Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870

MATRIMONIAL CAUSES AND MARRIAGE LAW (IRELAND) AMENDMENT ACT 1870

CHAPTER CX.

An Act to provide for the administration of the Law relating to Matrimonial Causes and Matters, and to amend to Law relating to Marriages, in Ireland. [10th August 1870.]

[Preamble recites 32 & 33 Vict. c. 42.]

Short title.

1. This Act may be cited for all purposes as “The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870.”

[S. 2 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Limitation of Act.

3. This Act shall apply to Ireland only.

Interpretation.

4. In this Act—

32 & 33 Vict. c. 42.

The term “bishop of the said Church” shall include any person who for the time being may succeed to the exercise and discharge of the episcopal functions of any person who at the time of the passing of the Irish Church Act, 1869, was a bishop thereof :

The term “clergy and laity of the said Church” shall include clergy and laity in communion with bishops of the said Church :

The term “Protestant Episcopalian” shall mean a member of any of the churches following; (that is to say,)

The said Church, the Church of England, the Episcopal Church of Scotland, and any other Protestant Episcopal Church.

Part I.

Matrimonial Causes and Matters.

[S. 5 rep. 46 & 47 Vict. c. 39. (S.L.R.) S. 6 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Former matrimonial jurisdiction of ecclesiastical courts to be exercised by the Court.

7. All jurisdiction now vested in or exerciseable by any ecclesiastical court or person in Ireland in respect of divorces a mensâ et thoro, suits of nullity of marriage, suits for restitution of conjugal rights or jactitation of marriage, and in all causes, suits, and matters matrimonial, except in respect of marriage licences, shall belong to and be vested in Her Majesty, and such jurisdiction shall be exercised in the name of Her Majesty in a court of record, to be called the Court for Matrimonial Causes and Matters.

Judge of Court of Probate to be judge of Court.

8. The judge of the Court of Probate shall be the judge of the said Court for Matrimonial Causes and Matters, and shall have full authority to hear and determine all matters arising therein.

[S. 9 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Sittings of the Court.

10. The Court for Matrimonial Causes and Matters shall hold its sittings in the court from time to time appointed for the hearing of causes in the Court of Probate in Ireland.

Seal of the Court.

11. The Lord Chancellor shall direct a seal to be made for the said Court for Matrimonial Causes and Matters, and may direct the same to be broken, altered, and renewed at his discretion; and all decrees and orders, or copies of decrees or orders of the said Court, purporting to be sealed with the said seal, shall be received in evidence without further proof thereof.

Officers of the Court.

12. The registrars and other officers of the principal registry of the Court of Probate shall be also the registrars and officers of the said Court for Matrimonial Causes and Matters, and shall attend the sittings of the said Court for Matrimonial Causes and Matters, and assist in the proceedings thereof, and discharge in connexion therewith such duties as the judge of the said Court shall direct; and the principal registry of the Court of Probate shall also be the registry of the Court for Matrimonial Causes and Matters.

Court to act on the principles of the ecclesiastical courts.

13. In all suits and proceedings the said Court for Matrimonial Causes and Matters shall proceed and act and give relief on principles and rules which, in the opinion of the said Court, shall be as nearly as may be conformable to the principles and rules on which the ecclesiastical courts of Ireland have heretofore acted and given relief, but subject to the provisions herein contained, and to the rules and orders to be made by the said Court under this Act.

Judge of Court may sit in chamber.

14. It shall be lawful for the judge of the said Court for Matrimonial Causes and Matters for the time being to sit in chamber for the dispatch of such part of the business of the said Court as can in the opinion of the said judge with advantage to the suitors be heard in chamber, and such sittings shall from time to time be appointed by the said judge.

Court may cause questions of fact to be tried by a jury.

15. It shall be lawful for the said Court for Matrimonial Causes and Matters to cause any question of fact arising in any suit or proceeding in said Court, on the application of either party to such suit or proceeding, to be tried by a special or common jury before the Court itself, or by means of an issue to be directed to any of the superior courts of common law in the same manner as an issue may now be directed by the Court of Chancery; and where the Court shall refuse to cause such question to be tried by a jury such refusal shall be subject to appeal as herein provided.

Powers of the Court for the trial of questions by a jury.

16. When the Court for Matrimonial Causes and Matters orders a question of fact to be tried before itself by a jury the Court may make all such rules and orders upon the sheriff or any other person for procuring the attendance of a special or common jury for the trial of such question as may now be made by any of the superior courts of common law at Dublin, and may also make any other orders which to such Court may seem requisite; and every such jury shall consist of persons possessing the like qualifications, and shall be struck, summoned, balloted for, and called in like manner, as if such jury were a jury for the trial of any cause in any of the said superior courts; and every juryman so summoned shall be entitled to the same rights and subject to the same duties and liabilities as if he had been duly summoned for the trial of any such cause in any of the said superior courts; and every party to any such proceeding shall be entitled to the same rights as to challenge and otherwise as if he were a party to any such cause; and generally for all purposes of or auxiliary to the trial of questions of fact by a jury before the Court itself, and in respect of new trials thereof, and also for all purposes in relation to or consequential upon the direction of issues, the Court for Matrimonial Causes and Matters shall have the same jurisdiction, powers, and authority in all respects as belong to any superior court of common law or to any judge thereof, or to the High Court of Chancery or any judge thereof, for the like purposes.

Question to be stated and jury sworn to try it.

Court to have same authority as at Nisi Prius.

17. When any such question is so ordered to be tried by a jury before the Court itself such question shall be reduced into writing in such form as the Court shall direct, and at the trial the jury shall be sworn to try the said question, and a true verdict to give thereon according to the evidence; and upon every such trial the Court for Matrimonial Causes and Matters shall have the same powers, jurisdictions, and authority as belong to any judge of any of the said superior courts sitting at Nisi Prius.

[Ss. 18, 21 rep. 56 & 57 Vict. c. 54. (S.L.R.) Ss. 19, 20, 22 rep. 46 & 47 Vict. c. 39. (S.L.R.)]

Mode of taking evidence.

23. Subject to such rules and regulations as may be established as herein provided, the witnesses in all proceedings before the said Court for Matrimonial Causes and Matters, where their attendance can be had, shall be sworn and examined orally in open court: Provided that parties, except as herein-before provided, shall be at liberty to verify their respective cases in whole or part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party, orally in open court, and after such cross-examination may be re-examined orally in open court by or on behalf of the party by whom such affidavit was filed.

[S. 24 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Penalties for false evidence.

25. All persons wilfully deposing or affirming falsely in any proceeding before the said Court shall be deemed to be guilty of perjury, and shall be liable to all the pains and penalties attached thereto.

[Ss. 26, 27 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Additional salaries to officers of Court of Probate.

28. There shall be paid to the officers of the Court of Probate in Ireland, by way of remuneration for any additional duties by this Act imposed upon them, such annual sums by way of additional salaries respectively as the Lord Lieutenant may direct and the Commissioners of Her Majesty's Treasury may approve, and all such sums shall be paid by the said Commissioners out of moneys to be provided by Parliament for that purpose.

Jurisdiction of Archbishop of Armagh, &c. transferred to Lord Chancellor.

29. The jurisdiction heretofore exercised by the Archbishop of Armagh, the master of the faculties, or other the commissary or commissaries of the said archbishop, in reference to the admission of public notaries, shall be vested in and exercised by the Lord Chancellor of Ireland.

[Ss. 30, 31 rep. 56 & 57 Vict. c. 54. (S.L.R.)]

Part II.

Amendment of Marriage Law.

Churches in which marriages may be celebrated.

32. Marriage between persons, both of whom are Protestant Episcopalians, may be solemnized in any of the churches or chapels following:

1. In any church or chapel in which at the time of the passing of this Act marriages may be solemnized according to the rites of the United Church of England and Ireland, and in which Divine Service, according to the rites of the said Church as herein-before defined, shall continue to be performed; or,

2. In any church or chapel which, after the passing of this Act, shall be licensed for the celebration of marriages in manner by this Act provided.

Provisions relating to the solemnization of marriages.

7 & 8 Vict. c. 81.

26 & 27 Vict. c. 27.

