Where the mother of an infant seeks to annul his marriage for the reason that he was under the age of consent at the time of the ceremony, the wife is not entitled to alimony or counsel fees from the mother, the infancy of the husband at the time of the ceremony being evident to the court. Stivers v. Wise (1897) 18 App. Div. 316, 46 N. Y. Supp. 9.

In Kinzey v. Kinzey (1878) 7 Daly (N. Y.) 460, a husband sought to annul his marriage on the ground that his wife had a husband living at the time of the marriage. It appeared that she had informed him of the continuous absence of her first husband for a period longer than that required by the statute in such cases, but dependence on the said statute is to be qualified by a consideration of the element of good faith, and that, it seemed, was of a questionable nature in this case. The court refused to grant alimony or counsel fees, because the existence of the marital relation had not been established.

Where a wife takes an appeal from an interlocutory judgment obtained by her husband, and annulling her marriage to him on the ground that she had a former husband living at the time of the ceremony, she will not, "without cogent proof of merit," be entitled to counsel fees for the prosecution of such appeal. Tiedeman V. Tiedeman (1916) 174 App. Div. 913, 160 N. Y. Supp. 537.

In Scurlock v. Scurlock (1893) 92 Tenn. 629, 22 S. W. 858, a wife had obtained a decree of divorce a mensa et thoro, together with alimony, later obtaining a judgment for arrears of alimony. The husband then brought a bill praying for absolute divorce on the ground that his wife was already married to another man at the time of the ceremony, which bill was granted. The court held that, since the wife had never sustained the marital relation with the husband, it would be unjust to permit her to collect the judgment for alimony, which was based on that relation.

In Stewart v. Vandervort (1890) 34 W. Va. 524, 12 L.R.A. 50, 12 S. E. 736, a husband brought a suit to annul his

marriage on the ground that his wife had a husband living at the time of the marriage. A decree of the lower court annulled the marriage, and required the husband to pay $500 alimony. On appeal, it was held that "without the authority of a statute alimony cannot be decreed, for it never was a marriage," and pointed out that no statutory power had been conferred on courts to grant alimony where the marriage was void, as a marriage such as this was declared to be by statute. Although a later statute made such a marriage void only from the time of the decree of nullity, the statute so declaring was held to have no retroactive effect upon the case in question, the marriage here having taken place before the statute took effect.

Where a husband petitions for the annulment of his marriage for the reason that the wife had a husband living at the time of the ceremony, and there is no denial of such facts, the court is without power to make provision for the woman. Bateman v. Bateman (1898) 78 L. T. N. S. (Eng.) 472. Compare Bird v. Bird (1753) 1 Lee Eccl. Rep. 418, 161 Eng. Reprint, 154, wherein a husband brought suit to annul his marriage by reason of his wife's former marriage, and alimony pending suit was granted.

III. Action by wife.

a. In absence of statute.

1. Action for annulment. In the absence of a statute providing therefor, a wife who brings an action for the annulment of her marriage is not entitled to an allowance of alimony, counsel fees, or suit money, for the reason that she is in fact denying the existence of the marriage, repudiating the relation which is the basis of her right to support. Taylor v. Taylor (1896) 7 Colo. App. 549, 44 Pac. 675; Knott v. Knott (1902) N. J. Eq. 51 Atl. 15; Jones v. Brinsmade (1905) 183 N. Y. 258, 3 L.R.A. (N.S.) 192, 111 Am. St. Rep. 746, 76 N. E. 22, 5 Ann. Cas. 378, reversing (1905) 104 App. Div. 619, 93 N. Y. Supp. 674; Bartlett v. Bartlett (1841) Clarke, Ch. (N. Y.) 460; Bloodgood v. Bloodgood (1880) 59 How. Pr.

tenance); Brown v. Brown (1907) 13 B. C. 73 (action for divorce).

In Sharon v. Sharon (Cal.) supra, the action was for a divorce, and was brought by the wife. The marriage was evidenced by written agreements, signed by both husband and wife, and there was a collateral written agreement on the part of the wife that she would keep the marriage a secret for two years. The husband denied the marriage. The court, finding a prima facie marriage and ability on the part of the husband to support the wife, allowed temporary alimony.

In Eickhoff v. Eickhoff (Colo.) supra, a suit for divorce brought by a wife, it was shown by the husband that, less than two months before their marriage in Wyoming, she had been divorced in Colorado by a decree which had prohibited her from remarrying within one year. It was held that where a marriage de facto was admitted, or made to appear prima facie, alimony pendente lite would be granted.

In Brown v. Brown (Ill.) supra, a wife sued for divorce on the ground that the husband had a wife living at the time of the marriage. Temporary alimony and solicitor's fees were allowed by reason of the Divorce Act, in § 1 of which the facts alleged by the wife were made grounds for divorce, and which, in § 15 as construed by the court, provided for the abovementioned temporary alimony and solicitor's fees, in any case where a decree of divorce is authorized by said § 1."

