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Sentences not Final.]-A sentence touching the validity of a marriage never becomes a final judgment, but is always open to revision and reversal. But so long as it is unrepealed it is conclusive evidence against all persons who were bona fide parties to that adjudication.(a)
Where a marriage is declared to be void by the statute law, the sentence of the ecclesiastical court in favour of the marriage will not legalize it, but leaves it open to be questioned in any other court, where any question of property depending upon it may arise.(6)
*Sentences impeachable for Fraud.] – The effect of a sentence of the ecclesiastical court may be avoided by
[ 1475 ] proof that it was obtained by fraud or collusion.(c) A distinction has been taken between the case of a stranger who cannot come in and reverse the judgment, and therefore must of necessity be permitted to aver that it was fraudulent, and the case of one who is a party to the proceedings; the party himself cannot give evidence of it, but must apply to the court which pronounced the sentence to vacate it. Thus in an action of assumpsit, the defendant gave in evidence her marriage with one M.; in answer the plaintiff produced a sentence in the ecclesiastical court, showing that at the time of such alleged marriage the defendant was married to another person, which the plaintiff relied on as conclusive evidence of the nullity of the marriage with M. The court, however, would not allow the defendant to prove that the sentence was obtained by fraud.(d) Fraud in obtaining a sentence can only be examined in the court where the fraud was committed, or in one of concurrent jurisdiction; and courts of equity have not concurrent jurisdiction in questions of marriage; and the court of chancery would not enter upon the question of fraud in obtaining a sentence of jactitation of marriage.(e)
2. OF THE EFFECT OF SENTENCES OF DIVORCE.
Power to contract another marriage.]—Where a marriage is declared by the ecclesiastical court to be null and void for some cause existing prior to the marriage, the parties are of course at liberty to contract a second marriage.(f) 'The sentence declaring a 614, cited 3 Hagg. Eccl. R. 612. See Shute gradu prohibito contractum, subsistere non v. Shute, Pr. Ch. 111; Pettifer v. James, potest, et tunc similiter non transit in rem Bunb. 16.
judicatam. Gail. Obs. lib. i., Observ. 112. (a) Duchess of Kingston's case, St. Tr. See ) Hagg. Cons. R. 220. vol. xx. p. 543; Com. Dig. Baron and Feme, (6) Bouzer v. Ricketts, 1 Hagg. Cons. R. (C. 6). See Hargrave's Law Tracts, 471. 214. Sententia in causa matrimonii non transit in (c) Duchess of Kingston's case, 20 How. rem judicatam, sed revocatur quandocunque St. Tr. 544. 478, 479; Roach v. Garvun, 1 error detectus fuerit, sed ut 'hoc exactius Ves. Sen. 157. 287. See Bandon v. Becher, declaretur, distinguendum est, utrum senten. 3 Clark & Fin. 510. tia lata sit contra matrimonium, an vero (d) Prudham v. Phillips, cited Ambl. pro matrimonio. Primo casu nunquam, ut 473 ; 20 How. St. Tr. 470, n. dictum est, transit in rem judicatam; secun (e) Ambl. 762. do casu distinguendum, utrum sententia lata (1) Bury's case, Dyer, 179 a; 5 Rep. 98 sit pro matrimonio, quod tarnen obstante ali. b; ante, p. 203 ; 3 Burn's Eccl. L. 113; 3 quo impedimento canonico ut puta quia in Inst. 88, 89.
