224 P. 961 (Okla. 1924), 14969, Madison v. Steckleberg
|Citation:||224 P. 961, 101 Okla. 237, 1924 OK 378|
|Opinion Judge:||COCHRAN, J.|
|Party Name:||MADISON v. STECKLEBERG ET AL.|
|Attorney:||E. T. Noble and S. L. O'Bannon, both of Okmulgee, for plaintiff in error. R. C. Allen, S.W. Rose, and Robert R. Smith, all of Okmulgee, for defendants in error.|
|Case Date:||April 01, 1924|
|Court:||Supreme Court of Oklahoma|
Syllabus by the Court.
An attempted marriage between a man and woman who has a living, undivorced husband, is bigamous, and a continued cohabitation is unlawful.
The burden is upon the person, who asserts the illegality of a marriage, to prove such illegality, and, where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained a divorce.
The presumption of removal of prior obstacles in support of a marriage has the effect of placing the burden of proof on the party attacking the marriage to prove that neither party to the first marriage had procured a divorce, but, where evidence is introduced on either side tending to prove that neither party to the prior marriage had procured a divorce, the presumption disappears, and the question then becomes one of fact to be decided in the light of all the circumstances and the reasonable inferences from them.
Where a marriage is attacked, because one of the parties thereto had a living, undivorced spouse at the time of such marriage, the burden of proof is upon the party attacking the subsequent marriage to prove that neither of the parties to the prior marriage had been divorced, but, when one of the parties to the prior marriage testifies that she had never procured a divorce, and that her former husband had never sued her for a divorce, and where it appears that both parties to the prior marriage had at all times been residents of the state of Oklahoma, such testimony is sufficient to overcome the presumption, and to shift the burden of proof to the other party to introduce evidence showing that a divorce had been granted to one of the parties ot the former marriage, and, in the absence of such proof, the finding of the trial court sustaining the second marriage is clearly against the weight of the evidence.
Appeal from Superior Court, Okmulgee County; J. H. Swan, Judge.
Action by William Steckleberg, administrator of the estate of Jesse Davis, deceased, and others against Cokey Madison, née Davis. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with directions.
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