Williams v. Oates

• Decision Date: 30 June 1845
• Citation: 5 Ired. 535,27 N.C. 535
• Parties: LUCRETIA WILLIAMS v. BRAWLEY OATES ADM'R OF JOHN R. WILLIAMS.
• Court: North Carolina Supreme Court

5 Ired. 535

27 N.C. 535

LUCRETIA WILLIAMS

v.BRAWLEY OATES ADM'R OF JOHN R. WILLIAMS.

Supreme Court of North Carolina.

June Term, 1845.

Where there are husband and wife domicilled in this State, and the husband obtains a divorce from the bonds of matrimony on a petition against his wife--if the wife afterwards goes into another State, the first husband being living, for the purpose of evading the laws of this State, and there marries another person, such marriage is null and void to all purposes.

Appeal from the Superior Court of Law of Mecklenburg County, at the Spring Term 1845, his Honor Judge BAILEY presiding.

The plaintiff, Lucretia, intermarried with one John N. Allen in this State, both being domicilled here. Her husband afterwards instituted a suit against her for a divorce for cause of adultery, on her part, in which there was a decree divorcing him a vinculo matrimonii. Afterwards the said Lucretia and John R. Williams, both being citizens of North Carolina and domicilled here, with the purpose of evading the laws of this State, which prohibited her from marrying again, went into South Carolina and there intermarried, according to the laws of that State, and immediately returned to this State, and continued to live here for several years as man and wife, until the said John R. Williams died intestate.

The plaintiff then filed her petition in the County Court for her year's allowance under the statute, as widow of the said intestate; and the administrator appeared, and insisted that the marriage was void, and that the petitioner was therefore not entitled. Of that opinion was the County Court, and dismissed the petition. The petitioner appealed to the Superior Court, and upon the facts above stated, the order of the County Court was there reversed, and the petitioner declared to be entitled; and from that the administrator appealed to this Court.

J. H. Bryan, with whom were Alexander & Osborne, for the plaintiff.

The validity of the marriage depends upon the lex loci.--4 Eng. Ec. Rep. 565. Scrimshire v. Scrimshire, 571. Dalrmyble v. Dalrymble, 4 Eng. Ec. Rep. 485.

This is according to the jus gentium, great mischief and confusion will arise from a contrary doctrine. 4 Eng. Ec. Rep. 572.

The matter of domicil makes no sort of difference in determining these questions. Ibid. 573.

There is no such impediment here, to holding this marriage to be valid as there would be in England, for there, the first marriage is indissoluble, except by the transcendant power of Parliament, and it is therefore against their policy. Our law permits divorces a vinculo, and the reason therefore does not apply. The doctrine of the American Courts clearly is, that the validity of the marriage depends upon the law of the place where it is celebrated; and that law is resorted to for the purpose of ascertaining the capacity of the parties to contract. Story's Comfl. of Laws, 87, 112.

Personal disqualifications of a penal nature arising from the positive or municipal law of our State, are not enforced in other countries, they are strictly territorial. Story's Comfl. 97.

The prohibition here on the plaintiff to marry again, was in the nature of a penalty, a forfeiture, and cannot have an extra-territorial operation.

RUFFIN, C. J.

At common law a valid marriage was indissoluble, except by legislative action; and a second marriage, or rather, pretended marriage, was and is, absolutely void. Gatling v. Williams, decided at this term. A statute in 1814 admits of judicial sentences of divorce from the bonds of matrimony in certain cases; and provides, that, after such a sentence, all the duties, and rights of the parties, in right of the marriage, shall cease, and the complainant or innocent person shall be at liberty to marry again, as if he or she had never been married. It became a doubt upon this act, whether the prohibition to marry, which arose out of the first marriage, continued as to the offending party, or not; for, although capacity to contract a second marriage is expressly given to the injured party alone, and thence a highly probable legislative intention may be inferred, that the guilty party should not have such capacity, yet when the consequence of such a construction would be to involve that person in the guilt and pains of felony, a Court would naturally hesitate, and perhaps feel bound to hold, that the capacity to marry again legally resulted to both parties from the dissolution of the previous marriage, without some express negative words. It seems, that the same doubts have been entertained, and caused much parliamentary discussion, in England, where the offending party married after divorce by statute; which is usually drawn, so as to declare the marriage dissolved and made void to all intents and purposes; but super-adding authority to the injured party alone to marry again, and making the issue of such marriage legitimate. But it is said to be the better opinion, that such second marriage of each party is valid, and that opinion is sanctioned by usage. It is, however, concluded by all, that, if the statute contain prohibitory words on the offending party, that party cannot marry, and the incapacity arising out of the first marriage continues, notwithstanding the divorce. Shelford on Marriage and Divorce, 476. To clear all doubts upon the point in this State, and to express distinctly, what was, probably, the intention from the beginning, the act of 1827 enacts, than no defendant or party offending, who shall be divorced from the bonds of matrimony, shall ever be permitted to marry again; and if he or she shall offend against the act he or she shall be subject to...