Cook v. Cook

• Decision Date: 26 February 1887
• Citation: 10 N.E. 749,144 Mass. 163
• Parties: COOK, Libelant for Decree of Nullity of Marriage v. COOK alias CAMERON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 163

10 N.E. 749

COOK, Libelant for Decree of Nullity of Marriage v. COOK alias CAMERON.

Supreme Judicial Court of Massachusetts, Suffolk.

February 26, 1887

COUNSEL

T.E. Grover, for libelant.

The question presented is, was the marriage between the libelant and libelee a valid marriage? The belief of the parties to the marriage, as to its being a valid one, cannot affect its validity. If it was unlawful, the opinion of those who contracted it that it was lawful cannot make it so. Thompson v. Thompson, 114 Mass. 566; Glass v. Glass Id. 563; White v. White, 105 Mass. 325; Com. v. Munson, 127 Mass. 459. The libelant in a libel for divorce, where a decree nisi has been entered cannot contract a valid marriage in this commonwealth until that decree has been made absolute by a new decree upon a new petition. St.1867, c. 222, does not differ in principle from St.1882, c. 223. See Moors v. Moors, 121 Mass. 232; St.1870, c. 404; Edgerly v. Edgerly, 112 Mass. 55; Fox v. Davis, 113 Mass. 258. The fact that more than six months had elapsed after the decree nisi before the marriage between the libelant and libelee was contracted does not enable the libelee to contract another marriage unless, before said second marriage, she had obtained a decree absolute. Edgerly v. Edgerly, ubi supra; Graves v. Graves, 108 Mass. 320. This petition was properly brought under Pub.St. c. 145, § 11. Milford v. Worcester, 7 Mass. 48; Com. v. Munson, ubi supra.

T.S. Dame, for libelee.

By St.1882, c. 223, the final decree relates back and takes effect from the time of the filing of the application thereof. If the decree does not take effect from the time of filing the application therefor, the libelant, knowing all the facts, not only persuaded the libelee to enter into, but himself entered into, a contract forbidden by statute, and was as much at fault as the libelee. Pub.St. c. 207, § 3. Pub.St. c. 145, § 11, does not require this court to relieve a person who has participated in a transaction forbidden by statute from the consequences of his own illegal act, and it will not do it. Gregg v. Wyman, 4 Cush. 322; Hall v. Corcoran, 107 Mass. 251; Cardoze v. Swift, 113 Mass. 250. If a decree of nullity is entered, the libelee should continue to have the care and custody of the child, and receive from the libelant a reasonable sum towards its support. Pub.St. c. 145, § 15; Id. c. 146, § 29.

OPINION

FIELD J.

This libel is within the provision of Pub.St. c. 145, § 11. The decree of divorce nisi did not dissolve the bonds of matrimony existing between Annie M. Cameron and John W Cameron, and she was, at the time her marriage with the libelant was solemnized, the wife of Cameron. Her belief that her marriage with the libelant was valid is in law immaterial, for such a marriage is absolutely void. Pub.St. c. 145, §§ 4, 7. The facts reported do not bring the case within Pub.St. c. 145, § 27. It is contended that the absolute decree of divorce entered in her libel against Cameron, on November 21, 1882, may be held to relate back to the time when she filed her application for a final decree, which was on November 20, 1882, and before her marriage with the libelant. It does not appear that this decree was entered by the court to take effect as of November 20th, or as of any date prior to the signing of the decree. There is nothing in the statutes indicating that such a decree can be made to take effect before it is signed, and we doubt the power...