Opinion
October 24, 1933.
February 1, 1934.
Divorce — Bigamous marriage — Annulment — Alimony pendente lite and counsel fees and expenses — Common law marriage as curing defect of prior marriage — Act of May 2, 1929, P.L. 1237, Sections 12 and 46 (Divorce Code) — Act of May 25, 1933, P.L. 1020.
Under Section 12 of the Act of May 2, 1929, P.L. 1237 (Divorce code) either party to a bigamous marriage may apply for an annulment and it is immaterial that the libellant knew at the time of the performance of the ceremony with respondent that she had a husband living from whom she had not been divorced.
Pending the proceedings for an annulment of a bigamous marriage, a wife destitute of a separate estate may be allowed a reasonable sum for alimony and for the expense of suing or defending the action. The Act of May 2, 1929, P.L. 1237, Section 46, as amended by the Act of May 25, 1933, P.L. 1020 authorizes the courts, upon petition, in proper cases, to allow a wife reasonable alimony pendente lite and reasonable counsel fees and expenses.
Where it appears that at the time the libellant and respondent were married the respondent had a husband living from whom she had not been divorced, and who later died, and the libellant and respondent subsequently entered into a common law marriage, co-habitating together as husband and wife, such marriage cures the defect of the prior marriage, to the extent that thereafter no annulment of the prior marriage can be decreed.
Appeal No. 388, October T., 1933, by libellant from decree of C.P., Bradford County, February T., 1933, No. 133, in the case of Paul A. Stump v. Kathryn F.L. Stump.
Before TREXLER, P.J., KELLER, CUNNINGHAM, BALDRIGE, STADTFELD, PARKER and JAMES, JJ. Affirmed.
Petition for alimony pendente lite. Before JAMES, P.J.
The facts are stated in the opinion of the Superior Court.
The court directed the libellant to pay counsel fees and alimony. Libellant appealed.
Error assigned, among others, was the order of the court.
J. Colvin Wright, for appellant.
John N. Minnich, for appellee.
Argued October 24, 1933.
Libellant appeals from an order of the court below directing him to pay the respondent alimony pendente lite.
His libel was filed under the Act of May 2, 1929, P.L. 1237, sec. 12, to secure an annulment of his marriage with respondent on the ground that it was bigamous. He claims, (1) that it makes no difference that he knew at the time of the performance of the ceremony with respondent that she had a husband living from whom she had not been divorced; because the Act of 1929, differing from the Act of April 14, 1859, P.L. 647, does not limit the application for annulment to an "innocent or injured party." See Baker v. Baker, 84 Pa. Super. 544. We think the language of section 12 of the Divorce Code of 1929 is broad enough to sustain this claim, and that in all cases of bigamous marriage "either party" may now apply for annulment. See Report on Bill Codifying and Consolidating the Laws Relating to Divorce and the Annulment of Bigamous Marriages (Legislative Reference Bureau, Bulletin 27, p. 13).
He also claims (2) that the Divorce Code of 1929 makes no provision for the allowance of alimony pendente lite to a respondent wife in such proceedings. To this we cannot agree. The Act of 1929 treats libels for divorce and petitions for annulment of alleged bigamous marriages, except as just above stated, on the same plane. The title of the Act includes them both. The grounds for divorce and annulment of marriage are comprised under one heading or subdivision; the grant of jurisdiction (sec. 15) is the same in both; and section 12, which relates to the annulment of bigamous marriages, specifically provides that the supposed or alleged marriage may be declared null and void "in accord with the principles and forms hereinafter prescribed for cases of divorce from the bonds of matrimony;" thus, in effect, establishing the same procedure for the annulment of a bigamous marriage as is prescribed for divorce from the bonds of matrimony: Report on Bill Codifying and Consolidating the Laws Relating to Divorce, etc., supra, p. 13.