33. The provisions following shall apply to all marriages solemnized in any of the said churches or chapels :

1. The ceremony of marriage shall be preceded by—

(1.) Publication of banns in any church or chapel in which a marriage may be solemnized under the provisions of this Act, which publication shall be made in the manner and according to the rules at the time of the passing of this Act in force in Ireland in relation to the publication of banns in parish churches and chapels of the United Church of England and Ireland; or by

(2.) Licence or special licence granted in manner by this Act provided; or by

(3.) Certificate from the registrar to be granted by him in like manner and subject to the like conditions as such certificate may, at the time of the passing of this Act, be granted :

2. The several provisions contained in the Marriages (Ireland) Act, 1844, and in the Marriage Law (Ireland) Amendment Act, 1863, and which at the time of the passing of this Act are applicable to persons in Holy Orders of the United Church of England and Ireland, and relate to the celebration of marriages by them, shall (except so far as the same are expressly altered or varied by this Act) apply to and be in force with respect to the celebration of marriages by any clergyman having authority to officiate, or who shall be permitted by such clergyman to officiate in any aforesaid church or chapel in which marriage may be solemnized under the provisions of this Act, save only that such marriages may be celebrated at any time between the hours of eight o’clock in the forenoon and two o’clock in the afternoon.

Licence of churches.

34. Every bishop of the said Church may from time to time, by writing under his hand, subject to the approval of the Lord Lieutenant license any church or chapel for the celebration of marriages in any district within its episcopal superintendence to be named in such licence between persons one or both of whom shall reside within the limits of such district; and every such bishop shall, as soon as may be after the granting of each such licence, certify the granting thereof to the Registrar General of Marriages in Ireland, and shall send a copy of such licence to the said Registrar General, who shall keep the same with the other records of his office: Provided always, that a person who shall have dwelt for fourteen days prior to the ceremony within the limits of the district shall be deemed to reside therein.

Licences for marriages.

35. Every bishop of the said Church may, by writing under his hand, nominate persons to issue licences for marriages, and, by the same or other writings, define in and for what districts within the episcopal superintendence of such bishop such persons are respectively to issue the same, and in and for the district at the time of the passing of this Act known as the exempt jurisdiction of Newry and Morne the person at the time of the passing of this Act holding the office of vicar-general of the said exempt jurisdiction shall have power to issue licences for marriage, and shall continue so to do until the said district is included within the episcopal superintendence of some bishop of the said Church; and every such licence shall be held to authorize marriage in any churches and chapels situate within such districts respectively in which marriages may be solemnized under the provisions of this Act, and which shall be specified in such licences, whenever both of the parties shall be Protestant Episcopalians, and resident within such districts; and such licences shall be in the Form No. I. in the schedule (A.) to this Act annexed, or to the like effect; and for every such licence such person shall be entitled to have for his own benefit, of the party requiring the same, such fee, not exceeding the sum of five shillings, as may from time to time be appointed in that behalf by any general synod or convention of the bishops, clergy, and laity of the said Church; and in any case in which such person shall refuse to grant such licence, the person applying for the same shall be entitled to appeal to the bishop by whom such person shall have been so appointed, or his successor, who shall thereupon either confirm the refusal or direct the grant of the licence; and every person so appointed shall four times in every year, on such days as shall be appointed by the Registrar General, make a return to the Registrar General of every licence granted by him since his last return, and of the particulars stated concerning the parties: Provided always, that no such person shall grant any such licence until he shall have given security by his bond in the sum of one hundred pounds to the Registrar General for the due and faithful execution of his office.

A licence for marriage shall not be granted by any such person until seven days after notice shall have been given by one of the parties who shall have dwelt for not less than seven days then next preceding in the district named in that notice, under his or her hand, in the Form No. II. in the schedule (A.) to this Act annexed, or to the like effect, to such person, and such person shall forthwith send a copy of such notice to the clergymen officiating at the places of worship where the parties intending marriage have been in the habit of attending.

Every person so appointed shall file and keep with the records of his office every such notice, and shall also forthwith enter a true copy of such notice fairly in a book to be for that purpose furnished to him by the Registrar General, to be called “The Marriage Notice Book,” which book shall be open at all reasonable times, without fee, to all persons desirous of inspecting the same, and for entering every such notice the person so appointed shall be entitled to have such fee, not exceeding one shilling, as may be from time to time appointed in that behalf by any such general synod or convention as aforesaid over and above the accustomed fee for granting the licence.

