24 S.E.2d 52 | Ga. | 1943
An equitable suit to annual a marriage is not maintainable in this State for causes recognized by the statute as grounds for total divorce. Accordingly, a petition which alleged that at the time the plaintiff was a party to a purported marriage with the defendant she was not competent to give her consent to such a contract and therefore could not lawfully enter into a contract of marriage, by reason of her drunken condition induced and brought about by the defendant for the purpose of obtaining her consent to such marriage, stated no cause of action and was properly dismissed.
The exception is to a judgment dismissing the action because the petition as amended did not contain sufficient allegations to authorize the relief sought. In article 6, section 15, paragraph 1, of the constitution of this State (Code, § 2-4201) it is declared: "No total divorce shall be granted, except on the concurrent verdicts of two juries, at different terms of the court."
The Code declares: "The following grounds shall be sufficient to authorize the granting of a total divorce: . . Mental incapacity at the time of the marriage. . . Force, menaces, duress, or fraud in obtaining the marriage." § 30-102. "To constitute an actual contract of marriage, the parties must consent thereto voluntarily, and without any fraud practiced upon either. Drunkenness at the time of marriage, brought about by art or contrivance to induce consent, shall be held a fraud." § 53-103. "Marriages of persons unable to contract, or unwilling to contract, or fraudulently induced to contract, shall be void. The issue of such marriages, before they are annulled and declared void by a competent court, shall be legitimate. In the latter two cases, however, a subsequent consent and ratification of the marriage, freely and voluntarily made, accompanied by cohabitation as husband and wife, shall render valid the marriage." § 53-104. *276
The case of Bell v. Bennett,
None of the above cases involved a direct proceeding seeking to have a marriage contract annulled.
In Brown v. Westbrook,
In Cale v. Davis,
In Hand v. Berry,
In Johnson v. Johnson,
It is seen from the foregoing, which has been stated without any attempt at explanation or elaboration, that there has not been uniformity and not often unanimity in the decisions of our courts on this important question. In the August, 1942, edition of the Georgia Bar Journal was published a timely and illuminating article by Mr. Edward E. Dorsey of the Macon Bar, dealing with the confusion which has resulted from these different lines of decisions, and pointing out the difficulties confronting the trial judges in their efforts to give effect to the apparently conflicting provisions of the Code. As pointed out in the article referred to, "The divorce act which was enacted by the Georgia Legislature in 1850, which has remained unchanged to this day, has been the fountainhead of the law of domestic relations in this State." The author of this article emphasizes the difficulty in the following statement: "Thus we see that the two Code sections have been interpreted in such a way as to make them conflict, which result was of course almost unavoidable. It is possible that the sections might have been made to jibe by allowing the petitioner whose suit was based on one of the dual grounds to have an option to sue either for annulment or divorce, at his discretion; this solution, however, would not be logically sound, nor would it conform to the old common-law authority. Probably much confusion would have arisen from such a practice."
There is much force and logic in the argument urged upon us now, as was urged also in the dissenting opinion of Benning, J., in Brown v. Westbrook, supra, where he pointed out: "A divorce case is a case in which the plaintiff states a marriage between himself, or herself, and the defendant, and prays that for some alleged cause he or she may be divorced from the defendant. The declaration *279 must state a marriage, for where there is no marriage, there can be no divorce. Divorce is the partial or total separation —unmarrying — of married persons, and there can be no separation, if there has been no union — no unmarrying, if there has been no marrying. The declaration, then, must state a marriage: if it states that there was no marriage, it is impossible that the case can be a divorce case. . . The case, then, made by the declaration is in law precisely what it would have been, had the statement in the declaration been that there had never been any marriage at all between the parties. And such a case as that, I think I may assume, is not a divorce case."
One may easily argue that annulment may be desirable, certainly in many situations. There was such a proceeding at common law, and Chancellor Kent is quoted as saying that "though no sentence of avoidance be absolutely necessary, yet as well for the sake of the good order of society as for the peace of mind of all persons concerned, it is expedient that the nullity of marriage be ascertained by a court of competent jurisdiction." 2 Kent's Com. 76.
It can also be strongly urged that the legislature, although not expressly providing for it, surely contemplated annulment not only by its provisions with reference to void marriages that "The issue of such marriages, before they are annulled and declared void by a competent court, shall be legitimate," but also by its actual declaration as in accordance with general law on the subject that certain marriages were "void." Code, § 53-104.
But regardless of this apparent confusion, we have concluded that we are not at liberty to approach the question anew, or in the case before us to do more than was substantially done in the case of Johnson v. Johnson, supra, where Presiding Justice Beck took full note of the previous cases on the question, and then speaking for the court said:
"Now in a contract where property rights only are involved, and one of the parties to such a contract was an imbecile, or was insane or mentally incompetent to contract, such a contract may be set aside in a suit in equity by the insane party or by his guardian in his behalf. But a contract of marriage, consummated by an actual ceremony of marriage and solemnized in any of the ways recognized by the law, is more than a mere contract. It creates a status — a status of vast importance to society and to the individuals *280
concerned; and such a contract will not be destroyed by a court of equity in such a way as to carry down with it the status thus created. In Griffin v. Griffin, supra, it was said: `We have discussed the merits of the case on the assumption that a marriage may be annulled in equity. But the marital relation involves something more than a civil contract between the parties; it represents a most important status of our social fabric, in which the public is interested. It therefore may be doubted whether an equitable suit for the annulment of a marriage is maintainable for causes which are recognized by the statute as grounds for divorce. Brown v. Westbrook,
"In Brown v. Westbrook, supra, it was said by Judge Lumpkin, who wrote the opinion in that case: `Nowhere else is mental incapacity, except in Georgia, so far as I know, made a ground for divorce. Elsewhere proceedings are instituted in chancery, or some other court, to annul the pretended marriage. A sentence of nullity is rendered. Now, I maintain broadly, that in this State no decree can be rendered, separating man and wife, where there has been a marriage de facto, except under our divorce laws. That they have virtually repealed the whole body of the English Ecclesiastical and Common Law upon this subject. Was any such proceeding ever known or heard of in Georgia, to obtain a sentence of nullity? . . The whole tenor of our legislation favors the view which I have taken of this subject; and it is right that it should. No innocent woman should be separated from the man whom she supposed to be her husband, without being provided for; and the idea of bastardizing the children of such a marriage is monstrous.' The reasoning in that case seems to me to be as sound as it is vigorous. It is true this decision, so far as it relates to the question under consideration, was rendered by a divided court, and we might lay down a different doctrine without formally overruling the case; but before doing that we should be convinced that it was wrong, and we are not so convinced."
So we feel bound by this decision, concurred in by all of the Justices, to hold as we do, that an equitable suit to annul a marriage is not maintainable in this State for causes recognized by the *281 statute as grounds for total divorce; and that the judge did not err in dismissing the action in the instant case.
Judgment affirmed. All the Justices concur.