B-17878, JULY 29, 1941, 21 COMP. GEN. 79

B-17878: Jul 29, 1941

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IT IS STATED. OUR CHILD WAS ALSO BORN IN THE STATE OF ARKANSAS. WAS CALLED DECEMBER 12. IN MAY 1937 THIS LADY CAME TO CALIFORNIA WHERE I WAS THEN STATIONED. WHO BELIEVING WE WERE ALREADY MARRIED. IS A SHORT ONE. IT IS WHETHER THE ASSOCIATION AS OUTLINED BY THE CLAIMANT. CAN BE HELD TO HAVE EFFECTED A "COMMON-LAW MARRIAGE" SO AS TO HAVE CONSTITUTED HIS PRESENT WIFE. THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED. IF VALID THERE IT WILL BE HELD VALID EVERYWHERE. A MARRIAGE INVALID BY THE LEX LOCI CONTRACTUS WILL BE HELD INVALID WHEREVER THE QUESTION MAY ARISE. THE RULE PERMITTING INFORMAL OR COMMON-LAW MARRIAGES WAS GENERALLY ADOPTED AS ONE OF THE COMMON LAW.

B-17878, JULY 29, 1941, 21 COMP. GEN. 79

HUSBAND AND WIFE - COMMON-LAW MARRIAGE VALIDITY A LIVING TOGETHER AS MAN AND WIFE UNRECOGNIZED AS A COMMON-LAW MARRIAGE BY THE STATE WHERE BEGUN WOULD, UNDER THE GENERAL RULE, BE HELD INVALID IN ANY OTHER STATE TO WHICH THE PARTIES HAD REMOVED, AND, WHERE THE LIVING TOGETHER IN THE STATES TO WHICH THEY HAD SUCCESSIVELY REMOVED ALSO WOULD NOT BE RECOGNIZED BY THOSE STATES AS CONSTITUTING A COMMON-LAW MARRIAGE, THE STATUS OF "LAWFUL WIFE" WOULD NOT EXIST FOR DEPENDENCY ALLOWANCE PURPOSES UNDER THE ACT OF OCTOBER 17, 1940, NOR WOULD THE CHILD BORN OF SUCH RELATIONSHIP BE CONSIDERED "LEGITIMATE" FOR SUCH PURPOSE PRIOR TO THE LEGAL MARRIAGE OF THE PARTIES IN A STATE WHERE LEGAL MARRIAGE LEGITIMATIZES SUCH OFFSPRING.

ASSISTANT COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE NAVY, JULY 29, 1941:

THERE HAS BEEN RECEIVED YOUR LETTER OF JUNE 13, 1941, WITH ENCLOSURES, REQUESTING DECISION ON THE QUESTION AS TO THE RIGHT OF HENRY WALTER WILCOX, RADIOMAN, FIRST CLASS, UNITED STATES NAVY, TO PAYMENT OF QUARTERS ALLOWANCE FOR DEPENDENT (COMMON-LAW WIFE), FROM OCTOBER 17, 1940, TO MAY 3, 1941, ON WHICH LATER DATE, IT IS STATED, WILCOX CONTRACTED A FORMAL MARRIAGE WITH HIS FORMER PURPORTED COMMON LAW WIFE.

THE PERTINENT FACTS IN THE CASE, AS SET OUT IN LETTER OF JUNE 2, 1941, FROM WILCOX TO THE JUDGE ADVOCATE GENERAL OF THE NAVY, APPEAR TO BE AS FOLLOWS:

1. THE COMMON LAW MARITAL RELATIONSHIP BETWEEN THIS LADY AND I BEGAN IN THE STATE OF ARKANSAS, DECEMBER 12, 1933, BUT AT THIS TIME, WE DID NOT LIVE TOGETHER AS MAN AND WIFE.

OUR CHILD WAS ALSO BORN IN THE STATE OF ARKANSAS, MARCH 10, 1935.

AT THIS TIME, ON THIS LADY'S REQUEST, AND AN AGREEMENT BETWEEN HER AND I THAT THERE BE NO FURTHER RELATIONSHIP BETWEEN US WHATEVER, I MADE APPLICATION FOR ENLISTMENT IN THE U.S. NAVY. WAS CALLED DECEMBER 12, 1935.

