^{Page 117 note 1} “Common Law Marriage” [1987] C. L. J. 106.

^{Page 117 note 2} The very term which “in the thirteenth century our temporal lawyers borrowed from the canonists at a time when the English realm had little enacted law”: Maitland, F. W., Roman Canon Law in the Church of England (Methuen 1898), p. 4Google Scholar. Maitland's heroes of the common law were “popish clergymen” (Pollock and Maitland, History of English Law, 2nd ed. (reissued Cambridge 1968), vol. I, p. 133), servants of a French speaking king whose empire had its centre of gravity at the Angevin treasure castle of Chinon.

^{Page 117 note 3} “The whole of western Europe was subject to the jurisdiction of one tribunal of last resort, the Roman curia”: ibid., vol. I, p. 114.

^{Page 117 note 4} “A common law marriage…might be more aptly termed a canon law marriage, since it derives its origin from the canon law at the time when the canon law was the common law of western Europe”: Lazarewicz v. Lazarewicz [1961] P. 171, 177, per Phillimore J. (similarly Merker v. Merker [1962] P. 283, 293, per Sir Jocelyn Simon P.).

^{Page 117 note 5} Where it is impossible for the parties to make use of the local form of marriage, it is still possible to contract a common law marriage overseas; see, e. g., Hall, op. cit, pp. 106–107.

^{Page 117 note 6} Maitland, Canon Law, p. 39.

^{Page 117 note 7} See Chadwick, Henry, The Early Church (Penguin 1967), pp. 237–238Google Scholar.

^{Page 118 note 8} Ullmann, W., A Short History of the Papacy in the Middle Ages (Methuen 1972), p. 11Google Scholar.

^{Page 118 note 9} It was Alexander III who, more than any other single person, established the papal curia as a court of appeal for all Christians (and as a court of first instance, the court of Christendom); see Sayers, J. E., Papal Judges Delegate in the Province of Canterbury 1198–1254 (Oxford 1971), p. 5Google Scholar.

^{Page 118 note 10} “Every notable pope from 1159 to 1303 was a lawyer. This fact reflects the papacy's pre-eminent concern with the formulation and enforcement of law. It was here that the papal position was strongest”: Southern, R. W., Western Society and the Church in the Middle Ages (Penguin 1970), pp. 131–132Google Scholar.

^{Page 118 note 11} For a glimpse of the historical process, first the “sacralisation” of marriage and then, after the Reformation, its partial secularisation, see Lucas, Peter, Formalities of Marriage—Some Patterns of English Law (1986) Law's Society's Gazette, pp. 3815–3816Google Scholar; (1987) id., pp. 2198–2200.

^{Page 118 note 12} Bell, H. E., Maitland (A & C Black 1965), p. 108Google Scholar.

^{Page 118 note 13} See note 98 below.

^{Page 118 note 14} “In general…the Constitutions [of Clarendon] were genuine ancient customs of the realm … intentionally old-fashioned in outlook they view the king as the real head and master of the English church”: Barlow, F., Thomas Becket (Weidenfeld & Nicolson 1986), pp. 102Google Scholar, 105.

^{Page 118 note 15} Case 106/77 Amministrazione delle Finanze dello Stato v. Simmenthal [1978] E. C. R. 629, 644.

^{Page 118 note 16} In England its arrival was dramatised by the martyrdom of Becket and its passing, more than three and a half centuries later, by that of another Thomas by another Henry.

^{Page 118 note 17} See note 82 below.

^{Page 118 note 18} Its clauses, inter alia, deal with the contentious issue of appeals to Rome, warn “the church off hearing disputes over land…over advowsons and cases of debt…attempt to reform abuses … in church courts [and] regulate…the procedure for the trial of criminous clerks”: Barlow, op. cit., p. 101.

^{Page 119 note 19} Maitland, Canon Law, p. 56.

^{Page 119 note 20} Ibid., p. S3 (quoting from Stubb's historical appendix, note 99 below and text).

^{Page 119 note 21} Ibid., p. 83.

