The opinion of the court was delivered by: KEECH
The parties to this action were married in this jurisdiction on March 11, 1944, just 32 days after a decree had been entered in this Court granting defendant-husband an annulment of his former marriage to Marilyn Greely Utterback (Civil Action No. 20157), which decree carried the usual provision that it was not to take effect or become absolute until the expiration of the time allowed for taking an appeal, or the final disposition of any such appeal. The decree was entered on the 8th day of February, 1944, at which time the appeal period was three months (Rule 10(a), Civil Cases, Court of Appeals Rules), the time limit having been increased from 30 days by an amendment to the aforesaid rules, which amendment became effective January 7, 1944.
Following their marriage the parties lived together as husband and wife, considered themselves to be married, and as such were known in their community and among their friends.
During a part of their married life, the defendant-husband was in the Armed Services of the United States, and while he was so engaged, plaintiff-wife was the recipient of allotments from defendant-husband and, in addition, other contributions from him in sizeable amounts.
The testimony also shows that during this period of defendant's absence, correspondence of a most affectionate nature was passed from the wife to the husband.
From the record it is apparent that some time after defendant's discharge from the Armed Services in October, 1946, differences arose between the parties, causing them to seek advice of counsel with reference to their marital difficulties. In the course of these negotiations with their counsel, the attorney for the plaintiff-wife discovered that the time for appeal had not elapsed in the defendant-husband's prior annulment suit at the time when the parties to this action were married, and this suit followed.
The record in this case must be considered in the light of the fact that this is a common-law marriage jurisdiction. Hoage v. Murch Bros. Const. Co., 60 App.D.C. 218, 50 F.2d 983.
While there are a few decisions to the contrary, by far the great weight of authority supports the conclusion of Schouler on Marriage, Divorce, and Separation, Vol. 2, § 1129, wherein it is stated: 'Where a marriage entered into in good faith by one is void on account of a previous marriage of one of the parties, it may be validated by removal of the impediment, and the continued cohabitation of the parties.' (Citing cases.) Or, as stated in Bishop in his work on Marriage and Divorce, Vol. 1, p. 970: 'If the parties desire marriage, and do what they can to render their union matrimonial, although one is under a disability, their cohabitation thus matrimonially meant, will in matter of law make them husband and wife, from the moment when the disability is removed.'
A case almost directly on all fours with the case here under consideration was that of Wilson v. Burnett, 1918, 105 Misc. 279, 172 N.Y.S. 673. There the defendant had procured an interlocutory decree of divorce and married plaintiff ten days before entry of the final decree. This occurred in 1914. Plaintiff testified he did not know that defendant's divorce was not final until the time he left, whereupon he sued for annulment. There the Court said: 'We think the plaintiff is not entitled to the relief asked, for the reason that the facts disclosed make out a valid common-law marriage.'
As to the creation of a common law marriage under these circumstances, the Court said: 'Here, however, it was the evident purpose of the plaintiff and defendant to be legally married, and to assume toward each other the mutual obligations of husband and wife. When the legal impediment to their marriage was removed, they continued to live together as husband and wife for more than four years, and while the testimony is very meager the only fair inference is that they held themselves out to the public as such, and beyond any question intended to continue that relationship, until suddenly, for some reason not disclosed, they agreed to ask this court to annul the marriage. The court can reach but one conclusion under such circumstances, and that is that after the impediment against a legal marriage was removed they each consented and agreed to continue their relations as husband and wife, and acted accordingly. This made out a good common-law marriage as we have already seen. There are no children as the issue of this marriage; but, had there been such issue, no court, we take it, would have decided the children illegitimate.
'It makes no difference in principle, however, whether there are children or not. Every presumption is in favor of the validity of a marriage (citing cases), and the relation established and recognized for the time this one had been ought not to be lightly set aside at the mere wish and suggestion of the parties. The marriage relation is too sacred to be thus trifled with.' (Emphasis supplied.)
In Poole v. People, 1898, 24 Colo. 510, 52 P. 1025, 1026, 65 Am.St.Rep. 245. the parties married both believing the woman to have been divorced from her former husband. A year thereafter the woman's first spouse procured a divorce. The parties lived together for six years, but when a support case was filed against the husband, he raised the question of the validity of the marriage. There it was held: 'If parties desire marriage, and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant and continued after the disability is removed will, in law, make them husband and wife from the moment that such disability no longer exists. * * * Although no subsequent marriage ceremony was performed, as is usual to evidence contracts of this character, they having originally assumed the marriage relation in good faith, in pursuance of what they believed to be a valid contract of ...