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Where the mother of an infant seeks marriage on the ground that his wife to annul his marriage for the reason had a husband living at the time of the that he was under the age of consent marriage. A decree of the lower court at the time of the ceremony, the wife is annulled the marriage, and required not entitled to alimony or counsel fees the husband to pay $500 alimony. On from the mother, the infancy of the appeal, it was held that “without the husband at the time of the ceremony authority of a statute alimony cannot being evident to the court. Stivers v. be decreed, for it never was a marWise (1897) 18 App. Div. 316, 46 N. Y. riage," and pointed out that no statuSupp. 9.

tory power had been conferred on In Kinzey v. Kinzey (1878) 7 Daly courts to grant alimony where the (N. Y.) 460, a husband sought to an- marriage was void, as a marriage such nul his marriage on the ground that as this was declared to be by statute. his wife had a husband living at the Although a later statute made such time of the marriage. It appeared that a marriage void only from the time of she had informed him of the continu- the decree of nullity, the statute so ous absence of her first husband for declaring was held to have no retroa period longer than that required by active effect upon the case in questhe statute in such cases, but depend- tion, the marriage here having taken ence on the said statute is to be quali- place before the statute took effect. fied by a consideration of the element Where a husband petitions for the of good faith, and that, it seemed, was annulment of his marriage for the reaof a questionable nature in this case. son that the wife had a husband livThe court refused to grant alimony ing at the time of the ceremony, and or counsel fees, because the existence there is no denial of such facts, the of the marital relation had not been court is without power to make proestablished.

vision for the woman. Bateman v. Where a wife takes an appeal from Bateman (1898) 78 L. T. N. S. (Eng.) an interlocutory judgment obtained by 472. Compare Bird v. Bird (1753) 1 her husband, and annulling her mar- Lee Eccl. Rep. 418, 161 Eng. Reprint, riage to him on the ground that she 154, wherein a husband brought suit had a former husband living at the to annul his marriage by reason of his time of the ceremony, she will not, wife's former marriage, and alimony "without cogent proof of merit," be en- pending suit was granted. titled to counsel fees for the prosecu

III. Action by wife. tion of such appeal. Tiedeman v. Tiedeman (1916) 174 App. Div. 913,

a. In absence of statute. 160 N. Y. Supp. 537.

1. Action for annulment. In Scurlock v. Scurlock (1893) 92 Tenn. 629, 22 S. W. 858, a wife had

In the absence of a statute providobtained a decree of divorce a mensa

ing therefor, a wife who brings an ac

tion for the annulment of her maret thoro, together with alimony, later obtaining a judgment for arrears of

riage is not entitled to an allowance alimony. The husband then brought

of alimony, counsel fees, or suit a bill praying for absolute divorce un

money, for the reason that she is in the ground that his wife was already

fact denying the existence of the marmarried to another man at the time of

riage,-repudiating the relation which

is the basis of her right to support. the ceremony, which bill was granted.

Taylor v. Taylor (1896) 7 Colo. App. The court held that, since the wife had

549, 44 Pac. 675; Knott v. Knott (1902) never sustained the marital relation

N. J. Eq. —, 51 Atl. 15; Jones v. with the husband, it would be unjust

Brinsmade (1905) 183 N. Y. 258, 3 to permit her to collect the judgment

L.R.A.(N.S.) 192, 111 Am. St. Rep. for alimony, which was based on that

746, 76 N. E. 22, 5 Ann. Cas. 378, rerelation.

versing (1905) 104 App. Div. 619, 93 In Stewart v. Vandervort (1890) 34 N. Y. Supp. 674; Bartlett v. Bartlett W. Va. 524, 12 L.R.A. 50, 12 S. E. 736, (1841) Clarke, Ch. (N. Y.) 460; Blooda husband brought a suit to annul his good v. Bloodgood (1880) 59 How. Pr. (N. Y.) 42; Meo v. Meo (1888) 22 In Allen v. Allen (1880) 59 How. Pr. Abb. N. C. 58, 15 N. Y. Civ. Proc. Rep. (N. Y.) 27, 8 Abb. N. C. 175, it was 308, 2 N. Y. Supp. 569; Park v. Park held that where a wife brings an ac(1898) 24 Misc. 372, 53 N. Y. Supp. tion to annul her marriage on the 677; Herron v. Herron (1899) 28 Misc. ground of the physical incapacity of 323, 59 N. Y. Supp. 861; Warner v. the husband, alimony and counsel fees Warner (1891) 26 Ohio L. J. 217. will be allowed. But in Bloodgood v. Compare Allen v. Allen (1880) 59 How. Bloodgood (1880) 59 How. Pr. (N. Y.) Pr. (N. Y.) 27, 8 Abb. N. C. 175; Gore 42, a wife brought an action to have v. Gore (1904) 44 Misc. 323, 89 N. Y. her marriage annulled by reason of Supp. 902, affirmed in (1905) 103 App. the impotency of the husband, and the Div. 74, 92 N. Y. Supp. 634.