marriage void pronounces the party to be free from the bond of marriage with the particular individual, and to have full liberty to contract and solemnize legal marriage with any other person. We have already seen that persons divorced a mensa et thoro for adultery or cruelty cannot marry again whilst the former husband or wife is [ *476 ]
alive,(g) *and if they do, such marriage is void. When
a marriage was dissolved either for adultery or wilful and malicious desertion, it was universally admitted by the Protestant states of Europe that the innocent pariy might again marry, but the guilty party, it has been said, could not marry so long as the innocent party remained unmarried.(h) There seems to be no law by which this proposition is established. The prohibition, which does exist, prevents the guilty party from marrying the person with whom the adultery was committed.(i)
Marriage after Parliamentary Divorce.] Parliamentary bills of divorce usually declare that the bond of matrimony between the parties shall be wholly dissolved, annulled, vacated, and made void to all intents and purposes whatsoever. But express authority to contract a new marriage is given only to the injured party, making it lawful for such party to marry again, and declaring that the children born in such matrimony shall be legitimate. There is no similar provision for the future marriage of the offending party. It seems more than probable that in the early instances of these divorces, it was not supposed or adverted to, that the permission to contract a new marriage could extend to the adulteress. But the subsequent and long acquiescence seems to have established such marriages, or at least entitled them to be established, if any doubt should arise respecting their validity. It is indeed difficult to understand how a marriage can be dissolved as to one of the parties, without being equally dissolved as to the other. And perhaps it may be concluded that divorce bills, as now worded, though purporting only to relieve the injured party, are a complete dissolution of the marriage; of which dissolution the adulteress may legally avail herself, unless expressly prohibited by some act of the legislature.(k) This point was much discussed in the house of lords in the year 1800, and although the preponderating opinion seemed to be in favour of the validity of the marriage between the guilty parties, yet some of the speakers entertained doubts upon the subject.(?)
*Woman Divorced not liable to be sued as a Feme Sole.] [ *177 ]-A man and his wife cannot
, by agreement between themselves, change their legal capacities and characters, nor can a woman be sued as a feme sole while the relation of marriage subsists, and she and her husband are living in this kingdom.(m) A feme covert cannot be sued alone, unless in the known excepted cases of abjuration, exile, and the like, where the husband is considered as dead, and the woman as a widow, or else as divorced a vinculo.(n)
(g) Ante, pp. 374-376; Com. Dig. Baron and Feme, (C. 5.)
(h) See authorities cited, 1 Burge on For. eign Law, 649, n. (b).
(i) 1 Burge Foreign Law, 649; ante, p. 374.
(k) Lord Aukland, Parl. Hist. vol. XXXV. 247; ante, p. 378.
(l) Parl. Hist. vol. xxxv. p. 287–300. (m) Marshall v. Rutton, 8 T. R. 545. (n) Hatchett v. Baddeley, 2 Bl. R. 1082; Hyde v. Price, 3 Ves. 443; Lean v. Schutz,
A divorce for adultery does not destroy the relation of marriage, but merely suspends for a time some of the obligations arising out of that relation. A sentence of divorce a mensa ei thoro does not so far destroy the relation of husband and wife as to inake the latter a feme sole, such a sentence merely suspends for a time some of the obligations arising out of that relation. A woman divorced a mensa et thoro for adultery, and living separate and apart from her husband, cannot be sued as a feme sole.(o)
Jewish Divorce.]—On the trial of a plea of coverture Lord Kenyon appears to have admitted a divorce in a foreign country according to the custom of the Jews there.(p). We have already seen(a) that Jews have their own rites of marriage. In a recent case, where a personal action was brought by a married woman, who had been divorced from her husband according to the forms of the Jewish law, on the ground of incompatibility of temper, the question as to her right to maintain the action was reserved.(r) A Jewish divorce cannot be proved without producing the document of divorce delivered by the husband to the wife. In the course of a trial of an action of assumpsit, brought by a woman, it appeared that she had for several years before cohabited with a man as her husband, from whom she had separated. The plaintiff's counsel, however, undertook to show that the marriage of ihe plaintiff was a marriage in which both the parties were Jews; that it had been solemnised according to the Jewish ritual, and had been put an end to by a Jewish divorce before the period of the contract declared upon. For this purpose Doctor Solomon Hirschel, chief rabbi (commonly called high priest) of the German Jews in England, and other subordinate officers of the synagogue were called. The book of divorces, kept by the superintendent of the synagogue in Brooke's Gardens, containing an entry of the divorce in Hebrew, was produced by the superintendent, who was present at this divorce; but it also appeared from the evidence of Dr. Hirschel, to constitute a valid divorce, under the laws and usages of the Jews, a written document of divorce(b) must be delivered from the husband to the wife; and that the delivery of this document is the operative part of the ceremony, which must however take place in the presence of the high priest and of ten persons at least. This document of divorce, which is attested by two witnesses, may be retained by the wife, but it is more frequently handed over by the wife to the high priest. This document was not produced by the plaintiff and the high priest stated that he had not been requested to bring it with him. Upon this evidence, it was contended for the defendant, first, that although Jewish marriages are excepted out of the marriage act, yet by the common law a marriage, whether Jewish or Christian, if once validly contracted, can be dissolved only by act of parliament, and
2 BI. R. 1195. See Kay v. Pienne, 3 Camp. (9) Ante, p. 67; Jones V. Robinson, 2 123; Farrar v. Granard, 1 N. R. 80; Jones Phill. R. 335. v. Smith, 2 Jurist, 469.
