2 Blackf. 407 | Ind. | 1831
The plaintiff filed her petition in the Decatur Circuit Court praying a divorce from her husband, the defendant; by which it appears they were married in the state of Kentucky where they both resided, and that they continued to reside there as man and wife, after their marriage, until in the year 1822 or 1823 when the defendant eloped with an adulteress, with whom he has ever since lived, and by whom he has had five or six children; that two or three years after the elopement, the plaintiff removed to the state of Indiana and permanently settled in the county of Decatur, where she has resided for the last five years. The Circuit Court decided that they had no jurisdiction of the case, because the marriage and causes of divorce both took place in the state of Kentucky, and the defendant has never resided in this state.
A more unsettled question could not perhaps be presented to the Court. It has been more or less discussed in the Courts of
The first point is, how far the legislature of a state can interfere with a marriage contract under the constitution of the United States, which prohibits the states from passing laws impairing the obligation of contracts.
In the case of Dartmouth College v. Woodward, 4 Wheaton,
Does the lex loci form a part of the marriage contract, or is it governed by the lex domicilii?
In England, it is settled that no foreign Court is competent to pronounce a divorce a vinculo of English marriages, for any
The third and last point in the case is,hadjihe CircuffCourt jurisdiction?
It appears from the plaintiff’s own showing, that the marriage contract was made and entered into in the state of Kentucky, where the parties both resided; that the causes of divorce arose there; and that the defendant does not now reside, nor has he ever resided, in this state. In the states of Mew-York and Massachusetts it has been decided, that where one or both of the parties remove into another state, for the purpose of procuring a divorce contrary to the laws of their own state, without an absolute change of domicil, such divorce is null and void, it being obtained by fraud; and that the Court pronouncing such decree has no jurisdiction, having been imposed uponjby fraud and collusion. These decisions we think are good law, but cannot apply to the case under consideration. There is neither fraud nor collusion in this case; the plaintiff is now and has been for several years a bonajide citizen of this state, and has acquired a domicil animo remanendi, and is entitled to the benefit of the laws. The statute of the state of Mew -York only authorises divorces a vinculo in the single instance of adultery; and a bill for a divorce can only be sustained for that cause in two cases: one, where the married parties are inhabitants of the state at the time of the commission of the adultery; the other, where the marriage is entered into in the state, and the par
The questions, whether divorces granted in one state will be valid in another, under all circumstances, and if valid to what extent, are not now before the Court. These questions are grave questions under our federal constitution, and if they should ever be presented, they will be entitled to the most cautious and mature consideration.
The judgment is reversed with costs. Cause remanded, áse.
The reader will find the law concerning divorces examined at large in Kent’s Commentaries, 2d Ed. Vol., 2, pp. 95 to 128. Vide, also, Indiana R. C. 1831, p. 213.