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NOTE ON MARRIAGE.

Civil contract.- Marriage is a civil contract, which the parties may enter into by voluntary consent, provided they are competent to contract marriage.

Proof. A marriage can be proved by the same evidence that would be admissible to prove any allegation. A witness is not essential, though one is advisable. A wife may herself prove the marriage under section 831 of the New York Code of Civil Procedure. Van Tuyl v. Van Tuyl, 8 Abb. Pr., N. S., 5.

Contract of marriage may be established by circumstantial evidence. Matter of Hamilton, 76 Hun, 200.

A marriage may be proved by showing actual cohabitation as husband and wife, acknowledgment, declarations, conduct, repute, reception among neighbors and relations, etc. Gall v. Gall, 114 N. Y. 109.

In the absence of any marriage ceremony or any contract of marriage, an agreement between a man and a woman to live together merely does not constitute the relation of marriage in the eye of the law, where he has not held her out to the world as his wife and she has not been reputed to be such. Soper v. Halsey, 85 Hun, 464.

The finding of a trial court that there was no marriage between the parties to an action for divoree, sustained, although there was evidence that the parties had assumed the character of husband and wife and reported themselves in that relation to their associates and others, and their conduct prima facie established the marriage, where the union between the parties was, at first, illegal and if a change occurred, it was not followed by formal celebration, nor was there evidence of any present agreement to take each other for husband and wife, or that they ever passed by contract or by mutual consent from the state of concubinage into that of marriage. Harbeck v. Harbeck, 102 N. Y. 714.

Where it appears that the intercourse was illicit at first, but was not accompanied by any of the evidences of marriage, and subsequently it assumed a matrimonial character and was surrounded by the evidences of a valid marriage, a question of fact is presented for the determination of the jury. Gall v. Gall, 114 N. Y. 109.

Parties who have entered upon relations of illicit cohabitation are not, when either of them seeks to repudiate and abandon such relations, affected by the rules of estoppel in part by which courts seek to protect the rights of third persons or to uphold the legitimacy of children; and as between them courts will not so easily infer marriage in fact from the artifices and devices or representations by which they seek to conceal the true character of such cohabitation from their friends or the public. Harbeck v. Harbeck, 18 Weekly Dig. 525.

When meretricious relation between parties has been established, its continuation will be presumed until proof of change and of marriage. Bates v. Bates, 7 Misc. 547; Matter of Hamilton, 76 Hun, 200. In such case, marriage will not be presumed from cohabitation and reputation, but proof of subsequent actual marriage is necessary. Id.

Proof of marriage, where relation originally meretricious, considered. Fagan v. Fagan, 52 St. Rep. 994.

Publication of banns and license. If the act of 1864,- requiring that a marriage should be preceded either by publication of banns or a license, and providing that, "if any man shall presume to marry contrary to the law prescribed, the person offending shall be proceeded against as for fornication," was in force in 1772, it did not make a marriage void merely because contracted without such formality. House of Lords, 1886. Lauderdale Peerage Claim, 17 Abb. N. C. 439. Whether, in the colony of New York in 1772, the Duke of York's acts of 1664 and 1684, relating to marriage, were in force. Query? Ib. The Scotch rule (abolished in 1871), making instruments executed on a dying bed void, does not apply to marriage; but a marriage so contracted before 1871, might, under the Scotch law, legitimate a child previously born, so as to enable it or its descendants to succeed, in preference to remoter legitimate heirs. Ib.

Essentials. In order to constitute a valid marriage, several elements must exist:

1. The parties must be able to contract, that is, neither of them must be under disability.

Where persons capable of contracting marriage make an agreement of marriage with each other, per verba de praesenti, in a foreign country, the presumption is in favor of the validity of the marriage. Hynes v. McDermott, 9 Daly, 4; id., 82 N.Y. 41.

Present agreement between competent parties to take each other for husband and wife constitutes valid marriage, though not in presence of witnesses. Gall v. Gall, 114 N. Y. 109. How such marriage may be proved. Id.

Mutual consent, per verba de praesenti, is prime requisite to valid marriage. Bates v. Bates, 7 Misc. 547.

Agreement, per verba de futuro, fails to prove actual marriage. Id.

In case of marriage per verba et de praesenti, contracted in another state, it will be presumed that its law is common law of this state. Matter of Hamilton, 76 Hun, 200.

Evidence of circumstances held sufficient to rebut the prima facie proof of a marriage by reputation and temporary cohabitation. Chamberlain v. Chamberlain, 71 N. Y. 423.

