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with one or more sureties to be approved by the court in such manner as the court may direct. The condition of the recognizance shall be such that if the defendant shall make his or her personal appearance in such court whenever ordered to do so, and shall further comply with the terms of the order, and of any subsequent modification thereof, then such recognizance shall be void, otherwise of full force and effect.

SEC. 5. If the court be satisfied by information and due proof under oath, that at any time during the year the defendant has violated the terms of such order, it may forthwith proceed with the trial of the defendant under the original charge, or sentence him under the original conviction, or enforce the original sentence, as the case may be. In case of forfeiture of a recognizance, and enforcement thereof by execution, the sum recovered may, in the discretion of the court, be paid, in whole or in part, to the wife or to the guardian or custodian or trustees of the said minor child or children.

SEC. 6. No other evidence shall be required to prove marriage of such husband and wife, or that the defendant is the father or mother of such child or children, whether legitimate or illegitimate, than is or shall be required to prove such facts in a civil action. In all prosecutions under this act any existing provisions of law prohibiting the disclosure of confidential communications between husband and wife shall not apply, and both husband and wife shall be competent and compellable witnesses to testify to any and all relevant matters, including the fact of such marriage, and the parentage of such child or children. Proof of the desertion of such wife, child or children in destitute or necessitous circumstances or of neglect to provide for the necessary support and maintenance of such wife, child or children shall be prima facie evidence that such desertion, neglect or refusal is wilful.

SEC. 7. It shall be the duty of the sheriff in charge of any county jail or custodian of the reformatory, workhouse or house of correction, in which any person is confined on account of conviction and sentence, under this Act, to pay over to the wife or to the guardian or custodian of his or her minor child or chil

dren, or to an organization or individual approved by the court, as trustee, at the end of each week for the support of such wife, child or children the sum of fifty cents, for each day's hard labor performed by said person so confined.

SEC. 8. Any person guilty of any or either of the offences enumerated in Section 1 of this Act shall be subject to extradition by the governor of this state upon proper requisition from the governor of any other state in which the offence was committed.

REVISED MARRIAGE CODE.
February 15, 1906.
AN ACT

Defining the essential elements of a marriage contract; prescribing the manner of contracting marriages; requiring the consent of parents or guardians of minors; requiring a marriage license in all cases; providing for the issuance thereof, the recording thereof, the form thereof, and the delivery and recording of the certificate of marriage; imposing penalties for solemnizing marriages without a license, for refusing to return or record the certificate of marriage, for refusal or neglect by any marriage license clerk of the duties prescribed by this act; providing that a certified copy of the record shall be prima facie evidence of any marriage; prohibiting common law marriages; defining void and voidable marriages; providing for the issuing of marriage licenses ex post facto; defining the status of foreign marriages; requiring returns by marriage license clerks to the Secretary of the State Board of Health; fixing the fees of marriage license clerks; and repealing, consolidating and extending existing laws in relation to these subjects.

PREAMBLE.

WHEREAS, marriage is one of the most important existing social relations, and being properly the subject of regulation by the state, it should be guarded by careful statutory provisions; and in order to encourage marriage between the citizens of this state the requirements of the law should be simple and easy of comprehension.

ARTICLE I.

MARRIAGE.

SECTION 1. Essentials of the Marriage Contract.-The parties to a marriage contract must, at the time of making such contract, have been:

(1) Willing to contract; (2) Competent to contract; and also it must appear that they (3) Did contract pursuant to the forms and requirements hereinafter prescribed.

SEC. 2. Manner of Contracting Marriage.-Marriages may be contracted in this state by any two persons, willing and competent to make such contract of marriage, in the manner following:

a. Before any duly ordained minister of any religious or ethical, or other society or denomination, or church, party or organization, in the presence of at least two adult witnesses other than the minister performing the ceremony.

b. Before any judge of any court of record of this state, any magistrate, alderman, justice of the peace, or notary public, duly commissioned and qualified, in the presence of at least two adult witnesses other than such official: Provided, that such marriage be celebrated only in the proper county.

c. By declaring in the presence of not less than two witnesses other than the parties themselves in whose presence said parties openly contracted such marriage, and who attended at such marriage at the request of both of said parties and heard their declarations that they took each other for husband and wife; and by making a memorandum in writing at the time of such marriage, to be signed by both of said parties and by the said witnesses to that effect, and by the person performing the marriage ceremony: Provided, That the parties to such marriage shall have first obtained a marriage license, as hereinafter prescribed.

