Henderson v. Henderson

Delaplaine, J., delivered the opinion of the Court. Nannie Irene Henderson instituted this suit in the Circuit Court for Prince George’s County to obtain a divorce a mensa et thoro 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 Fauquier 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 a mensa et thoro, awarded the custody of the child to complainant, with the right to defendant to see the child at reasonable ⁴⁵¹ 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. Three main questions are presented on this appeal: (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. 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, which provided at that time as follows: “On the dissolution of the bond of matrimony for any cause arising subsequent to the date of the marriage, neither party shall be permitted to marry again for six months from the date of such decree, and such bond of matrimony shall not be deemed to be dissolved as to any marriage subsequent to such decree, or in any prosecution on account thereof, until the expiration of such six months.” Va. Code 1919, sec. 5113. Restrictions against speedy marriage of divorced persons have been included in the statutes of many of the States. It has been generally recognized that one of the frequent causes of divorce is the desire of a married person to marry another, and as this could originally be done immediately after the entry of a decree of divorce, there was the temptation to secure the divorce by collusion in circumvention of the law.

The Virginia Statute ⁴⁵² was enacted by the Legislature to lessen that temptation and to help in preserving existing marriages. 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. Hall v. Baylous, 109 W. Va. 1 , 153 S. E. 293 , 69 A. L. R. 527; Schuchart v. Schuchart, 61 Kan. 597 , 60 P. 311 , 50 L. R. A. 180. In Minnesota, for example, where the statute prohibited the marriage of divorced persons within six months from the date of the divorce decree, the Supreme Court of that State held that the marriage of a divorced person within that period is valid until dissolved by a judicial decree.

State v. Yoder, 113 Minn. 503 , 130 N. W. 10 . The Supreme Court of Appeals of Virginia held in 1923 in Heflinger v. Heflinger, 136 Va. 289 , 118 S. E. 316 , 32 A. L. R. 1088, 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, under Article 4, Section 1, of the Federal Constitution. However, see Dimpfel v. Wilson, 107 Md. 329 , 68 A. 561 , 13 L.R. A., N. S., 1180. Secondly, assuming without deciding, that the Iowa marriage was void, the next question is whether the parties entered into a-common-law marriage.

The origin of the American law of marriage can be traced back to the ancient canon law, which consisted of the decrees of various Popes, and was the basis of the matrimonial law of England. Under the canon law, the contract of marriage, which originated as a contract of the law of nature, was regarded as simply of a consensual nature, differing from ■ other contracts only in its being indissoluble even by the consent of the parties. That marriage might be validly contracted by mutual promises alone, without the presence or benediction of a priest, was originally an - established principle of the -Roman law. ⁴⁵³ While the Church elevated marriage to the dignity of a sacrament, it respected its natural and civil origin. After it had been supposed in England for many years that the doctrine of informal marriages was an accepted rule of the common law, as derived from the ecclesiastical law, the doctrine was overturned in 1844 by the House of Lords, which, being equally divided on the question of the validity of a marriage per verba de praesenti, resolved it in the negative.

The Queen v. Millis, 10 Clark & Fin. 534, 17 Eng. Rul. Cas. 66, 8 Eng. Reprint 844.

Six years after the decision of the House of Lords, Justice Grier said in the United States Supreme Court: “Whether such a marriage was sufficient by the common law in England, previous to the Marriage Act, has been disputed of late years, in that country, though never doubted here.” Hallet v. Collins, 10 How. 174 , 13 L. Ed. 376, 379 . On the Continent of Europe clandestine marriages, although they subjected the parties to the censures of the Church, were held valid by the civil and canon law. But a different rule was established by a decree of the Council of Trent in 1563. That decree made null and void every marriage not celebrated before a priest.

The decree was adopted in most Catholic countries, and since that time marriage has been regarded as a sacrament. While the Church might punish by her censures those who disregarded her ordinances, it was not within the power of an ecclesiastical decree to affect the status or civil relations of persons. That could be effected only by the supreme civil power. The decree of the Council of Trent never became effective in England, as that country, at the Reformation, disclaimed the doctrine of a sacrament in marriage, and retained those rules of the canon law which had their foundation, not only in any religious view of the subject, but in the natural and civil contract.

It was recognized in Maryland at an early day that the canon law;, regulating marriages, as derived from the Roman law, was accepted as a part of the common law' of England, and was thus transplanted to the’ ⁴⁵⁴ Province of Maryland. But the Maryland Court of Appeals observed that the canon law was administered in England by ecclesiastical and civil tribunals, and there were no corresponding courts in Maryland to enforce them. Harrison v. State, 22 Md. 468, 483 , 85 Am. Dec. 658 .

In 1872 Judge Alvey, speaking for the Court in Denison v. Denison, 35 Md. 361, 378 , after stating that the common law had been adopted in Maryland only so far as it could be adjusted to our institutions, declared: “The ecclesiastical policy of England forms no part of the common law as we have adopted it. We have in our system no tribunal, as in England, clothed with power and jurisdiction to enforce the solemnization of marriages between parties contracting per verba de praesenti. Unless, therefore, there be something in the law of this State, apart from the common law of England, to render such contracts valid without solemnization, it follows, necessarily, that they can, at most, only be valid to. the extent that they are good at the common law without solemnization, and, as we have seen, such unsolemnized contracts are incomplete, and are not effectual to confer legitimacy upon the issue, nor the rights of property upon the parties, a right that is attempted to be enforced in this case.” The law in Maryland had thus long been established that a common-law marriage is not valid. Mitchell v. Frederick, 166 Md. 42 , 170 A. 733 , 92 A. L. R. 1412; Townsend v. Morgan, 192 Md. 168, 173 , 63 A. 2d 743 .

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. Feehley v. Feehley, 129 Md. 565 , 99 A. 663 . Maryland has not been alone in that position. In 1879 the Supreme Judicial Court of Massachusetts, speaking through Chief Justice Gray, said in Commonwealth v. Munson, 127 Mass. 459, 460, 461 , 34 Am.

Rep. 411 , 413: “In Massachusetts, from very early times, the requisites of a valid marriage have been regulated by statutes of the Colony, Province, ⁴⁵⁵ and Commonwealth; the canon law was never adopted; and it was never received here as common law, that parties could by their own contract, without the presence of an officiating clergyman or magistrate, take each other as husband and wife, and so marry themselves.” But while a ceremony was usually performed by a clergyman, Justice of the peace, or public officer authorized by statute to perform the ceremony for the sake of certainty and notoriety, it was widely 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. State v. Walker, 36 Kan. 297 , 13 P. 279 , 59 Am.

Rep. 556 ; Reaves v. Reaves, 15 Okla. 240 , 82 P. 490 , 2 L. R. A., N. S., 353. In Meister v. Moore, 96 U. S. 76 , 24 L. Ed. 826, 827 , Justice Strong said: “Statutes in many of the States, it is true, regulate the mode of entering into the contract, but they do not confer the right. Hence they are not within the principle, that