319 Mass. 185 | Mass. | 1946
This is a libel for affirmation of marriage. See G. L. (Ter. Ed.) c. 207, § 14. The libel also contains prayers that the libellant be given the custody of the minor child of herself and the libellee and that an allowance be made to her for her support and that of the minor child. The ordering part of the decree entered by the judge, from which the libellant appealed, reads as follows: "It is decreed that the marriage of the libellant to this libellee is void in accordance with the provisions of General Laws Chapter 207, Section 10, and it is further decreed that the libellant contracted said marriage with the libellee with the full belief that he was capable of contracting said marriage, and that his former wife had been divorced, leaving the party to the former marriage free to marry again, and that the issue of her said marriage, namely, Mildred Rego Vital, is and shall be the legitimate issue of the libellant.” The recitals of the decree include a statement of the material facts upon which the judge based his decision. See Curley v. Curley, 311 Mass. 61, 67, and cases cited. They may be summed up as follows: At the time of the marriage of the parties on July 2, 1927, the libellee was married to another. His then wife had obtained a decree of divorce which did not become absolute until July 7, 1927, and the libellee was thereafter prohibited from remarrying for two years. The parties were married on July 2, 1927, in Rhode Island, into which State the libellee went for the purpose of avoiding the laws of this Commonwealth and intending to continue to reside in New Bedford. Said marriage of the libellant to the> libellee is void here, but the libellant contracted said marriage in the full belief that the libellee was capable of contracting said marriage and that he had been divorced from his then wife and was free to marry her. The parties thereafter on September 15, 1928, "went through a religious ceremony in . . . Providence, but that was simply a religious ceremony because the first ceremony had not been performed in church. It was not under the authority of
The libellant contends that, upon the facts found, she is entitled to a decree affirming her marriage under the provisions of G. L. (Ter. Ed.) c. 207, § 6, which reads as follows: "If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents.” General Laws (Ter. Ed.) c. 207, § 4, provides as follows: "A marriage contracted while either party thereto has a former wife or husband living, o except as provided in section six and in chapter two hundred and eight, shall be void.” General Laws (Ter. Ed.) c. 208, § 21,
General Laws (Ter. Ed.) c. 207, § 10, imposes no other consequences upon a marriage contract entered into in a foreign jurisdiction in violation of its provisions than those that would follow had the contract been entered into at the same time in this Commonwealth. The purpose of G. L. (Ter. Ed.) c. 207, § 10, was to except marriages entered into in violation thereof from the "general rule of law . . . that a marriage contracted elsewhere, if valid where it is contracted, is valid here, although the parties intended to evade our laws, unless . . . the marriage is one deemed 'contrary to the law of nature as generally recognized in Christian countries.’” Commonwealth v. Graham, 157 Mass. 73, 75, and cases cited. So, as in the case of marriages within the ‘Commonwealth in violation of c. 208, § 24, marriage contracts entered into without the Commonwealth in violation of the provisions of c. 207, § 10, are void just as though they had been entered into here. The present case is therefore governed by the same principles as though the marriage in question had been entered into in this Commonwealth.
The present case comes within the literal provisions of G. L. (Ter. Ed.) c. 207, § 6, since at the time of the marriage of the parties the decree of divorce obtained by the former wife of the libellee had not become absolute, and accord
In Turner v. Turner, 189 Mass. 373, 375-376, the court said in part, “While one of the objects of the statute is to protect persons who enter into the 'marriage relation in good faith, the broad general purpose of the statute is to provide against illegitimacy of children and to protect the public interests. Its purpose is to provide that the marriage ceremony, illegal at first by reason of the existence of an impediment, shall be regarded as taking place at the time the impediment is removed and as covering all marital relations thereafter assumed in good faith. It is immaterial whether the removal of the impediment is known or unknown. Whether known or not, the marriage ceremony becomes operative upon the removal, if the parties continue to live together as husband and wife in good faith on the part of one of them. Such a construction of the statute is not only in accordance with its plain reading, but it carries out the real bona fi.de intention of the innocent party to contract a valid marriage. Upon the removal of the impediment and the subsequent cohabitation in good faith, the relation becomes such as the innocent party supposed it to be. And such a relation thus once sanctioned- in the law, legitimatizes the children and leads to the protection of the moral welfare of the community.” It is true that in that case the impediment of a prior existing marriage was removed by the death of the former wife, but the statement we have just quoted from the opinion in that case applies with equal force where the impediment of the existing marriage is removed by a decree of divorce becoming absolute and the impediment that survives the decree ceasing to exist. The Turner case Was rested on the provisions of R. L. c. 151, § 6 (now G. L. [Ter. Ed.] c. 207, § 6). In the present case the libellee, however, contends that the other cases that we have cited and such other cases as Whippen v. Whippen, 171 Mass. 560, and Gardner v. Gardner, 232 Mass. 253, were governed by R. L. c. 151, § 10, and its predecessors and not by G. L. c. 207, § 10, which derives from St.