(And Provided Further, That nothing herein contained shall render void any marriage by reason of the fact that no license was previously obtained as required by the provisions of this act, but proof of such marriage in such case may be made by not less than two witnesses other than the parties themselves of the marriage contract; and where, by reason of neglect or other omission

no license has been procured, then upon application of either party to such marriage, a license may be issued nunc pro tunc upon proof of the fact of marriage as aforesaid.)

NOTE. This last proviso emasculates the purpose of paragraph c. supra, which paragraph, combined with the subsequent sections of this act, providing for a record of the prerequisites to a marriage, and of the marriage itself, is intended to abolish what are known as common law marriages; to wit, marriages resting upon presumptive rather than record proof, since even in the case of common law marriages per verba de presenti the proof thereof rests more often upon evidence of admissions or declarations of the parties after marriage than upon evidence of the fact of the ceremony, or of the making of the contract.

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While perhaps one-half of the states (according to Howard), at the present time recognize the validity of common law marriages, and while the Supreme Court of the United States in Meister vs. Moore, 96 U. S. 76, holds, following a decision of Cooley, J., in Michigan, see Hutchins vs. Kimmell, 31 Mich. 126, that a marriage valid at common law is valid, notwithstanding the statutes of the state where it is contracted, prescribe directions respecting its formation and solemnization, unless they contain express words of nullity;" yet, according to Howard, about twelve states have expressly abolished common law marriages, and some of them have held that where a statute prescribes certain forms and prerequisites, such provisions are to be construed as repealing the common law.

If it be at all the function of the state to regulate the marriage relation, it would seem both permissible and desirable that it should, from the sociological, ethical and moral points of view, undertake to eliminate the individualistic idea of marriage as a mere matter of contract to be entered into or terminated at the will of both or either of the parties. For it must be patent, from an examination of reported cases, that attempts to establish common law marriages have in nearly all instances been one-sided, one of the parties to such alleged marriage, if living, or his representatives, if dead, contesting the validity of the same.

It would seem, therefore, that the provisions of paragraph c. supra, are sufficiently broad to protect all parties who desire to enter into a marriage contract without the intermediation of a clergyman or other official, and it is surely not asking too much of parties entering into such a serious relation that they first procure authority so to do from the state.

The clause in the last proviso permitting license to be issued

nunc pro tunc seems superfluous, since by a subsequent section of the act relating to the legitimizing of children, it is provided that parties who assume the marriage relation, without first procuring a license, may, at any time thereafter, by complying with the requirements of this act, procure such license. This of course would require a formal marriage ceremony in the mode prescribed by the act, but if this be necessary for the purpose of legitimizing children born out of wedlock, it is no greater hardship to impose the same requirement for the purpose of protecting the reputation of the parties themselves.

SEC. 3. Marriage of Minors.-If either or both of the parties be between the age of fourteen years and twenty-one years, if a male, and twelve years and twenty-one years, if a female, such minor or minors in addition to procuring a license, as aforesaid, shall also obtain the consent of his or her, or their parents or guardians, which consent shall be entered of record, in the manner hereinafter prescribed: Provided, That in case the parents of either or both are living separately and apart, the consent of the parent to whom the custody and care of the minor has been given by law shall be sufficient.

ARTICLE II.

MARRIAGE LICENSES.

SEC. 4. License Required.-No person within this state shall be joined in marriage until a license shall have been obtained for that purpose from the marriage license clerk in the county where either of the contracting parties reside, or in the county where the marriage is to be performed.

SEC. 5. Requisites to the Issuing of a License.-Both of the contracting parties shall be identified to the satisfaction of the marriage license clerk, who shall further require of the parties, either separately or together, a statement under oath relative to the legality of the contemplated marriage, the age, nationality, color, residence and occupation of the parties, the name of the parents or guardians of such as are under the full age of twentyone years, and any prior marriage or marriages of the parties, and the manner of the dissolution thereof; and if there be no legal objection thereto, such clerk shall issue a marriage license,

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