^{Page 119 note 22} For dower, see text to notes 28 and 29 next following.

^{Page 119 note 23} Maitland, History, vol. II, p. 385.

^{Page 119 note 24} The movement for clerical celibacy was another dimension of the separation between the sacred and the secular, the canon and the civil law.

^{Page 119 note 25} Rt. Rev. Mgr. Scanlan, J.D., Bishop of Motherwell, in Introduction to Scottish History, vol. 20 Stair Society (1958), p. 71Google Scholar (borrowing from Esmein, A., Le mariage en droit canonique (Paris 1891) vol. I, pp. 85–86)Google Scholar.

^{Page 119 note 26} In England Hubert Walter's constitution o f 1200 provided that persons were not to be married save publicly in the face of the church in the presence of a priest after a triple publication o f banns (see Maitland, History, vol. II, p. 370) but these became formal requirements of marriage only with Lord Hardwicke's Act of 1753.

^{Page 120 note 27} Helmholz, R. H., Marriage Litigation in Medieval England (Cambridge 1974), p. 27Google Scholar.

^{Page 120 note 28} This had been recognised at least since the time of Bracton, as by the prudent Wife of Bath (“housbondes at chirche dore I have had fyve”).

^{Page 120 note 29} Maitland, op. cit., vol. II, p. 375.

^{Page 120 note 30} See, e. g., Helmholz, op. cit., pp. 31–40.

^{Page 120 note 31} (1811) 2 Hag. Con. 54, 65. The medieval canonists had been at pains to point out that a contract made by words of present consent was “actually a marriage, not mere espousals”: Helmholz, op. cit., p. 32.

^{Page 120 note 32} This was recognised by statute as late as 1939 (text to note 65 next following).

^{Page 120 note 33} Helmholz, op. cit., pp. 27, 31 (and note 80 below).

^{Page 120 note 34} (1844) X Cl. & Fin. 534, 608 (and 749) (see also Lord Brougham at 703–705). Precontract, as avoiding a subsequent marriage, was a notorious consequence of the informal marriage from Alexander III to the Scottish case which was the “proximate cause” of Lord Hardwicke's Act of 1753 (see Maitland, History, vol II, p. 371 and Howard, G. E., History of Matrimonial Institutions (Chicago 1904), vol. I, p. 448)Google Scholar.

^{Page 120 note 35} Helmholz, op. cit., p. 26. For the progressive decline in suits, before and after the Reformation, see ibid., pp. 166–167 and note 49 next following.

^{Page 120 note 36} Ibid., pp. 72–73.

^{Page 121 note 37} Esmein, op. cit., vol. II, pp. 190–191. Eventually Tametsi was superseded by Ne Tenure (1908) of general application.

^{Page 121 note 38} 24 Hen. VIII, c. 12 (“the great act of appeals, Cromwell's masterpiece in statute-making”: Elton, G. R., England under the Tudors, 2nd ed. (Methuen 1974), p. 133)Google Scholar; repealed in 1554 by 1 & 2 Phil. & Mary, c. 8, restoring the supremacy of the See Apostolic; and revived in 1559 by the Act of Supremacy, 1 Eliz. 1, c. 1 (“the Court of Rome was given 60 days…to dispose of some pending appeals…that marvellous clause…it is colossal”: Maitland, F. W., Collected Papers (Cambridge 1911), vol. III, p. 123)Google Scholar.

^{Page 121 note 39} Ir. st. 28 Hen. VIII, c. 6 (repealed in 1557 but revived in 1560).

^{Page 121 note 40} A. P. S., III, 36, c. 2 (concerning the jurisdictioun and autoritie of the bischope of Rome callit the Paip).

^{Page 121 note 41} Elton, G. R., Reform and Reformation (Arnold 1977), pp. 231–232Google Scholar.

^{Page 121 note 42} For the brief appearance of the civil marriage in the Cromwellian period, see note 43 on p. 134 below.

