McLennan v. McLennan

38 L.R.A. 863, 60 P. 802, 31 Or. 480, 1897 Ore. LEXIS 66

• Court: Oregon Supreme Court
• Decided: November 8, 1897
• Status: Published

Opinion

Mr. Justice Bean

delivered the opinion.

On September 3, 1889, the plaintiff was divorced by the Circuit Court of Multnomah County from her then husband, and, in twenty-two days thereafter, while still a resident of and domiciled in this state, was married in Vancouver, Washington, to the present defendant, who was at the time also a resident and domiciled in Oregon. The plaintiff being advised that the latter marriage was premature and unlawful brought this suit to declare it void, which was decided adversely to her, and she brings the cause here by appeal. The sole question presented on the appeal is as to the validity of the Vancouver marriage, and its determination depends upon the construction of section 503 of our statute and its effect upon marriages solem* nized in a neighboring state. By this section it is provided that “ a decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such decree had not been given, until the suit has'been heard and determined on appeal, and if no: appeal be taken, the expiration of the period allowed by this code to take such appeal.” It is clear that a marriage in this state in violation of this section would be null and void, because by its provisions the parties are incapable of entering into such a relation within the time specified for the reason that the decree does not to that extent terminate the former marriage. The statute, in effect, declares that such marriage shall, for that purpose, continue during the time in which an .appeal may be taken from the decree, or, in case of an .appeal, during the pendency thereof. Until the expiration of such time, the status of the parties, so far as the right to remarry is concerned, remains the same as if no decree had been rendered. For all other purposes the decree is full and complete, but, on grounds of public policy, the legislature has provided that pending an appeal from such decree, — if one be taken, and if not during the time in which it may be taken, —the parties shall be incapable of contracting marriage with a third person, and under this provision of the law neither of them has any more right to do so than if the decree had not been given. During that time the decree is suspended or inoperative to that extent, and both parties, without regard to their guilt, .are utterly powerless to make a valid contract of marriage with a third person.

It will be observed that the statute declares that neither party to the decree shall be capable of con-tracting marriage with.a third person during the time .such decree is subject to review by an appellate tribunal, and not merely that it shall not be unlawful for them to do so. It goes directly to their ability or capacity to contract, and there is a distinction made in the books between the marriage of divorced parties declared by law incapable of remarrying and a marriage in violation of some statutory prohibition penal in its nature. In the one case the marriage is absolutely void, and in the other it is often held to be valid, although the party may be punished criminally for violating the prohibitory statute. This distinction is very clearly pointed out by Judge Clark in Conn v. Conn, 2 Kan. App. 419 (42 Pac. 1006). The obvious purpose and object of the statute is to enable either party aggrieved by a decree of divorce to have the same reviewed in an appellate court, and to that end it is provided that, pending such right, neither party shall be capable of doing an act which would render a reversal nugatory. A construction of the statute which .would permit a marriage within the time limited would be not only contrary to its plain wording and evident intent, but would produce, in case of a reversal of the decree, the anomalous result of one person having two legal husbands or wives, as the case may be, at the same time, and polygamy be thus sanctioned by law. It was to prevent the confusion and uncertainty resulting from such a condition of affairs that the statute was enacted, and it must be given force and effect. The supreme court of the State of Kansas had occasion in Wilhite v. Wilhite, 41 Kan. 154 (21 Pac. 173), to construe this statute, and it was there held that a marriage contracted in this state within six months after one of the parties had been divorced from her former husband by a decree of one of the courts of this state (Oregon), -was absolutely null and void. The opinion of Mr. Justice Johnston in that case contains a very lucid and satisfactory discussion of this question. The same construction has been given to a similar statute in the State of Washington by the supreme court of that state: In re Smith’s Estate, 4 Wash, 702 (17 L. R. A. 573, 30 Pac. 1059).

Indeed, it is not seriously contended that a marriage contracted in this state within the prohibited time would be valid, but the contention is that as the marriage in question was solemnized in thé State of Washington the plaintiff was freed from'the restraint-imposed upon her by the decree of divorce. The general rule is unquestioned that a marriage between persons sui juris, valid where solemnized, is valid everywhere, but this plaintiff having been previously married, and her former husband being alive, could not contract a second valid marriage anywhere unless the incapacity arising from her previous marriage had been at the time effectively and completely removed by a decree of divorce, and this was not the case at the time of the solemnization of the marriage between plaintiff and defendant, because the statute under which the decree was obtained provided that the divorce did not completely sever the tie of marriage so as to enable either to become a party to a new one until the lapse of a specified time after the decree, and her marriage was contracted in violation of this statute. This provision of the law is an integral part of the decree by which alone both the parties to a divorce proceeding can be relieved from the incapacity to marry, and the marriage by a. person divorced in this state and domiciled here, in violation of its provisions, is a mere nullity when called in question in the courts of this state, although such marriage may have been contracted in another state: 1 Nelson on Divorce, § 135; 1 Bishop on Marriage and Divorce, § 436; Warter v. Warter, 15 L. R. (Prob. Div.), 152; Chichester v. Mure, 3 Swab. & T. 223. The rule announced in the case of Commonwealth v. Lane, 113 Mass. 458 (18 Am. Rep. 509), and Van Voorhis v. Brintnall, 86 N. Y. 18 (40 Am. Rep. 505), and other cases cited of similar import, is relied upon by the defense. The doctrine of these cases is that a statute prohibiting a marriage of the guilty party in a divorce proceeding, during the lifetime of the other, or except under certain conditions, does not render void the marriage óf such person out of the jurisdiction of the state in which the decree was obtained. Upon this question there is some conflict in the authorities [Pennegar v. State, 87 Tenn. 244 (2 L. R. A. 703, 10 Am. St. Rep. 648, 10 S. W. 305); 5 Am. & Eng. Enc. Law (1st ed.), 841], but the obvious distinction between the question presented in the cases referred to and in the case at bar is that there the incapacity to remarry attached only to the guilty party. The decree of divorce absolutely terminated the marriage relation between the parties as effectually as if it had been dissolved by death. The innocent party was perfectly free to remarry at any time, and the restraint upon the other was imposed as a punishment, and was, therefore, penal in its nature, and as such held inoperative out of the jurisdiction where it was inflicted. The provision of our statute is not imposed as a punishment, nor is it penal in its character, but it applies to the innocent as well as the guilty; it goes to the capacity of either party to remarry within the prescribed time, and therefore the cases cited and the doctrine contended for have no application to the. question in hand. We are clear, therefore, that plaintiff’s marriage, having been contracted before the expiration of the time allowed by law in which to appeal from a decree of divorce, is absolutely void, and the decree of the court below must be reversed, and it is so ordered.

Reversed.