Thompson v. Thompson

Jan 15, 1874
Reporters:
Before:
Gray
Gray, C. J.

To constitute a valid marriage by the law of this Commonwealth, it must be solemnized between parties competent to contract it, ‍‌‌​‌‌​​​‌​‌‌​​​​‌​‌​​​‌​‌‌‌​‌‌​​​​​​​​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌‌​‌‌‍and (except in the case of Quakers) before a person being or professing to be a justice of the peace or minister of the gospel. Milford v. Worcester, 7 Mass. 48. Gen. Sts. c, 106, §§ 14-20.

At the time of the ceremony of marriage between these parties, the husband was incapable of contracting ‍‌‌​‌‌​​​‌​‌‌​​​​‌​‌​​​‌​‌‌‌​‌‌​​​​​​​​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌‌​‌‌‍marriage in this *568Commonwealth, because he had been divorced, for his fault, from a former wife (who must be inferred from this report to have been still living), and had not obtained from the court leave to marry again. Gen. Sts. c. 107, § 25. The solemnization of the ‍‌‌​‌‌​​​‌​‌‌​​​​‌​‌​​​‌​‌‌‌​‌‌​​​​​​​​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌‌​‌‌‍second marriage, therefore, gave it no validity, and the cohabitation between the parties was unlawful at its beginning, and could only become lawful upon a new solemnization of matrimony after the husband had obtained leave to marry again.

The case, as stated in the report, shows ‍‌‌​‌‌​​​‌​‌‌​​​​‌​‌​​​‌​‌‌‌​‌‌​​​​​​​​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌‌​‌‌‍that such new solemnization was not proved to the satisfaction of the presiding judge as matter of fact, and does not require it to be presumed as matter of law. Northfield v. Plymouth, 20 Vt. 582. The mere belief of either or both parties that they were husband and wife ‍‌‌​‌‌​​​‌​‌‌​​​​‌​‌​​​‌​‌‌‌​‌‌​​​​​​​​‌‌​‌‌‌‌‌​​‌‌‌​‌‌‌‌‌‌‌​​‌‌​‌‌​​‌‌‌​​​‌​‌‌​​​​​‌‌‌‌‌‌​​‌‌​‌‌‍does not constitute a legal marriage. White v. White, 105 Mass. 325. A decree of nullity must, therefore, be entered as prayed for. Glassy. Glass, ante, 563.

Decree of rmllity.