court, holding that no alimony and Where the fact of the marriage is counsel fee pendente lite could be alnot admitted in the pleadings and, lowed, because the wife, denying the according to the findings of the lower exi tence of the marriage, denied the court, there is no marriage, there is basis thereof, followed the early case no legal obligation on the part of the of Bartlett v. Bartlett (N. Y.) supra, alleged husband to support a woman directly refusing to follow Allen v. claiming to be his wife by a common- Allen, which had held the contrary law marriage, pending the hearing of but a few months previously. In Meo an appeal, nor to be responsible for v. Meo (1888) 22 Abb. N. C. 58, 15 suit money. Taylor v. Taylor (1896) N. Y. Civ. Proc. Rep. 308, 2 N. Y. Supp. 7 Colo. App. 549, 44 Pac. 675.

569, it was held that a wife who seeks The marital relation is the basis for to annul her marriage on the ground the granting of alimony, and where, of fraud is not entitled to alimony and in an action brought by a wife to an- counsel fee either under the Code, nul her marriage, it is admitted by which provides for alimony and counboth parties that the marriage was sel fee only in actions for divorce and void ab initio, and the fact is estab- actions for separation, or under the lished by proof that the husband had Revised Statutes, which have been ina wife living at the time of the mar- terpreted as holding that, where the riage in question, no alimony can be wife "denies the existence of the marallowed. Knott v. Knott (1902) riage, she cannot consistently claim N. J. Eq. -, 51 Atl. 15.

that the defendant is under any obliWhere a wife, a minor suing by her gation to provide her with means to uncle, seeks to have her marriage an- carry on her suit against him." In nulled for the reason that she was Park v. Park (1898) 24 Misc. 372, 53 under the legal age of consent at the N. Y. Supp. 677, it was held that where time of the ceremony, alimony will not a judgment is rendered annulling a be decreed, where the papers contain marriage on the ground that the dethe charge that there never was a valid fendant had a wife living at the time marriage. Warner v. Warner (1891) of his marriage with the plaintiff, the 26 Ohio L. J. 217.

said marriage having been void ab In Bartlett v. Bartlett (1841)

initio, and not merely voidable, no perClarke, Ch. (N. Y.) 460, a wife sought

manent alimony can be provided for to annul a marriage, under a statute the plaintiff, since there is no obligaproviding for a decree of nullity where tion on the part of the defendant to one of the parties was physically in- support a woman not his wife. In capable of entering into the marriage Herron v. Herron (1899) 28 Misc. 323, state. The court held that alimony 59 N. Y. Supp. 861, it was held that, pendente lite, or counsel fees, would where a wife seeks to have her marbe granted only in cases of divorce or riage annulled for the reason that she separation as provided by the statute, was, under the legal age of consent at which omitted any such provision for the time of the marriage, no allowance cases of nullity. The marriage being of alimony or counsel fee will be considered as never having had a legal granted. In Jones Brinsmade existence, no allowance could be made. (1905) 183 N. Y. 258, 3 L.R.A. (N.S.)

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2. Action for divorce or maintenance.

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V.

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, a wife sued to annul her marriage on the ground that the husband was insane at the time of the marriage. It was pointed out that, considering the marriage of a lunatic as being voidable only, the decree of annulment making it void related back to the time of the contract of marriage, and consequently the plaintiff was not entitled to all the rights of a wife under a valid marriage until such time as a decree was rendered. The court said: “I am for asserting the rule that, where the wife, as here, declares her marriage to have been null, and for that cause seeks to have the marriage contract adjudged to have been void, she has no more an equitable ground than she has a legal reason for demanding that the defendant's estate be charged with her support." In Gore v. Gore (1904) 44 Misc. 323, 89 N. Y. Supp. 902, order affirmed in (1905) 103 App. Div. 74, 92 N. Y. Supp. 634, a wife brought an action to annul her marriage to the defendant on account of his physical incapacity. The court points out that the marriage is not void, but that until set aside it is a legal marriage, with all the mutual rights and obligations of such, including the liability on the part of the husband to provide the wife with the necessary funds to prosecute the present action. "It is a peculiar position," says the court, “that he can resist her motion to annul the marriage, as he does in this case, by denying the incapacity, and insist that she is his wife, and at the same time defeat her motion for alimony and counsel fees because she is not his wife.” In refusing to follow Bartlett v. Bartlett (1841) Clarke, Ch. (N. Y.) 460, and other former cases, in so far as they proceed on the theory of the want of power, the court quotes as the rule: “Actions to annul a marriage are governed, with respect to alimony and counsel fees, by the same principle as all other actions for divorce" A counsel fee was allowed.

