Glass v. Glass

114 Mass. 563

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Gray, C. J.

By the Gen. Sts. c. 106, § 4, “ all marriages contracted while either of the parties has a former wife or husband living, except as is provided in chapter one hundred and seven, shall be void.” By c. 107, § 1, all marriages solemnized in this state, which are prohibited by law on account of either party having a former wife or husband then living, “ shall be void without any decree of divorce or other legal process.” By § 4, when a marriage is supposed to be void, or the validity thereof is doubted, for any cause, either party may file a libel for annulling the same, and upon proof of any cause of nullity, “ the marriage shall be declared void by a sentence of divorce or nullity.” And by § 30, “ when a marriage is dissolved on account of a prior marriage of either party, and it appears that the second marriage was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, that fact shall be stated in the decree of divorce or nullity ; and the issue of the second marriage, born or begotten before the commencement of the suit, shall be deemed to be the legitimate issue of the parent capable of contracting the marriage.” Chapter 107 contains no other provision applicable to this case.

It must be assumed, upon the report of this case, that the second marriage was contracted by both parties in good faith, and with the full belief that the respondent’s former husband was dead. As he had been absent for seven years, .they might not be guilty of polygamy. Gen. Sts. c. 165, §§ 4, 5. But as he was in fact still living, and the first marriage had not been dissolved by a decree of divorce, the respondent was in law his wife, her second marriage was unlawful, and the information which both parties to it had of the former marriage, and of the circumstances connected with the absence of the former husband, cannot estop either to apply to the court for a decree of nullity. Miles v. Chilton, 1 Rob. Eccl. 684. Williamson v. Parisien, 1 Johns. Ch. 389. Zule v. Zule, Saxton, 96. Kenley v. Kenley, 2 Yeates, 207. Janes v. Janes, 5 Blackf. 141. Martin v. Martin, 22 Ala. 86.

A decree of nullity must therefore be entered, containing, however, according to the provision of the Gen. Sts. c. 107, § 30, a statement that the second marriage was contracted in good faith, and with the belief that the former husband was dead, in order that the issue of this marriage may be secured in their rights as the legitimate issue of their father.

Decree accordingly.