Wright v. Wright
| Decision Date | 22 September 1928 |
| Citation | 264 Mass. 453,162 N.E. 894 |
| Parties | WRIGHT v. WRIGHT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Case Reserved and Report from Probate Court, Essex County; A. P. White, Judge.
Petition by Marie A. Wright against John P. Wright for separate support. Petition dismissed, and case reported with reservation. Affirmed.
A. B. Tolman, of Lynn, for petitioner.
W. E. Sisk and R. L. Sisk, both of Lynn, for respondent.
The petitioner was married at Pawtucket, R. I., on August 3, 1921, with due legal ceremony to the respondent, who had been divorced from a former wife in Massachusetts by a decree entered upon a libel filed by her which became absolute on November 12, 1920, and was, by force of G. L. c. 208, § 24, prohibited from marrying again before November 12, 1922. He knew, but she did not know, that he could not then be legally married in this commonwealth. Both resided here, and went to Rhode Island for the express purpose of marriage, intending not to reside in Rhode Island, but to return to Massachusetts and thereafter to reside here. They returned and until August 14, 1924, lived together as husband and wife in good faith on her part. He then left her and has not since lived with her. There was no evidence that the former wife is not still alive. The petitioner seeks an adjudication that she is living apart from him with justifiable cause, and an order for separate support, alleging that she is his wife.
[1] It is her contention that, although pursuant to G. L. c. 207, § 10, the marriage at Pawtucket was ‘null and void for all purposes in this Commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth,’ it became a legal marriage from and after November 13, 1922, by force of G. L. c. 207, § 6, since the parties continued to live together as husband and wife in good faith on her part after that date and until the separation in August of 1924.
This contention is not sound. It was decided in Murphy v. Murphy, 249 Mass. 552, 144 N. E. 394, on facts similar in all respects except that the separation took place before the expiration of the two-year prohibition on remarriage that such a petition could not be sustained. Such a marriage is void under G. L. c. 207, § 10. The decision in Whippen v. Whippen, 171 Mass. 560, 51 N. E. 174, that unless both parties to the prohibited marriage had the intent to avoid the statute prohibition then in force, the marriage, valid where solemnized, was not null here, was met by a change in the statute. St. 1913, c. 360. Section 6 of G. L. c. 207, is a codification of St. 1895, c. 427, and St. 1896, c. 499. It does not apply to this case. The language of the original statute makes this clear. ‘Where a marriage contract has been entered into with due legal ceremony and the parties thereafter live together as husband and wife; and where at the time of such marriage ceremony a former husband or wife of one of the parties was living, and the former marriage with such person was still in force; and where such subsequent marriage contract was entered into by at least one of the parties in good faith, in the full belief that the former husband or wife was dead, or that such marriage had been annulled by divorce; or without knowledge on the part of one of them of such former marriage; and where the impediment to such subsequent marriage existing by reason of the former marriage is removed by the death of the other party to the former marriage or by a proper decree of divorce, and the parties to such subsequent marriage then continue living together as husband and wife in good faith, on the part of at least one of them, they shall be taken and deemed to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be deemed to be the legitimate issue of both parents.’ As was said in Tyler v. Tyler, 170 Mass. 150, 48 N. E. 1075, and Whippen v. Whippen, supr...
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