OF MARRIAGE. CHAPTER 74. TITLE ELEVENTH. OF THE DOMESTIC RELATIONS. CHAPTER 74. Of marriage. CHAPTER 75. Of divorce. CHAPTER 76. Of husband and wife. Chap. 572, vol. 12; Chap. 80 and 550, vol. CHAPTER 77. Of parents and children; and of the maintenance of bastard children. CHAPTER 78. Of guardians and wards. Chap. 378, and 445, vol. II; Chap. 57 and 61, vol. 12; Chap. 519, vol. 16; Chap. 211, vol. 17. degrees. SECTION 1. Marriage is prohibited within the following degrees, Prohibited viz: No man shall marry his grand-mother, grand-father's wife, wife's grand-mother, father's sister, mother's sister, son's wife, sister's son's daughter, daughter's daughter, son's son's wife, daughter's son's wife, mother, step-mother, wife's mother, daughter, wife's daughter, wife's son's daughter, wife's daughter's daughter, brother's daughter, sister's daughter. No woman shall marry her relative, or connection, corresponding with either of the foregoing prohibitions. Marriage shall be unlawful between a white or mulatto. person and a negro, Races. If a mariage, prohibited by this section, be solemnized, it shall Penalties. be void, and the parties thereto shall each be deemed guilty of a misdemeanor and shall be fined one hundred dollars; and if any preacher shall knowingly and wilfully solemnize such marriage, or any person shall knowingly and wilfully procure or aid in the contracting or solemnizing such marriage, he shall be deemed equally guilty, and shall be fined in like manner. if [Or if the parties to any marriage prohibited by this section, al- Chap. 640,vol. 11. though the same may have been solemnized in another State, shall Marriages; OF MARRIAGE. CHAPTER 74. cohabit as husband and wife in this State, they shall each be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined one hundred dollars.] SEC. 2. Every preacher of the gospel, ordained or appointed achow solemnized. cordinging to the rules of the church to which he belongs, shall have authority to solemnize marriages. Also marriages may be solemnized, or contracted, according to the forms and usage of any religious society, where either of the parties belongs to such religious society. The mayor of Wilmington also may solemnize marriage. But such preacher, or mayor, shall not solemnize a marriage to which any white person is a party, without a license regularly issued; unless the bans of such marriage shall have been published at some place of stated religious worship, within the hundred of the woman's residence, on two Sabbaths immediatly after divine service, and no objection made to such marriage; under penalty of being deemed guilty of a misdemeanor and fined thirty dollars. License. Penalty. Consent of parties. Free negroes out license. If any person, not authorized by this section, shall falsely solemnize a marriage, he shall be deemed guilty of a misdemeanor and shall be fined five hundred dollars; and such marriage shall be void, unless it be in other respects lawful, and be consummated with the full belief of either of the parties, in its validity. SEC. 3. A marriage, if the male be under twenty-one years, or the female be under the age of eighteen years, shall not be solemnized without the consent of the father, or if there be no father, the mother, or guardian, of the party under such age; and any person knowingly and wilfully solemnizing such marriage, without such consent, shall be liable in damages to the party aggrieved. * * * SEC. 4. Negroes,or mulattoes, may be married without license, or may marry with- publication of bans: provided, that each party (being free) shall produce the certificate of a justice of the peace of the county that such party has made before him satisfactory proof of treedom; or (being seryant,) shall produce the written consent of master's consent. his master, or mistress, to the marriage; and if any person shall solemnize such marriage, without such certificate or consent, he "shall forfeit and pay, to any one who will sue, twenty dollars; one-half for the use of the school fund. Servants with i Penalty. Record of marriages. If a free person marry with a servant without such consent, such person shall forfeit and pay, if a man, thirty dollars, if a woman, fifteen dollars, to the master or mistress of the servant. SEC. 5. Every preacher who shall solemnize a marriage, the mayor of Wilmington, and every religious society in which a marriage shall be solemnized, or contracted, shall keep a record of such Annual returns. marriage and the date thereof; and shall annually, in March, deliver to the recorder of deeds for the county, a true extract therefrom of all such entries for the year preceding; and such extracts shall be recorded. Penalty. And if any preacher, mayor, or person authorized by such so OF DIVORCE. CHAPTER 75. ciety to keep such record, shall neglect this duty, he shall forfeit and pay, to any person who will sue, twenty dollars; one half for the use of the school fund. SEC. 6. The fee for solemnizing a marriage shall be one dollar Marriage fee. and fifty cents. SEC. 7. (Supplied by Sec. 15, Chap. 117, Vol. 13, published as Fee for license. an addition to Chap. 7 Rev. Code under Revenue, page 56). contracts. in a year. SEC. 8. Every instrument of writing entered into concerning Ante-nuptial lands or tenements in this State, belonging to either of the persons between whom a marriage is intended to be had, or solemnized, whereby the liability of such lands, or tenements, shall be affected for debts or contracts; and all post-nuptial contracts for the same And post-nuptial purpose; shall be lodged in the recorder's office for the county Must be recorded where such lands, or tenements, or some part thereof, are situate; within one year from the time such instrument or contract was made; or they shall not be recorded, nor shall they be of any avail against any person who had no notice of the execution of the same. [When any marriage contract has been duly executed and ac- Chap. 81, vol. 14. knowledged, the same may be recorded with the same effect as other papers proper to be recorded; Provided, the same be lodged in the Marriage conRecorder's office in the county where the parties reside, at the time recorded. the contract was made, within one year from the date of the passage hereof.] tracts may be [SECTION 1. The Superior Court shall have the sole cognizance Cognizance of of granting divorces for the following causes : divorce. divorce a vinculo First, a divorce from the bonds of matrimony shall be decreed Causes for "for adultery, desertion for three years, habitual drunkenness, im- matrimonii. "potency of either party at the time of marriage, extreme cruelty, "or conviction, either in or out of this State, after