^{Page 121 note 43} Their matrimonial jurisdiction was transferred to the Court for Divorce and Matrimonial Causes established by the Matrimonial Causes Act 1857 and subsequently to the Probate, Divorce and Admiralty Division (now the Family Division) of the High Court.

^{Page 121 note 44} In 1949 the “straight jacket” of a code of canon law was rejected as a “herculean labour…and one uncongenial to the spirit of English law”: The Canon Law of the Church of England (SPCK 1947), p. 82 (the canon law of the Roman Catholic Church was codified in 1917).

^{Page 122 note 45} Ibid., p. 47 (to this day there remains “the indeterminate and indiscoverable ancient Canon Law as preserved at the Reformation” which it is not practicable to abrogate: ibid., pp. 83–84).

^{Page 122 note 46} Examples are the distinction introduced by the common law between void and voidable marriages (see Law Commission No. 33, Report on Nullity of Marriage, para. 21) and the restriction of the prohibited degrees introduced by 32 Hen. VIII, c. 38 (1540), in the course of the king's matrimonial adventures, which allowed for marriages between first cousins.

^{Page 122 note 47} The Canon Law of the Church of England (note 44 above), p. 48.

^{Page 122 note 48} Jackson, J., The Formation and Annulment of Marriage, 2nd ed. (Butterworths 1969), p. 16Google Scholar, citing Wigmore's case (1706) 2 Salk 437 (“a contract per verba de praesenti is a marriage; so is a contract defuturo, if the contract be executed and he take her, 'tis a marriage, and they cannot punish for fornication”).

^{Page 122 note 49} Ingram, M. in Outhwaite, R. B. (ed.), Marriage and Society (Europa 1981), p. 42Google Scholar. For the Church's long-term success in fostering solemnisation in church, see ibid., p. 53 (and also Ingram, M., Church Courts, Sex and Marriage in England, 1570–1640 (Cambridge 1987), in particular pp. 132–133, 192–193, 205–209, 218, 366Google Scholar) and, for the reluctance of the common law courts by the eighteenth century to recognise marriages except on the “clearest possible evidence”, see R. L. Brown in Outhwaite ed., op. cit., p. 134.

^{Page 122 note 50} R. B. Outhwaite in Outhwaite ed., op. cit., p. 12.

^{Page 122 note 51} Howard, op. cit., vol. I, p. 457.

^{Page 122 note 52} Ingram in Outhwaite ed., op. cit., p. 56.

^{Page 122 note 53} Brown in ibid., p. 119; see also Gillis, J. R. in Disputes and Settlements ed. Bossy, J. (Cambridge 1983), in particular p. 264Google Scholar.

^{Page 122 note 54} Because of the legislation which taxed marriage and imposed stamp duty on licences and certificates of marriage; see Brown in Outhwaite ed., op. cit., pp. 119–120.

^{Page 123 note 55} (1811) 2 Hag. Con. 54, 81.

^{Page 123 note 56} I. e. the Marriage (Scotland) Act 1856 (Lord Brougham's Act), section 1 of which imposed a Scottish residence requirement with a view to ending the popularity of Gretna Green marriages.

^{Page 123 note 57} Command Paper 4059 of 1868, p. xvi; “what was the law of all Europe, while Europe was barbarous, is now the law of Scotland only, when Europe has become civilized”: Lord Hailes (1772) quoted in ibid., p. xxviii and Appendix, p. 83.

^{Page 123 note 58} Ibid., p. xix (cf. the “mere espousals” of the medieval canonists, note 31 above).

^{Page 123 note 59} See ibid., pp. xviii–xix.

^{Page 123 note 60} SeeClive, E. M., The Law of Husband and Wife in Scotland, 2nd ed. (Green 1982), p. 59Google Scholar.

^{Page 123 note 61} At p. xx.

^{Page 123 note 62} Clive, op. cit., p. 8, n. 82. Scotland was excluded from the scope of Lord Hardwicke's Act only as a result of a wrecking amendment; see Howard, op. cit., vol. I, p. 450 n. 1.

