99 A. 663 | Md. | 1916
The appellant and appellee were married in November, 1891. A daughter was born as a result of their union. In September, 1896, they were divorced. Fifteen years later, at the instance of the daughter, then grown to young womanhood, they were re-united. There were intervening marriages by both parties which were dissolved by judicial decree, the appellant having had one, and the appellee two, such intermediate experiences. The re-union occurred in September, 1915. In October of the following year the appellee filed her bill of complaint against the appellant for alimony, and for the division and adjustment of their joint property interests, on the ground that she had been forced from their home by his cruelty and vicious conduct. The main defense to the suit is based upon the theory that the parties were not lawfully re-married and therefore do not sustain the relationship upon which the right to maintain the suit is predicated.
For some months prior to the time when the re-marriage is alleged by the bill to have occurred, the appellant was living *567 as a boarder at the home of the appellee and of their daughter. The question of their being married again had been under consideration and the appellant was inclined to the opinion that no ceremony was necessary inasmuch as they were both Catholics, and in the view of their church the original marriage was still subsisting. On the occasion, however, of a call at the home by the priest of the parish, a ceremony was performed upon whose nature and effect depends, in large measure, the decision of the present controversy. It is to be determined whether a marriage was then celebrated with religious rites, and if so, whether it should be held to be valid notwithstanding the conceded fact that no license for the marriage had been obtained as required by law.
The appellee and her daughter both testified that on the occasion in question a wedding ceremony was performed in full accordance with the ritual of the Catholic Church, that the priest placed his stole about his neck, had some holy water brought and a ring produced, and, taking a book from his pocket, read the service and solemnized the marriage in the customary form, including the usual questions and answers as to the mutual consent of the parties, and concluded with a blessing and the declaration that they were now husband and wife. The appellant testified that the ceremony was not a marriage, but simply a blessing. He stated that something in Latin was said by the priest and that holy water and a ring were used. The testimony of the priest was to the effect that he could not re-marry the parties because the church does not recognize a divorce, and therefore the first marriage, which was solemnized in the church, was to be regarded as being still in force, but that he pronounced a blessing upon their agreement to resume the relations of matrimony. He said that he could not recall exactly what he did on that occasion. In answer to the question as to what it was his intention to do, he said: "Just to have them become husband and wife." He thought that he may have put on *568 his stole, and that a ring was in fact used when they were asked to renew their consent, but he could not recall whether or not holy water was brought and applied.
It is the settled law of this State that "some religious ceremony" must be "superadded to the civil contract" in order that a marriage may be valid. "The law, however, does not prescribe the form, nor according to the rites of what church, the marriage shall be celebrated." Denison v. Denison,
The contention that the failure to secure a license rendered the marriage void must likewise be overruled. While the statute provides that no persons within the State "shall be joined in marriage until a license shall have been obtained from the clerk of the Circuit Court for the county in which the marriage is to be performed, or if in Baltimore City, from the clerk of the Court of Common Pleas," or unless banns shall have been published as therein described, or except in the case of marriages according to the ceremony used by the Society of Quakers, and while punishment by fine is directed to be imposed upon ministers and others who marry persons without a license, there is no purpose expressed *569
in the statute that a marriage otherwise validly contracted and celebrated shall be void if the prescribed license shall not have been procured. Code, Art. 62, secs. 4, 11. On the contrary, there is an implied recognition of the efficacy of marriages solemnized without a license in the provision that a minister who shall "marry" persons in the absence of such official authorization shall be subjected to the stated penalty. The requirement of a license preliminary to marriage is wholly of statutory origin. At common law, according to the decisions of this Court, a religious ceremony, in celebration of the civil contract, was sufficient to make the marriage lawful. Denison
v. Denison, supra; Richardson v. Smith,
The regulative purposes of the license statute are useful and important, but they are sought to be enforced by pecuniary penalties pronounced against those officiating at unlicensed marriages, and not by the radical process of rendering void and immoral a matrimonial union otherwise validly contracted and solemnized. In order to obviate such a result it has been decided by this Court that even the statutory provision expressly declaring void any marriage contracted within the prohibited degrees of relationship, did not have the effect of making absolutely void a marriage of uncle and niece, contrary to its terms, but rendered the marriage voidable only by judicial decree passed during the lifetime of the parties. Harrison v.Harrison,
The decree appealed from was passed in pursuance of a decision that the marriage was valid, and that a sufficient ground for the allowance of alimony and the adjustment of the property rights of the parties had been shown by the proof. No question has been raised on appeal as to the propriety of the decree with respect to the affirmative relief it grants, except upon the theory that the plaintiff and defendant are not legally married. Upon the facts and the law we are of the opinion that the decree in all respects is proper and just.
Decree affirmed, with costs. *572