marriage, with some one else, while the cause depends; he may have an inhibition inserted in the original citation against the impugnant to prevent it; and also an intimation in general, against all others, with an inhibition inhibiting them to do or attempt any thing to the prejudice of the cause, under the penalty of the law, and contempt thereof:
Intimation.	§2. Or rather a particular intimation and inhibition should be published in the parish church of the party at the time of divine service to that purpose; either the time the citation was served, or before the return of it: And then any person solemnizing marriage with the party after that, may be punished for contempt: Because his knowledge of that cause depending is presumed; and he could not be punished before such inhibition was published, if he was ignorant of the cause. §3. If the party suing in a matrimonial cause, sees that the impugnant is concealed, or has left the kingdom; and is afraid that his witnesses will die before they are examined; he should have such impugnant sought after in the usual place of his, or her abode, among his or her relations, and neighbours.
Citation by Ways and Means.	§4. And if upon such citation the party is not to be found, a citation by ways and means should go; and upon its being executed and certified the party should be excommunicated, and denounced as such in the parish church. §5. And a week or two after such denunciation, the promovent of his provtor should alledge that all possible diligence has been used personally to cite the impugnany; and in paid of his contumacy in not appearing upon the citation Viis et Modis that he was excommunicated; and denounced as such; as appears from the proper certificate and denunciatory letters, which he shall exhibit: §6. And notwithstanding such excommunication and denunciation, that such party lies concealed, or has left the kingdom to delay justice and to avoid the suit; and that his wittnesses are so weak and infirm, that their lives are in danger, and that through length of time, and infermity of age, they may forget the words of the contract.
Publick Edict.	§7. Whereupon he prays that the impugnant be cited by publick edict (to be affixed on the doors of his parish church; or the publick change where merchants resort) to appear within a certain time (not less than thirty days) to answer the promovent in a matrimonial cause, to see a libel given in; a term assigned to prove it; witnesses produced, sworn and examined thereon; publication of their depositions; to propose his defence; or exception; and to see a term assigned to hear sentence, and sentence pronounced; and to be present, and attend every court day until definitive sentence be given: §8. And an intimation should be inserted in the same citation, that the judge intends to proceed (notwithstanding the party's absence, or rather contumacy) to each particular specified as above: §9. And the citation being returned, the party and the service proved or certified; the party should be thrice called, and not appearing, pronounced contumacious: And they should proceed to each particular in pain of his contumacy. §10. The certificate of the original mandate should be continued from day to day, that there be no discontinuation in the cause†. [footnote: † See Chap. vii. Sect. 13. 14.] §11. But the safest method would be (after the witnesses are produced, and examined) to cite the party impugnany to some particular effects; as to see the publication of witnesses; and to propose his exceptions against them if he has any, or any other matter he pleases: And also to see a term assigned for sentence, and to be present at sentence: with intimation as before.
Commission for examination of witnesses.	§12. If the witnesses cannot be produced in court, and a commission for their examination be necessary, a particular citation should go to cite the impugnant to appear before the commissioners at a certain place, and a fixed time, to see witnesses produced, &c. with intimation as before.
Sequestering the woman.	§13. Upon the promovent's swearing that the woman remains among her relations and friends, who are averse to the marriage; and restrain her in such a degree, that she is afraid to confess the truth; she may be sequestered some days before her examination to any matter alledged by him: §14. Or she may be sequestered during the whole suit, upon proper reasons alledged: As upon her marrying another notwithstanding the inhibition to the contrary; and the man and she so marrying are to be punished at the discretion of the judge: Or when a woman is sued by two for their wife: Or if, after sentence be given against the marriage, and there is an appeal upon that sentence, she marries another pending the appeal: Or upon the cruelty of an husband she may be sequestered; and depositied in a proper place that is indifferent to both parties; at the expence in all cases of the party praying the sequestration. §15. The promovent or his proctor (if she is to be examined) may go to her at proper times, and read over the articles she is to be examined upon to her, and admonish her to declare the truth: And sequestration is usually granted on the allegation of the proctor, without the oath of the party.
Monished to undergo the sequestration.	§16. And she is to be monished to undergo the sequestration, and (if the judge thinks fit) inhibited personally to marry another during the suit.
Sequestrators.	§17. And persons are usually named on both sides with whom she is to remain; and the judge usually appoints one of them sequestrator, if there be no exceptions against him; and if there be, the judge appoints one himself: And it is held in such cases, that the personal answer should be taken privately, as the depositions of witnesses, and not drawn by the proctor. §18. But the woman solemnizing marriage during the suit, if the man she so married knew nothing of the suit; is not to be sequestered: because he should not be punished on her account, and for her fault: §19. But if a general inhibition was published as laid down in the beginning of this chapter, his knowledge of the suit is presumed; and she is to be sequestered.
