in States where a ceremonial marriage is required, since it leads to the conclusion that such a marriage has taken place. One attacking the marriage will, however, be allowed to show that there was no marriage, and so rebut the presumption. The presumption in favor of marriage when parties live together as husband and wife is very strong, and this presumption must be met by strong, distinct, and satisfactory disproof. (a) This is particularly true after the lapse of a great length of time.1 The language of Lord Campbell is "that a presumption of this sort in favor of marriage can only be negatived by disproving every reasonable possibility." 2 Some of the circumstances which tend to raise a presumption of marriage are these: First, cohabitation, or the act of living together as husband and wife. Such cohabitation raises the presumption of marriage. A court will not suppose the relation of the parties to be illicit, but, in the absence of evidence to the contrary, will assume it to be lawful.3 (6) 4 This principle is subject to this qualification: that if the cohabitation be in its origin illicit or meretricious, it will be presumed to continue to be so, unless there is evidence that this relation ceased, and a new and lawful relation commenced by mutual consent. (c) A subsequent cohabitation after such a change of intent might raise a presumption of a marriage.5 Under this rule, if parties enter into a void contract of marriage, and the impediment to marriage is removed, a marriage may be presumed from subsequent cohabitation, etc. It has been decided, however, that this principle cannot be applied to uphold a marriage, where one of the parties had committed bigamy, though the other was innocent, as a new marriage could not be presumed after the bigamous relation ceased, since the innocent party would have no motive to remarry. This seems to be a highly technical doctrine, since the whole subject of 1 Piers v. Piers, 2 H. L. Cases, 331. 2 Id. p. 380. 8 Ferrie v. Pub. Adm., 3 Bradf. 151; s. c. 4 Bradf. 28; Caujolle v. Ferrie, 23 N. Y. 90. + Cunninghams v. Cunninghams, 2 Dows Rep. 482. The presumption in this (a) Hynes v. McDermott, 91 N. Y. 451. (b) State v. Schweitzer, 57 Conn. 532; see also Degnan v. Degnan, 43 N. Y. St. Rep. 646. case is but slight. Caujolle v. Ferrie, 23 N. Y. 90. 5 Lapsley v. Grierson, 1 H. L. Cases, 498; Hill v. Hibbit, 19 W. R. 250. 6 Rose v. Clark, 8 Paige, 574. See also a learned note in 18 Am. Law Reg. 639. (c) Harbeck v. Harbeck, 102 N. Y. 714; Vincent v. Vincent, 16 Daly, 534. presumptions is a fiction in favor of marriage, and a presumed public policy. The decision has also the bad effect of leaving an innocent woman in a worse position than she would have been in, had she known of the bigamy; for in that case, when the former wife died, there would be a motive to marry, and a marriage might be presumed. 1 3 Second, general reputation raises a presumption of marriage.2 If the repute be divided, it may be established by preponderating repute. In Scotland, "habit and repute" are proof that the parties have interchanged that consent which constitutes the contract. 4 These Third, declarations of the parties to the marriage. may be admitted as evidence to prove, and in some instances to disprove, a marriage. This kind of evidence would not be sufficient to establish a marriage in a trial for polygamy. A general statement may now be made that marriage may for most purposes be proved by evidence of acts of recognition, matrimonial cohabitation, general reputation, and declarations of the parties.5 The rule applies in favor of one who sues for injury causing a husband's death. The repute, etc., should be shown to exist in the domicile of the parties.7 Cohabitation and reputation should go together. One alone will not suffice. 8 Fourth, in special cases, when there is no better evidence, hearsay, such as recognition of the marriage, has been admitted as evidence. (a) Under the present law of New York, an alleged wife may testify to recognition on the husband's part, introduction to his relatives, etc. 10 When a presumption of marriage is once raised, it will not be rebutted by the fact that there was a subsequent actual marriage of the parties, even though the subsequent marriage should be in the wife's maiden name. It is a rule that reputation proper to be shown in the case cannot go beyond the range of knowledge of the cohabitation. 12 11 It cannot be shown by general reputation that marriage did not exist, though when reputation of a marriage is asserted, it may be shown in answer that there is a divided reputation, and that among some friends it was reputed that the connection was illicit instead of matrimonial.2 The principle on which recognition rests requires that it should be open, public, and continuous. The policy of the law is opposed to a secret marriage. It is difficult to establish it without clear evidence. The question whether direct evidence of marriage must be given in an action for divorce was recently discussed in the New York Court of Appeals, but not decided. 4 In various States there are statutes prescribing the registration of marriages in some public office. In that case there is authority for holding that an official certificate from the register's office will be evidence of the marriage. It is in general ordained in the statute itself that it may be used in evidence. It will not, however, be the only means of establishing the marriage. The testimony of witnesses may be resorted to, or evidence of cohabitation and repute as before. 