121 Mass. 232 | Mass. | 1876
The decree nisi heretofore entered in this case was, as the term imports, provisional only, and did not have the effect of dissolving the marriage between the parties. The libellant was not entitled to a full divorce until he had proved that he had given the notice required by the rule of the court under the St. of 1867, c. 222, and that no cause to the contrary had been made to appear. Until that is done, and the conditional decree of divorce is made absolute, the marriage relation between the parties continues to subsist. Of course the subsequent marriage, which the libellant has undertaken to contract with another woman, is illegal and void. Graves v. Graves, 108 Mass. 314, 320. Edgerly v. Edgerly, 112 Mass. 53.
It is urged that as the libellant acted under the belief that he had obtained a divorce and was at liberty to marry again, his intercourse with the woman whom he had since married was not adulterous. But we do not find, in the facts reported, anything to justify him in such an assumption. The terms of the notice which he was required to give imply the possibility that some cause might be shown why the divorce should not be made absolute. H he acted in good faith, and under an honest mistake as to his rights and duties, that fact might properly be considered in mitigation of punishment if he should be indicted for adultery, but would be of no avail as a ground of defence. Commonwealth v. Thompson, 11 Allen, 23. It hardly need be added, that this second marriage furnishes sufficient cause why the conditional divorce should not be made absolute. We cannot agree with the counsel for the libellant, that the illegality is merely technical. Clapp v. Clapp, 97 Mass. 531.
Libel dismissed.