Marrying another guilty of contempt.	§20. If a person inhibited marries another, while the matrimonial suit depends; as soon as the judge has knowledge of it, he should proceed against him for contempt: for the contempt is the same, whether the contract be proved, or not: §21. And if proctor or advocate advised such marriage, he should be suspended at the discretion of the judge: The consession of his client is just and sufficient evident of his advising it, and cause for his suspension; unless he purges himself from such charge. §22. It is questioned whether that marriage clandestinely solemnized during the suit be valid; and it would be the most effectual stop to such proceedings, if such marriage were annulled: §23. But how far the 33. of Hen. VIII. Sess. v. c. vi. † interferes here, will appear from the words of it; which are "that all marriages contracted between parties not prohibited by God's laws, being solemnized in the face of the church; and consummate with bodily knowledge shall be good and lawful notwithstanding any precontract before the time of this marraige without consummation." [footnote: † 32 Hen. VIII. c. xxxviii. En.]
Witnesses may be produced after publication.	§24. Witnesses may be produced after publication (without an allegation that they came since that to the knowledge of the party) at any time in the suit: And thogh sentence be pronounced, and the impugnant dismissed; yet the promovent may institute a new cause from the same contract, or another; and produce the same proofs, or others that he knew, or did not know before: for this is a privileged and a favourable cause.
Alimony.	§25. In every cause in which the wife sues the husband, or the husband the wife; as soon as it appears to the court that marriage was solemnized between them; the proctor for the wife should alledge that the marriage appears, and pray that the expences of the suit and alimony be assigned her: §26. The judge (the proctor giving him a schedule of the expences, and the adverse proctor having a copy of it, that he may make what objections he pleases to it) shall tax it. §27. And afterwards (the circumstances of the husband appearing) shall assign her alimony according to the husband's condition, at a certain sum per week, to be paid during the suit, from the time of the service of the citation; unless it shall be otherwise decreed by the judge: §28. And it is the most just way to assign alimony from the time citation was served, or returned; and not from the time it was issued: Because it may lie some time without being served: And the husband may alledge his poverty and prove it, if the taxation be too great. §29. The proctor for the wife should alledge, and propound in the libel, the money or substance given as a portion with her, and the value of the husband's assets and possessions, that it may appear to the judge what alimony he is to assign her from the husband's personal answer which may be had to the libel: §30. Or his neighbours may be examined viva Voce in a summary way with respect to his circumstances; and the judge shall assign a third, or at least a fourth part of the yearly value of his real estate: or if he has none, he shall be taxed according to his dignity, and the common fame of his personal fortune; and a monition shall issue for the payment of the sum taxed. §31. And although the husband alledges that his wife is an adultress, or that she had elsewhere to maintain the suit, and to support herself, and although his witnesses produced prove this: yet it is held by some that notwithstanding all this, alimony shall be assigned, unless they had concluded in the cause: for that nothing is proved as long as any thing can be objected on the adverse side, or before sentence, but quoere? §32. If the promovent, in a matrimonial cause, shall prove the contract by one witness beyond all exception, and the treating upon it by others: or a recognition and acknowledgement of the contract by both the parties present by two witnesses: §33. Or if one of the parties be absent, if the treating of the marriage be proved: or if he proves a contract in words of the future tense by 2 witnesses, and the treating upon it by the fame or other witnesses. §34. if he proves a marriage in words of the present tense by two witnesses, and such proofs are invalidated by lawful exceptions unknown to the party producing them:
Adversary condemned in Costs tho' obtaining Sentence.	§35. Or if his witnesses proved of no use by reason of a prior contract, or marriage, or a subsequent marriage solemnized during the suit: In any of these cases his adversary is usually condemned in the costs expended by him.
Promovent absolved.	§36. And if the treating of the marriage, and the giving and receiving of a ring be proved; the judge usually absolves the promovent from the costs of suit.
Sentence executed.	§37. When sentence is pronounced for a marriage; the impugnant should be cited to shew cause why sentence should not be executed: and after sentence is ordered to execution, a monition issues against the party to solemnize such marriage within a certain day appointed therein; or to appear the court day after to shew cause why he should not be excommunicated.
