The institution of marriage here in Dominica is governed by two main statutes as well as by the common law, that is to say, decisions laid down by Judges in the courts. Of the statutes, one is the Marriage Act, Chap 35:01; it went into operation in 1911 and has been amended on a number of occasions. The Act sets out, among other things, the requirements for getting married, the restrictions on so doing, the procedure involved and offences for breaches of the law. The other statute is the Marriage (Prohibited Degrees of Relationship) Act, Chap. 35:02 which took effect in 1924. As its name suggests, the Act sets out categories of persons who, because of ties of blood or close relationship, are prohibited from wedding each other. What follows constitute critical features of these laws.
To begin with, the Marriage Act stipulates that no person under the age of 16 years is entitled to marry. Where a party to a marriage breaches that requirement, that union is treated in law as if the marriage had not taken place. So, provided you have attained that age you may marry. But if you have not yet reached the age of 18 years, you are required to obtain permission to do so.
From whom must such permission be obtained? Where the person's father is alive, he must give permission. If the father is deceased, permission to marry must be given by the party's guardian or, where applicable, his or her guardians. Further, where there is no guardian, the juvenile's mother, if alive and unmarried, must sanction the intended marriage. But, if there is no such mother, permission must be sought from a guardian or guardians appointed by the Court. And, where there is no court-appointed guardian, the party in question is entitled to petition the Court for an Order directing that the wedding may proceed.
To that general rule, there is one exception. It concerns a widow or a widower. It is this. A widow or widower of age 16 years or more but less than 18 years old may lawfully marry without permission to do so. The law prohibits marriage between certain categories of persons tied by blood or closely related other than by blood. Specifically, the categories tied by blood are, first of all, parents and their children. This means that a parent and a child cannot marry each other under the law. The same is true of the following sets of persons: brothers and sisters; step-brothers and step-sisters; uncles and their nieces; and aunts and their nephews. As to persons not connected by blood, the category of persons are a man and the daughter of his deceased wife; a woman and the son of her deceased husband; a man and the niece of his deceased wife; and a woman and the nephew of her deceased husband. Here, "sister" or "brother" includes a sister or brother of the half blood, that is to say, sister or brother by one parent only.
Yet, by Section 3 of the Marriage (Prohibited Degrees of Relationship) Act, it is perfectly lawful for a man to marry any of the following persons: the sister of his deceased wife; the widow of his deceased brother; the daughter of his deceased wife's sister; the widow of his father's deceased brother; the widow of his mother's deceased brother; the sister of his deceased wife's father; the sister of his deceased wife's mother; the widow of his deceased brother's son; and the widow of his deceased sister's son.
Needless to say, a marriage will be held to be unlawful where either of the parties is already married. Of course, the same holds true where the persons concerned are not, respectively, male and female. Moreover, unless certain formalities laid down under the Marriage Act are followed, a marriage will not be lawful if both parties were aware of the irregularity at the time of the ceremony. This will be so where, for example, the ceremony was celebrated in a place other than the Office of the Registrar General or a church or chapel in which banns of marriage may be publicized. Or, where banns had not been duly published, or a licence to marry had not been obtained, or a Certificate from the Registrar General had not been issued. Nor would a marriage be legal where it took place more than three months after the banns were published, or the common licence was obtained, or the notice of marriage entered in the Notice Book of the Registrar General, as the case may be. Or, where the ceremony was not conducted by a duly appointed marriage officer.
A marriage solemnized in violation of these requirements is void under the law. What this means is that the union of the two persons was not valid from the very beginning. Indeed, a marriage ceremony might have been celebrated, but no marriage took place. The effect of this is that despite the ceremony and the signing of the Marriage Register, the parties are free to behave as though there was no marriage at all. They are not obligated to go before a court for a decree declaring the union annulled. By contrast, a marriage, rather than void, may be deemed to be voidable. This means that the union is valid in all respects until it is declared to be void in a court of law. A legal consequence of this is that if one of the parties dies before the pronouncement of the court is made, a voidable marriage must be treated as valid "for all purposes and for all time". Another is that either party may lawfully marry someone else without having the voidable union formally annulled by a court.
There are a number of grounds on which a marriage may be deemed to be voidable; they arise from decisions handed down by the courts. Summarily stated, one is the inability of the parties to consummate a marriage, that is to say, to have sexual intercourse that is "ordinary and complete, and not partial and imperfect". In an 1845 English case, D-E v. A-G, it was stated that "there will be no consummation if the husband does not achieve full penetration in the normal sense". Another, and related, ground is the willful refusal of one of the parties to consummate the marriage. A third is that a party to the marriage did not consent. Among facts which lead to a conclusion that a party did not consent are (1) unsoundness of mind, as a result of which at the time of the ceremony either party was unable to understand the nature of the union into which he or she was entering; (2) drunkenness or the effect of drugs similarly denying a party the state of mind required for entering into the marriage contract; (3) a mistake by one of the parties as to the identity of the other, leading the mistaken party to marry someone else he or she did not intend to; (4) the use by one party of threats and duress, causing the other to enter into a marriage which, had this not been done, the threatened party might never have contracted the union.
A further ground on which a marriage may be voidable is where either party at the time the ceremony was celebrated was suffering from a mental disorder such that he or she was "incapable of carrying out the ordinary duties and obligations of marriage." It matters not that the mentally challenged party was capable at the time of giving a valid consent. Another ground is where at the time of the ceremony the female party was pregnant by someone other than her husband.
Quite apart from voiding a marriage or deeming it to be voidable, there are particular sanctions for breach of the law. For example, it is an offence, namely, willful and corrupt perjury for any person knowingly and willfully to make a false declaration or sign a false statement or Certificate for the purpose of procuring a marriage. It is also an offence, punishable on conviction by imprisonment for two years, for the Registrar General to willfully celebrate in his or her office, or cause to be celebrated there, any marriage declared to be null and void under the Marriage Act, Chap 35.01. And, it is equally an offence punishable by two years' imprisonment for any person "knowingly and willfully" to falsely pretend to be a marriage officer and "solemnize or celebrate" a marriage.
A final point should be noted. It is that a marriage does not attain the force of law at the moment when the respective man and woman say "I do", and the marriage officer says "I now pronounce you man and wife". Rather, the union becomes legal when the marriage register is signed by the parties marrying, by the marriage officer, and by no less than one witness for each party to the marriage. That is so because, in fact, marriage is a contract. © William Para Riviere, December 2012.