marriage, of a "crime by the laws of this State deemed felony, whether such crime. shall be perpetrated before or after such marriage." from bed and cretion of the Court. OF DIVORCE. CHAPTER 75. Cause for divorce "Second, a divorce from the bonds of matrimony, or from bed board at the dis- " and board, at the discretion of the Court, shall be decreed for pro"curement of the marriage by fraud for want of age, the husband Chap. 638, vol. 11,"being under the age of eighteen years or the wife being under the age of sixteen years at the time of the marriage and such marriage not being after those ages voluntarily ratified; or for wil"ful neglect on the part of the husband for three years to provide "for his wife the necessaries of life suitable to her condition."] Chap. 548,vol.14.66 Annulling marriages. Decrees affirm marriages. SEC. 2. The said court shall have sole cognizance to decree marriages null and void which are prohibited by law for consanguinity, or affinity; or between a white person and a negro, or mulatto; or where either of the parties had, at the time of the marriage, another husband, or wife, living; or where either of the parties was, at that time insane. SEC. 3. When a marriage is supposed to be void, or its validity ing or annulling doubted, for either of the causes mentioned in Section 2, either party may file a petition to have such marriage declared void, or affirmed; and the said court shall have power, by decree, to affirm and declare the same valid, or to annul and declare the same void. Proceedings. Chap. 548, vol. 14.66 Affidavit. Summons. Commissioner. ["SEC. 4. The proceedings for divorce, or to have a marriage "abnulled or affirmed, shall, by petition filed with the prothonotary of the Superior Court in the county of the petitioner's resi"dence, stating the true cause of complaint, and verified by the af"fidavit of the petitioner that the facts stated are true, and that the "complaint is not made out of levity or by collusion. Whereupon a summons shall issue for the defendant's appearance, and upon "such appearance, or upon proof of the service of the summons one month before the time of its return, it shall be the duty of "the court, and they are hereby authorized, to appoint some suitable person commissioner, whose duty it shall be to proceed to hear and "take in writing the evidence in the cause, and report the same, to"gether with his finding or award thereon, at the next term of said court, and the court shall thereupon proceed to pass judgment as to the court shall seem meet and proper; Provided however, that "either party may file exceptions to the finding and award of such "commissioner, at any time before the judgment of the court, upon "giving notice of the intention of doing so to the other party, and "the court shall hear and decide upon the exceptions. In the event "of the exceptions being sustained by the court, the case shall be "remanded back to the commissioner for a further hearing, or to "be otherwise proceeded with as to the court shall appear most 66 proper, but if service cannot be made of the summons, an alias summons shall issue to the next term, which the sheriff shall pubChap. 631,vol. 17. "lish for [one] month in such newspapers, one or more, as he shall judge best for giving the defendant notice, and such proceedings "shall then be had as are provided for in case of service of the summons, either with or without the defendant's appearance. The Judgment. Notice. Alias summons OF DIVORCE. CHAPTER 75. sioner. "said commissioner shall be sworn or affirmed to perform his duties Oath of commis "with fidelity and impartiality, and shall have power to compel the "attendance of witnesses, by causing process to be issued by the "prothonotary of the court in his county, for that purpose. The "respective parties shall have the right to be represented before the "commissioner by their counsel and examine the witnesses. The Counsel. "costs in every case, including the services of the commissioner, Costs. "shall be taxed by the court at the time of the return of the com"mission and made payable as the court shall adjudge."] [In all questions of alimony that may be brought before him, or Chap. 164.vol.15. in all cases in which one of the parties may raise a question in which property may be involved, it shall be within the power of. ing property. said commissioners to take testimony as to the amount of property Testimony may of either the complainant or the defendant, and report such testi- be taken respectmony to the court, Provided, that in his report to said court, the when. said commissioner shall not make any recommendation concerning alimony, or questions concerning property, which by law are vested in the court, in proceedings for divorces.] [SEC. 5. The court may grant alimony to the wife for her suste- Alimony. "nance pending her petition for divorce, and may order and direct Chap. 548,vol. 14. "the husband to pay such sum as may be deemed necessary to de"fray the expenses in conducting her case, whether the application "be on the part of either the wife or husband, and shall protect her "from personal restraint.] SEC. 6. The confession of neither party shall be received in evi- Confessions dence; [unless such confession shall be corroborated by the testi- excluded. mony of three or more competent witnesses or by strongly corroborative circumstances,] and if collusion between them appear, the evidence. petition shall be dismissed. Chap. 207, vol. 18. SEC. 7. On a petition for divorce for the cause of adultery, if the Recrimination. defendant shall recriminate and prove that the complainant has Condonation, been guilty of the like crime, or has admitted the defendant into conjugal society, or embraces, after knowledge of the adultery; or that the complainant, if a husband, allowed of his wife's prostitu- Collusion. tion, the petition shall be dismissed. SEC. 8. When the cause of divorce is the adultery of the wife, Forfeiture of she shall forfeit any estate, charge, or benefit, settled upon her, or wife for adultery, in trust for her use, in lieu of dower. wife on divorce SEC. 9. When a divorce shall be decreed for the aggression of Allowance to the husband, the complainant shall be restored to all her real estate, for aggression and be allowed, out of her husband's real and personal estate, such of husband. share as the court shall think reasonable; but if the divorce be for the wife's aggression, the court may restore the whole or a part of her real estate, and also such share of her husband's personal property as may seem reasonable. SEC. 10. Any such allowance, or division of the property, may How made. be by a gross sum, or an annual allowance, or an assignment by |