Article 26
to perform the ceremony for the sake of certainty and notoriety, it was widely
Henderson vs Henderson
Facts:
Nannie Irene Henderson instituted this suit in the Circuit Court for Prince George's
County to obtain a divorce from her husband, Nathan F. Henderson, and other relief.
Complainant alleged in her bill: (1) that she married defendant in Ottumwa, Iowa, on
November 6, 1943; (2) that as a result of the marriage one child was born; (3) that
defendant treated her in such a manner as to make life almost unbearable for her; that
on July 16, 1950, he beat her about the face and body, and because of the beating she
was taken to a hospital by defendant's son; and while she was there defendant warned
her that if she returned home he would kill her; that on August 1, 1950, he attacked her
in the courthouse in Upper Marlboro for the reason that she picked up their daughter in
her arms; and (4) that because he had subjected her to cruel and inhuman treatment
and had forced her from home by fear of great bodily harm, he was guilty of
constructive desertion.
In a cross-bill for an annulment of their marriage, defendant alleged: (1) that
complainant was divorced from F. Gorman Hatcher, Jr., by the Circuit Court of Fanquier
County, Virginia, on September 27, 1943, by a decree which had no final effect until
after the lapse of six months; and (2) that at the time of the wedding in Iowa, he was
unaware that complainant was incapable of entering into a valid marriage contract, and
that her failure to inform him of that fact was fraud and caused him humiliation and
embarrassment.
The chancellor granted complainant a divorce, awarded the custody of the child to
complainant, with the right to defendant to see the child at reasonable times, ordered
defendant to pay $10 per week as alimony and $5 per week toward the support of the
child, and to pay to complainant's solicitor a counsel fee of $300, and dismissed
defendant's cross-bill. Defendant appealed from that decree.
ISSUE:
(1) whether the marriage performed in Iowa within the prohibited period of six months
was void;
(2) if the Iowa marriage was void, whether the parties had entered into a common-law
marriage; and (3) if there was a common-law marriage, whether it should be recognized
in Maryland.
HELD:
The first question brings before us the Virginia decree, which divorced F. Gorman
Hatcher, Jr., from Nannie Edwards Hatcher on September 27, 1943. The decree
provided "that the bonds of matrimony which were created by the aforesaid marriage
be and the same are hereby dissolved; but neither party hereto shall be permitted to
marry again for a period of six months from the date of this decree." The decree was
entered in accordance with the Virginia statute.
The question whether a marriage of a divorced person within the prohibited period
after divorce is void or voidable depends upon the language of the statute and the
construction given to it by the court.
The Supreme Court of Appeals of Virginia held that a marriage of a person, who has
been divorced in Virginia, within six months after the date of the decree, is absolutely
void, even though the marriage is performed in another State, because the language of
the statute making the decree effective only after the expiration of six months is
entitled to full faith and credit in every other State.
Secondly, assuming without deciding, that the Iowa marriage was void, the next
question is whether the parties entered into a common-law marriage.
The law in Maryland had thus long been established that a common-law marriage is not
valid. The requirements of the Maryland statute as to the formalities of marriage are
mandatory, and hence a religious ceremony must be superadded to the civil contract to
make the contract of marriage valid. F Maryland has not been alone in that position. In
1879 the Supreme Judicial Court of Massachusetts, But while a ceremony was usually
performed by a clergyman, Justice of the peace, or public officer authorized by statute
recognized in American law at an early date that an agreement per verba de praesenti
to be husband and wife constitutes a valid marriage without the necessity of any formal
ceremony. In many of the States it has been held that, in the absence of a statute
declaring positively that any marriage not celebrated in the manner prescribed therein
shall be void, a marriage made according to the common law without observing the
statutory regulation is valid. The courts have stated that the purpose of statutes
requiring the issuance of a marriage license, and the recording of a certificate of the
marriage, is to discourage deception and seduction, to prevent illicit intercourse under
the guise of matrimony, to relieve from doubt the status of parties who live together as
man and wife, and to furnish evidence of the status and legitimacy of any offspring of
the marriage.
Common-law marriages are recognized in the District of Columbia. It has been held by
the United States Court of Appeals for the District of Columbia that the removal of an
impediment to marriage while parties continue to live together as husband and wife in
the District of Columbia gives rise to a common-law marriage.
