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had given birth to such a child, but did not make this known to defendant. W. schemed to bring about the marriage and participated in concealing from defendant's sons and daughters that such marriage was contemplated. Held, that the mental faculties of defendant were so impaired that he was incompetent to enter into the contract of marriage, that he was subjected to improper influences by W., and that the marriage between him and the plaintiff was therefore void.”

SECTION 9. PHYSICAL INCAPACITY. Physical incapacity is the inability to perform the act of sexual intercourse. Inability to beget or bear children is not sufficient. Physical incapacity, if incurable, is a ground for the dissolution of the marriage. To have such effect it must have existed at the time the marriage was contracted.10


TO A MARRIAGE. The drunkenness of one of the parties to a marriage, to such a degree as to render him unconscious of what he is doing, will render the marriage void."


The affect of fraud on marriage is discussed in the case of Farley vs. Farley." "Complainant consented, in fact became the wife of defendant, though beguiled into the assumption at that time of the status of marriage by misrepresentations of the legality 10 The best discussion of what de

Farrar & Dwyer Cases on the gree of physical incapacity will

Law of Husband and Wife, be sufficient grounds for the 11 See Subject of Effect of Drunkenannuling of a marriage is to be

ness upon contracts, under the found in the case of Dean vs.

subject of Contracts, Vol. 3, Avling, 1 Rob. Ecc. Rep. 279.

Subj. 6. This case can also be found in


13 94 Ala.,

and binding effect of the formal ceremony. The precise question is, when there is an executory agreement to marry, with the understanding that the parties were not to become husband and wife without formal solemnization, what is the effect of an intervening ceremony, without license, performed by a person unauthorized, imposed on complainant by false pretenses and representations, but believed by her to be lawful and bona fide? A marriage procured by deception and fraud, except, it may be, of certain kinds and magnitude, is not absolutely void, but only avoidable, and valid for all civil purposes unless and until avoided by the deceived party. The party imposed upon may affirm or ratify the contract of marriage after the discovery of the fraud; and, it has been held that voluntary cohabitation thereafter as husband and wife is a ratification. As under the rule declared in Beggs vs. State, a valid marriage may be contracted without license and solemnization, merely by the consent of the parties, certainly complainant may ratify her consent to an immediate marriage, procured by false representations, and thus, by relation, render the marriage good ab initio. The contract, however, can be avoided only by the party defrauded. "The doctrine seems to require no qualification, that a voidable marriage is, until the act or sentence transpires which renders it void, as good for every purpose as if it contained no infirmity.' If, in answer to the usual questions, though propounded by a person not authorized to solemnize the marriage, both parties consented to a union, defendant is estopped from asserting that the consent was not mutual, or that he did not consent; he will not be permitted to take advantage of his own wrong and fraud to escape the duties and responsibilities of the marital relation. “The party who commits

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a fraud is bound, and remains bound, until the party deceived has made his or her election, and will thereafter be bound or not, according to the election made. The allegations of the bill, fairly construed, show that complainant elected to treat and recognize the marriage as valid.”

Pregnancy before marriage, concealed from the husband, who has not, previous to marriage, sustained improper relations with the wife, is a fraud which is sufficient ground for annulling the marriage, if the discovery of the fact is followed by a cessation of cohabitation, and abandonment."



Marriage entered into under duress will be voidable. A degree of duress, is required to render a marriage invalid, sufficient to destroy the free will of a person of ordinary bravery and fortitude. 14


Bigamy is the entering into of the marriage contract by a party already having a legal wife or husband, alive or undivorced. 15

The elements of bigamy are those of a legal first marriage, not dissolved by either death or divorce, followed by a second marriage. Divorce before the second marriage is contracted,1e would be a good defense to a prosecution for bigamy. For matters relating to Divorce, see the following chapter. After the death of either party, the survivor has the full right to marry again.

13 Baker vs. Baker, 13 Cal., 87; Rit

ter vs. Ritter, 5 Blackf., 81; Reynolds vs. Reynolds, 3 Allen, 605; Morris vs. Morris, Wright, 630; Carris vs. Carris, 24 N. J. Eq., 516; Sissung vs. Sissung, 65 Mich., 680.

14 Todd vs. Todd, 149 Pa. St., 61. 14 Bigamy being a statutory offense

makes it difficult to frame any

satisfactory general definition. 19 Baker vs. People, 2 Hill, 325.

The presumption of death was raised by an absence for seven years at common law, by an absence for five years in Illinois, and for similar periods in other states. To have this effect, however, no communication must have been received during this period, either of or from the absent party.

The death of the first husband or wife, before proceedings to avoid second marriage will not render such second marriage valid, unless it was entered into after the first husband or wife had been absent for the period required to raise the presumption of death.

The law will always make such presumptions of facts as will tend to uphold the innocence of the parties or the legitimacy of children. In the case of the marriage of a party having a former husband or wife living, the law therefore will presume that the parties to such first marriage had been divorced. This presumption is, of course, open to rebuttal. A bigamous marriage is void.1?

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In addition to the general incapacities to marriage there are also prohibitions against marriage with certain people. The most important of these restrictions are those prohibiting marriages between relatives within certain degrees.

Incest is sexual intercourse (either with or without the assumption of the marriage relation) between persons within certain degrees of consanguinity.

Incestuous marriages are void. In Illinois marriages are incestuous when contracted between ancestors and descendants of any degree, between aunts 17 For a further treatment of Bigamy, see Subject of Criminal Law, Vol.

X, Subj. 30.

Vol. IV.-16.

and nephews, uncles and nieces and first cousins. The laws of the other states on this subject present some differences but are in the main very similar.18 At Common law marriage between first cousins were permitted, but on the other hand a man was forbidden to marry relations of his deceased wife within the same degrees that he was forbidden to marry his own relatives.

In computing the degrees of relationship within which marriage is forbidden, bastards and relatives by the half-blood are considered the same as if they were legitimate relatives of the full-blood.

The validity of marriage between parties related in the degrees, as to the validity in which there is a considerable variance among the laws on incest of the different states, will be determined by the law of the place where the marriage was entered into, but marriages within the more closely connected degrees will not be recognized in other places, even if valid under the laws of the place where the marriage was contracted. This question is carefully discussed in the case of Sutton vs. Warren :19

"It is a well settled principle in our law, that marriages celebrated in other states or countries, if valid by the law of the country where they are celebrated, are of binding obligation within this Commonwealth, although the same might, by force of our laws be held invalid, if contracted here. This principle has been adopted, as best calculated to protect the highest welfare of the community in the preservation of the purity and happiness of the most domestic relations in life. There is an exception, however, to this principle, in those cases where the marriage is considered as

13 Consult statutes of particular


19 10 Metc. (Mass.), 451.

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