89 Cal. 46 | Cal. | 1891
— Action for divorce. The court below approving and adopting the special verdict of the jury on this point, found that on May 23, 1886, the plaintiff and defendant entered into a contract of marriage, by which they agreed then and there to a present marriage, and that this contract was followed on their part by a mutual assumption of marital rights, duties, and obligations. The defendant, who is the appellant here, contends that the finding is not justified by the evidence.
It appears that the parties first met at a skating-rink in Salinas City in August, 1885. At their second meeting, which was about a week afterwards, this acquaint
With this general statement of the nature of the evidence, we proceed to consider whether it is sufficient to show the existence of a marriage between the parties.
1. Section 55 of the Civil Code provides: “ Marriage is a personal relation arising out of a civil contract, to which the consent of parties capable of making it is necessary. Consent alone will not constitute marriage; it must be. followjd by a solemnization, or by a mutual assumption of marital rights, duties, or obligations.”
As there is a substantial conflict in the evidence as to the contract or agreement for a present marriage between the plaintiff and defendant, we cannot, under the settled rule here, disturb the finding of the court below on this point. This consent being established, our next inquiry is, whether the evidence is sufficient to establish the fact that such consent was followed by a mutual assumption of marital rights, duties, or obligations; and in order to answer this it is necessary to first determine what is meant by the words “ marital rights, duties, or obligations,” as here used. We have no doubt that they refer to such rights, duties, or obligations as arise from the contract of marriage, and constitute its object, and therefore embrace what the parties to such contract mutually agree to perform toward each other and to society.
The mutual agreement of the parties to live together in the professed relation of husband and wife is essential to create a contract of marriage, and the contract, therefore, imposes upon the parties to it the obligation to do so; and where the agreement to marry is not followed by solemnization, there is no assumption of marital rights, duties, or obligations, within the meaning of section 55 of the Civil Code, until the commencement of cohabitation by the parties to the agreement. And by cohabitation is not meant simply the gratification of the sexual passion, but “to live or dwell together, to have the same habitation, so that where one lives and dwells there does the other live and dwell also.” (Yardley’s Estate, 75 Pa. St. 207.) This was, in effect, so held in Sharon v. Sharon, 79 Cal. 670, the court there saying: “The commencement of true and open matrimonial cohabitation under such an agreement is a mutual assumption of marital rights, duties, and obligations, while mere copulation, without such cohabitation, is insufficient.”
The evidence in this case falls far short of showing that after the alleged consent to marry these parties ever assumed the marital rights, duties, or obligations of the marriage relation as we have defined them. There was no cohabitation, such as almost universally accompanies marriage, and nothing to indicate to the community that they had assumed such relation,
2, The defendant offered to prove that he was, on September 3, 1887, regularly united in marriage with
This offered evidence, however, demonstrates the wisdom of the law in requiring an open matrimonial cohabitation of the parties thereto as evidence of marriage, where there is no solemnization, so that those contracting this relation may have some reasonable assurance that its validity, and the legitimacy of their children, will not be overthrown by proof of a prior secret marriage upon the part of either the husband or wife, and of which the other had no notice or suspicion.
Judgment and order reversed.
McFarland, J., Harrison, J., Garoutte, J., Beatty, O. J., and Paterson, J., concurred.