Murphy v. Murphy, 249 Mass. 552, was a petition for separate support. The marriage of the parties had been entered into in Providence, Rhode Island (on May 23, 1921), within two years after the respondent’s former wife had been granted a divorce from him,’ by a decree which became absolute on November 13, 1920. The petitioner, however, had acted in good faith, but before the expiration of the two years from the decree absolute the respondent deserted the petitioner. The court held that the marriage was invalid, and that the Probate Court was without jurisdiction to enter the decree of separate support that it had entered, and reversed that decree. In so doing the court based its decision on the provisions of G. L. c. 207, § 10, stating that, as distinguished from predecessor statutes which had required action by both parties to the contract
Wright v. Wright, 264 Mass. 453, was a petition for separate support. The facts were these. The petitioner married the respondent in Pawtucket, Rhode Island, on August 4, 1921, with due legal ceremony. The respondent had been divorced by a former wife by a decree which became absolute on November 12, 1920. By force of G. L. c. 208, § 24, he was prohibited from remarrying until November 12, 1922. The parties were both residents of Massachusetts and went to Rhode Island for the express purpose of being married, intending to return to Massachusetts and to reside here. The respondent knew, but the petitioner did not know, that at the time of his marriage to the petitioner he could not be legally married in this Commonwealth. The parties returned to Massachusetts and lived together as husband and wife in good faith on the petitioner’s part until August 14, 1924. At that time the respondent left her and thereafter did not reside with her. “There was no evidence that the former wife . . . [was] not still alive.” The court rejected the contention of the petitioner that her marriage to the respondent “became a legal marriage from and after November 13, 1922, by force of G. L. c. 207, § 6,” and, citing Murphy v. Murphy, 249 Mass. 552, as authority for the proposition that the petition could not be maintained, said in substance that the decision in Whippen v. Whippen, 171 Mass. 560, that, unless both parties to the
We do not concur in the reasoning or in the result reached in the Wright case. Neither is supported by the authorities cited. We have already pointed out that the Tyler case cannot be regarded as authority for the proposition that G. L. (Ter. Ed.) c. 207, § 6, does not apply to marriages entered into in contravention of § 10, where the requirements of § 6 have been satisfied. Manifestly for reasons already given the Murphy case cannot be held properly to be authority for that proposition. In so far as the Wright case decides in effect that the impediment to be removed is that of a marriage in force when the subsequent marriage is entered into, that the marriage is annulled by the decree becoming. absolute, and that thereafter, notwithstanding the further impediment flowing therefrom, the marriage is not “in force,” we do not concur. Nor do we agree with the reasoning of Wright v. Wright
The decree entered in the court below is reversed, and a final decree is to be entered affirming the marriage of the libellant to the libellee, establishing the legitimacy of the minor child of their union, and after further proceedings setting forth therein such orders as the court may make in the matter of the prayers of the libel that the libellant be given custody of the minor child and that the libellee be required to provide support for the libellant and the minor child. See G. L. (Ter. Ed.) c. 207, § 14.
So ordered.
It appears from the brief of the libellee that he and the libellant resided together in this Commonwealth from the time of their marriage until April, 1930.
See St. 1934, c. 181, § 1.
See St. 1943, c. 168, § 1.
See Rhodes v. Rhodes, 96 Fed. (2d) 715, 716.