(a) Validity of marriage in dispute.

Irrespective of the existence of a statute on the subject, where the proceeding instituted by the wife is for a divorce, and not for a decree of nul. lity, the wife is asking for relief on the basis of an existing marriage, and though the husband denies the validity of the marriage, on the tentative establishment thereof she is entitled to alimony, counsel fees, and suit money. An action by the wife for support or maintenance, affirming, as it does, the marital relation, is subject to the same rule as an action for divorce.

California. Sharon Sharon (1888) 75 Cal. 1, 16 Pac. 345 (action for divorce). Colorado. Eickhoff

V. Eickhoff (1902) 29 Colo. 295, 93 Am. St. Rep. 64, 68 Pac. 237 (action for divorce).

Illinois.-Brown V. Brown (1886) 18 Ill. App. 445 (action for divorce); Bowman v. Bowman (1887) 24 Ill. App. 165 (action for divorce); McKenna v. McKenna (1897) 70 Ill. App. 340 (action for maintenance).

Nebraska.-Willits v. Willits (1906) 76 Neb. 228, 107 N. W. 379, 5 L.R.A. (N.S.) 767, 14 Ann. Cas. 883 (action for maintenance).

New York.-Smith v. Smith (1832) 1 Edw. Ch. 255 (action for divorce); Herforth v. Herforth (1867) 2 Abb. Pr. N. S. 483 (action for divorce); Vincent v. Vincent (1891) 16 Daly, 534, 17 N. Y. Supp. 497 (action for divorce); Humphreys V. Humphreys

v (1874) 49 How. Pr. 140 (action for divorce); Brinkley v. Brinkley (1872) 50 N. Y. 184, 10 Am. Rep. 460 (action for divorce); Collins v. Collins (1877) 71 N. Y. 269, subsequent appeal in (1880) 80 N. Y. 1 (action for divorce); Blinks v. Blinks (1893) 5 Misc. 193, 25 N. Y. Supp. 768 (action for maintenance).

Ohio. Vanvalley v. Vanvalley (1869) 19 Ohio St. 588 (action for divorce).

South Dakota.-Bardin V. Bardin (1893) 4 S. D. 305, 46 Am. St. Rep. 791, 56 N. W. 1069 (action for divorce).

Canada.—Walker v. Walker (1885) 10 Ont. Pr. Rep. 633 (action for main

tenance); Brown v. Brown (1907) 13 age of consent at the time of the marB. C. 73 (action for divorce).

riage. The court held that such a marIn Sharon v. Sharon (Cal.) supra, riage was voidable, and that, although the action was for a divorce, and was the husband proceeded by cross bill inbrought by the wife. The marriage stead of by original petition to annul was evidenced by written agreements, the marriage, the rule of the latter signed by both husband and wife, and case would prevail, and the wife was there was a collateral written agree- entitled to alimony pendente lite and ment on the part of the wife that she counsel fees. There was, however, it would keep the marriage a secret for was held, no right on the part of the two years.

The husband denied the wife to permanent alimony, since, the marriage. The court, finding a prima marriage having been found voidable, facie marriage and ability on the part the husband was released from his of the husband to support the wife, al- obligation to support the wife, in lieu lowed temporary alimony.

of which obligation alimony was proIn Eickhoff v. Eickhoff (Colo.) su- vided by statute in case of divorce. pra, a suit for divorce brought by a In Herforth v. Herforth (1867) 2 wife, it was shown by the husband Abb. Pr. N. S. (N. Y.) 483, a wife that, less than two months before brought an action for divorce, and the their marriage in Wyoming, she had husband denied the marital relation. been divorced in Colorado by a decree The evidence was conflicting, but the which had prohibited her from remar- court considered that there was suffirying within one year. It was held cient to establish cohabitation and recthat where a marriage de facto was ognition by the defendant of the plainadmitted, or made to appear prima tiff, and held that the defendant facie, alimony pendente lite would be should provide the plaintiff with the granted.

means of support and counsel fees In Brown v. Brown (Ill.) supra, a until the case could be tried. wife sued for divorce on the ground In Brinkley v. Brinkley (1872) 50 N. that the husband had a wife living at Y. 184, 10 Am. Rep. 460, an action the time of the marriage. Temporary for divorce a mensa et thoro, on the alimony and solicitor's fees were al- ground of the abandonment of the lowed by reason of the Divorce Act, plaintiff by the defendant, and of his in 1 of which the facts alleged by neglect and refusal to provide for her, the wife were made grounds for di- the plaintiff alleged a marriage with vorce, and which, in § 15 as construed the defendant, which, however, he deby the court, provided for the above- nied; she asserted a marriage by mentioned temporary alimony and so- simple contract, consummation, cohabilicitor's fees, in any case where a tation as husband and wife, and redecree of divorce is authorized by said pute, while he denied the marriage and 1."