5 Rules for determining the validity of foreign marriages.By the phrase "foreign marriages" is here meant such as are made in one jurisdiction, while their validity is questioned in another. This may happen under differing systems of law in the same country, as where a Scotch marriage is assailed in an English court. This matter involves the doctrine of "conflict of laws," or "international private law," as it is sometimes called. It can only be considered incidentally here. Two principal questions arise: one is, the validity of the marriage where the forms and ceremonies differ from those of the place where the parties are domiciled, or where the trial is had; the other, where conflicting rules of public policy prevail in the two jurisdictions, as to the propriety of the marriage itself. As to the first question, the general rule is that the validity of marriages as to form is governed by the law of the place where the contract is entered into. If valid there, it is valid every-. where. If void there, it is in like manner void everywhere. An illustration is the requirement of the presence of a priest. This is a branch of a so-called "comity" or courtesy of nations, which recognizes the validity of acts done in other nations or jurisdictions. Lord Stowell has well stated the rule in a cele 1 Bartlett v. Muslinar, 28 Hun, 235. 2 Badger v. Badger, supra. • Cunningham v. Burdell, 4 Bradf. 343. Collins v. Collins, 80 N. Y. 1, 10. 5 Scotch " common law" is mainly derived from the Roman law, and widely differs in most respects from the common law of England. brated case, which arose in Scotland. He said, this case "being entertained in an English court, it must be adjudicated according to the principles of English law applicable to such a case. But the only principle applicable to such a case by the law of England is that the validity of Miss Gordon's" (the alleged wife's) "marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland." 2 This doctrine of comity has been carried so far as to uphold in the courts of the State where the parties reside, marriages contracted elsewhere, in evasion of the law of the domicile as to matters of form.3 (a) These have been called, in England, "Gretna Green" marriages, from the fact that English people, being desirous to evade certain burdensome marriage ceremonies of the English law, crossed the border to Gretna Green or other place in Scotland, and after a marriage without ceremonies, valid there, returned to England. A statute in the country of the domicile may make such a marriage void there, though it may still be valid in the place where it was contracted.5 As to the second class of cases, a different rule prevails. A nation or State is not bound to sacrifice its views of public policy to a spirit of courtesy towards other States or nations. This is particularly true where there is a statute in the country of the domicile prohibiting the marriage. In such a case the marriage may be valid in the State where contracted, and yet void in the domicile. An instance is the rule in England already referred to, that an Englishman shall not marry a deceased wife's sister, nor a member of the royal family without the consent of the reigning monarch. A penal disability stands upon a different footing. That is supposed to be territorial simply in its effect, unless the words of the statute indicate that it is 1 Dalrymple v. Dalrymple, 2 Hagg. was married in this manner; but afterwards Consist. R. 54. went through a ceremonial marriage at Newcastle, England. 2 Id., pp. 58, 59. 8 Compton v. Bearcroft, 2 Hagg. Consist. R. 444 n.; Scrimshire v. Scrimshire, Id. 395, 412, 413; Medway v. Needham, 16 Mass. 157. 4 Lord Chancellor Eldon, when young, (a) Gardner v. Attorney-General, 60 L. T. R. 839. A marriage celebrated in Japan, according to its laws, between a British subject with an Irish domicile of origin, and a Japanese woman, which 5 Gretna Green marriages are now prac tically abolished, as a residence of one of the parties in Scotland of twenty-one days is now necessary. 19 & 20 Vict. c. 90. is valid in Japan, is valid in England. to have a more extended operation. An instance is a statutory prohibition that one divorced for adultery shall not marry again during the life of the other party. A marriage in another State where there is no such rule will be valid in the State prohibiting it, unless there are words in the statute including a marriage abroad.1 (a) Independent of prohibitory statutes, a court in a civilized country will not recognize a polygamous marriage. This is so repugnant to the general sentiment of mankind that it could not be tolerated that a court of justice should enforce claims of right founded upon it. In England, it has been placed on the ground that it is not a Christian marriage, and that an English divorce court will not enforce matrimonial obligations growing out of marriages that are not in their nature Christian.2 DIVISION II. - Annulment, Dissolution, and Judicial Separation. A A proceeding for these purposes is termed a divorce. divorce may be either total or partial. When total, it may be either an annulment or a dissolution. When partial, it is called divorce a mensa et thoro (from bed and board). These will now be considered in their order. SECTION I. Annulment. There is an important distinction in total divorce between a case of annulment and one of dissolution. An annulment is for a cause existing at the time of the marriage, making it voidable. The effect of it in general is to adjudge that there not only is not now, but that there never has been, a marriage. Accordingly, the children are illegitimate. The wife has no claim even to alimony from her supposed husband's estate for her support. The English divorce court maintains under the statutes that in a suit for nullity, alimony pendente lite may be continued until the decree for divorce is made absolute. The reason is, that there is no divorce until that time. Lapse of time is no bar by the ecclesiastical law to a suit of this kind, on the ground that the function of the court is simply to pass a declaratory sentence that the marriage is null and void.1 602; Van 1 Thorp v. Thorp, 90 N. Y. Voorhis v. Brintnall, 86 N. Y. 18. 2 Hyde v. Hyde, L. R. 1 P. & D. 130. 3 S., falsely called B. v. B., L. R. 9 P. D. 80. 4 Duins v. Donovan, 3 Hagg. Ecc. 301, 305; Johnston v. Parker, 3 Phill. 39. (a) See also Moore v. Hegeman, 92 N. Y. 521; Wilson v. Holt, 83 Ala. 528; contra, Pennegar v. State, 87 Tenn. 244. |