Whenever a marriage shall not be had within three calendar months after the notice shall have been so given to the person so appointed as aforesaid, the notice, and any licence which may have been granted thereupon, shall be utterly void.

Before any licence for marriage shall be granted by any such person one of the parties intending marriage shall appear personally before him, and shall make and subscribe an oath or make affirmation, which oath or affirmation such person is hereby authorized to administer, that he or she believeth that there is not any impediment of kindred or alliance or other lawful hindrance to the said marriage and that one of the said parties hath for the space of fourteen days immediately before the day of the grant of such licence had his or her usual place of abode within the district attached in manner herein provided, for the purpose of celebration of marriages, to the church or chapel in which such marriage is to be solemnized, and that they are both of the full age of twenty-one years, or, when either of the parties shall be under the age of twenty-one years, that the consent of the person or persons whose consent to such marriage is required by law has been obtained thereto, or that there is no person having authority to give such consent, or that such person is a widower or widow, as the case may be.

Power to bishop to grant special licences.

36. When both the parties about to contract marriage are Protestant Episcopalians, any bishop of the said Church may grant special licences to marry at any convenient time in any place within his episcopal superintendence.

Power to certain persons to grant special licences.

37. Special licences to marry at any convenient time at any place in Ireland may be granted to parties about to contract marriage by any of the persons following; (that is to say,)

The moderator of the General Assembly of the Presbyterian Church in Ireland :

The moderator of the Remonstrant Synod of Ulster :

The moderator of the Presbytery of Antrim :

The moderator of the Northern Presbytery of Antrim :

The moderator of the Synod of Munster:

The moderator of the Eastern Reformed Presbyterian Synod :

The moderator of the United Presbyterian Presbytery of Ireland :

The moderator of the Secession Church in Ireland :

The moderator of the Reformed Presbyterian Synod of Ireland :

The chairman of the Congregational Union of Ireland :

[1 The secretary of the Conference of the Methodist or Wesleyan Church in Ireland] :

The president or head of the Methodist New Connexion Church:

The president or head of the Association of the Baptist Churches in Ireland:

The clerk to the yearly meeting of the Society of Friends in Ireland:

Provided always, that the parties to whom any such special licence is granted are both members of the same church as the moderator, chairman, president, head, or clerk granting such special licence.

Legislation of marriages of persons of different religious persuasions.

7 & 8 Vict. c. 81.

26 & 27 Vict. c. 27.

38. A marriage may, notwithstanding anything to the contrary herein-before in this Act contained, be lawfully solemnized by a Protestant Episcopalian clergyman between a person who is a Protestant Episcopalian and a person who is not a Protestant Episcopalian, and by a Roman Catholic clergyman between a person who is a Roman Catholic and a person who is not a Roman Catholic, providing the following conditions are complied with :

1st. That such notice is given to the registrar and such certificate is issued as at the time of the passing of this Act is required by the Marriages (Ireland) Act, 1844, as amended by the Marriage Law (Ireland) Amendment Act, 1863, in every case of marriage intended to be solemnized in Ireland according to the rites of the United Church of England and Ireland, with the exception of marriages by licence or special licence, or after publication of banns :

2d. That the certificate of the registrar is delivered to the clergyman solemnizing such marriage at the time of the solemnization of the marriage :

3d. That such marriage is solemized in a building set apart for the celebrat on of divine service according to the rites and ceremonies of the religion of the clergyman solemnizing such marriage, and situate in the district of the registrar by whom the certificate is issued :

4th. With open doors :

5th. That such marriage is solemnized between the hours of eight in the forenoon and two in the afternoon in the presence of two or more credible witnesses.

Avoidance of marriage in wilful violation of the Act.

39.      .      .      .       any marriage solemnized by a Protestant Episcopalian clergyman between a person who is a Protestant Episcopalian and a person who is not a Protestant Episcopalian, or by a Roman Catholic clergyman between a person who is a Roman Catholic and a person who is not a Roman Catholic, shall be void to all intents in cases where the parties to such marriage knowingly and wilfully intermarried without due notice to the registrar, or without certificate of notice duly issued, or without the presence of two or more credible witnesses, or in a building not set apart for the celebration of divine service according to the rites and ceremonies of the religion of the clergyman solemnizing such marriage.

Exemption of priest from penalty.

