79 Fla. 278 | Fla. | 1920
In the bill of complaint filed herein January 16, 1919, by Mabel Marsicano it is alleged “that she is a resident of the County of Hillsborough and is and has been a resident of the State of Florida for more than two years last past and prior to the filing of this bill of complaint; that on or about the 28th day of April, 1917, your oratrix secured a divorce from her husband, Angel Ramos, and was a feme sole and the said defendant was at the said time, a 'bachelor and your oratrix and the said defendant were competent to contract the marital relationship, and agreed .together to be and become husband and wife, and thereupon consummated the said agreement by actually living and cohabiting together as husband and wife, both parties hereto and to said marriage agreement, being over the ages of twenty-one years of age, and there being no legal impediment whereby the said parties could not lawfully intermarry, they secured no marriage license according to the provisions of the statutes of the State of Florida, -which were then
The prayer is for temporary and permanent alimony and solicitor’s fees, and for general relief.
By an unsworn answer the defendant denied “that he ever entered into an agreement with the complainant that they should become husband and wife, and further denies that they lived and cohabited together as husband and wife; denies that Mabel Ramos ever assumed the name of Mabel Marsicano, to his knowledge, until the time of his notification of the bringing of this suit; denies that they were known and received as man and wife by a large circle of acquaintances or that they rented certain premises at No. 1548 Franklin Street, in the name of Mabel Marsicano, or that they lived and cohabited there as husband and wife, or that defendant in company with Mabel Ramos engaged apartments with Mr. and Mrs. Thorpe at No. 1004 Florida Avenue, and there lived and cohabited as husband and wife, or that defendant allowed the complainant to trade at stores, using his name as her husband, or that they attended
Testimony was taken and the chancellor decreed the payment of seven dollars a week “as and for temporary alimony pen dente lite until the further order of the court in the premises,” and also decreed the payment of forty dollars as “a reasonable temporary solicitor’s fee.” The defendant appealed.
Where a suit for alimony is brought under Section 1933, General Statutes, 1906, predicated upon the existence of a ground for divorce, the complainant should allege and prove two years’ residence in this State before the filing of the bill, and also the existence of the marital relation between the complainant and the defendant, and also a ground for divorce under the statute in favor of the complainant. In this cause a common law marriage is alleged, and as a ground of divorce adultery by the defendant is alleged.
The common law is in force in this State, except where it is modified by competent governmental authority. No statute of this State expressly or by fair implication renders invalid or void marriage contracts between competent parties that are consummated under the rules of common law, Caras v. Hendrix, 62 Fla. 446, 57 South. Rep.
“Marriage is everywhere regarded as a civil contract. Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle, that, where a statute creates a right and provides a remedy for its enforcement, the remedy is exclusive. No doubt, a statute may take away a common-law right; but there is always a presumption that the Legislature has no such intention, unless it be plainly expressed. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witneses. Such formal provisions may be construed as merely directory, instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. And such, we think, has been the rule generally adopted in construing statutes regulating marriage. Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good, notwithstanding the statutes, unless they contain express words of nullity.” Meister v. Moore, 96 U. S. 76, text 78; Daniel v. Sams, 17 Fla. 487.
“Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change; and the rights and obliga
“The two essentials of a valid marriage at common law are capacity and mutual consént, and it is well settled that under the common law the marriage relation may be formed by words of present assent, per verba de pra.esentí, and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage. To constitute marriage per verba prasentí, the parties must be in the presence of each other when the agreement is entered into, but it need not be made in the presence of a witness, though without witnesses it may be difficult to establish it. The parties may express the agreement by parol, they may signify it by whatever ceremony their whim or their taste or their religious belief may select; it is the agreement itself, and not the form in' which it is couched, which constitutes the contract; and the words used or the ceremony performed are mere evidence of a present intention and agreement of the parties. To constitute a valid marriage per verba de praesmM there must be an agreement to become husband and wife immediately from the time when the mutual consent Is given. An express future condition is absolutely fatal to a claim of marriage, and can not be explained away by circumstances. It shows mental reservations which are incompatible with consent. This is true whether the condition relates to the creation of the marriage status, or to the duration of the relations of the parties. As there can be no contract per verba de praesenki where the marital status is to become fixed in the future, it is not sufficient to agree to present cohabitation and a future regular marriage when more
“Another form of common law marriage derived from the ancient canon law is that of per verba de futoro cum copula. A promise de futoro had, of itself, no legal effect ; but if the parties who had exchanged the promise had carnal intercourse, its effect was to interpose a presumption of present consent which converted the engagement into an irregular marriage, and produced all the consequences attributable to that species of matrimonial cohabitation. This doctrine was indorsed by many early decisions showing that a marriage per verba de futoro was, after all, but a species of present consent, being upheld upoir the fiction that at the time of the copula, con sent de praesenti was mutually given by the parties in consequence of the anterior promise. The instances in’ which the question has been presented in the American courts are comparatively few. In a great majority of instances an informal marriage is claimed to have been established by an agreement in present words, or sought to be inferred from evidence of cohabitation and reputation. Rut the doctrine has been recognized in a few jurisdictions, though there is a disposition to hold that marriage is merely evidenced, and not constituted, by this form of contract, and that such evidence may be overcome by facts showing that the parties did not intend at the time of the intercourse to enter into the marriage relation. Thus when it is shown that the parties after their engagement were all along looking forward to a formal ceremony to make them husband and wife, and never agreed or consented to become such without it, the prima fade case established by intercourse is overcome. And the prevailing rule in this country is that at the
The complainant testified that she had “lived in Hills-borough County, Florida, seven or eight years, and continuously during the two years prior to January 16, 1919,” when this suit was instituted. The complainant also testified that - “it was agreed to, we would live together there and get married-.” . “It was agreed that we would later on have a marriage ceremony performed.”
On cross: “You say that when you and Marsicano began living together that you agreed at some future date to get married? A. Yes, sir. Q. Is it not á fact that no such an agreement was ever made? A. We did make that agreement. Q. Did you intend to carry out that agreement?. A. Yes, sir, I did. Q. What date was set? A. There was no particular date set. He just said if I would live with him and be true we would get married. Q. What was the date of having that agreement? A. It was when we were living together. Q. Well, when did you enter into the agreement to get married ? A. It was about a year ago. Q. How long had you been living-together? A. About a year. Q. Was it his solicitation or was it yours that this agreement was made? A. We both agreed. It was both of us. Q. You say that you and Marsicano are husband and wife, is that true? A. Yes, sir, it is. Q. Just what agreement did you and he have? A. We got to going together and we agreed that we would be married if I would stick to him. He said that if I would stick to him we would be married later on. Q. Just what agreement did you have as to your present marriage? A. No more than we lived together as husband and wife and agreed to live together and get married later on. Q. Just what ágreement did you have as
Several Avitnesses testified that the parties hereto liA'ed together and recognized and introduced each other as husband and wife.
This evidence does not establish the relation of a common Iuav marriage betAveen the parties that can be recognized as such in this State.
The testimony not only fails entirely to shoAV a marriage per verba de praesenti, but actually negatives it. It may, lioAvever, tend to s'Iioav. a relation resembling a so-called marriage per verba de futoro cum copula; and to sustain this decree we would have to sanction this class of marriages in Florida.
Marriages per verba de futoro com copular.have never been recognized in this State. In most of the cases where this doctrine seems to be recognized, there was such a
The ancient doctrine of marriages per verba, de futuro cum copula is so nearly if not entirely repudiated in this country that we will not give effect to it in this State, fraught as it is with such serious consequences to innocent persons who might enter into a recognized form of marriage with a person whose prior relations with another partook so nearly of an illicit nature. ,
The decree is reversed.