IN MAY 1937 THIS LADY CAME TO CALIFORNIA WHERE I WAS THEN STATIONED, WE HAD INTENTIONS OF GETTING LEGALLY MARRIED, BUT DUE TO HER MANY FRIENDS AND RELATIONS WITH WHOM SHE RESIDED UPON ARRIVAL, WHO BELIEVING WE WERE ALREADY MARRIED, NEGLECTED TO DO SO.

WE LIVED TOGETHER AS MAN AND WIFE IN THE STATE OF CALIFORNIA FROM MAY 1937 TO JULY 1939, AND IN THE STATE OF WASHINGTON FROM JULY 1939 TO MAY 1941. MAY 3, 1941, BEING THE DATE OF OUR LEGAL MARRIAGE, AT SHELTON, WASHINGTON.

THE POINT IN THE CASE, ALTHOUGH THREEFOLD, IS A SHORT ONE. IT IS WHETHER THE ASSOCIATION AS OUTLINED BY THE CLAIMANT, FIRST IN ARKANSAS, THEN IN CALIFORNIA, AND FINALLY IN WASHINGTON, CAN BE HELD TO HAVE EFFECTED A "COMMON-LAW MARRIAGE" SO AS TO HAVE CONSTITUTED HIS PRESENT WIFE, AT ANY TIME PRIOR TO THEIR LEGAL MARRIAGE, A "LAWFUL" WIFE, OR THE CHILD OF SUCH UNION A "LEGITIMATE" CHILD, WITHIN PURVIEW OF THE ACT OF JUNE 10, 1922, 42 STAT. 627, AS AMENDED BY THE ACT OF FEBRUARY 21, 1929, 45 STAT. 1254.

THE GENERAL RULE IS THAT THE VALIDITY OF A MARRIAGE IS DETERMINED BY THE LAW OF THE PLACE WHERE IT WAS CONTRACTED, AND IF VALID THERE IT WILL BE HELD VALID EVERYWHERE, IN THE ABSENCE OF CONTRAVENTION OF POSITIVE LAW, OR CONSIDERATIONS OF PUBLIC POLICY TO THE CONTRARY. AND, CONVERSELY, A MARRIAGE INVALID BY THE LEX LOCI CONTRACTUS WILL BE HELD INVALID WHEREVER THE QUESTION MAY ARISE. SEE, GENERALLY, 38 CORPUS JURIS 1276, 1277, AND NOTES. IN THE UNITED STATES, THE RULE PERMITTING INFORMAL OR COMMON-LAW MARRIAGES WAS GENERALLY ADOPTED AS ONE OF THE COMMON LAW, AND HAS REMAINED IN FORCE IN A LARGE NUMBER OF THE STATES, AT LEAST UNTIL MORE RECENTLY. IN A FEW JURISDICTIONS, HOWEVER, THE DOCTRINE WAS EARLY REJECTED BY THE COURTS, WHILE IN OTHERS, ALTHOUGH FOR A TIME ADOPTED, WAS SUBSEQUENTLY ABROGATED BY STATUTE. 38 CORPUS JURIS 1315, 1316, TEXT AND CITATIONS.

TO CONSTITUTE A SO-CALLED COMMON-LAW MARRIAGE, ALL THAT IS REQUIRED IS THAT THERE SHOULD BE AN ACTUAL AND MUTUAL AGREEMENT TO ENTER INTO A MATRIMONIAL RELATION, PERMANENT AND EXCLUSIVE OF ALL OTHERS, BETWEEN PARTIES CAPABLE IN LAW OF MAKING SUCH A CONTRACT, CONSUMMATED BY THEIR COHABITATION AS MAN AND WIFE OR THEIR MUTUAL ASSUMPTION OF MARITAL DUTIES AND OBLIGATIONS. ALTHOUGH THE RULE IS OTHERWISE AS TO CEREMONIAL MARRIAGES, THE COMMON-LAW MARRIAGE REQUIRES AN ASSUMPTION BY THE PARTIES OF THE RIGHTS AND DUTIES OF THE MARITAL RELATION, IN ORDER TO ESTABLISH THE EXISTENCE AND REALITY OF THE ALLEGED CONSENT THERETO. THAT IS TO SAY, THERE MUST BE A COHABITATION OF THE PARTIES, MATRIMONIAL IN NATURE, PROFESSED AND OPEN, SUCH AS WILL CREATE SOME PUBLIC RECOGNITION THAT THEIR INTENTIONS WERE MATRIMONIAL.