It is recognized in jurisdictions where formal solemnization of marriages is not
necessary that where the parties desire marriage, and do what they can to render their
union matrimonial, yet one of them is under a disability, as where there is a prior
marriage undissolved, their cohabitation, thus matrimonially meant, will in law make
them husband and wife from the moment when the disability is removed.
The case before us is doubly clear because the parties cohabited as husband and wife in
the District of Columbia for about a year from the Spring of 1945 until June, 1946. .
Cohabitation as husband and wife is a manifestation that the couple had consented to
contract that relation. There can be no rational conclusion other than that the parties,
who lived together as husband and wife in Washington, entered into a common-law
marriage under the law of the District of Columbia.
Thirdly, we come to the question whether the common-law marriage should be
recognized in Maryland. We accept the general rule that a marriage valid where
contracted or solemnized is valid everywhere, unless it is contrary to the public policy of
the forum. The reason for this rule is that it is desirable that there should be uniformity
in the recognition of the marital status, so that persons legally married according to the
laws of one State will not be held to be living in adultery in another State, and that
children begotten in lawful wedlock in one State will not be held illegitimate in another.
The State has the sovereign power to regulate marriages, and accordingly can
determine who shall assume and who shall occupy the matrimonial relation within its
borders. Such effect as may be given by a State to the marriage laws of another State is
merely because of comity, or because public policy and justice demand the recognition
of such laws. However, the State is not bound to give effect to marriage laws that are
repugnant to its own laws and policy. Marriages that are tolerated in another State but
are condemned by the State of Maryland as contrary to its public policy will not be held
valid in this State.
The statutory provisions for solemnization of marriages relate to form and ceremony
and do not cause a marriage which has been entered into in some other jurisdiction to
fall within the exception to the general rule that a marriage valid where contracted or
solemnized is valid everywhere. We have adopted the generally accepted rule that
where a valid common-law marriage has been entered into in a jurisdiction which
recognizes the validity of such a marriage, it will be recognized as valid in another
jurisdiction, regardless of the rule which prevails in the latter jurisdiction in respect to
the validity of common-law marriages.
In conclusion, defendant made the technical objection that, even though complainant
may be entitled to relief, her bill should be dismissed on the ground that after she
alleged that she and defendant were married in Iowa in 1943, she neglected to allege
that the marriage was void. We find no merit in that objection.
We find nothing to show that the chancellor erred in granting complainant relief. The
decree will therefore be affirmed.
Article 26
GUNTER v. DEALERS TRANSP. CO.

Mrs. = California > Arizona > Colorado > California
Mr. = Arizona > Colorado > North Carolina >California > Arizona > Indiana
FACTS:
For some time prior to April 19, 1943, the appellant was the wife of one Jack Lucero of
Los Angeles County, California.She was granted an interlocutory judgment of divorce
from Lucero by the superior court of said county. After said interlocutory judgment was
entered and before it became final she went to Yuma, Arizona, with one Odell L. Gunter
where they procured a marriage license and were married by a Justice of the peace in
the presence of witnesses. Before this ceremony was performed the appellant
explained to both the clerk who issued the license and to said Justice of the peace, the
status of her divorce from Lucero and was informed by each that her intended marriage
would be legal anywhere but in California and there also after her divorce became final.
After the ceremony she and Gunter went to Phoenix, Arizona, where he was stationed
as a member of the U. S. Army Air Force and where they lived together as husband and
wife until some time when he was transferred to La Junta, Colorado. The appellant
followed and continued to live with Gunter as his wife until May 21, 1944, when he was
sent to a military camp in North Carolina preparatory to being shipped overseas the
following December. She did not accompany Gunter to North Carolina but went to Los
Angeles where she remained until he returned from Europe in August, 1945. Upon his
return they resumed living together as husband and wife until his discharge from the
army on November 15, 1945. Gunter then went to Tucson, Arizona, to find work,
expecting to send for the appellant when he found a job upon which he could support
her. Still in quest of suitable employment he came to Indiana in 1946 and went to work
for Dealer's Transport Company, the appellee herein, as a truck driver, and on
September 9, 1946, he was killed as a result of an accident growing out of and in the
course of such employment.
