Flanagan v. Flanagan

116 Mich. 185 | Mich. | 1898

Grant, C. J.

(after stating the facts). Counsel for defendant claim that the bill itself shows that complainant is not his lawful wife, and insist that the case is within Clancy v. Clancy, 66 Mich. 202, Rose v. Rose, 67 Mich. 619, and Van Dusan v. Van Dusan, 97 Mich. 70.

In Clancy v. Clancy the relation of the parties was evidenced by a written agreement, which the court held not to constitute a marriage, but only a state of concubinage. In Rose v. Rose the bill did not aver a marriage, or that defendant ever promised to recognize complainant as his wife. Their relation was an unlawful one. In Van Dusan v. Van Dusan a marriage was alleged in the bill, but upon the proofs the court found that there was none. Mr. Van Dusan was married when complainant and he entered into their unlawful relations. He after-wards obtained a divorce from his wife, and it was held that the parties did not, after that, change their unlawful relations.

In the present case, complainant alleges that she and defendant did change their relation after he had informed her of his former marriage and his divorce, and recognized the marriage ceremony which had been performed as binding upon them. We are not prepared to say that under these allegations the marital relation did not exist. Proofs are necessary to determine what the relation of the parties actually was, and this was the course pursued in two of the cases above cited.

The order of the court below is affirmed.

The other Justices concurred.