B-41254, JUNE 24, 1944, 23 COMP. GEN. 972

B-41254: Jun 24, 1944

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- BOTH OF WHOM ARE DOMICILED IN A STATE ( PENNSYLVANIA) WHERE COMMON-LAW MARRIAGES ARE VALID. - WILL BE CONSIDERED BY THIS OFFICE. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF JOSEPH VACCARO. SUBMITTED WITH YOUR LETTER IS A PHOTOSTATIC COPY OF " CONTRACT OF MARRIAGE" AS FOLLOWS: ARTICLES OF AGREEMENT MADE THIS 3RD. THE SAID PARTIES HERETO HAVE AT VARIOUS TIMES. BOTH PARTIES ARE OF FULL AGE AND SUI JURIS AND THEY DESIRE TO ENTER INTO A BINDING AND LEGAL MARRIAGE AGREEMENT. IT IS IMPOSSIBLE FOR THEM AT THIS TIME TO PROCURE A MARRIAGE LICENSE AND BE MARRIED BY A CIVIL OR RELIGIOUS CEREMONY. IS NOW IN THE ARMY OF THE UNITED STATES OF AMERICA AND IS SERVING IN A FOREIGN LAND.

B-41254, JUNE 24, 1944, 23 COMP. GEN. 972

VALIDITY OF MARRIAGE BY MAIL A CONTRACT OF MARRIAGE ENTERED INTO BY MAIL BETWEEN AN ARMY OFFICER STATIONED OVERSEAS AND HIS FIANCE RESIDING IN THIS COUNTRY--- BOTH OF WHOM ARE DOMICILED IN A STATE ( PENNSYLVANIA) WHERE COMMON-LAW MARRIAGES ARE VALID--- WILL BE CONSIDERED BY THIS OFFICE, FOR PURPOSES OF THE OFFICER'S CLAIM FOR INCREASED RENTAL AND SUBSISTENCE ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE), AS ESTABLISHING A MARRIAGE VALID UNDER THE LAWS OF PENNSYLVANIA.

ASSISTANT COMPTROLLER GENERAL YATES TO CAPT. L. C. HARRIS, U.S. ARMY, JUNE 24, 1944:

BY INDORSEMENT OF APRIL 7, 1944, ( SPFEI 245.81 ( VACCARO, JOSEPH) (, THE FISCAL DIRECTOR, ARMY SERVICE FORCES, TRANSMITTED TO THIS OFFICE YOUR LETTER OF MARCH 17, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF JOSEPH VACCARO, CAPTAIN, AIR CORPS, AUS, COVERING INCREASED ALLOWANCES AS FOR AN OFFICER WITH DEPENDENTS (LAWFUL WIFE) FOR THE PERIOD JANUARY 15 TO FEBRUARY 29, 1944. SUBMITTED WITH YOUR LETTER IS A PHOTOSTATIC COPY OF " CONTRACT OF MARRIAGE" AS FOLLOWS:

ARTICLES OF AGREEMENT MADE THIS 3RD, DAY OF DECEMBER, A.D. 1943, BY AND BETWEEN JOSEPHINE M. SERRAINO, OF 613 CHURCH LANE, UPPER DARBY, PENNSYLVANIA, AND JOSEPH VACCARO, JR., OF 712 MOORE STREET, PHILADELPHIA, PENNSYLVANIA.

WHEREAS, THE SAID PARTIES HERETO HAVE AT VARIOUS TIMES, PRIOR TO THE DATE HEREOF, EXPRESSED THEIR DESIRE AND INTENTION TO ENTER INTO THE BONDS OF MATRIMONY AND TO BECOME HUSBAND AND WIFE;

AND WHEREAS, BOTH PARTIES ARE OF FULL AGE AND SUI JURIS AND THEY DESIRE TO ENTER INTO A BINDING AND LEGAL MARRIAGE AGREEMENT;

AND WHEREAS, IT IS IMPOSSIBLE FOR THEM AT THIS TIME TO PROCURE A MARRIAGE LICENSE AND BE MARRIED BY A CIVIL OR RELIGIOUS CEREMONY, DUE TO THE FACT THAT THE SAID JOSEPH VACCARO, JR., IS NOW IN THE ARMY OF THE UNITED STATES OF AMERICA AND IS SERVING IN A FOREIGN LAND;