From the date of their attempted marriage in Yuma, Arizona, in November, 1943, until
Gunter's death they were each under the impression that said marriage was legal in all
states but California and during all of said time conducted themselves as husband and
wife and were so regarded in the communities where they lived. During all of the time
Gunter was in the army the appellant received an allotment from the U. S. Government
of $50 per month as his wife. She was designated as his wife in a policy of insurance
issued by the government and up to three days before his death he wrote to her
frequently, always addressing his letters to 'Mrs. Odell Gunter.'
The appellant's application to the Industrial Board of Indiana for compensation for
Gunter's death was denied on the grounds that at the time of his fatal accident 'no valid
marriage relationship, either ceremonial or common law, existed between the plaintiff
and said decedent; that at said time the plaintiff was neither living with nor being
supported by the said decedent, either wholly or partially within the meaning of the
Workmen's Compensation Law of Indiana.'
The parties to this appeal agree that an interlocutory decree of divorce merely
postpones the dissolution of the marriage until it becomes final and therefore the
appellant was incapable of contracting a valid marriage at the time of the alleged
ceremony at Yuma, Arizona, in November, 1943. They also agree that common law
marriages are recognized in Colorado and Indiana but not in California or Arizona. It is
apparent therefore that the appellant's residence with Gunter in Arizona, as man and
wife, was illicit even though unintentionally so. The day after they moved to Colorado, a
state where common law marriages are recognized, her divorce became final and no
impediment to her marriage thereafter existed.
ISSUE:
Does cohabitation and reputation, after the removal of the impediment to the validity
of a ceremonial marriage, contracted in the mistaken belief of both parties that it was
legal, establish a valid common law marital status which came into being when the legal
impediment ceased to exist?
HELD:
General rule announced by the courts of the United States, England, Canada and 29 of
our sister states, including Colorado, to be as follows: 'If the parties desire marriage and
do what they can to render the 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 there are no special circumstances to indicate that
the parties expressly renewed their consent * * * after the removal of the impediment.'
as follows: 'As a general rule, continued cohabitation after the removal of an
impediment to an invalid marriage which the parties contracted in good faith creates a
valid informal or common-law marriage in jurisdictions which recognize such
marriages.' It would seem that this rule fits the present factual situation in all particulars.
The appellant and the decedent Gunter desired marriage as is indicated by their
procuring a license for such purpose and being married by a Justice of the peace under
the impression that the ceremony constituted a legal and binding contract. From that
moment on their cohabitation was matrimonially meant. Neither thought it was illicit
nor considered it to be adulterous. They were so living in Colorado, a state which
recognizes common law marriages, when the impediment to their marriage was
removed, and they continued to so live until the decedent was transferred from
Colorado preparatory to being sent overseas. After the war was over they resumed
cohabitation with matrimonial intent until the decedent left to find such employment as
would enable him to send for and support the appellant whom, up to the moment of
his death, he considered to be his lawful wife. As the general rule, above stated, prevails
in Colorado,we are constrained to hold that the appellant and Gunter were married in
that state, at common law, on April 21, 1944, and that such marriage was not dissolved
until Gunter's death. The validity of the marriage, being governed by the law of the
place of its celebration, must be recognized in Indiana as a matter of comity.
The award is reversed and the cause remanded for further proceedings consistent with
the views expressed herein.
Article 26
Enriquez vs. Enriquez
The plaintiffs brought this action in the Court of First Instance of Manila on the 2d day
of June, 1902, asking that a deed made by Antonio Enriquez on the 27th of March, 1883,
conveying to the defendant Carmen de la Cavada certain real estate in the city of
Manila, be annulled and set aside. Judgment was rendered in the court below to the
effect that the plaintiffs were the owners of an undivided half of the said real estate,
and that the defendant Carmen de la Cavada should pay to the plaintiffs upward of
13,000 pesos, as rents and profits thereof. Both parties moved for a new trial on the
ground of the insufficiency of the evidence, but the plaintiffs in this court have neither
assigned as errors the rulings made against them by the lower court nor have they
discussed any such rulings in their brief. So much of the decision, therefore, as is
adverse to the plaintiffs we can not consider, and the questions to be resolved are
those presented by the appeal of the defendants.
