« ForrigeFortsett »
if there be no special contract, the law of the actual domicil at the dissolution of the marriage, governs as to all the property, whether acquired before or after the change of the matrimonial domicil. But if there was no change of the matrimonial domicil, the law of that domicil governed the personal property, wherever acquired and wherever situated. This is also the law in Louisiana. Saul v. His Creditors, 17 Martin's Rep. 569, 603— 5; and it is a principle which best harmonizes with the analogies of the common law. Story's Com. 142, 143. The foreign jurists do not generally agree to these conclusions, but they insist that the change of domicil after marriage, does not change the law of the matrimonial domicil, as to pastor future acquisitions. (Story's Com. 144—149.) But it is agreed that nuptial contracts follow the parties into foreign countries, and bind them. Murphy v. Murphy, 5 Martin's Rep. 83. Decouche v. Savatier, 3 Johns. Ch. Rep. 190. Story's Com. 155. If, however, the marriage takes place in a foreign country in transitn, and where the parties had no intention of fixing their domicil, the law of the actual or intended domicil of the parties governs the case as to the incidents of marriage; and it is the general rule, that if the husband and wife had different domicile when they married, the domicil of the husband became the true and only matrimonial domicil. Le Breton v. Nouchet, 3 Martin's Rep. 60. Ford's Curators v. Ford, 14 ibid. 574. This is the opinion of all the foreign jurists. Story's Com. 163—166.
OF THE LAW CONCERNING DIVORCE.
When a marriage is duly made, it becomes of perpetual obligation, and cannot be renounced at the pleasure of either or both of the parties. It continues, until dissolved by the death of one of the parties, or by divorce.
(1.) Of Divorce a vinculo.
By the ecclesiastical law, a marriage may be dissolved and declared void ab initio, for canonical causes of impediment, existing previous to the marriage. Divorces a vinculo matrimonii, said Lord Coke,a are causa prcecontractus, causa metus, causa impotentim sen frigiditatis, causa afflnitatis, causa consanguinitatis. We have seen how far a marriage may be adjudged void, as being procured by fear or fraud, or contracted within the forbidden degrees. The courts in Massachusetts, Delaware, Ohio, North Carolina, Alabama, Illinois, and probably in other states, are authorized by statute to grant divorces causa impotentia:; and in Connecticut, imbecility has been adjudged sufficient to dissolve a marriage, on the ground of fraud." The canonical disabilities, such as consanguinity, and affinity, and corporeal infirmity, existing prior to the marriage, render it voidable only, and such marriages are valid for all civil purposes, unless sentence of nullity be declared in the lifetime of the par
* Co. Litt. 235, a.
b Benton v. Benton, 1 Day's Rep. 111. Dane'sAbr.of American Late, ch. 46, art. 9, sec. 14. Revised Lavos of Illinois, 1833.
ties; and it cannot be declared void for those causes after the death of either party. a *But the civil *96 disabilities, such as a prior marriage or idiocy, make the contract void, ab initio, and the union meretricious.1" In New-York, it was adjudged, in Burtis v. Burtisf that corporeal impotence was not, under the existing laws, a cause of divorce, and that the English law of divorce on that point had never been adopted. The new French code will not allow such an allegation by the husband ;d and Toullier6 condemns a decree of divorce, causa impotentia, which was pronounced in
» 1 Blacks. Com. 434, 435. Bury's case, 5 Co. 98 b. 2 Phill Rep. 19.