NOW, THEREFORE, THIS AGREEMENT WITNESSETH: THAT, FOR AND IN CONSIDERATION OF THE PREMISES, THE SAID JOSEPHINE M. SERRAINO, AND JOSEPH VACCARO, JR., DO HEREBY MUTUALLY COVENANT, PROMISE AND AGREE THAT THEY ARE NOW AND HENCEFORTH WILL BE HUSBAND AND WIFE, JOINTLY AND SEVERALLY ASSUMING THE RIGHTS AND DUTIES OF THAT RELATION, AND BY THIS AGREEMENT BINDING THEMSELVES IN THE MARRIAGE RELATION, EACH TO THE OTHER, AS FIRMLY AND COMPLETELY AS THEY MIGHT HAVE DONE IF THEY HAD SECURED A MARRIAGE LICENSE AND HAD BEEN MARRIED IN A CIVIL OR RELIGIOUS CEREMONY.

FURTHER, THE PARTIES HERETO AGREE THAT THE VALIDITY OF THIS CONTRACT AND THAT ALL THE RIGHTS POWERS, AND DUTIES OF THE PARTIES HEREUNDER ARE GOVERNED BY THE LAWS OF THE STATE OF PENNSYLVANIA, WHERE BOTH OF THE PARTIES HERETO ARE PRESENTLY DOMICILED.

IN WITNESS WHEREOF, THE SAID JOSEPHINE M. SERRAINO AND THE SAID JOSEPH VACCARO, JR., HAVE HEREUNTO SET THEIR HANDS AND SEALS.

( SIGNED) JOSEPHINE M. SERRAINO ( SEAL)

( SIGNED) JOSEPH VACCARO, JR. ( SEAL)

CAPT AC AS TO JOSEPHINE M. SERRAINO, SIGNED AND SEALED IN THE PRESENCE OF:

( SIGNED) JACOB LEHMAN

( SIGNED) BESSIE WERICK AS TO JOSEPH VACARRO, JR., SIGNED AND SEALED IN THE PRESENCE OF:

( SIGNED) W. H. INGLE MAJ AGD

( SIGNED) ALBERT J. SUTCLIFFE

ALSO, THERE IS TRANSMITTED A PHOTOSTATIC COPY OF THE ACKNOWLEDGMENT, DECEMBER 3, 1943, OF JOSEPHINE M. SERRAINO OF THE ABOVE-QUOTED AGREEMENT AS HER ACT AND DEED, MADE BEFORE A NOTARY PUBLIC IN THE CITY OF PHILADELPHIA, PENNSYLVANIA, WHEREIN IT IS STATED THAT SHE DESIRED THE SAME TO BE RECORDED AS SUCH IN THE OFFICE OF THE RECORDER OF DEEDS, IN AND FOR THE COUNTY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA. IN THE SPACE BELOW THIS ACKNOWLEDGMENT, ALBERT J. SUTCLIFFE, MAJOR, CWS, SUMMARY COURT, ARMY OF THE UNITED STATES OF AMERICA, IN FOREIGN SERVICE, CERTIFIES THAT THE SAID JOSEPH VACARRO, PERSONALLY APPEARED BEFORE HIM DECEMBER 31, 1943, AND MADE OATH THAT THE SAID AGREEMENT WAS HIS ACT AND DEED AND THAT HE DESIRED THE SAME TO BE RECORDED AS SUCH. THE AUTHORITY OF MAJOR SUTCLIFFE TO TAKE SAID ACKNOWLEDGMENT UNDER THE PROVISIONS OF THE ACT OF JUNE 18, 1941, PUBLIC LAW NO. 73, LAWS OF PENNSYLVANIA, 1941, PAGE 136, IS CERTIFIED TO BY MAJOR W. H. INGLE, ADJUTANT OF THE COMMAND OF XIII BOMBER COMMAND. CAPTAIN VACCARO HAS CERTIFIED ON THE REVERSE OF THE VOUCHER WHEREBY HE CLAIMS THE INCREASED ALLOWANCES ON ACCOUNT OF A "LAWFUL WIFE," AS FOLLOWS:

CERTIFICATE

I CERTIFY THAT THE AGREEMENT, CONTRACT OF MARRIAGE, WAS RECORDED IN THE OFFICE OF THE RECORDER OF DEEDS, IN AND FOR THE COUNTY OF PHILADELPHIA, COMMONWEALTH OF PENNSYLVANIA, ON 15 JANUARY 1944.

