Barber v. Barber

16 Cal. 378

• Court: California Supreme Court
• Decided: July 1, 1860
• Status: Published

Opinion

Field, C. J. delivered the opinion of the Court

Cope, J. concurring.

This is an action of divorce, on the ground of the adultery of the wife. The Court decreed the dissolution of the marriage contract between the parties, with a provision declaring that it should not be lawful for the defendant to marry again durhig the life of her husband, and proMbiting her from so domg. It is from tliis provision of the decree that the appeal is taken.

The decree must be modified in tMs particular. There is no authority in the Court to impose any restraint upon a second marriage, where a dissolution from the bonds of matrimony is adjudged. With the dissolution, the obligations arising from the marriage are completely discharged, and the parties stand in the same position as though such marriage had never been contracted. The cases where restraint upon ;-i second marriage is permitted, have arisen upon express, statutes authorizing its imposition upon the guilty party. (Bishop on Divorce, secs. 655-659; The People v. Hovey, 5 Barb. 118.)

The case is remanded to the District Court, with directions to modify the decree in the particular mentioned.