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§ 40. Marriage is a personal relation, which arises out of a Definition.
$ 41. Consent to a marriage may be manifested in any form, and may be proved like any other fact.
Persons capable of
§ 42. A contract of marriage is a contract to enter in. marriage. stantly into the relation of marriage. A contract to marry
is a contract to enter into the relation of marriage at some future time, fixed or indefinite. A contract to marry does not result in a marriage until the making of a distinct con. tract of marriage.
Consent must be
§ 43. A male of the age of fourteen years or upwards, given to a and a female of the age of twelve years or upwards, may
make a contract of marriage unless disqualified by the pro. visions of this article. But an unconsummated marriage made by a female between the ages of twelve and fourteen years, without the consent of her father, mother or guard. ian, or other person having the legal charge of her person, and not ratified by mutual assent of the parties after she has attained the age of fourteen years, is voidable.
$ 41. Marriages between ancestors and descendants of every degree, and between brothers and sisters of the half as well as of the whole blood, are incestuous, and void from the beginning; whether the relationship is legitimate or illegitimate.
§ 45. If either party to a marriage is an idiot or lunatic, Yeemed "e or incapable from physical causes of entering into the mar
riage state, or if the consent of either is obtained by force, duress or fraud, the marriage is voidable.
$ 46. A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning, unless :
1. The former marriage had been annulled or dissolved for some cause other than the adultery of such person; but a court which has dissolved a marriage on the ground of adul. tery may, five years thereafter, give leave to the guilty party to marry again, upon satisfactory proof that the other party has remarried, and that the conduct of the guilty piirty since the dissolution of the marriage has been uniformly good; or, i
2. Unless such former husband or wife was absent, and not known to such person to be living, for the space of five successive years immediately preceding such subsequent marriage, or was generally reputed and was believed by such person to be dead at the time such subsequent marriage was contracted, in either of which cases the subsequent marriage is valid until its nullity is adjudged by a competent tribunal.
§ 47. Indians contracting marriage according to the In- Marriages, dian custom, and cohabiting as husband and wife, are lawfully married.
Marriages of Indians.
§ 48. The provisions of other portions of this Code in Certain relation to contracts and the capacity of persons to enter applicable. into them, have no application to the contract of marriage.
$ 49. Neither party to a contract to marry is bound by Promise of a proinise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other, committed with a third person.
$ 50. For the purpose of authentication, according to Mode of the provisions of this article, a marriage must be solemnized ticating in this state, in the manner herein prescribed, by one or more of the following persons, namely: Ministers of the gospel or priests of any denomination; mayors, recorders or aldermen of cities; judges of courts of record or jus.
tices of the peace; and, in case of Indians, also the peacemakers acting within their respective jurisdictions.
the officer before whom a marriage is solemnized,
Form of $ 52. No particular form is required upon a marriage, but
for the purpose of authentication the parties must solemnly declare, in the presence of the person solemnizing the marriage, and of at least one witness, that they take each other as husband and wife. The marriage of Quakers or of Jews, respectively, may continue to be solemnized in the manner and agreeably to the regulations of their respective
societies. Duties of $ 53. The person solemnizing a marriage must ascertain, before, to his satisfaction :
1. The identity of the parties;
3. That they are of sufficient age to be capable of contracting marriage;
4. That neither of the parties is now married to another .and,
5. The name and place of residence of the witness, or of two witnesses, if more than one is present. Where the parties are not known to the person solemnizing the marriage, he may in order to ascertain their right to marry, examine them or any other person, Inder oath. Such examination shall be reduced to writing and subscribed by the parties. · $ 54. The person solemnizing a marriage must enter the facts ascertained by him pursuant to the last section, and the date of the solemnization, in a book to be kept by him for that purpose.
Certificates $ 55. The person solemnizing a marriage must furnish contract to either party, on request, a certificate thereof, signed by desired."" him, specifying:
1. The names and places of residence of the parties married;
2. That they were known to him, or were satisfactorily proved, by the oath of the parties themselves or of a person known to him, to be the persons described in such certificate: entry, &c. as above directed, or a copy of the certificate or entry, duly evidence. certified, is presumptive evidence of the fact of the mar
3. That he had ascertained that they were of sufficient age to contract marriage;
4. The name and place of residence of the attesting witness or of two witnesses;
5. The time and place of such marriage ; and,
6. That, after due inquiry made, there appeared to be no lawful impediment to such marriage.
$ 56. The certificate mentioned in the last section may, Thecerwithin six months after the marriage, be filed with the clerk of the city or town where the marriage was solemnized, or where either of the parties reside, and when thus filed, must be entered in a book to be provided by the clerk, in the alphabetical order of the name of each party, and in the order of time in which it is filed.
$ 57. The entry required by the last section must speci
: The entry 1. The name and place of residence of each party; 2. The time and place of marriage;
3. The name and official station of the person signing the certificate; and,
4. The time when the certificate was filed.
$ 58. If a certificate of marriage is signed by a minister Authentior priest, there must be indorsed or annexed, before filing, the certifia certificate of a magistrate residing in the same county with the clerk, that the person by whom it is signed is personally known to such magistrate, and has acknowledged the execution of the certificate in his presence; or, that the execution of the certificate, by a minister or priest of some religious denomination, has been proved to the magistrate, by the oath of a person known to him, and who saw the certificate executed.
$ 59. A certificate of marriage, or the entry thereof, made Certificate