^{Page 123 note 63} Clive, op. cil., p. 8.

^{Page 123 note 64} Cmd. 5354.

^{Page 124 note 65} Section 5 of the Marriage (Scotland) Act 1939.

^{Page 124 note 66} Cmnd. 4011, para. 143. Implementation of this Report, in the Marriage (Scotland) Act 1977, brought t o the law o n the formation of marriage in Scotland a measure of simplification (including the abolition o f banns and the adoption of universal civil preliminaries) which failure to implement the corresponding Law Commission Report has denied to England (note 3 below).

^{Page 124 note 67} Shatter, A. J., Family Law in the Republic of Ireland, 3rd ed. (Wolfhound 1986), p. 46Google Scholar.

^{Page 124 note 68} Ibid., p. 83.

^{Page 124 note 69} (1844) X Cl. & Fin. 534, 742.

^{Page 124 note 70} At p. 657.

^{Page 124 note 71} “It may seem startling that questions of legitimacy and property should be treated as irrevocably settled by the result of an equal division of the House of Lords, on argument and information admittedly imperfect with regard to the history of the law: that result, moreover, depending on the accident of the form in which the appeal was presented: but so they were”: Pollock, F., First Book of Jurisprudence, 6th ed. (Macmillan 1929), p. 339Google Scholar.

^{Page 125 note 72} “Unanimous opinion” is misleading; see the criticisms by Lord Brougham at pp. 690–691 and 699–700 and Lord Campbell at pp. 747–748.

^{Page 125 note 73} Brougham and Campbell, it may be noted, were born and educated in Scotland; Brougham and Denman defended Queen Caroline.

^{Page 125 note 74} Vol. XVI, para. 515(o).

^{Page 125 note 75} At p. 654.

^{Page 125 note 76} The decisions of the ecclesiastical courts began to be reported in full only at the beginning of the nineteenth century: see The Canon Law of the Church of England (note 44 above), p. 55.

^{Page 125 note 77} At p. 769. For Lord Denman, at p. 825, Lord Stowell's judgment was one which “cannot be rejected without undermining the whole fabric of judicial authority”.

^{Page 125 note 78} (1811) 2 Hag. Con. 54, 82.

^{Page 126 note 79} See text to note 59 above.

^{Page 126 note 80} See note 33 above and Ingram in Outhwaite ed., op. cit., p. 45.

^{Page 126 note 81} Walsh, W. J., Two Famous Irish Marriage Cases (1912) XXXI Irish Ecclesiastical Record, 4th Series, p. 574Google Scholar. Maitland noted the same difficulty with the historical continuity of the Gallican church; see Canon Law, pp. 85–86.

^{Page 126 note 82} The literature is considerable. A helpful starting point is Helmholz, R. H., Select Cases on Defamation to 1600 (Seldon Society 1985), pp. xxiv–xxviGoogle Scholar.

^{Page 126 note 83} E. g. as to legitimation (notes 19 & 20 above), see Lord Denman at p. 824 and, as to dower (note 22 above), see e. g. the Solicitor General at pp. 593–599, Lord Lyndhurst at pp. 849–850 and Lord Cottenham at pp. 878–880.

^{Page 126 note 84} “William Lynwood”, (1896) XI E. H. R. 447n. (the absence of this footnote from the essay as republished in Canon Law was the subject of speculation in Bell, op. cit., p. 122).

^{Page 126 note 85} Beamish v. Beamish (1861) 9 H. L. Cas. 274. For Pollock (op. cit., p. 339) the failure of the House of Lords in this case to overrule their earlier decision “was the really decisive point at which the opportunity of reconsideration was lost”.

^{Page 126 note 86} At p. 337.

^{Page 126 note 87} See, e. g., Bell op. cit., pp. 108–123 and Elton, G. R., F. W. Maitland (Yale 1985), pp. 69–79Google Scholar. Maitland's own assessment, in the preface to Canon Law, was that his conclusions, “though they have not wanted for advocates, have not been generally accepted…in this country by those whose opinions are the weightiest, and have recently been rejected by the report of a Royal Commission [see text to note 99 below] signed by twenty-three illustrious names”.

