Opinion
December 30, 1910.
Willard Parker Butler, for the appellant.
No appearance for the respondent.
The action is brought to annul a marriage solemnized in due form between the parties in the city of Venice, Italy, on the 17th day of March, 1908.
The report of the referee contains findings of fact and conclusions of law in the usual form of a decision on a reference to hear, try and determine the issues. He finds that the marriage was invalid owing to the fact that the defendant had a wife living at the time from whom he was not divorced, and that the plaintiff was entitled to judgment annulling the marriage. The order of the court from which the appeal is taken leaves the action in a most unsatisfactory condition, for it is still pending, and although the issues have been tried and decided by the referee, neither party has a judgment, and a new trial has not been granted.
It appears that the parties both resided in the State of New York at the time they contracted the marriage to annul which this action is brought, and that they have ever since remained such residents. On the 25th day of March, 1903, the defendant duly married Marie Emilie Fishbacher in the city of Paris, France, she being a resident of that city, but he thereafter abandoned her, and on the 12th day of February, 1908, the First Chamber of the Civil Tribunal of the Department of the Seine, at the suit of the wife, granted her a divorce from the defendant on the ground of desertion. According to the law of France as declared by the Court of Cassation, which is the highest court in that country, this divorce did not become effective to sever the bonds of matrimony or leave either party free to remarry until the executory part of the decree was transcribed in the register of the " etat-civil" of the Sixth Arrondissement of Paris, where the marriage was recorded. It was the duty of the plaintiff in the divorce action there to serve upon and file with the mayor of the arrondissement where the marriage was celebrated a certified copy of the decree within two months after it became final, and on her failure to do so the defendant might have complied with the requirement, but until it was so served and filed and the executory part thereof was so transcribed the marriage remained in full force and effect and neither party was at liberty to remarry. The decree of divorce was not so served or filed or transcribed until the 16th day of May, 1908, after the marriage between the plaintiff and defendant, which was celebrated on the 17th day of March, 1908, at the American Consulate in the city of Venice, Italy, before the United States Consul, by the Rev. Canon Lonsdale Ragg, who was authorized by the laws of Great Britain to perform such ceremony. The certificate of marriage was issued by the consul. By virtue of the provisions of section 4082 of the Revised Statutes of the United States this marriage had the same force and effect as if it had been solemnized in the United States, provided the parties would have been authorized to marry if they then resided in the District of Columbia. The referee in his opinion states that he is without knowledge as to whether this marriage would be recognized as legal under the Italian law and that the law of Italy has not been shown. The memorandum written at Special Term on denying the motion to confirm the referee's report indicated that the motion was denied on the ground that the Italian law should have been shown.
We are of opinion that it is not material to inquire with respect to the law of Italy for the reason that it may be assumed that the law of no civilized Christian nation permits polygamy, and if the law of Italy did permit the marriage between parties, one of whom was already married and the bonds of matrimony in full force, the courts of this State would not be obliged to give effect to such law as between parties domiciled here at the time of the celebration of the marriage. The general rule is that the law of the matrimonial domicile of the parties governs in actions for divorce — the same rule by analogy applies to an action for the annulment of a marriage — regardless of where the marriage was solemnized or where the offense which is the ground upon which the divorce is predicated was committed ( Kinnier v. Kinnier, 45 N.Y. 535; 1 Bish. Mar., Div. Sep. § 839; Story Confl. Laws [8th ed.], § 230a); but in the absence of a statute of the State of the domicile of the parties expressly regulating marriages abroad, which it seems it is competent for the Legislature to enact as to persons domiciled within the the State (Bishop, supra, §§ 866, 867, 873, 883, 884), the lex loci contractus governs as to the validity of the marriage unless the marriage