40. No Protestant Episcopalian clergyman and no Roman Catholic clergyman shall be subject to any punishment, pain, or penalty whatever for solemnizing a marriage in pursuance of and in accordance with the provisions of this Act.

Amendment of section 3. of 26 & 27 Vict. c. 27.

41. Section three of the Marriage Law (Ireland) Amendment Act, 1863, shall be amended in manner following; (that is to say,)

Where the marriage is intended to be contracted in the office of the registrar, and where there is not any minister of the church, chapel, or place of public worship which the parties to the marriage, or either of them, usually attend, and where the parties to the marriage are not Jews or members of the Society of Friends, the registrar shall proceed as follows: he shall cause a copy of the notice given to him to be published, at the expense of the parties intending marriage, once at least in two consecutive weeks next after he has received such notice in some newspaper circulating in the district in which such marriage is intended, or if there is not any newspaper circulating in such district, then in some newspaper circulating in the county in which such district is situate; any registrar neglecting or refusing to publish such notice in manner aforesaid shall be liable to a penalty of forty pounds, recoverable in like manner as penalties under the said Act.

Construction.

7 & 8 Vict. c. 81.

26 Vict. c. 27.

42. Except where the provisions of the Marriages (Ireland) Act, 1844, and the Marriage Law (Ireland) Amendment Act, 1863, are expressly altered by or are at variance with this Act, nothing herein contained shall alter, repeal, or affect the provisions of the said Acts respectively; and this Act shall, except as aforesaid, be considered as incorporated with the said Acts, and be construed together with the same.

SCHEDULE (A.)

No. I.

Sect. 35 .

Form of Licence.

A.B., appointed to issue licences for marriages in the district of        under the provisions of the Matrimonial Causes and        Marriage Law (Ireland) Amendment Act, 1870, to C.D. of        and E.F. of sendeth        greeting.

Whereas ye are minded, as it is said, to enter into a contract of marriage under the provisions of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870, and are desirous that the same may be speedily and publicly solemnized: And whereas you C.D. [or E.F.] have made and subscribed a declaration under your hand that you believe there is no impediment of kindred or alliance or other lawful hindrance to the said marriage, and that you C.D. [or E.F.] have [or has] had your [or his or her] usual place of abode for the space of fourteen days last past within the district of (        ) and [in cases where either party is under age, and not a widower or widow] that you C.D. [or E.F.] are [or is] under the age of twenty-one years, and that the consent of G.H., whose consent to your [or his or her] marriage is required by law, has been obtained thereto [or that there is no person having authority to give such consent], or where a party so under age is a widower or widow, that you C.D. [or E.F.] are [or is] under twenty-one years of age, but are [or is] a widower [or widow, as the case may be]: I do hereby grant unto you full licence according to the authority in that behalf given to me by the said Act, to proceed to solemnize such marriage, provided that the said marriage be publicly solemnized in the presence of two witnesses, within three calendar months from the [here insert the date of the receipt of the notice by the person issuing the licence] in the [here describe the building in which the marriage is to be solemnized], between the hours of eight in the forenoon and two in the afternoon. Given under my hand, this        day of        one thousand eight hundred and        (Signed)        A.B.

No. II.

Notice of Marriage.

Sect. 35 .

To A.B. [or C.D.] appointed to issue licences for marriages in the district of        under the provisions of the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870.

I hereby give you notice that a marriage is intended to be had, within three calendar months from the date hereof, between me and the other party herein named and described; (that is to say,)

Name.

Condition.

Rank or Condition.

Age.

Dwelling Place.

Length of Residence.

Church or Building in which Marriage is to be solemnized.

District and County in which the other Party resides when the Parties dwell in different Districts.

Lucius Smith -

Widower

Carpenter

Of full age.

High Street, Roscrea.

23 days

Sion Chapel,

Roscrea,

Tipperary.

Mary borough.

Queen's

County.

Margaret

Shaw Spinster

-   -

Minor

Grove Farm, near Mary borough.

More than a month.

Witness my hand, this [sixth] day of [May 1871.]

(Signed)        Lucius Smith.

[The particulars in this schedule to be entered according to the fact.]

[1 Words in brackets substituted for “The president or head of the Methodist or Wesleyan Church,” by 34 & 35 Vict. c. 49. s. 21.]