The decision of the court below was based upon the following facts, deemed to be
established by the evidence, namely, that Antonio Enriquez and Doña Ciriaca
Villanueva were legally married prior to the year 1860; that in 1861 the property in
question was acquired by Antonio Enriquez; that it thereby became a part of the
property belonging to the conjugal partnership; that Doña Ciriaca Villanueva died in
1882; that upon her death an undivided half of the property passed to her heirs, the
plaintiffs; that when, in 1883, Antonio Enriquez undertook to convey the entire
property to the defendant Doña Carmen de la Cavada he, as a matter of law, conveyed
only one half thereof, and that the other half remained and now is the property of the
plaintiffs.
The correctness of this decision depends upon the question as to whether Antonio
Enriquez and Doña Ciriaca Villanueva were legally married in 1861. The court below
found, and the evidence sustains that finding, that a marriage ceremony was duly
performed between these persons in 1865, but held that the fact that prior to 1861
they had lived together as husband and wife, had been recognized as such, and had had
children who were baptized as the legitimate children of their lawful marriage was
sufficient evidence to raise the presumption that they were at that time legally married.
A marriage ceremony having been duly celebrated between these persons in 1865, it is
necessary, in order to show that they were legally married before that time, to prove
that the same kind of a marriage ceremony had theretofore been celebrated. Although,
as held by the Supreme Court of the United States, by the common law of England, a
valid marriage might be contracted without the intervention of any ecclesiastical or civil
functionary (Traverse vs. Rheinhardt, 27 Sup. Ct. Rep., 563, decided April 15,1907), yet
such was never the law in these Islands during the Spanish domination here. During the
entire period of that domination no valid marriage could exist unless some ecclesiastical
or civil functionary intervened in its celebration, and the intervention of civil
functionaries was limited to the short time elapsing between the 8th day of December,
1889, when the Civil Code took effect here, and the 29th day of the same month,
when the provisions of Tittle IV, Book I, of that code were suspended. During the time
covered by the lives of Antonio Enriquez and Doña Ciriaca Villanueva no valid marriage
between them could be contracted by their mere agreement to live together as
husband and wife.

There is proof in this case that a marriage, valid in accordance with the laws then in
force in these Islands, was celebrated between these persons in 1865. In order to show
that they were before that time husband and wife, it was necessary to prove that a
marriage ceremony in which an ecclesiastical functionary intervened was duly
celebrated. No proof of any such marriage was offered. As has been said, the fact that
prior to 1865 they lived together as husband and wife and had children is not evidence
in this case to show that they were married prior to that time. Nor is the fact that in the
certificates of baptism of these children it is stated that they were the legitimate
children of the lawful marriage of their parents.

The court below said:

"Loss of the record of the first marriage, or some like reason, might have made the
second ceremony seem necessary and for that reason it was celebrated."

This consideration is to our minds entirely insufficient to explain the celebration of the
second marriage. If the former marriage had taken place, it must have been celebrated
before some priest or other officer of the Roman Catholic Church. The law required that
a record of such marriages should be kept in the parish registry, and if such marriage in
fact had been performed, it probably would have been easy to have obtained a certified
copy of such record. No evidence was offered in this case of any attempt to obtain such
record or that the records of the church where the ceremony had been performed had
been destroyed. In fact, no proof whatever was offered in the case to show the
celebration of such prior marriage, except the facts herein before stated, that the
parties lived together as husband and wife and had children who were baptized as
aforesaid. We hold that this evidence is insufficient to prove in this case a prior
marriage, where it appears that a marriage ceremony was duly performed between the
parties at a later date; and we therefore hold that Antonio Enriquez and Doña Ciriaca
Villanueva were not legally married prior to 1865, and that, therefore, when this
property was acquired by Antonio in 1861 it did not become a part of the property
belonging to the conjugal partnership, but on the contrary was a part of the capital
which he brought to the marriage. Being a part of the capital brought to the marriage
by the husband, upon the death of the wife the husband surviving her no interest
whatever therein passed to her heirs.

The judgment of the court below, which rests solely upon the proposition that at the
time of the death of Doña Ciriaca Villanueva one half of this property passed to her
heirs, can. not, therefore, be sustained. That judgment is reversed, without costs to
either party in this court, and judgment is entered acquitting the defendants of the
complaint, with the costs of the first instance against the plaintiffs. So ordered.