MEASURED BY THE RULES THUS STATED, IT IS IMMEDIATELY APPARENT THAT THE RELATIONSHIP BETWEEN THE PARTIES IN ARKANSAS, AS OUTLINED IN THE CLAIMANT'S LETTER, FELL FAR SHORT OF CONSUMMATING A COMMON-LAW MARRIAGE WITHIN THE WELL-DEFINED AND RECOGNIZED MEANING OF THE TERM.

MARRIAGE IS AS MUCH A MATTER OF STATUS AS IT IS OF CONTRACT, AND A MUTUAL AGREEMENT TO BECOME HUSBAND AND WIFE DOES NOT AMOUNT TO MARRIAGE UNLESS AND UNTIL IT BRINGS THE PARTIES INTO THE NORMAL RELATION OF THOSE WHO HAVE JOINED THEIR LIVES TOGETHER IRREVOCABLY, AND FOR AS LONG AS THEY BOTH SHALL LIVE. A MERE SECRET AGREEMENT, STEALTHILY FOLLOWED BY CLANDESTINE COHABITATION, IS NOT ALL THAT IS NECESSARY IN THIS COUNTRY TO CONSTITUTE A LEGAL, OR THE TRUE MARRIAGE STATE. JAMES V. JAMES ( TEXAS) 253 S.W. 1112, 1114.

IT IS CLEAR THAT WILCOX AT ONCE ASSERTS AND NEGATIVES THE EXISTENCE OF A COMMON-LAW MARRIAGE, FOR HE STATES IN THE SAME SENTENCE THAT THE "COMMON- LAW MARITAL RELATIONSHIP" BETWEEN THEM BEGAN IN DECEMBER 1933 "BUT AT THIS TIME, WE DID NOT LIVE TOGETHER AS MAN AND WIFE.' THERE COULD BE NO VALID COMMON-LAW MARRIAGE WITHOUT THE PUBLIC ASSUMPTION OF THE MUTUAL RIGHTS, DUTIES, AND OBLIGATIONS OF THE MARRIAGE STATE, COUPLED WITH MATRIMONIAL COHABITATION. HOWEVER, MORE PROLONGED CONSIDERATION OF THE STATUS OF THE PARTIES IN ARKANSAS IS NOT REQUIRED, FOR THAT STATE WAS ONE OF THE JURISDICTIONS IN WHICH "THE DOCTRINE WAS EARLY REJECTED BY THE COURTS," ONE OF THE LEADING CASES BEING FURTH V. FURTH, 97 ARK. 272, CITED IN L.R.A. 1915 E, PAGE 17, NOTE 35, Q. V., IN WHICH THE COURT EXPRESSLY HELD THAT EVEN IF A PRESENT CONTRACT OF MARRIAGE, FOLLOWED BY COHABITATION, WAS VALID ACCORDING TO THE COMMON LAW, THE COMMON LAW IN THAT RESPECT NEVER OBTAINED IN ARKANSAS. ALSO, THERE IS TO BE NOTED WILCOX'S STATEMENT THAT AFTER THE BIRTH OF A CHILD ON MARCH 10, 1935,"ON THIS LADY'S REQUEST, AND AN AGREEMENT BETWEEN HER AND I THAT THERE BE NO FURTHER RELATIONSHIP BETWEEN US WHATEVER, I MADE APPLICATION FOR ENLISTMENT IN THE U.S. NAVY.' NEEDLESS TO SAY THAT A VALID COMMON-LAW MARRIAGE MAY NOT BE TERMINATED AT WILL BY PRIVATE AGREEMENT BETWEEN THE PARTIES, BUT CAN BE DISSOLVED ONLY BY DIVORCE OR ANNULMENT IN CONFORMITY WITH AND FOR CAUSES RECOGNIZED BY LAW AS SUFFICIENT THEREFOR, BOWMAN V. BOWMAN, 24 ILL.A. 165; COAD V. COAD, 87 NEBR. 290, 127 N.W. 455, AND IN JURISDICTIONS WHERE SUCH MARRIAGES ARE RECOGNIZED AS VALID, A PRIOR SUBSISTING COMMON-LAW MARRIAGE WILL SUPPORT A PROSECUTION FOR BIGAMY AGAINST EITHER PARTY THERETO CONTRACTING A SECOND MARRIAGE. HOWEVER, THIS MUTUAL, PRIVATE, AND VOLUNTARY AGREEMENT OF TERMINATION WAS STRONGLY INDICATIVE THAT THE PARTIES DID NOT CONSIDER THAT THEY WERE OR HAD BEEN HUSBAND AND WIFE AND THAT IT WAS THEIR PURPOSE TO BRING TO AN END THE ASSOCIATION, LEAVING BOTH PARTIES FREE TO GO THEIR SEPARATE WAYS.