Monition.	§38. But the present practice is, that after the tinme for appealing lapses, a monition be issued against the party, to solemnize the marriage within a fixed day after he be served with it; under penalty of excommunication pronounced upon him in such monition in default; if such marriage be not solemnized within that time: and an order for denouncing him excommunicated in that case is contained in the said monition.
Marriage to be solemnized.	§39. And the party requiring the solemnization of the marriage should procure a licence for it; and the adverse party should be applied to appoint a day for the celebration of the marriage: and if he will not, the promovent should appoint one, and signify it to the impugnant, if to be found; or otherwise protect concerning it before witnesses. §40. And on the day appointed he should go to the church where the marriage is to be solemnized and should have the clergyman ready, and wait the coming of the impugnany; (who not coming) the promovent should protest before witnesses concerning his being present; and diligence in endeavouring to have the marriage solemnized.
Return of Monition.	§41. On the day assigned to return the monition, the service of it being certified, and (for the greater security) the other things as above † being proved by the party; the party impugnant not appearing to alledge any cause why he did not solemnize the marriage is in penalty of his contumacy to be excommunicated: and afterwards to be proceeded against as in other causes. [footnote: † Sect. 39. 40.] §42. Or, as it is at present, forty days after he has been denounced excommunicated according to the tenor of the monition; the service of it should be certified, and the denunciation of the party proved.
If Contumacious to be excommunicated.	§43. The proctor should alledge that he stood out excommunicated for forty days, and pray that the judge may signify for the writ De Excommunicato Capiendo; and if the party be imprisoned upon it, and alledges that he is ready to solemnize the marriage, the judge of his surrogate shall go to him to administer the oath for obeying the laws ecclesiastical; or shall grant a commission for that purpose: and he shall be absolved only to a day certain; and sufficient caution shall be taken from him for the performance of the marriage. §44. But if after he is at liberty he will not solemnize the marriage; it is a question whether the judge can by virtue of the former excommunication and denunciation write for the writ De Excommunicatoe Recipiendo; as he was only absolved to a day. Or whether he is to be monished, excommunicated, and denounced as before; and this is certainly the safest way: And the judge may assign over his bonds to the party injured. CHAP. XXVIII. Of Causes of Divorce.
Sentence in Causes of Divorce.	Sect. 1. IN causes of divorce, and nullities of matrimony, sentence shall not be pronounced upon the sole consession of the parties, however taken upon oath: And circumspection and caution should be used in sifting out the truth by the depositions of whitnesses; or other lawful means; for it often happens that persons willing to separate make consessions for that purpose †. [footnote: † See Can. 53. Car. I.]
Parties separated not to marry during each others Lives.	§2. And it shall be inserted in all acts of sentences for separation a Thoro et Mensa‡, that the parties shall not marry, by live chastely during each others life; and sufficient caution and security shall be given (before sentence be pronounced) by the party or parties requiring the divorce that they will not transgress such prohibition. [footnote: ‡ See Can. 55. Car. I.]
Compensation.	§3. If the impugnant proves that the promovent likewise committed adultery, there is a compensation of the crime: and there shall be no separation.
Injury forgiven.	§4. Or if the impugnant proves that the promovent had knowledge of the crim committed; or was probably acquainted with it, and afterwards was reconciled to, and had carnal knowledge of the party; no sentence for separation shall be given; because the injury was forgiven. §5. Such is a probable knowledge, as if the husband suspecting the wife accused her, and she confessed the crime: Or if the witnesses produced told the husband some time before the suit was instituted, that they were eye-witnesses, and could swear to the fact. Or if the husband caught her in the act of adultery.
Impotency.	§6. In causes of divorce for impotency upon petition of the aprty alledging the defects; the judge may compelt the man (if he be the person alledged to be defective) to appear in a certain place; and subject himself (if the defects be visible) to the inspection and examnination of skilful person, physicians, &c. who shall (having first been sworn diligently to inspect) return the defect or disorder to the court, and that it is in their opinion incurable; if they think so. §7. It should be also alledged on the part of the woman, that she is young, fit for procreation of children, and thay they lived, and lay together for three years; and although desirous of it, yet she was never known by her husband. §8. But if the impotency appears immediately three years continuance together is not neccessary. §9. If the defects do not appear plainly, she (besides the allegations mentioned) should alledge that she is a virgin untouched, and not known by any one.
Sentence for nullity.	§10. And to prove this, midwives and experienced matrons are to be produced, and sworn to inspect her, and if they return upon oath that she is a virgin, upon the concurrent circumstances of her being young, and living together for three years, &c. sentence shall be pronounced for the nullity of such marriage.

ecclesiastical law on marriage

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