b Elliott v. Gurr, 2 Pkillimore's Rep. 16. Rex v. Wrazton, 4 Bar. $ Adolph. 640. By the Massachusetts Reeised Statutes, 1635, all marriages prohibited by law on account of consanguinity or affinity, or when the former wife or husband is living, or when either party was at the time insane, or an idiot, or between a white person and a negro, Indian, or mulatto, are declared to be absolutely void, without a decree of divorce, or other legal process; though, if the case be doubtful in point of fact, a libel for a divorce may be filed and prosecuted. So if persons marry under the age of consent, and separate during such nonage, and not cohabit afterwards, the marriage is void without any decree of divorce. Divorce a einculo may be decreed for adultery or impotency in either party, or when either is sentenced to confinement in the state prison. The issue of any marriage declared null by decree^ on account of consanguinity or affinity, or of any marriage between a white person and a negro, Indian, or mulatto, are to be deemed illegitimate. It is otherwise upon the dissolution of a marriage - on account of nonage, insanity or idiocy. So the issue is also legitimate if the marriage be dissolved for bigamy, provided the second marriage was contracted in good faith, and with the full belief that the former husband or wife was dead. So in Vermont marriages prohibited by law, on account of consanguinity or affinity, or on account of a former wife or husband Irving, are absolutely void without legal process or decree. A libel for the purpose may be filed in doubtful cases. If the marriage be declared void on account of consanguinity or affinity, the issue to be deemod illegitimate. See Reeised Statutes of Vermont, 1839, p. 322; and I take the occasion to observe, that this new revised code of Vermont, does credit to the learning, judgment and taste with which it was prepared, digested and pnbUhed.
» 1 Hopkins' Rep. 557.
i Code Cieil, art. 313.
» Droit Cieil Francois, tom. i. No. 525.
France, in 1808, as contrary to the spirit of the code, and leading to scandalous inquiry.
Since the New-York decision above mentioned, the jurisdiction of the court of chancery, on this subject, has been enlarged, and the New- York Rebised Statutes have authorized the chancellor, on a suit before him by bill, to declare void the marriage contract; 1. If either of the parties, at the time of the marriage, had not attained the age of legal consent. 2. If the former husband or wife of the party was living, and the marriage in force. 3. If one of the parties was an idiot or lunatic. 4. If the consent of one of the parties was obtained by force or fraud. 5. If one of the parties was physically incapable of entering into the marriage state. All issues upon the legality of a marriage, except where it is sought to be annulled on the ground of the physical incapacity of one of the parties, are to be tried by a jury upon the award of a feigned issue.*
It is further provided, that a marriage shall not be annulled for the first cause above mentioned, on the application of a party who was of legal age at the time of the marriage, or if the parties, after they had attained the age of consent, had for any time freely cohabited as
husband and wife. It may be annulled for the *97 second cause on the application of either *party
during the life of the other, but if it was contracted in good faith, and with the full belief of the parties that the former husband or wife was dead, the issue thereof shall be entitled to succeed to the estate of the parent, equally as legitimate children. It may be annulled for the third cause, on the application of any relative of the idiot or lunatic interested to avoid the marriage, or by his next friend. But any free cohabitation of husband and wife after the lunacy has ceased, will be a bar to the divorce; and the children of a marriage annulled on the ground of lunacy or idiocy, are entitled to succeed, as
» N. Y. Reeised Statutes, vol. ii. 142, sec. 20. Ibid. 175, sec. 45.
legitimate children. A marriage may be annulled for the fourth cause above mentioned, during the life of the parties, on the application of the party whose consent was unduly obtained, provided there has been no subsequent voluntary cohabitation as husband and wife. The custody of the issue of such a marriage is to be given to the innocent parent, and a provision for their education and maintenance may be made out of the estate of the guilty party. A marriage is to be annulled for the fifth and last cause above mentioned, only on the application of the injured party, and the suit must be brought within two years from the solemnization of the marriage.*
These cases are all founded on the ground of the nullity of the marriage contract, for causes existing at the time it was formed; but there is one other case in which the marriage contract may be dissolved for a cause accruing subsequently. During the period of our colonial go»ernment, for more than one hundred years preceding the revolution, no divorce took place in the colony of New-York; and for many years after New-York became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature. This strictness was productive of public inconvenience, and often forced the parties, in cases which rendered a separation fit *and necessary, to some other state, to avail them- *98 selves of a more easy and certain remedy. At last, the legislature, in 1787, authorized the court of chancery to pronoun'ce divorces a »inculo, in the single case of adultery, upon a bill filed by the party aggrieved. As the law in New-York now stands, a bill for a divorce for adultery, committed by either husband or wife, can be sustained in three cases only; (1.) If the married par
» JV. Y. R. S., vol. ii. p. 142, 143. sec. 21—33. The Reeised Statutes of Vermont, 1839, p. 322, 323, contain the same provisions as the New-York statnte relative to the above cases of divorce, and the jurisdiction is vested in the supreme court.