IT IS PLAIN FROM THE ABOVE THAT THE RELATIONSHIP BEGUN, CONTINUED, AND ENDED IN ARKANSAS, DID NOT AND COULD NOT CONSTITUTE A VALID COMMON LAW MARRIAGE IN THAT STATE, AND IN CONFORMITY WITH THE STATED RULE WOULD HAVE BEEN HELD INVALID IN CALIFORNIA, THE STATE IN WHICH THE RELATION WAS NEXT RESUMED.

THE CLAIMANT STATES THAT:

IN MAY 1937 THIS LADY CAME TO CALIFORNIA WHERE I WAS THEN STATIONED, WE HAD INTENTIONS OF GETTING LEGALLY MARRIED, BUT DUE TO HER MANY FRIENDS AND RELATIONS WITH WHOM SHE RESIDED UPON ARRIVAL, WHO BELIEVING WE WERE ALREADY MARRIED, NEGLECTED TO DO SO.

WE LIVED TOGETHER AS MAN AND WIFE IN THE STATE OF CALIFORNIA FROM MAY 1937 TO JULY 1939, AND IN THE STATE OF WASHINGTON FROM JULY 1939 TO MAY 1941. * * *

AGAIN, THERE WAS RECOGNITION OF THE FACT THAT THEIR RELATION IN ARKANSAS HAD NOT BEEN A MARRIAGE, THEIR PURPOSE TO RECTIFY THE FACT BY CONTRACTING A "LEGAL" MARRIAGE IN CALIFORNIA, AND THEIR NEGLECT TO DO SO. HAD THE ARKANSAS RELATION BEEN A VALID COMMON-LAW MARRIAGE RECOGNIZED IN THAT STATE, IT WOULD HAVE BEEN RECOGNIZED AS VALID IN CALIFORNIA, AND THERE WOULD HAVE BEEN NO NEED FOR FURTHER FORMALITY OF CELEBRATION. THE STATEMENT THAT THEY "LIVED TOGETHER AS MAN AND WIFE" IN CALIFORNIA IS UNDERSTOOD TO MEAN THAT THEY COHABITED, SHE ASSUMED AND WAS KNOWN BY HIS NAME AND THAT THEY HELD THEMSELVES OUT TO OTHERS AS HUSBAND AND WIFE. BUT IT IS APPARENT THAT "THEY HELD THEMSELVES OUT AS HUSBAND AND WIFE MERELY FOR MOTIVES OF EXPEDIENCY.' ARNOLD V. CHESEBROUGH, 58 FED. 833, 839, AND THAT THEIR ASSOCIATION IN CALIFORNIA WAS NO MORE THAN RESUMPTION AND CONTINUANCE IN PUBLIC OF THE RELATION WHICH HAD SUBSISTED BETWEEN THEM IN PRIVATE IN ARKANSAS.

THUS THE QUESTION IS PRESENTED WHETHER THEIR LIVING TOGETHER "AS MAN AND WIFE" IN CALIFORNIA AND HOLDING THEMSELVES OUT AS SUCH EFFECTED A VALID COMMON-LAW MARRIAGE IN THAT STATE, AND THE ANSWER MAY BE BOTH SHORT AND DIRECT. CALIFORNIA IS OF THOSE JURISDICTIONS IN WHICH THE COMMON-LAW MARRIAGE "ALTHOUGH FOR A TIME ADOPTED, WAS SUBSEQUENTLY ABROGATED BY STATUTE" AND THE LAW IN CALIFORNIA NOW IS THAT COMMON-LAW MARRIAGE IS VALID IF CONTRACTED PRIOR TO 1895 BUT NOT OTHERWISE. HENCE, NO MERE LIVING AND COHABITING TOGETHER WITH PRETENSE OF MATRIMONY COULD RIPEN INTO A VALID MARRIAGE WITHOUT COMPLIANCE WITH FORMALITIES REQUIRED BY THE STATUTES OF THAT STATE.