THE QUESTION AS TO WHETHER A STATUS OF MARRIAGE CAN BE CREATED BETWEEN A GIRL RESIDING IN THE UNITED STATES AND HER FIANCE ON MILITARY DUTY ABROAD WAS THE SUBJECT OF DISCUSSION ARISING OUT OF WORLD WAR I. IN 32 HARVARD LAW REVIEW, 848 (1919), IT WAS SAID:

* * * WHETHER THIS CAN BE DONE INVOLVES THE FOLLOWING QUESTIONS: (1) WHETHER OR NOT A MARRIAGE IS VALID WHICH CONSISTS MERELY OF AN EXCHANGE OF PROMISES WITHOUT FORMAL SOLEMNIZATION; (2) WHETHER OR NOT COHABITATION IN ADDITION TO THE MUTUAL PROMISES IS A NECESSARY ELEMENT OF SUCH AN INFORMAL MARRIAGE; (3) WHETHER OR NOT IT IS ESSENTIAL THAT THE PROMISES BE EXCHANGED BY THE PARTIES IN THE PRESENCE OF EACH ORDER; (4) AND WHAT LAW GOVERNS THE EFFECT OF AN EXCHANGE OF PROMISES OF MARRIAGE WHEN THE PARTIES ARE IN DIFFERENT JURISDICTIONS DURING THE TRANSACTION.

IN HIS TREATISE ON THE LAW OF MARRIAGE, DIVORCE, SEPARATION AND DOMESTIC RELATIONS, SIXTH EDITION (1921), SCHOULER STATES, IN VOLUME 2, SECTION 1212, AS FOLLOWS:

SEC. 1212. MARRIAGE BY PROXY OR MAIL.

MARRIAGE BY PROXY OR WITHOUT THE PRESENCE OF THE PARTIES AT A CEREMONY WAS FORMERLY ALLOWED IN THE ROMAN LAW AND WAS ALSO RECOGNIZED UNDER THE CANON LAW, AND THE ENGLISH LAW UNTIL THE EIGHTEENTH CENTURY. IT WAS THUS A PART OF THE COMMON LAW OF ENGLAND AT THE TIME OF THE SETTLEMENT OF THIS COUNTRY, AND WAS PROBABLY INCORPORATED BY THE COLONISTS AS SUCH INTO THEIR COMMON LAW. STATUTES IN MANY STATES REQUIRING CERTAIN DETAILS AS TO THE CEREMONY AND PRESENCE OF THE PARTIES HAVE RENDERED THIS COMMON LAW OBSOLETE, BUT IN STATES WHERE COMMON-LAW MARRIAGES ARE STILL RECOGNIZED, AND WHERE CONSUMMATION OF THE MARRIAGE IS NOT NECESSARY FOR ITS VALIDITY, THERE SEEMS NO REASON TO DOUBT THAT A MARRIAGE BY WRITTEN CONTRACT OF PARTIES NOT IN THE PRESENCE OF EACH OTHER MAY BE VALID. SUCH A MARRIAGE WILL BE GOVERNED BY THE LAW OF THE STATE WHERE THE CONTRACT IS MADE, WHICH IS THE PLACE WHERE THE ACCEPTANCE IS MAILED, ALTHOUGH THERE IS STRONG AUTHORITY THAT A MARRIAGE BY MAIL CAN BE SUSTAINED ONLY WHEN VALID BY THE LAWS WHERE BOTH LIVE.