What is sufficient presumptive evidence of a marriage per verba de praesenti, to repel the contrary presumption arising from the fact of a subsequent marriage to another person. Davis v. Davis, 1 Abb. N. C. 140; id., 7 Daly, 308.

A marriage per verba de praesenti, though not formally solemnized, nor followed by cohabitation, is valid by the civil law. Id.

A promise to marry in future though followed by cohabitation as man and wife, is not a valid marriage. Cheny v. Arnold, 15 N. Y. 345.

The parties must contract per verba de praesenti, or in words of the present tense.

a. One such disability is a prior marriage when the husband or wife is living.

Marriage during absence of former spouse is void, unless diligent effort to locate absent one has proved unavailing. Tyler v. Tyler, 80 Hun, 406.

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2 R. S., 139, § 6, providing that a marriage by one in good faith whose husband or wife shall have been absent for five consecutive years, shall be void only from the time its nullity is pronounced by the court, applied, in favor of a plaintiff in an action for dower in the estate of a second husband by a widow whose first husband absented himself for ten years during which the second marriage was contracted. Evidence of a marriage between the absent first husband and a woman not his wife should be received in such a case as tending to show whether the husband's change of residence was with intent to absent himself from his family. Jones v. Zoller, 32 Hun, 280.

without their consent, for the purpose of marriage, a felony. By chapter 257, Laws 1841, the courts were authorized to annul a marriage contract entered into in violation of the section of the Revised Statutes last cited; but this act was repealed by chapter 245, Laws 1880, it having been superseded by the Code of Civil Procedure.

Section 1743 of the Code of Civil Procedure provides that a marriage contract may be annulled because "one or both the parties had not attained the age of legal consent." The age of legal consent was not fixed by the statutes of this State (Bennett v. Smith, 21 Barb., 439). unless as to females it was fixed by implication by section 282 of the Penal Code, until 1887, Ch. 25, supra.

Divorced defendant cannot marry. But the parties may remarry to each other. Code N. Y., § 1761; Laws of 1880, Ch. 245.

A minister or magistrate who solemnizes a marriage when either of the parties is known to him to be under the age of legal consent, or to be an idiot or an insane person, or a marriage to which, within his knowledge, a legal impediment exists, is guilty of a misdemeanor. Penal Code, § 376; 3 R. S., 149, § 11.

CODE PROVISIONS RELATING ΤΟ DIVORCE AND SEPARATION.

Chapter XV.

TITLE I.

Matrimonial actions.

ARTICLE 1. Action to annul a void or a voidable marriage.

2. Action for a divorce.

3. Action for a separation.

4. Provisions applicable to two or more of the actions specified in

this title.

ARTICLE FIRST.

ACTION TO ANNUL A VOID OR VOIDABLE MARRIAGE.

SECTION 1742. Action by a woman, married under 14, to annul marriage. 1743. In what other cases marriage may be annulled.

1744. Action when party was under the age of consent.

SECTION 1745. Id.; when former husband or wife was living. 1746. Id.; where party was an idiot.

1747. Id.; where party was a lunatic.

1748. Action by next friend of idiot or lunatic.

1749. Issue; when entitled to succeed, etc.

1750. Action on the ground of force, fraud, etc.

1751. Custody, maintenance, etc., of issue of such a marriage.
1752. Action on the ground of physical incapacity.

1753. Certain proceedings regulated in action to annul marriage.
1754. Judgment annulling a marriage; how far conclusive.
1755. How next friend of infant, lunatic, etc., allowed to sue, etc.

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§ 1742. Action by woman married under sixteen. - An action may be maintained by the woman to procure a judgment declaring a marriage contract void, and annulling the marriage, under the following circumstances:

I. Where the plaintiff had not attained the age of sixteen years, at the time of the marriage.

II. Where the marriage took place without the consent of her father, mother, guardian or other person having the legal charge of her person.

III. Where it was not followed by consummation or cohabitation, and was not ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years. [Am'd Ch. 22 of 1887.]

§ 1743. In what other cases marriage may be annulled.— An action may also be maintained to procure a judgment, declaring a marriage contract void, and annulling the marriage, for either of the following causes, existing at the time of the marriage 1. That one or both of the parties had not attained the age of legal consent.

2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.

3. That one of the parties was an idiot or a lunatic.

4. That the consent of one of the parties was obtained by force, duress, or fraud.

5. That one of the parties was physically incapable of entering into the marriage state. But an action can be maintained, under this subdivision, only where the incapacity continues, and is incurable.

§ 1744. Action when party was under the age of consent.— An action to annul a marriage, on the ground that one of the

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