196 A. 83 | Pa. Super. Ct. | 1937
Argued November 10, 1937. This is an appeal from the decree of the learned court below dismissing appellant's libel to annul an alleged bigamous marriage.
The respondent was married August 19, 1905, to James Arthur Hammond. On March 27, 1909, her father, as she was not of age, filed a libel in divorce in her behalf in Lycoming County. The case was not diligently prosecuted, so that the master's hearing was *326 not held until September 21, 1910, and a divorce was not granted until December 2, 1910.
On March 23, 1910, more than eight months before the respondent was divorced, she and libellant attempted to enter into a marriage before a minister. The libellant filed the present libel in the Court of Common Pleas of Berks County on January 26, 1935, which was shortly after he discovered that the respondent had not been divorced from Hammond.
From 1910 until 1930, when these parties separated, they cohabited as man and wife, and two children, born to respondent and Hammond, lived with them. In 1921, respondent as a wife joined with libellant in a deed conveying real estate, and, in the years 1911 and 1927, he designated her his wife as beneficiary in two insurance contracts and on a card of a lodge of which he was a member. Invitations to the marriage of respondent's daughter were sent out in the names of Mr. and Mrs. Fitzpatrick. There can be no question that these parties were reputed to be man and wife.
The learned judge below held that while the second marriage was void, and cohabitation and reputation alone are insufficient to prove marriage, the conduct of the libellant and respondent in living together for twenty years, and their repeated acts and declarations indicating they regarded themselves as man and wife, created a presumption of a valid marriage. With this conclusion we are unable to agree.
Section 12 of the Divorce Code of May 2, 1929, P.L. 1237, as amended July 15, 1935, P.L. 1013 (23 P. S. § 12), followed the Act of April 14, 1859, P.L. 647, except it does not limit the right to annulment to an innocent or injured person as did the Act of 1859. That section provides: "In all cases where a supposed or alleged marriage shall have been contracted, which is absolutely void by reason of one of the parties thereto having a spouse living at the time of the supposed or *327 alleged marriage . . . . . . such supposed or alleged marriage may, upon the application of either party, be declared null and void."
We find nothing ambiguous in this language, as argued by the appellee. The obvious intention of the legislature was that if a spouse of one of the parties is living at the time the marriage contract is entered into — not when the application for annulment is filed — the contract is void. No doubt can exist that this supposed marriage did not create a marital relationship.
The next question is whether a valid marital status between these parties was established thereafter and existed at the time this proceeding was instituted.
Proof of cohabitation and reputation is not sufficient to establish marriage. They are but circumstances from which a matrimonial contract may be presumed; but such presumption will not prevail if, in fact, there was no marriage: Bisbing's Est.,
It is well settled that the law recognizes as valid a common law marriage. It has the same sanctity as one performed by church or civil authorities. To create a valid common law marriage, while not requiring any particular form of solemnization, it must be evidenced by words in the present tense, uttered with the view and for the purpose of establishing the relation of husband and wife: Com. v. Stump,
In Hantz, Admr., v. Sealy, 6 Binney 405, a marriage ceremony was performed between Jacob Hantz and Mary Sealy. They cohabited as man and wife, had children, and, as in the case at bar, executed a deed for land in which she was styled his wife. At the time of *328
the alleged marriage, Hantz had another wife living, from whom he had been separated but not divorced. After a divorce had been granted, the parties consulted a lawyer, who advised them to celebrate a new marriage. Hantz said, "I take you for my wife." The woman was told that if she would say the same thing, the marriage would be complete, to which she answered, "To be sure he is my husband good enough." It was held that those words did not constitute a valid marriage, and, what is pertinent here, that the continued cohabitation and the declarations did not establish a marital status. This case was cited, with approval, inMcLaughlin's Est.,
In McGrath's Est.,
"It is settled in this State, that, if other proof is not available, `the marriage may be established,' as was said inCraig's Est., supra, at page 533, `by proof of reputation and cohabitation, declarations and conduct of the parties and such other circumstances as usually accompany the marriage relation:Richard v. Brehm,
In the case at bar, it is not claimed, and there is not one particle of testimony to show, that any attempt was made to enter into a common law marriage. We are convinced that there was no such marital contract. Only the declarations and conduct of the parties are *329 relied upon to raise the presumption of marriage. Furthermore, there is convincing evidence that the respondent was aware, when she attempted to enter into the marriage contract with libellant and when she attended the master's hearing in September, 1910, and gave her name as Lola M. Hammond, that she, the moving party in a divorce proceeding, had not obtained a decree severing her previous marriage contract. She testified that the libellant informed her she was to go to the attorney's office to "make a court record" in regard to her divorce and she was of the opinion she had previously procured a divorce, but it is very improbable that a woman of her intelligence would not have full knowledge of the purpose of that hearing and that a divorce had not been obtained.
We have come to the conclusion that both the parties knew of the invalidity of their marriage. It follows that the inception of their marital relationship was meretricious and there is no proof that a legal marriage was ever consummated. Certainly, the beginning of the cohabitation was illicit. Thereafter, notwithstanding their declarations and conduct, no presumption of marriage arose. The only presumption that is warranted is that the illicit relationship continued: Hunt's Appeal,
In Thewlis's Est.,
In Holben's Est.,
Exercising our independent judgment, as we are required to do(Reinhardt v. Reinhardt,
The decree of the lower court is reversed, and it is now ordered that a decree be entered annulling and declaring void the alleged marriage entered into between libellant and respondent.