136 Wis. 360 | Wis. | 1908
Sec. 2330, Stats. (1898), as amended by cb. 456, Laws of 1905, provides, among other things, that “it shall not be lawful for any person divorced from the bonds of matrimony by any court of this state to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void.” A proviso to the section authorizes the circuit judge to grant permission to the divorced parties to remarry within the year, but this is of no moment here. The first question is whether the Michigan marriage was valid notwithstanding the provisions of this law.
The general rule of law unquestionably is that a marriage valid where it is celebrated is valid everywhere. To this rule, 'however, there are two general exceptions which are equally well recognized, namely: (1) Marriages which are deemed contrary to the law of nature as generally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. An exhaustive review of the many and somewhat conflicting authorities upon this general subject will be found in a note to Hills v. State in 57 L. R. A. at p. 155; S. C. 61 Neb. 589, 85 N. W. 836. The first of these exceptions covers polygamous and incestuous marriages and has no application here, and the question presented is whether the case comes within the second exception.
A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they be celebrated in other states under whose laws they would ordinarily be valid. In this sense, at least, it has
It is very clear, however, that the statute under consideration is in no sense a penal law. It imposes a restriction upon the remarriage of both parties, whether innocent or guilty. Upon no reasonable ground can this general restriction be explained except upon the ground that the legislature deemed that it was against public policy and good morals that divorced persons should be at liberty to immediately contract new marriages. The inference is unmistakable that the legislature recognized the fact that the sacredness of marriage and the stability of the marriage tie lie at the very foundation of Christian civilization and social order; that divorce, while at times necessary, should not be made easy, nor should inducement be held out to procure it; that one of the frequent causes of marital disagreement and'divorce actions
To say that the legislature intended such a law to apply •only while the parties axe within the boundaries of the state, and that it contemplated that by crossing the state line its -citizens could successfully nullify its terms, is to make the act essentially useless and impotent and ascribe practical imbecility to the lawmaking power. A construction which produces such an effect should not be given it unless the terms of the act make it necessary. The prohibitory terms are broad and sweeping. They declare not only that it shall be unlawful for divorced persons to marry again within the year, but that any such marriage shall be null and void. There is no limitation as to the place of the pretended marriage in express terms, nor is language used from which ■such a limitation can naturally be implied. It seems un•questionably intended to control the conduct of the residents of the state whether they be within or outside of its boundaries. Such being, in our opinion, the evident and clearly ■expressed intent .of the legislature, we .hold that when persons ■domiciled in this state and who are subject to the provisions
Another view of the question, leading to the same result, has been suggested to our minds, which will be stated. The statute cited is an integral part of the divorce law of this-state and in legal effect enters into every judgment of divorce. This being so, must not any judgment of divorce be construed as containing an inhibition upon the parties, rendering them incapable of legal marriage within a year, which must be given “full faith and credit” in all other states, under sec. 1, art. IV, of the constitution of the United States ?' And if it be entitled to receive such faith and credit, how can a marriage within another state be considered valid anywhere ? Are not the parties incapable of contracting such a marriage anywhere, for the reason that they have not yet. been relieved of their incapacity to marry another, resulting from their former marriage, or, in other words, for the reason that their divorce is not complete until the expiration of the year? We suggest these questions without definitely expressing an opinion upon them or making them a ground of decision.
The Michigan marriage being held void, the question recurs whether the finding that there was a common-law marriage, resulting from the fact that the parties lived and co~
. By the Oourt. — Judgment reversed, and action remanded to the circuit court with directions to affirm the judgment of the county court.