(r) Moss v. Smith, Common Pleas, Feb. (0) Lewis v. Lee, 3 B. & C. 291. See 5, 1840; see Godolp. Abr. p. 497. Hatchett v. Bnddeley, 2 Bl. R. 1082; Hyde (6) See Matth. ch. v., v. 31, Matth. ch. 19, v. Price, ib. 1195; Lean v. Schutz, 3 Ves. v. 7, Mark, ch. x. v. 4, Deut. xxiv. See the 443.
form of a Jewish bill of divorcement, Selden, (p) Ganer v. Lanesborough, 1 Peake's Uxor. Ebraica, lib. 3, cap. 24. R. 25; ante, p. 150.
that, supposing a Jewish divorce to be capable of effecting a dissolution of the marriage, yet, in the absence of the document of divorce, there was no evidence that any divorce had taken place. Erskine, J. was of opinion that a divorce had not been established.(c)
After sentence of divorce ab initio, the liability of a husband for the debts of his wife does not continue.(s)
Rights of Property how affected by Divorce.]—Where the marriage [ *478 ]
is void ab initio, the husband acquires no right over the
property of the wife.(t) It is said that in case of a divorce the wife shall have back any goods undisposed of which were given to her by her father in marriage.(u) But this clearly applies only where there was nullity of marriage ab initio, so as to be in reality no marriage.(x) The husband may release a legacy given to his wife notwithstanding a divorce. The wife obtained a sentence of divorce on account of the husband's adultery, the wife sued in the spiritual court for a legacy given to her, in answer the release of the husband after the divorce was pleaded, and the court held that inasmuch as the sentence did not avoid the marriage absolutely, but that they remained husband and wife, that the release of the husband was effectual.(y) But the husband after a divorce cannot release costs awarded to the wife in a suit of defamation.(z) It is said that if the husband sells a term for years which he has in right of his wife, equity will grant an injunction.(a)
How far the title to dower or curtesy is affected by a divorce will depend upon the nature of the divorce, for if it be a dissolution of the marriage the rights consequent upon it will cease. But where the bond of matrimony is not dissolved these rights may continue; if however the divorce be consequent upon the wife's leaving her husband and living in adultery, we have already seen that her title to dower is forfeited.(b) A wife, after a divorce on account of cruelty, is dowable of her husband's lands.(c) Where a marriage is void the husband does not acquire a right to be tenant by the curtesy, yet if it be only voidable, and is not avoided during the life of the wife, the husband will be tenant by the curtesy, for no marriage can be avoided in the ecclesiastical courts after the death of either of the parties.(d) For the same reason if a marriage de facto be voidable by divorce, [ *479 ]
whereby *the marriage might have been dissolved, and
the parties freed a vinculo mutrimonii; yet if the husband die before any divorce, then, because it cannot afterwards be avoided, his wife de facto will be endowed.(e) If the husband aliens his wife's lands and they be afterwards divorced a vinculo matrimonii, the wife, during the husband's life, may enter by virtue of stat. 32 Hen. VIII. c. 28. (f) Where a husband shall be living apart from his wife, either by mutual consent or by sentence of divorce, the Court of Common
(c) Moss v. Smith, 1 Mann. & Grang. Salk. 123, as to bastards. Rep. 233, 234.