^{Page 127 note 88} History, Vol. II, p. 372.

^{Page 127 note 89} It was in 1845 that Newman, as he recorded in his Apologia pro Vita Sua, “when I was fully confident that the Church of Rome was the only true Church, I joined her”.

^{Page 127 note 90} At pp. 691–692 (similarly at p. 722); similarly Lord Campbell at pp. 751–752.

^{Page 127 note 91} This Act was concerned with Peter's pence and dispensations.

^{Page 127 note 92} At p. 875.

^{Page 127 note 93} At pp. 678–682 and pp. 745–746 respectively.

^{Page 127 note 94} See The Ecclesiastical Law of the Church of England (London 1873), vol. 1, p. 19.

^{Page 127 note 95} “What high-churchmen needed…was to show that the Ecclesia Anglicana… had been canonically autonomous before the breach with Rome. This claim was made by Sir Robert Phillimore in Martin v. Mackonochie”: Gray, J. W., Canon Law in England: some Reflections on the Stubbs-Maitland Controversy, p. 49, in Studies in Church History, vol. Ill (Brill 1966) ed. Cuming, G.J.Google Scholar.

^{Page 127 note 96} (1868) L. R. 2 A. & E. 116, 150.

^{Page 127 note 97} “In its endeavour to downgrade the Reformation, this interpretation simply swallows Tudor propaganda…The judges spoke of powers that before the Reformation had not existed”: Elton, G. R., Tudor Constitution, 2nd ed. (Cambridge 1982), p. 226Google Scholar.

^{Page 127 note 98} (1591) 5 Co. Rep. la. For SirPhillimore, Robert, “the great case of Cawdrey… may be said to contain a treatise on constitutional law of England upon the usurpation of the papal see upon the liberties of the national church, and in regard to the authority and privilege of the English Crown”: Martin v. Mackonochie (1868) L. R. 2 A. & E. 116, 151Google Scholar.

^{Page 127 note 99} According to Gray, op. cit. p. SO, Stubbs “changed his mind” after serving on the Royal Commission and “we find him speaking with the voice of Phillimore”.

^{Page 127 note 1} Shatter, op. cit., p. 83. “The law as to formalities is complex and obscure, being contained in a labyrinth of statutes stretching from 1844 to 1972”: ibid., p. 82. For the continued application of R. v. Millis to Roman Catholic marriages notwithstandíng the Council of Trent, see Ussher v. Ussher [1912] 21. R. 445.

^{Page 127 note 2} Shatter, op. cit., p. 96. In Northern Ireland there appears to have been a similar ramshackle development from the 1844 Act; see, for example, Index to the Statutes in force Northern Ireland To 31 December 1969.

^{Page 127 note 3} Para. 6 of Report of Joint Working Party of the Law Commission and the Registrar General in Annex to Law Commission No. 53, Report on solemnisation of marriage in England and Wales. The Commission's recommendations have not been implemented (possibly because they include the abolition of banns, notes 12 & 13 below).

^{page 129 note 4} 26 Geo. II, c. 33.

^{page 129 note 5} See, for example, the authorities cited in Hall, op. cit., notes 23–27.

^{page 129 note 6} Section 8.

^{page 129 note 7} 4 Geo. IV, c. 76.

^{page 129 note 8} Howard, op. cit., vol. I, p. 464.

^{page 129 note 9} 6 & 7 Will. IV, c. 85.

^{page 129 note 10} The “religious building” terminology, governed by the antiquated provisions of the Places of Worship Registration Act 1855, still survives for religious marriages other than those of members of the Church of England and of Quakers and Jews (reforms are proposed in paras. 1.17 and 3.22–3.27 of the Green Paper, note 13 below).