the cohabitation as husband and wife. In Bowman v. Bowman (1887) 24 The court said: “Where there has ml. App. 165, a wife brought suit for been a marriage in fact, though its a divorce, alleging a common-law mar

commencement was not according to riage, which the husband denied only

the decent and recognized forms and in an equivocal and evasive fashion.

ceremonies usual in society, and It was held that the marriage was es

which, though not indispensable for tablished prima facie, and that conse

its validity, are yet sanctioned by law, quently alimony pendente lite and suit

in an action by the wife for divorce, money should be allowed.

or by the husband for a decree that the In Willits v. Willits (1906) 76 Neb.

marriage is null, in which the puta228, 5 L.R.A.(N.S.) 767, 107 N. W. 379,

tive wife avers the existence and le14 Ann. Cas. 883, a wife brought a

gality of the marriage, though the alsuit for the maintenance of herself leged husband denies it, the court may, and child, to which the husband an- in its discretion, allow to the putative swered, admitting the marriage, but wife temporary alimony and money to setting forth also that he was under the carry on the action from the means of

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the alleged husband. And the prin- presented sufficient to authorize the ciple at the bottom is this: Where, court to determine, that the applicant marriage in fact being denied, the af- stands in the relation of wife to the firmative is upon the party claiming party against whom the application is to be the wife to show that an actual made; and when, in answer to the almarital relation ever existed, there ali- legation of a marriage, facts are statmony will be denied until that fact is ed showing that the applicant was not proved to the satisfaction of the court, competent to contract such marriage, or is admitted; for it is upon the ex- and did not thereby become a wife, istence of that relation alone that the such facts should be denied or exright to alimony depends. Where an plained to the satisfaction of the actual marital relation has been ad- court. If left uncontroverted, the mitted or shown, and its existence in court is not justified in making the law is sought to be avoided by some order." fact set up by the husband, and it de- Where a wife sues for a divorce, volves upon him to show that fact, setting forth the time and place of the there alimony will be granted until ceremony, and the marriage de facto that fact is shown; for the relation is denied by the husband, but neither actually exists upon which the right cohabitation nor living together, temto alimony depends, and the object of porary alimony and suit money will the litigation is to annul that actual be allowed. Smith v. Smith (1832) 1 relation by showing some other fact, Edw. Ch. (N. Y.) 255. the existence of which is denied. It In Vincent v. Vincent (1891) 16 may be said, too, that for the purposes Daly, 534, 17 N. Y. Supp. 497, an acof an application for temporary ali- tion for divorce brought by a wife, mony there will not need that the fact following illicit relations which reof marriage be so conclusively estab- sulted in her pregnancy, the plaintiff lished as for the purpose of permanent asserted a marriage with the defendalimony, or any other ultimate pur- ant, based on the facts that she took pose of the action. It is for the inter- up her residence at the defendant's est of society and in aid of public house, received his assurance that policy that, where the married relation

they were husband and wife, was inhas been in fact assumed, it should

troduced by him as such, and was givnot easily and capriciously be laid

en a wedding ring by him. The court aside; and where it is averred by the

found that conjugal relations were putative wife and denied by the al

thereby established, in spite of the deleged husband, if she makes a reasonably plain case of its existence, she

nial thereof by the husband, who then

averred that at the time of his marshould be furnished with means of temporary support and of conducting riage with the plaintiff he was already

married. the suit, until the truth or falsehood

The court also found the of her allegations can be ascertained

defendant's allegations insufficient, by the proofs formally taken in the

and allowed both alimony and a councase."

sel fee. In Collins v. Collins (1877) 71 N. Y.

Inasmuch as the marital relation,

the husband's obligation to support the 269, subsequent appeal in (1880) 80

wife, is the basis of the right to aliN. Y. 1, wherein a wife brought an action for divorce, which was defend

mony and counsel fee, a wife is not

entitled thereto where it appears that ed by the husband, in part, on the

her marriage was void ab initio, the ground that the plaintiff had a hus

husband having a wife living at the band living at the time of their mar

time of the marriage in question. riage, the court, in reversing an order

Blinks v.

Blinks (1893) 5 Misc. 193, 25 for temporary alimony, said: "As, by

N. Y. Supp. 768. law, the court has power to make such In Vanvalley v. Vanvalley (1869) 19 orders only in favor of a wife it is Ohio St. 588, the court said: "Where evident that to authorize them it must a decree of divorce is granted on the either be admitted, or proof must be petition of a woman, on the ground

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