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living, unless the former marriage has been annulled or has been dissolved for a cause other than the adultery of such person about to assume the contract.

A marriage cannot be had between an ancestor and a descendant; or a brother and sister of the whole or half blood; or between an uncle and a niece, or an aunt and a nephew.

2. Solemnization. The marriage ceremony must be performed by either of the following: A clergyman, minister or priest of any religion; or by a leader, or either of two assistant leaders, of the Society for Ethical Culture in the Borough of Manhattan in the City of New York; by the leader of such society in the Borough of Brooklyn; or by a mayor, recorder, alderman, city magistrate or police magistrate of a city, except in cities of more than one hundred thousand and less than one million inhabitants the marriage shall be solemnized by the mayor or police justice; or a justice or judge of a court of record, or of a municipal court, a police justice or justice of the peace of a city except in cities of the population above named the justice of the peace has no such power.

The marriage may also be entered into by a written instrument or contract of marriage signed by both parties, and by at least two witnesses who shall subscribe the same, stating the place of residence of each of the parties and of the witnesses, and the date and place of such marriage. The instrument must be acknowledged by the parties and the witnesses in the same manner that a deed or other instrument conveying real estate is required to be acknowledged, except that such acknowledgment can only be made before a judge of a court of record. Such contract must be recorded within six months after its execution in the office of the clerk of the county in which the marriage was so solemnized.

In the solemnization of the marriage contract no particular form or ceremony is required, the parties

only being required to declare in the presence of the clergyman, magistrate or witnesses that they take each other as husband and wife. In every case, however, at least one witness besides the one performing the ceremony must be present thereat.

3. License. Before a marriage is solemnized a license must be obtained from the town or city clerk of the town or city in which the woman to be married resides, but if the woman or both parties are non-residents of the State the license shall be obtained from the clerk of the town or city in which the marriage is to be performed. The license must be delivered to the clergyman or one who officiates before the marriage can be performed.

A marriage, however, as between persons of full age without the license will not be void, nor will such marriage between minors of the age of consent or with a minor under the age of consent be void, if the consent of the parent or guardian has been given. Such a marriage will be, for such cause, voidable only as to minors or such minor, upon complaint of the minor or minors or of the parent or guardian thereof.

The person solemnizing a marriage, however, without such license being presented to him will be guilty of a misdemeanor and punishable therefor.

4.Common law rule.-Prior to the laws of 1901, common law marriages, or a marriage contracted pursuant to the requirements of a religious society to which the parties, or either of them, belonged was recognized as valid. In 1901 the law was so amended that a marriage contracted or solemnized in any manner within the State after January first, 1902, other than in accordance with statutory requirements, or according to the regulations or requirements of a religious society above named, was invalid.

In 1907, the law was so amended that thereafter common law marriages were again recognized as valid. The act of 1909, requiring a written contract

of marriage, in the absence of a ceremony either before a minister or magistrate, in effect abolishes common law marriages from and since February 17, 1909.

5. Void marriage.-A marriage is absolutely void if the woman has a husband or the man a wife living by a former marriage unless, either-the marriage has been annulled or dissolved for a cause other than the adultery of the person contracting such subsequent marriage; or the former husband or wife has been finally sentenced to imprisonment for life; or, the former husband or wife has been absent for five successive years then last past without his or her whereabouts being known to the person contracting the subsequent marriage, and without being known to such person to be living during that time.

After a divorce has been granted on the grounds of adultery, known as the Statutory grounds, the innocent person may again marry, but the defendant or guilty person cannot, in this State, make a valid promise of marriage during the lifetime of the one who obtained the divorce, unless the court which granted the divorce shall modify such judgment in that respect, which it may do after five years have elapsed since the divorce was granted, upon satisfactory evidence that the conduct of the defendant during that period has been uniformly good. The parties to the divorce action are not however precluded from remarrying at any time.

A marriage, however, contracted in another State where such prohibition against marriage does not exist, will be recognized as valid in this State if valid in such other State.

Absence to render the second marriage valid must be a bona fide absence of the absconding party from the State, and without being known to the other party to be living. A couple cannot by mutual understanding separate, and take no steps to hear from each other, or inquire from friends or relatives where the other is, or whether living

or not, and then after the lapse of five years contract a new marriage relation that will be valid.

A marriage contracted while a former husband or wife is living, though after an absence of five years, is not regarded as valid for any purpose concerning property, other than that of preserving the inheritance of the offspring of such subsequent marriage, from the competent parent. As to the rights of the wife in the property of the second husband, the second marriage is in effect illegal, and the woman can have no dower in the property of the second husband.

6. Voidable marriages.—A marriage is void, in either of the following cases, only where an action has been brought in a court of competent jurisdiction on account of one or more of such causes and has been declared null by the court: Where either party thereto is under eighteen years of age; or incapable of consenting to a marriage for want of understanding; or incapable of entering into the marriage state for physical cause; or consents to such marriage by reason of force, duress or fraud; or has a husband or wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years last past without being known to such party to be living during that time.

In an action to annul a marriage for physical incapacity, the alleged incapacity must have existed at the time of the marriage and must still continue and must be incurable. Mere sterility can in no case form a sufficient ground for a decree of nullity. A woman who has had the ovaries removed by a surgical operation is not incapable of entering into the marriage state. Possession of the organs necessary to conception is not essential so long as there is no impediment to the indulgence of the passions.

It is impossible to state any general rule as to what would constitute fraud and duress sufficient in each case to procure a judgment declaring a mar

riage a nullity for that reason. An examination of the decisions in cases where actions have been brought to annul a marriage on such grounds will disclose many reasons which have satisfied the courts, and many alleged grounds which the courts have declared to be insufficient.

It will be noted that while a marriage contracted after an absence of five years of a living husband or wife is not in itself void, that it is nevertheless voidable, and it would be far from safe to contract a marriage where such circumstances exist.

7. Action to annul.-An action may be maintained by a woman to procure a judgment declaring a marriage contract void and annulling a marriage for either of the following causes: (a) Where at the time of the marriage she had not attained the age of sixteen years. (b) Where the marriage took place without the consent of her father, mother, guardian, or other person having the legal charge of her person. (c) Where the marriage was not followed by consumation or cohabitation, and was not ratified by any mutual assent of the parties thereto, after she attained the age of sixteen years. While the Domestic Relations Law declares the age of consent to marry to be eighteen years, the provisions of section 1742 of the Code of Civil Procedure, providing for an action to annul a marriage for the reasons above noted fix the age at sixteen.

An action may also be maintained to procure a judgment declaring a marriage contract void and annulling the marriage for either of the following causes existing at the time of the marriage: (a) That one or both of the parties was under the age of legal consent. (b) That the former husband or wife of one of the parties was living, and that the marriage with such was then in force. (c) That one of the parties was an idiot or a lunatic. (d) That the consent of one of the parties was obtained by force, duress or fraud. (e) That one of the parties was physically incapable of entering into the marriage state, and that the incapacity continues

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