THE SAME CONDITIONS CONFRONTED THE PARTIES UPON THEIR REMOVAL TO THE STATE OF WASHINGTON, AND SINCE THEIR PSEUDO MATRIMONIAL ASSOCIATION DID NOT CONSTITUTE A VALID MARRIAGE IN CALIFORNIA IT WOULD NOT BE RECOGNIZED IN WASHINGTON. NOR DID THEIR CONTINUANCE OF THE RELATION IN THAT STATE AVAIL TO PERFECT A LAWFUL MARRIAGE, FOR THE LAW OF WASHINGTON IS THAT COMMON-LAW MARRIAGE CANNOT BE CONTRACTED THERE.

IT FOLLOWS THAT IN NO STATE WHERE THEY RESIDED, AND AT NO TIME PRIOR TO MAY 3, 1941, THAT, ACCORDING TO WILCOX'S STATEMENT,"BEING THE DATE OF OUR LEGAL MARRIAGE, AT SHELTON, WASHINGTON" DID WILCOX HAVE A "LAWFUL WIFE" OR "LEGITIMATE" CHILD WITHIN THE MEANING OF THE DEPENDENCY STATUTES, SO AS TO ENTITLE HIM TO PAYMENT OF QUARTERS ALLOWANCE ON ACCOUNT OF EITHER. COURSE, THE LEGAL MARRIAGE OF WILCOX ON THE ABOVE-MENTIONED DATE, IF SUCH THERE WERE, WOULD PUT AN END TO DOUBT, AND HIS LEGAL WIFE WOULD BE WITHIN THE STATUTE AND ENTITLE HIM TO PAYMENT OF QUARTERS ALLOWANCE FROM THAT DATE, IN THE ABSENCE OF OTHER OBJECTION.

WITH REFERENCE TO THE CHILD, THE PREVAILING THOUGH, PERHAPS, NOT UNIVERSAL RULE IS THAT AN INFANT BORN OUT OF WEDLOCK IS LEGITIMATED BY THE SUBSEQUENT INTERMARRIAGE OF THE PARENTS AND ACKNOWLEDGMENT AND ACCEPTANCE OF THE CHILD BY THE FATHER AS HIS OFFSPRING, AND THAT IS THE RULE IN THE STATE OF WASHINGTON WHERE THE MARRIAGE WAS CONTRACTED. ACCORDINGLY, IT WOULD APPEAR THAT SINCE THE DATE OF THE LEGAL MARRIAGE BETWEEN THE PARENTS OF THE CHILD WHICH WILCOX FREELY ACKNOWLEDGES, THE INFANT MEETS THE REQUIREMENT OF THE STATUTE FOR A LEGITIMATE CHILD.

THERE IS NOTED WILCOX'S STATEMENT IN NUMBERED PARAGRAPH 2 OF HIS LETTER THAT HE WAS PAID QUARTERS ALLOWANCE BY CHECK, THAT BEFORE INDORSING THE CHECK HE CONSULTED HIS COMMANDING OFFICER AND WAS ADVISED THAT HE WOULD HAVE TO ACCEPT THE MONEY AND IF IT WERE DECIDED HE WAS NOT ENTITLED TO IT, HAVE HIS PAY ACCOUNTS ADJUSTED ACCORDINGLY. IN CONFORMITY WITH THE CONCLUSION HEREIN REACHED, THE CLAIMANT'S PAY ACCOUNTS SHOULD BE ADJUSTED TO TAKE UP THE UNAUTHORIZED PAYMENT, IN WHICH CONNECTION THERE IS TO BE NOTED HIS STATEMENT THAT HIS PRESENT ENLISTMENT EXPIRES DECEMBER 12, 1941.

OF COURSE, WHAT HAS BEEN SAID APPLIES TO THE PARTICULAR CASE HERE PRESENTED AND OTHERS SIMILAR THERETO.