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850 850 HARVARD LAW REVIEW status of husband and wife/^ this agreement without more creates a vaHd marriage.^2 But there are cases squarely holding that cohabitation is also essential.^^ However unfortunate these latter decisions/^ they will probably be followed in the states in which they were rendered, and must be given appropriate consideration in connection with oiu- main problem. 3. Personal presence of the parties at the time the agreement is made has been stated to be one of the requisites of a valid consensual mar- riage.^^ But marriages by proxy were possible in England when in- formal marriages were there recognized/^ so that this requirement of Where promises per verba de future cum cupola are allowed to constitute a marriage, it is only because present promises are inferred at the time of the later copulation. In re McCausland's Estate, 52 Cal. 568 (1878); Peck v. Peck,. 12 R. I. 485 (1880); Stoltz V. Doering, 112 111. 234 (1885). ^^ The mutual promises must be consistent with the recognized essentials of the marriage relation. State v. Walker, 36 Kan. 297, 13 Pac. 279 (1887). Thus, simply promising to live together is not enough. Soper j;. Halsey, 85 Him. (N. Y.) 464, $^ N. Y. Supp. 105 (189s). It must be intended that the relation be permanent. Peck V. Peck, 155 Mass. 479, 30 N. E. 74 (1892); State v. Ta-cha-na-tah, 64 N. C. 614 (1870). Contra: Johnson v. Johnson's Adm'r, 30 Mo. 72 (i860). Also, that it be mutually exclusive of marriage relations with others. Riddle v. Riddle, 26 Utah 268, 72 Pac. 1081 (1903). See i Bishop, Marriage, Divorce, and Separation, §§301,317. ^ Of course an informal marriage may be invalid for any substantive reason, such as incapacity of the parties, and the like, which would make a regidarly solemnized marriage invahd. " Hawkins v. Hawkins, 142 Ala. 571, 38 So. 640 (1904); Herd v. Herd, 194 Ala. 613, 69 So. 885 (1915); Grigsby v. Reib, supra. See also Lorimer v. Lorimer, 124 Mich. 631, 63s, 83 N. W. 609, 610 (1900). As to a statutory rule in CaUfomia and South Dakota, see note 5, supra. In Davis v. Stouffer, supra, it is said, "There are cases in which the statement is made that a'contract in praesenti followed by cohabitation, or by intercourse, is a valid common-law marriage; but the latter clause of that statement was merely ad- dressed to the facts which appeared in the particular case. It was not meant that the marriage would not be complete without that fact." Illustrating this statement, see: Davis V. Pryor, supra, 276; Heymann v. Heymann, 218 lU. 636, 640, 75 N. E. 1079, 1080 (1905); Shorten v. Judd, 60 Kan. 73, 77, 55 Pac. 286, 287 (1898); Floyd v. Cal- vert, 53 Miss. 37, 44 (1876). 1* Cohabitation may be a very important circumstance from which to infer mutual present promises to assimie the marriage relation. Haywood j;. Nichols, 99 Kan. 138, 160 Pac. 982 (1916); Bey v. Bey, 83 N. J. Eq. 239, 90 Atl. 684 (1914); Rose v. Clark, 8 Paige (N. Y.) 574 (1841). The Breadalbane Case, supra. It is possible to have a vaUd common-law marriage based on promises wholly so inferred. Adger v. Acker- man, supra; Estes v. Merrill, 121 Ark. 361, 181 S. W. 136 (1915); Land v. Land, 206 lU. 288, 68 N. E. 1109 (1903). But cohabitation of itself does not constitute mar- riage; "consensus, non concubitus, facit matrimonium." In re Boyington's Estate, 157 Iowa, 467, 137 N. W. 949 (191 2); Marks v. Marks, 108 lU. App. 371 (1903); Schwingle V. Keifer, 135 S. W. (Tex. Civ. App.) 194 (1911). In fact, as is pointed out in Davis V. Stouffer, supra, and in In re Hulett's Estate, supra, except as evidence of mutual promises, cohabitation should be considered whoUy immaterial. See i Bishop, Marriage, Divorce, and Separation, § 3x5, 27 Harv. L. Rev. 378. ^^ "It was . . . not . . . disputed that marriage can only be contracted in Scot- land by the mutual agreement of both parties to become husband and wife. There is, however, no particular form or ceremony by which such agreement must be mani-
 * fested except, indeed, that the parties must, in order to constitute a marriage de

praesenti, be in the presence of each other when the agreement is entered into, and it must be an agreement to become husband and wife immediately from the time when jnutual consent is given." Lord Cranworth, in the Breadalbane Case, supra, 199. " See E. G. Lorenzen, supra, 480, 481.