94 Ala. 501 | Ala. | 1891
— Appellee seeks by the bill the dissolution of the bonds of matrimony, on the ground that defendant has abandoned her, and has committed adultery with divers other women. The appeal, being taken from a decree overruling a motion to dismiss the bill for want of equity, and a demurrer thereto, involves only the sufficiency of its allegations. The bill alleges that the parties were of the age of consent. The averment as to the marriage is, “that heretofore, to-wit., on the 6th day of May, 1890, your oratrix, Daisy Farley, whose maiden name was Daisy Flexnor, was .lawfully and legally married unto Hoxie O. Farley, the defendant to this your oratrix’s bill of complaint.” This is a sufficient averment of the marriage. — 2 Bish. Mar. & Div., § 332. Defendant in
Whether, under our statutes, a legal marriage can be had without license, and without solemnization, was left an open and unsettled question in Robertson v. State, 42 Ala. 510. But, in the subsequent case of Beggs v. State, 55 Ala. 108, it was held, that a marriage without license from the judge of probate, and without solemnization by any person authorized by statute to solemnize it — merely by the consent of the parties — followed by cohabitation, is valid. The statutes having been since re-enacted, without material change in phraseology, and as marriages may have been contracted on the faith of the decision, and the legitimacy of children depend on maintaining the rule therein declared, whatever may be our individual opinion as to the legality of such marriages under our statutes, we do not feel at liberty to depart from the doctrine in Beggs v. State; if deemed impolitic and unwise, the legislature must furnish the remedy.
It may be reasonably inferred from the averments of the bill, being taken as true, that complainant, at least, did not mean and intend to enter into the relation of husband and wife, unless there was a formal solemnization of the marriage. As a general proposition, when the nuptials are delayed with an understanding of the parties that they are not to become husband and wife until a formal ceremony takes place, marriage is not constituted by copulation without such solemnization ; for, in such case, consent to become husband and wife presently, indispensable to a valid marriage, does not exist. Peck v. Peck, 12 R. I. 485; 1 Bish. Mar. & Div., § 262. This, however, is not the question here presented. Complainant
The averment as to the charge of adultery is, “that said defendant has been guilty of adultery with divers parties and persons, whose names are unknown to your oratrix.” The
Affirmed.
The opinion in this case was prepared by the late Judge Clopton, and was adopted by the court after his death.