66 Neb. 676 | Neb. | 1902
On the 5th day of March, 1900, Harriet M. Eaton filed ber amended petition in the district court for Cass county against Eli Eaton; alleging ber marriage to him on March 21, 1899; alleging various acts of extreme cruelty on the part of the defendant toward her; the failure of her health in consequence thereof, and her enforced abandonment of her home; that she was without means of support; that defendant was possessed of valuable property, describing it; and concluding with a prayer for maintenance and supp'ort. The defendant answered, admitting the marriage as alleged by plaiiitiff, and denying generally all the other allegations of the petition, and in addition pleaded,
TRe evidence taken at tRe trial not Raving been preserved, tRe only question presented by tRe record is whether, upon the pleadings and findings of fact, the decision in favor of defendant is right.
TRe force and effect of the marriage ceremony performed MarcR 21, 1899, Ras been muck discussed by counsel and will be first considered. Sections 1 and 2 of chapter 49, Session Laws of 1885, are as follows:
“Section 1. It shall be unlawful for any person who shall obtain a decree of divorce to marry again during the time allowed by law for commencing proceedings in error*680 or by appeal for the reversal of such decree, and in case such proceedings shall'be instituted it shall be unlawful for the defendant in error or appellee to marry again during the pendency of such proceedings, and a violation of this act shall subject the party violating it to all the penalties of other cases of bigamy.
“Sec. 2. No.proceedings for reversing, vacating, or modifying any decree of divorce, except in so far as such proceedings shall affect only questions of alimony, property rights, custody of children, and other matters not affecting the marital relations of the parties shall be commenced, unless within six months after the rendition of such decree, or in case the person entitled to such proceedings is an infant, a person of unsound mind, within six months, exclusive of the time of such disability.”
The first section of this act, which is section 45 of the divorce law, has the effect, we think, of disqualifying a divorced person from marrying while the decree of divorce is 'subject to possible reversal. The will of the lawgiver is the law; and the avowed object of the legislature, as expressed in the title of the act of 1885, was “to prevent the marriage of divorced persons during the time allowed for proceedings to reverse the decree of divorce, and during the pendency of such proceeding.” As there can be no-valid marriage without the consent of the state, the easy and obvious way for the state to prevent objectionable marriages is to withhold its consent. By the legislation we are considering the state has said to divorced persons, “Thou shalt not,” and in this we are unable to discover any implication-of consent. The legislature aimed at prevention. We know this because it has said so. But it is contended that while aiming at prevention it fell short of its object and achieved only repression, and that the law, instead of putting an end to an obnoxious practice, acts as a mere deterrent — a check and curb on the matrimonial impulse. Public policy no doubt favors the marriage contract, but it will not do to distort a plain statute in order to bring it into harmony with what the court may
With respect to statutes which evidence the legislative intent only by a prohibition and a penalty, it may be said that two antithetical views find support in the adjudged cases. The supreme court of Mississippi recently reviewed these cases, and, while holding that a marriage contracted in violation of law is not void, felt constrained to admit that the weight of judicial authority was opposed to its conclusion. Crawford v. State, 35 L. R. A. [Miss.], 224. In reading the Mississippi case and other cases holding that the state impliedly consents to a marriage which it has forbidden, one can not escape the conclusion that the hardship of the particular case exerted an undue influence on the decision, and that the hardships resulting from reversed sentences of divorce were altogether overlooked. It may seem harsh and cruel to render a decision which will involve an innocent person in guilt and bastardize after-begotten children, but these consequences are
Another question to be determined is the legal effect of the cohabitation of the parties after the impediment to their marriage had been removed. In this state the only thing essential to a marriage is the consent of parties capable of contracting. Bailey v. State, 36 Nebr., 808; Gibson v. Gibson, 24 Nebr., 394. Even a license is not indispensable. Haggin v. Haggin, 35 Nebr., 375. If the parties live together and intend to sustain toward each other the relation of husband and wife, they are, in the absence of any impediment fatal to that relationship, legally married. The marriage between the plaintiff and defendant was an attempt made in good faith to form a legal union. Both intended to live in wedlock. In the absence of an impediment to the marriage, no ceremony would have been required; the mutual consent of the parties would have been sufficient. When the impediment was removed, why may not consent be inferred from continued cohabitation? This exact question arose in the House of Lords in the case of De Thoren v. Attorney General, reported in 1 App. Cas., 686, decided in 1876.
The contention that section 45 of the divorce law is violative of the constitution, is overruled on the authority of De France v. Harmer, ante, p. 14.
The judgment is reversed and the cause remanded for further proceedings.
Reversed and remanded.
Cobbey’s Annotated Statutes, sec. 5369.