Section 46 of the Act — now amended by the Act of May 25, 1933. P.L. 1020 — provides that in cases of divorce from the bonds of matrimony, "the court may, upon petition, in proper cases, allow a wife reasonable alimony pendente lite and reasonable counsel fees and expenses." In passing upon the Act of 1859, supra, which provided that in case of bigamous marriage "the jurisdiction shall be exercised and proceedings conducted according to the principles and forms which are or shall be prescribed by law for cases of divorce from the bonds of matrimony" — almost precisely the language used in section 12 above —, we held that "one of the principles established in our law with respect to actions of absolute divorce is that, pending the proceedings, a wife destitute of a separate estate will be allowed a reasonable sum for alimony and for the expense of suing or defending the action" and that "under the provisions of the Act of 1859, this principle likewise applies to a wife contesting her husband's action for a decree of nullification under that act": Baker v. Baker, 84 Pa. Super. 544, 545, 546. In providing that the principles and forms prescribed for cases of divorce from the bonds of matrimony should apply to petitions for annulment of bigamous marriages the legislature intended, in our view, to enact a general provision which would obviate the necessity of specially mentioning `annulment of marriage' every time it made subsequent provision relative to the practice and proceedings in cases for divorce from the bonds of matrimony; but that those provisions are to be construed and interpreted as if the subject `annulment of marriage' were specially included in the subsequent sections relating to pleading and practice in cases of absolute divorce; and that, accordingly, it must be read into and applied to section 46 relating to alimony pendente lite. The Act of 1929, codifying and consolidating the laws relating to divorce and the annulment of bigamous marriages is presumed to have been passed by the General Assembly with knowledge of the law on the subject as it then was, and of the construction placed by the courts on such existing statutes as might be incorporated into the Code, and in so far as those statutes have been incorporated into the Code, they will be understood as continuing the law as declared except to the extent that the Code clearly and definitely changes it: Davidson v. Bright, 267 Pa. 580, 589, 110 A. 301; Mindlin v. O'Boyle, 278 Pa. 212, 217, 122 A. 294; Gratz v. Ins. Co. of N.A., 282 Pa. 224, 234, 127 A. 620; Keim v. City of Reading, 32 Pa. Super. 613, 620; Grakelow v. Nash, 98 Pa. Super. 316, 325, 328. See also Baker v. Baker, supra; York v. York, 107 Pa. Super. 522, 164 A. 87.
(3) Appellant's third contention is that no alimony can be awarded respondent, because she did not deny that the marriage was bigamous when it was performed. But she does aver that her former husband has since died and that after his death the libellant and she entered into a common law marriage and have since cohabited as husband and wife.
If after the death of respondent's first husband she and the libellant had been married again by an officiating minister, pursuant to a license duly issued, one would scarcely contend that the libellant could proceed under the Act of 1929 to have his prior marriage with the respondent annulled. What the State is concerned with in such proceedings is the present status of the parties, not what it may have been in the past. If the parties are now legally married and have been legally cohabiting as husband and wife, the law — that is the law governing divorces, etc. — will not now give itself concern with the relationship which may have existed between them before their legal marriage, or take jurisdiction to declare that their past status was a bigamous marriage, if it has since been changed into a legal marriage. The law does no such vain thing. If at the time of presenting the petition for annulment it should appear that the marital status of the parties at that time was legal and that they were then legally married and were husband and wife, it will not use its process to decree that a prior marriage, which has been followed by a valid marriage, was bigamous, null and void. It is to the interest of the State that persons living together in the family relation should be married and that the relationship of husband and wife and that of the family be preserved and not be lightly destroyed. No useful purpose would be subserved by decreeing that a past marital status was bigamous and void if before its annulment was asked for the parties had created a valid, legal marital status; and the statute does not require or contemplate its being done.
This being so, we must bear in mind that the law of this State recognizes a common law marriage as valid, legal and binding. It has the same force, effect and sanctity as one performed by a minister or magistrate. And if such a marriage was entered into between libellant and respondent after the death of the latter's prior husband and at a time when both parties were able to contract a valid marriage it cured the defect of the prior marriage, to the extent that thereafter no annulment of the prior marriage would be decreed, but the present legal status would be preserved until either gave the other just cause for divorce.
Of course mere cohabitation does not constitute a common law marriage: Murdock's Est., 92 Pa. Super. 275. We are using that latter term in the sense placed upon it by the settled decisions of the Supreme Court, and of this court. It is not necessary at this time to elaborate upon the matter.
The assignment of error is overruled and the order of the court below is affirmed at the costs of the appellant.