^{page 129 note 11} A separate Act, 6 & 7 Will IV, c. 86, established the modern system of registration of births, deaths and marriages and provided for the appointment of a registrar general. Civil marriage was introduced in Scotland by the Marriage (Scotland) Act 1939 and in Ireland by the Marriage (Ireland) Act 1844.

^{page 129 note 12} For the Church of England's opposition, founded at least in part on the fear that universal civil preliminaries would lead (as it has not in Scotland) to a compulsory civil marriage ceremony, see the Report of the Working Party established by the Standing Committee of the General Synod of the Church of England, An Honourable Estate (1988), paras. 184–190Google Scholar.

^{page 129 note 13} Provision for the abolition of banns and the adoption of universal civil preliminaries, originally included in the Marriage Bill 1836, was recommended by both the 1868 Commission and by Law Commission No. 53 and was seen by the Efficiency Scrutiny Report, Registration of births, marriages and deaths (OPCS 1985)Google Scholar, as something which “would assist the efficiency of the Registration Service”. Only a few very modest reforms were proposed in a Green Paper issued by the Department of Health in 12 1988, Registration: a modem service, Cm. 531, chapter 3Google Scholar. (See, further, Registration: proposals for change, Cm. 939, chapter 3.)

^{page 129 note 14} The consolidation incorporated corrections and minor improvements authorised under the Consolidation of Enactments (Procedure) Act 1949 (the first occasion on which this procedure was used).

^{page 130 note 15} To the extent that notice of marriage must be given and a certificate issued.

^{page 130 note 16} See Lindo v. Belisario (1795) 1 Hag. Con. 216; on appeal (1796) 1 Hag. Con. App. 7 and Goldsmid v. Bromer (1798) 1 Hag. Con. 324. The language of section 2 of the 1836 Act (marriages according to the usages of Quakers and Jews) implies that Quaker marriages, which from the Cromwellian period had been subject to rigorous procedures, had achieved a similar status even if their validity had originally depended on the common law.

^{page 130 note 17} See sections 26(1)(c) & (d) and 47 of the Marriage Act 1949 (recommendations for ending the anomalous position of Quaker and Jewish marriages are among the unimplemented recommendations in Law Commission No. 53).

^{page 130 note 18} See Howard, op. tit., vol. I, p. 449 n. 3 and Farran, C. d'O., “The Royal Marriages Act 1772” (1951) 14 M.L.R. p. 53Google Scholar (questioning whether the 1772 Act has any continuing application).

^{page 130 note 19} See, now, section 79(5) of the Marriage Act 1949 (has the common law marriage become a privilege of the royal family?).

^{page 130 note 20} Part II is headed “Marriages according to the rites of the Church of England” and Part III “Marriages under Superintendent Registrar's Certificate” (marriages according to the rites of the Church of England can be solemnised on the authority of a certificate: hence sections 25(d) and 49(e)).

^{page 130 note 21} Section 25 derives from section 22 of the 1823 Act and section 42 of the 1836 Act, and section 49 from section 42 of the 1836 Act; both sections incorporate corrections and minor improvements (note 14 immediately above) which are not material for present purposes.

^{page 130 note 22} Section 24 derives from section 26 of the Marriage Act 1823 and section 48 from part of section 2 of the Marriage Act 1840 and section 17 of the Marriage and Registration Act 1856; the derivation of section 48 was considered by Baker, J. in Mahadervan v. Mahadervan [1964] P. 233Google Scholar, 248–250 in the context of the 1908 Marriage General Ordinance of Ceylon (a reminder of the export, for better or worse, of English marriage law to countries of the British Empire).

^{page 130 note 23} Law Commission No. 53, Annex., para. 120 (the same point, in relation to the corresponding Irish legislation, is made in Shatter, op. cit., p. 94). For the Working Party's criticisms of the nullity provisions and their recommendations, see ibid., paras 121–131. These recommendations were accepted by the Law Commission but have not been implemented (note 3 immediately above). The nullity provisions were excluded from the scope of Law Commission No. 33, Report on Nullity of Marriage (see para. 47) which considered all other aspects of the law of nullity and whose recommendations were implemented in the provisions of the Nullity of Marriage Act 1971 (now incorporated in the Matrimonial Causes Act 1973).

^{page 131 note 24} “Irregular Marriages” (1973) 89 L.Q.R., p. 181 (similarly W.G. Bartholomew, “Polygamous Marriages and the English Criminal Law” (1954) 17 M.L.R. pp. 344, 347–348). This conclusion is supported by Mr Hall as “perhaps … the soundest”: op. cit., p. 111.

^{page 131 note 25} “Irregular Marriages” (1974) 90 L.Q.R., p. 28.

^{page 131 note 26} See nowBennion, F., Statutory Interpretation (Butterworths 1984), pp. 436–437Google Scholar, illustrated by reference to D v. D [1979] 3 All E.R. 337 (though this did not cite the Interpretation Act). For Mr Bennion the application of the Act to common law rules is “unsatisfactory … and … contrary to … the principle … that the common law exists as a seamless web of judge-made and customary rules and principles. It gives way to a statute while the statute is in force, but ought not to give way to it after the statute has gone”: ibid., p. 437.

^{page 131 note 27} Op. cit., p. 29. He could have added that section 79 of the 1949 Act (repeals and savings) made provision in the usual form for nothing in the section to be taken as prejudicing the operation of section 38 of the Interpretation Act 1889 as to repeals; see section 79(13).

^{page 131 note 28} For the expeditious and non-controversial parliamentary procedure on consolidation, see May, Erskine, Parliamentary Practice, 21st ed. (1989), pp. 494–495Google Scholar.

^{page 131 note 29} Bennion, op. cit., p. 436.

^{page 132 note 30} Mr Hall suggests (op. cit., p. 109) that “if this was indeed what Parliament intended it is strange that the Marriage Act 1949 did not say so” but consolidation (in particular) unfortunately does not work like this.

^{page 132 note 31} Thomson, op. cit., pp. 29–30 (where the full text of section 22 is set out).

^{page 132 note 32} Ibid., p. 30.

^{page 132 note 33} Loc. cit.

^{page 132 note 34} For full derivations, see note 21 immediately above.

^{page 133 note 35} As re-enacted in section 79(10) of the Marriage Act 1949, the provision seems set to linger on into the next millenium.

^{page 133 note 36} In Reg. v. Millis Lord Tindal C.J., at p. 677, and Lord Abinger, at p. 745, drew support from section 13 but neither considered the provisions as to nullity. Section 13 was extended to Ireland, in isolation from the rest of the Act, a consideration to which Lord Lyndhurst, at p. 871, attached great importance.

^{page 133 note 37} R. v. Bham [1966] 1 Q.B. 159, 169 (CCA.)

^{page 134 note 38} Collett v. Collett [1968] P. 482, 492–493 per Ormrod J.

^{page 134 note 39} This is the disconcertingly prominent old dimension of Scarman's, LordEnglish Law—The New Dimension, Hamlyn Lectures 1974 (Stevens 1974), p. 1Google Scholar.

^{page 134 note 40} van Caenegem, R.C., The Birth of the English Common Law (Cambridge 1973), p. 92Google Scholar.

^{page 134 note 41} Cretney, S.M., Principles of Family Law, 4th ed. (Sweet & Maxwell 1984), p. 9Google Scholar.

^{page 134 note 42} Bromley, P.H. & Lowe, N.V., Bromley's Family Law, 7th ed. (Butterworths 1987), pp. 39, 53Google Scholar.

^{page 134 note 43} And did so also in Cromwellian England in the legislation of the Barebones Parliament of 1653 (Acts and Ordinances of the Commonwealth, ed. C.H. Firth & R.S. Rait, vol. II, pp. 715–718 (& 1139)). For an envious glance at this legislation—simple, secular, modern, and as short-lived as the similar reforms of the French Revolution, embodied in the Code Napoleon, have proved enduring—see Lucas, op. cit. (note 11 on p. 118 above), p. 2198.