be odious by common consent of nations, as where it is polygamous or incestuous by the laws of nature. (Bish. Mar., Div. Sep. §§ 305, 309, 310, 837, 838, 839, 851, 853, 856, 860, 861, 867; Story Confl. Laws [8th ed.], §§ 89, 113a, 114; People v. Crawford, 62 Hun, 160; affd., 133 N.Y. 535; Commonwealth v. Graham, 157 Mass. 73, 75.) This marriage being polygamous if celebrated here would have been void by virtue of the provisions of section 3 of the Domestic Relations Law (Gen. Laws, chap. 48; Laws of 1896, chap. 272), which was then in force and which is now section 6 of the Domestic Relations Law (Consol. Laws, chap. 14; Laws of 1909, chap. 19), and an action to annul it on the ground that it is void is expressly authorized. (Code Civ. Proc. § 1743, subd. 2; Id. § 1745; Pettit v. Pettit, 105 App. Div. 312. ) The marriage being odious by common consent of the nations is not protected by the rules of international law and does not come within the principle of the authorities holding that a marriage celebrated without the State by parties domiciled here with the intention of evading the operation of our statutes under which it would be void, must, under the general rule to which reference has been made, be recognized as valid here. (See Bish. Mar., Div. Sep., supra, §§ 843, 846, 869, 880; Van Voorhis v. Brintnall, 86 N.Y. 18; Thorp v. Thorp, 90 id. 602; Stevenson v. Gray, 17 B. Mon. [Ky.] 193; Medway v. Needham, 16 Mass. 157.) In Medway v. Needham ( supra) effect was given in Massachusetts to a marriage celebrated in Connecticut by a couple, one of whom was black and the other white, who were domiciled in Massachusetts, the laws of which prohibited a marriage between them, and who went to Connecticut, where the laws did not prohibit such a marriage, for the express purpose of marrying and with the intention of returning, as they did.
The marriage was void, not voidable (Dom. Rel. Law [Gen. Laws, chap. 48; Laws of 1896, chap. 272], § 3; re-enacted in Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 6; Pettit v. Pettit, supra), and, therefore, it could not be ratified. Moreover, there is no evidence that any new marriage ceremony took place between the parties after the divorce between the defendant and his former wife became effective, and since under the law a ceremonial marriage or a writing signed by the parties and duly acknowledged and witnessed was essential to a new marriage contract (Dom. Rel. Law [Gen. Laws, chap. 48; Laws of 1896, chap. 272], § 10 et seq., as amd. by Laws of 1901, chap. 339; Laws of 1902, chap. 522; Laws of 1905, chap. 499, and Laws of 1907, chap. 480; renumbered § 5 et seq. and amd. by Laws of 1907, chap. 742, and Laws of 1908, chap. 73; revised in Dom. Rel. Law [Consol. Laws, chap. 14; Laws of 1909, chap. 19], § 10 et seq.), the fact that the parties lived together after it was competent for them to contract a legal marriage is no bar to this action. Although the marriage between the parties was void without any decree of a court, yet the importance to society of having such questions judicially determined and not left to depend upon proof of material facts at a time when it might be difficult to make such proof has induced the Legislature to authorize a decree of annulment in such cases. (Code Civ. Proc. § 1743, subd. 2; Id. § 1745.) It appears that the plaintiff was innocent and that it was represented to her that the defendant was duly divorced from his former wife and she in good faith believed he was at liberty to marry her. In these circumstances the issue of the marriage, one child, should be deemed the legitimate issue of the mother, although the statutory provisions, if construed literally, do not seem to extend to a case where the innocent party knew that there was a former marriage and that the former husband or wife was living and relied on the validity of a divorce, but I think the case falls within the spirit of the statute and the decree should legitimatize the child so far as that may be done. The plaintiff testified that she did not cohabit with the defendant after she learned that his divorce had not become effective at the time they were married, and, therefore, there is no reason for withholding the relief for which she prays and which the court is authorized to grant. All of the material findings made by the referee are sustained by the evidence and they warrant the legal conclusions made by him.
It follows, therefore, that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to confirm the referee's report should be granted, with ten dollars costs, and judgment directed for the plaintiff, with costs.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and judgment ordered for plaintiff, with costs.