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In Bowman v. Bowman (1887) 24 Ill. App. 165, a wife brought suit for a divorce, alleging a common-law marriage, which the husband denied only in an equivocal and evasive fashion. It was held that the marriage was established prima facie, and that consequently alimony pendente lite and suit money should be allowed.

In Willits v. Willits (1906) 76 Neb. 228, 5 L.R.A. (N.S.) 767, 107 N. W. 379, 14 Ann. Cas. 883, a wife brought a suit for the maintenance of herself and child, to which the husband answered, admitting the marriage, but setting forth also that he was under the

age of consent at the time of the marriage. The court held that such a marriage was voidable, and that, although the husband proceeded by cross bill instead of by original petition to annul the marriage, the rule of the latter case would prevail, and the wife was entitled to alimony pendente lite and counsel fees. There was, however, it was held, no right on the part of the wife to permanent alimony, since, the marriage having been found voidable, the husband was released from his obligation to support the wife, in lieu of which obligation alimony was provided by statute in case of divorce.

In Herforth v. Herforth (1867) 2 Abb. Pr. N. S. (N. Y.) 483, a wife brought an action for divorce, and the husband denied the marital relation. The evidence was conflicting, but the court considered that there was sufficient to establish cohabitation and recognition by the defendant of the plaintiff, and held that the defendant should provide the plaintiff with the means of support and counsel fees until the case could be tried.

In Brinkley v. Brinkley (1872) 50 N. Y. 184, 10 Am. Rep. 460, an action for divorce a mensa et thoro, on the ground of the abandonment of the plaintiff by the defendant, and of his neglect and refusal to provide for her, the plaintiff alleged a marriage with the defendant, which, however, he denied; she asserted a marriage by simple contract, consummation, cohabitation as husband and wife, and repute, while he denied the marriage and the cohabitation as husband and wife. The court said: "Where there has been a marriage in fact, though its commencement was not according to the decent and recognized forms and ceremonies usual in society, and which, though not indispensable for its validity, are yet sanctioned by law, in an action by the wife for divorce, or by the husband for a decree that the marriage is null, in which the putative wife avers the existence and legality of the marriage, though the alleged husband denies it, the court may, in its discretion, allow to the putative wife temporary alimony and money to carry on the action from the means of

the alleged husband. And the principle at the bottom is this: Where, marriage in fact being denied, the affirmative is upon the party claiming to be the wife to show that an actual marital relation ever existed, there alimony will be denied until that fact is proved to the satisfaction of the court, or is admitted; for it is upon the existence of that relation alone that the right to alimony depends. Where an actual marital relation has been admitted or shown, and its existence in law is sought to be avoided by some fact set up by the husband, and it devolves upon him to show that fact, there alimony will be granted until that fact is shown; for the relation actually exists upon which the right to alimony depends, and the object of the litigation is to annul that actual relation by showing some other fact, the existence of which is denied. It may be said, too, that for the purposes of an application for temporary alimony there will not need that the fact of marriage be so conclusively established as for the purpose of permanent alimony, or any other ultimate purpose of the action. It is for the interest of society and in aid of public policy that, where the married relation has been in fact assumed, it should not easily and capriciously be laid aside; and where it is averred by the putative wife and denied by the alleged husband, if she makes a reasonably plain case of its existence, she should be furnished with means of temporary support and of conducting the suit, until the truth or falsehood of her allegations can be ascertained by the proofs formally taken in the case."

presented sufficient to authorize the court to determine, that the applicant stands in the relation of wife to the party against whom the application is made; and when, in answer to the allegation of a marriage, facts are stated showing that the applicant was not competent to contract such marriage, and did not thereby become a wife, such facts should be denied or explained to the satisfaction of the court. If left uncontroverted, the court is not justified in making the order."

Where a wife sues for a divorce, setting forth the time and place of the ceremony, and the marriage de facto is denied by the husband, but neither cohabitation nor living together, temporary alimony and suit money will be allowed. Smith v. Smith (1832) 1 Edw. Ch. (N. Y.) 255.

In Vincent v. Vincent (1891) 16 Daly, 534, 17 N. Y. Supp. 497, an action for divorce brought by a wife, following illicit relations which resulted in her pregnancy, the plaintiff asserted a marriage with the defendant, based on the facts that she took up her residence at the defendant's house, received his assurance that they were husband and wife, was introduced by him as such, and was given a wedding ring by him. The court found that conjugal relations were thereby established, in spite of the denial thereof by the husband, who then averred that at the time of his marriage with the plaintiff he was already married. The court also found the defendant's allegations insufficient, and allowed both alimony and a counsel fee.

Inasmuch as the marital relation, the husband's obligation to support the wife, is the basis of the right to alimony and counsel fee, a wife is not entitled thereto where it appears that her marriage was void ab initio, the husband having a wife living at the time of the marriage in question. Blinks v. Blinks (1893) 5 Misc. 193, 25 N. Y. Supp. 768.

In Vanvalley v. Vanvalley (1869) 19 Ohio St. 588, the court said: "Where a decree of divorce is granted on the petition of a woman, on the ground