Opinion
September, 1893.
William E. Morris, for plaintiff.
J. Hardy, for defendant.
The defendant is evidently a bigamist, and the civil remedy first invoked by the plaintiff to annul her marriage to him, the proper and only one. The present action is for a judicial separation, which presupposes a valid existing marriage. No man can have two wives at the same time. He is under no obligation to live with number two, because she has no right to his consortium or conjugal society. These belong exclusively to number one. Number two needs no legal separation, because she has never been joined to him by legal ties. There is nothing to sever. A void thing is no thing. The law commands them to live apart, and they cannot legally come together. To live otherwise would be concubinage, which the laws of modern times do not cherish. The right to alimony springs from the marital relation, and depends upon it for vitality. The husband becomes entitled to his wife's services, and she in return therefor, to support according to his means. 2 Bish. Mar. Div. (4th ed.) § 369. But no right to alimony can be based on a decree declaring the marriage void ab initio, whether the marriage were a void one or voidable. Id. § 376. The motion for alimony and counsel fee must, therefore, be denied, without costs. The plaintiff may, if she so elects, discontinue her action for separation and proceed with the one for decree of nullity.
Motion denied.