Wilmington Trust Co. v. Hendrixson

delivering the opinion of the court:

(1) That the facts agreed upon in the case stated show there was a marriage between the parties, good at common law.

(2) That at common law an informal or nonceremonial marriage was valid if there was an agreement per verba de prassenti between the parties that they would live together as husband and wife and that there was such an agreement in this case.

(3) That the common law of England was adopted by this state, and that part of it which related to marriage became the law of this state, and was such at the time the marriage in question was consummated.

(4) That while the statutes of this state have directed how marriages should be performed and have gone so far as to declare when they shall be valid, no statute has ever declared that a common-law or nonceremonial marriage shall be void or invalid.

(5) That practically every state in this country having statutes substantially similar to ours, and in which there is no statute making such marriages invalid, has recognized them as valid.

(6) That our present marriage law expressly recognizes such marriages as valid by providing that nothing therein contained shall be deemed or taken to render any commoi>law or other marriage, otherwise lawful, invalid by reason of the failure to take out a license as is therein provided.

The contentions of the defendants are:

(1) That the common law respecting marriages was never adopted in this state.

(2) That, even -if it was, the marriage in question was not a good marriage at common-law because not contracted by words of present consent.

(3) That a nonceremonial marriage was not good at common law.

(4) That while a large majority of the states of this country have seen fit to recognize a common-law or nonceremonial mar

(5) That the legislation of this state, while not expressly declaring such a marriage void or illegal, nevertheless, through its entire history unmistakably shows that only a ceremonial marriage is valid, and by the strongest kind of implication declares that a common-law or nonceremonial marriage is invalid.

We have to admit that the preponderance of judicial and text authority is in favor of the validity of a nonceremonial marriage, even when the statutes direct how a marriage shall be performed, and when it shall be legal. And all such adjudications are based on the legal principle that while such statutes regulate the mode of entering into the contract of marriage, they do not confer the right. Hence they are not within the principle that, where a statute confers a right and confers a remedy for its enforcement, the remedy is exclusive. It is conceded, of course, that a statute may take away a common-law right, but it is insisted that there is always a presumption that the Legislature has no such intention unless it is plainly expressed.

In the leading case of Meister v. Moore, 96 U. S. 76 , 24 L. Ed. 826 , the court said:

“A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner; but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman, or that it be preceded by a license, or publication of banns, or be attested by witnesses.”

While the defendants contend that a marriage is not valid at common law without a ceremony, they do not insist on such contention in this case, “because the great majority of the states hold that such marriage was valid at common law," and they claim that such a contention is unnecessary for the determination of this case.

The defendants contend that the common law respecting marriage was never adopted in this state because the entire subject was fully covered by legislation, which negatives the existence of the common law in this particular. It is this principle upon which the defendants mainly rely.

It is argued that when this state had covered the subject of marriage by legislation, and such legislation was inconsistent with the common law, it cannot be held that the common law respecting marriage has ever been adopted in practice, or was adopted to our circumstances and conditions.

[1] It is undoubtedly true that the legislation of this state respecting marriage fully covers the subject, and shows by the strongest implication, at least, that the common law, so far as it relates to marriage, was not favored or applicable. We are of the opinion, therefore, that such common law has never been adopted in this state.

If the history of the state’s legislation is carefully considered, it will be found that from colonial times private, loose or clandestine marriages have not only been discouraged, but the effort has been to prevent them. Statutes have been enacted for the express purpose of preventing “clandestine marriages.” Our marriage law makes void a marriage solemnized by a person having no authority in that behalf unless one of the parties believed it was lawful.

And so it is manifest from the history of marriage legislation in this state that a secret, clandestine of nonceremonial marriage was never intended to be valid. The law has at no time contemplated that it should be recognized. If a marriage entered into without any publicity or ceremony at all must be held valid, why should there be any law prescribing how a marriage shall be consummated or what shall constitute a legal marriage?

[2] Our conclusion is that no matter what marriage statutes and their judicial interpretation in other states may be, a fair construction of our. own statutes makes a secret and nonceremonial marriage illegal and void. And we base our conclusion on the apparent meaning and object of legislation on the subject,

In Milford v. Worchester, 7 Mass. 48 , Chief Justice Parsons, in delivering the opinion of the court, said:

"But it has been argued, that this marriage, though not solemnized pursuant to the statute, is yet a lawful marriage, had between parties competent to contract marriage, and not declared void by any statute.

“ This ground for supporting marriages deserves consideration; as, if it be tenable, the consequences are very extensive. Where the laws of any state have prescribed no regulations for the celebration of marriages, a mutual engagement to intermarry, by parties competent to make such contract, would in a moral view be a good marriage, and would impugn no law of the state. But when civil government has established regulations for the due celebration of marriages, it is the duty, as well as the interest, of all the citizens to conform to such regulations. A deviation from them may tend to introduce fraud and surprise in the contract; or by a celebration without witnesses, the vilest seduction may be practiced under the pretext of matrimony. *. *. *. If this be not a reasonable inference, fruitless are all the precautions of the Legislature. * * *

“It has been truly observed by the counsel for the plaintiff that a marriage engagement of this kind is not declared void by any statute. But we cannot thence conclude that it is recognized as valid, unless we render in a great measure nugatory all the statute regulations on this subject."

