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Consensus non concubitus facit matrimonium ; Consent not concubinage constitutes marriage ; Consent ire non possunt ante annos nubiles

They are not able to consent before marriageable years

Marriage under this rule of the civil law, is a civil contract, such contract being the present consent to the present marriage, as differing from the present consent to the future marriage, of the parties ; without which consent there can be no valid marriage, but with which consent the marriage is at once complete and indissoluble : and to give such consent the parties must be of proper age, as in the latter maxim, other- wise the marriage is void as to such one who is not of such proper age, at his or her election, on attaining such proper age. The marriageable age in this country is of males fourteen, and of females twelve years.

That consent should constitute marriage, is the rule adopted by the whole human race, civilised and uncivilised, and this consent can be controlled only by some infirmity of body or mind. Different countries have different usages with regard to the ceremonies to be performed at the celebration of marriage ; but consent is everywhere, and only, absolutely necessary to constitute a natural and legitimate union.

“With regard, however, to the rights of persons contracting marriage, and their offspring, to property, and the benefits of the laws of the nation of which they are members, those rights are governed by those laws ; and those laws differ more or less in every nation. The law of England, though treating marriage as a civil contract, has at all times (until recently) required, in addition to such contract, the observance of certain religious ceremonies in the celebration of it, the principal of which was that the service should be performed by a clergyman of the Church of England, and also that the relationship of the contracting parties should be limited within certain degrees of kindred. The prohibited degrees of kindred are those set out in the Book of Common Prayer, and the ceremonies to be observed in the celebration of marriage are those also there set out ; and they do now form part of the civil or common law of the country, being such as are observed by the members of the Church of England.

The Legislature has, however, at all times been ready to interfere to relieve the consciences of the weak ; and for this purpose many statutes have been passed whereby the ecclesiastical or religious part of the ceremony is rendered unnecessary, and the marriage is, for those persons, simply and truly a civil contract ; subject as to both person and property, however, to the ordinary common and statute laws of the realm.

The law of marriage in Scotland differs materially from that in England. In Scotland the present consent, per verba de prcesenti, serious, deliberate, and mutual, constitutes a valid and binding marriage. So does a future promise with a subsequent copula connected with that promise and taking place on the faith of it, per verba de futuro subsequente copula ; both the promise and copula must, however, be in Scotland. And this consensus in Scotland may be proved either by evidence of the actual exchange of consent or by the aid of a presumption of law ; as, where there is proof of an antecedent promise of marriage, followed by copula which can be referred to the promise, which is a presumptio juris et de jure that at the time of the copula there was matrimonial consent.

6 Co. 22 ; 2 Bla. Com. ; The Queen v. Mfflis, 10 CI. & Fin. 534-907 ; Honyman'a Case, 5 Wils. & S. 144 ; Dalrymple's Case, 2 Hag. 105 ; Brook v. Brook, 30 L. T. 183 ; Beamish v. Beamish, 6 Ir. Law Rep. 142 ; Inglis u. Rohertson, 3 Craigie, S. & R. 53 ; 26 Geo. 2, c. 33 ; 4 Geo. 4, c. 76 ; 6 & 7 Will. 4, e. 85 ; Hoggan v. Craigie, McLean & Rob. 942 ; Thelwall v. Yelverton, 14 Ir. C. L. Rep. 188; Yelverton v. Longworth, 11 L. T. (N.S.) 118.

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