59 N.Y.S. 1068 | N.Y. Sup. Ct. | 1899
The plaintiff is entitled to a separation from the -defendant if she was his lawful wife, for his abandonment of her is in law a desertion in case he owed her the bbligations due from .a husband to a wife. A lawful ceremony of marriage was periformed between the parties, and the question to be solved is as to rthe right of the plaintiff to marry at the time the ceremony was
There is no presumption of the law that, at the time of the second marriage in 1894, the first husband, Prevot, was dead. Independently, therefore, of any statutory law, that second marriage was 'void. For the protection of the legitimacy of children, and to give the honest abandoned one relief from a tie which death has probably freed her from, but where the power to prove death may be unavailable for want of ability to trace a fugitive, our statute (2 R. S. m. p. 139, § 6) provides as follows:
“ If any person whose husband or wife shall have absented himself or herself, for the space of five successive years, without being known to such person to be living during that time, shall marry •during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.”
This statute was, however, not designed to militate against the ■commonly-received belief that civilized intelligent society rests upon the correct maintenance of the marital tie of monogamous marriage. It is not designed to allow a couple by mutual understanding to separate, take no steps to hear from the other, or inquire from friends or relatives where that other is, and after five years contract new marriage relations on the theory that a five
I am of the opinion that, upon the facts in this case, the husband did not absent himself voluntarily for the period of five successive years without being known to the wife to be living during that time, nor that she in good faith actually believed that husband to be dead when she married the defendant, and the complaint is, therefore, dismissed.
Oomplaint dismissed.