(2) Motterum v. Motteram, Bulstr. 264; (8) 1 Gow, N. P. Cas. 10.
see Chamberlaine v. Hewson, 5 Mod. 70. (t) Aughtie v. Aughtie, 1 Phill. R. 203, (n) Com. Dig. Baron and Feme, C. 5. (u) Dyer, 13 a.
(b) See ante, p. 420. (3) Gibs. Cod. 335; see Cro. Eliz. 908; (c) Stowell's case,
cited Cro. Car. 463. Cage v. Acton, 1 Lord Raym. 521; 2 Inst. (d) 2 Burn's Ecc. Law, 458; post, p. 484. 682.
(e) Co. Litt. 33 b. (4) Stephens v. Totty, Cro. Eliz. 908; 1 (5) 8 Rep. 73 a.
Pleas may dispense with the husband's concurrence in any case in which bis concurrence is required to the alienation of her lands by the act for abolishing fines and recoveries.(g) A fine levied by husband and wife remained in force notwithstanding the marriage between them should be dissolved by a divorce.(h)
If one grant lands with his daughter in frank marriage, or goods with his daughter in marriage, and after the marriage is dissolved . and they are divorced; in this case the grant is now become of no force, cessante causa cessat effectus.(i) The children of a woman born during a separation from her husband under a divorce a mensa et thoro, are prima facie illegitimate, for a due obedience to the sentence will be presumed until the contrary be shown.(h)
OF VOID AND VOIDABLE MARRIAGES.
Civil disabilities, such as a prior marriage,(1) want of age,(m) idiotcy and lunacy,(n) make a marriage contract void ab initio, not merely voidable. These do not dissolve a contract already made'; but they render the parties incapable of contracting at all; they do not put asunder those who are joined together, but they previously hinder the union; and if *any persons under
[ *480 ] ihese legal incapacities come together, it is a meretricious, and not a matrimonial union; and therefore no sentence of avoidance is necessary.(o) Corporal infirmities render a marriage void, and a divorce granted for such a cause is a vinculo.(p) A marriage contracted under restraint, and by means of force and custody, is void:9) There are other cases in which marriages will be void or voidable according to the circumstances attending them.(r) It seems that a marriage may be set aside on the ground of having been effected by the conspiracy of three or four persons having intoxicated another, and married him in that state.(s)
Marriages void by Statutes.]—The provisions of the act 26 Geo. 2, C. 33, s. 11, making the marriages of minors by license void for want of consent, and to what extent such marriages have been rendered valid by the retrospective operation of the 3 Geo. 4, c. 75, have been already stated.(t) The latter act, however, does not give validity to marriages by banns prior to that statute, which were void by reason of an undue publication of banns.(u)
We have already considered the grounds of nullity depending upon the express provisions of the legislature. It will be necessary in this
(g) 3 & 4 Will. 4, c. 74, s. 91.
(0) 2 Phill. R. 19. (h) 2 Roll. Abr. 20; 1 Prest. Conv. 256. (p) Com. Dig. Baron & Feme, (C. 3.);
(i) Shep. Touch. 287, citing 20 E. 4 ult.; ante, pp. 201-208. Dyer, 13, 126; Plowd. 58.
(9) Harford v. Morris, 2 Hagg. Cons. R. (k) St. George's v. St. Margaret's, 1 Salk. 436; ante, p. 214. 123.
(r) See ante, pp. 185, 213—223. (L) Ante, P. 223.
(8) See ante, pp. 199, 200. (m) Ante, pp. 282–285.
(1) Ante, pp. 289.299. (n) Ante, pp. 183–201.
(u) Ante, pp. 254-255.