In Commonwealth v. Munson, 127 Mass. 459 , 34 Am. Rep. 411 , the court said:

“Under all changes in the form of the statutes it has always been assumed in this commonwealth, and in the state of Maine, which was originally a part thereof, that (except in the single case of Quakers or Friends * * *) a marriage which is shown not to have been solomnized before any third person, acting or believed by either of the parties to be acting as a magistrate or minister is not lawful or valid for any purpose. * * *

“ The presence of a person officiating, or at least believed to be officiating, as a justice or minister being * * * clearly required, according to a long course of legislative action and of judicial opinion, to constitute a valid marriage in the commonwealth, it would be superfluous to examine the English decisions, or the cases cited at the argument showing that a different rule prevails in some other parts of the Union. Whether it is wise and expedient so to change the law of Massachusetts as to allow an act, which so deeply affects the relations and the rights of the contracting parties and their offspring, to become binding in law by the mere private contract of the parties, without going before any one as a magistrate or minister, is a matter for legislative and not for judicial consideration.”

“We think we are safe in saying, that there never has been a time in the history of the state, whether before its independence of Great Britain or since, when some * * * • celebration was not deemed necessary to a valid marriage. * * * It is true, the act contains no express prohibition or declaration of absolute nullity of marriages contracted per verba de praesenti; but it is plainly to be perceived that such marriages, if allowed, would contravene the spirit and policy of the act. The implication from the provisions of the act are exceedingly strong against such marriages, and the practice and custom of the people of the state have been so universally in conformity with what would appear to have been the policy and requirements of the law, that such custom has acquired the force and sanction of law, even though a question could be made as to the technical construction of the act itself.”

We do not think it necessary to discuss the question whether the civil or canon law, under which a nonceremonial marriage was valid, became a part of the common law of England and was adopted in this country after the separation. Many courts have ably and learnedly discussed the question, but it is perhaps of historical .rather than practical interest now.

In Milford v. Worchester, supra, the court said:

“When our ancestors left England, * * * it is well known that a lawful marriage there must be celebrated before a clergyman in orders.”

In the Denison Case, above mentioned, it was said:

“ But the. civil and canon laws, as such, never had force in England. They were regarded and accepted only as part of the common or unwritten law.

“It is true the common law of England has been adopted by the people of this state, but only so far as it could be made to fit and adjust itself to our local circumstances and peculiar institutions. 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.

“In the celebrated case of Reg. v. Millis, 10 Cl. & Fin. 534, in the House of Lords (1843), the opinion of the judges of England was taken, and by their unanimous opinion it was declared: ‘That by the law of England as it existed at the time of the passing of the marriage act, a contract of marriage per verba de praesenti was a contract indissoluble between the parties themselves, affording to either of the contracting parties by application to the spiritual court the power of compelling the solemnization of an actual marriage, but that such contract never constituted a full and complete marriage itself, unless made in the presence and with the intervention of a minister in holy orders.’ ”

In the case of Commonwealth v. Munson, supra, it was said:

We are of the opinion that the civil or canon law respecting marriage, even if it became a substantive part of the common law of England, was never adopted in this state.

[3] There would probably be no dissent from our conclusion that the marriage in question was not a valid marriage, if our present law did not apparently recognize a nonceremonial marriage by providing that a common-law or other marriage otherwise lawful should not be affected by the failure to take out a license.

It is not easy to tell just what the Legislature meant by this expression, but in view of what Legislatures in this state had done in prescribing what should make a legal marriage and their great particularity in directing the proper procedure, the conclusion must be that the expression means simply this; That if a marriage had been performed in compliance with the laws of the state in all other respects, it would not be held invalid because of the failure to take out a license therefor. That being so, the Legislature must have thought a common-law marriage required a ceremony of some kind, and was something more than a civil or canon law contract. There is authority to support or justify such thought, as appears from the cases above mentioned.

It is impossible tp escape the conclusion that many courts in this country have construed marriage laws very liberally because, as the Rhode Island court expressed it, “to make marriages void and children illegitimate, by implication, is a serious thing.” The desire to make the offspring of informal marriages legitimate is, of course, commendable, and legalizing such marriages would be equally so if they were entered into with an honest intent by either party; that is, with the belief that the marriage was lawful. But unfortunately such intent or belief is exceedingly rare. Usually in such marriages the relation in the beginning is nothing other than licentious, and the question is whether the interest of

And the recognition of informal marriages to make innocent children legitimate may be attended with unfortunate results in many cases. Suppose, for example, that after continued cohabitation, and reputation as married people, and after children are born, there comes, as in the present case, separation of the parents, and either party contracts a similar marriage with another person and raises children, what will be the status of the innocent offspring of the later union? There cannot be two valid marriages. To put a more extreme and difficult case, suppose, after the separation, either party contracts a marriage in a perfectly legal manner and raises children. What would be the situation of the parent and the children?

It seems, therefore, that legalizing an informal marriage so that the children shall be legitimate may cause troubles and complications of a very serious character to parents, children and society.

It is the opinion of the cotut that the Legislature having dealt intelligently, carefully and fully with the subject of marriage, and having declared what shall constitute a legal marriage, the court may assume that a marriage contracted otherwise is unlawful and invalid. If the law works a hardship in any case upon parent or child, there is an obvious and practicable remedy, viz. an application to the Legislature to validate the marriage and legitimize the children.

Some of the states in which the court have recognized non-ceremonial or common-law marriages because their laws did not expressly make them invalid have since made them invalid by express statutory provision. No doubt this was done in obedience to what the law-making bodies conceived to be sound reason and wise public policy under existing conditions; and it is difficult to escape the belief that many courts that have held such marriages good might be of a different opinion to-day, if the question was a new one. But while we know that the good of society requires that a marriage, to be valid, should be something more than the mere agreement of the parties to live together, we base our conclusion in this case on the obvious meaning of the legislation of our own state on the subject.

We are clearly of the opinion that a common-law or a non-ceremonial marriage entered into in this state is not a valid marriage.

It is ordered that this opinion be and the same is hereby certified to the Superior Court for New Castle county.

[Signed by the Judges.]

Whereupon the Superior Court made the following order: