66 THE LAW OF PERSONS absence.^ This practice is disused in the modern law,^ but an action lies for damages for breach of the contract to marry. Section 2. The Legal Requisites or Marriage Legal con- Assuming the consent of the parties as a necessary a vaM °^ condition of marriage, as of other contracts, we may lay marriage: (jown the essentials of a valid marriage as being: A. Capacity to marry and to intermarry. B. Consent of parents. C. Due observance of the necessary forms and cere- monies. We shall deal with these in order. A. Capa- A. Capacity to marry and to intermarry. The following parties. Cannot contract a vahd marriage: ^ viz. those who are (1) already married; * (2) under the age of puberty; (3) impotent; (4) insane; to whom the Roman-Dutch Law added (5) widows, so long as the question of their pregnancy remained undetermined.^ The following persons are precluded from intermarriage: viz. (a) persons within the prohibited degrees of relation- ship; ® (b) persons who have previously committed adultery together.
Cens. For. 1. 1. 11. 26 and 1. 1. 14. 9; Voet, loo. oit.; V. d. K.
Th. 57. This was called ' met de handschoen trouwen '. Hoola van Nooten, vol. i, p. 332; (Cape) Bichter v. Wagenaar (1829) 1 Menz. 262; (Ceylon) Dormeux v. Kriekenheek (1821) Ramanathan, 1820-33, p. 23. " (Cape) Marriage Order-in-Council of 7 Sept. 1838, sec. 19, in force in the Colony from Feb. 1, 1839. The same enactment applied to British Guiana, but has now been repealed by Ord. No. 25 of 1901. See also Ord. No. 36 of 1903. In Ceylon the action to compel marriage was abolished by Ord. No. 6 of 1847, sec. 30 (re-enacted in sec. 21 of Ord. No. 19 of 1907). ' For Brit. Gui. see Ord. No. 25 of 1901, sec. 28. ^ But, Van der Keessel says {Th. 64-5), if a second marriage has been contracted in good faith, the first spouse being thought to be dead, the children of the supposed second marriage wiU be deemed to be legitimate. ^ Gr. 1. 6. 3; V. d. K. Th. 66-8; V. d. L. 1. 3. 6. s Gr. 1. 5. 5 ff.; Van Leeuwen, 1. 14. 12 ff.; Voet, 23. 2. 29 ff. ' Dig. 34. 9. 13; Nov. 134, cap. 12. (a. d. 556); Sohorer ad Gr. 1. 5. 18; Voet, 23. 2. 27; Eoht-reglement van de Staten-Generaal, 18 March, 1656, art. 83 (2 G.P.B. 2444); Placaet van de Staten van HoRandt, July 18, 1674 (3 G. P. B. 507); V. d. K. Th. 70; V. d. L. 1. 3. 6; Rechtsg. Obs., pt. 1, no. 11; Bynkershoek, Quaest Jur. Priv.
lib. II, cap. X. Groenewegen, adopting a benignant interpretation