THE EXIGENCIES OF THE GREAT WAR REVISED THE INTEREST IN SUCH MARRIAGES, AND LAWS WERE PASSED IN BELGIUM, FRANCE AND ITALY TO ENABLE SOLDIERS IN SERVICE TO CONTRACT MARRIAGES WITH WOMEN AT HOME. IN THIS COUNTRY THE ADJUTANT GENERAL, ON DECEMBER 21, 1918, ADVISED THE MILITARY AUTHORITIES THAT THEY MIGHT ASSIST SOLDIERS IN CONTRACTING MARRIAGES WITH WOMEN AT HOME, ADVISING THEM, HOWEVER, OF THE DANGERS OF THIS COURSE, THAT THE VALIDITY OF SUCH MARRIAGES WOULD DEPEND ON THE LAW OF THEIR DOMICILE, AND THAT THE LEGALITY OF SUCH MARRIAGES WAS IN THIS COUNTRY A MATTER OF GRAVE UNCERTAINTY. TO THE SAME GENERAL EFFECT IS VERNIER'S " AMERICAN FAMILY LAWS," VOLUME 1, SECTION 33 (1931). ALSO, KOEGEL, IN HIS TREATISE " COMMON-LAW MARRIAGE," PUBLISHED IN 1922, SETS FORTH, AT PAGE 134 THEREOF, A COPY OF A MARRIAGE AGREEMENT PREPARED BY THE OFFICE OF THE JUDGE ADVOCATE GENERAL OF THE ARMY. WHILE THIS AUTHOR STATES THAT A NUMBER OF MARRIAGES ENTERED INTO BETWEEN SOLDIERS ABROAD AND GIRLS OF THE UNITED STATES WERE HELD VALID, HE GIVES NO CITATIONS TO DECISIONS OF THE COURTS HOLDING SUCH MARRIAGES VALID.

IN THE CASE OF GREAT NORTHERN RY. CO. V. JOHNSON ( CIRCUIT COURT OF APPEALS, 8TH CIRCUIT, OCTOBER 28, 1918), 254 F. 683, 685, THERE IS QUOTED A WRITTEN CONTRACT OF MARRIAGE SENT FROM MINNESOTA, WHERE THE MAN WAS RESIDING, TO A WOMAN RESIDING AND EMPLOYED IN MISSOURI. THE WOMAN TESTIFIED THAT UPON RECEIPT OF THE DUPLICATE PAPERS, WHICH HAD BEEN SIGNED BY THE MAN, SHE SIGNED THEM AND RETURNED ONE TO THE MAN. THE DECISION HOLDING THIS WAS A VALID MARRIAGE IS IN PART AS FOLLOWS:

* * * IN FACT, SO FAR AS THE MATTER OF PRESENT INTENTION OF THE PARTIES IS CONCERNED, IT MAY BE DOUBTED WHETHER THERE WAS ANY ROOM FOR SUBMISSION TO THE JURY. THE CONTRACT WAS WRITTEN, AND ITS EXPRESSIONS ARE NOT ONLY UNAMBIGUOUS, BUT ARE EMPHATIC AS TO THAT POINT. THE AGREEMENT IS:

"* * * FROM THIS DATE HENCEFORTH TO BE HUSBAND AND WIFE, AND FROM THIS DATE HENCEFORTH TO CONDUCT OURSELVES TOWARD EACH OTHER AS HUSBAND AND WIFE. * * *"

IN APPROACHING THE PROPOSITION THAT THE PARTIES MUST BE TOGETHER OR WITHIN THE SAME JURISDICTION, IT IS TO BE NOTED THAT THIS MATTER OF MARRIAGE IS FOR THE STATES, EXCEPT IN THE DISTRICT OF COLUMBIA AND THE TERRITORIES ( DAVIS V. PRYOR (8TH CIR.) 112 FED. 274, 50 C.C.A. 579; 26 CYC. 829, AND CITATIONS IN NOTES 12 AND 13 THERETO), AND IS TO BE DETERMINED BY THE LAW OF THE STATE WHERE IT WAS CONTRACTED OR CELEBRATED (26 CYC. 829, AND CITATIONS IN NOTE 14 THERETO). SO FAR AS THE LAW ON THE POINT HERE INVOLVED HAS BEEN DEFINED BY THE ADJUDICATIONS OF THE MISSOURI COURTS, IT WILL BE FOLLOWED, IRRESPECTIVE OF THE VIEW WHICH MIGHT BE TAKEN BY THIS COURT, IF THE QUESTION WERE OPEN. A CAREFUL EXAMINATION OF THE ABOVE-CITED MISSOURI CASES, AND OF MANY OTHERS FROM THAT STATE, CONVINCES THAT IN THAT STATE THE MARRIAGE CONTRACT POSSESSES THE ELEMENTS OF AN ORDINARY CONTRACT AND NONE OTHERS. THAT CONTRACT ESTABLISHES A VERY IMPORTANT STATUS, BUT THE CONTRACT ITSELF IS IN NO RESPECT PECULIAR. MUTUAL ASSENT TO THE PRESENT INSTITUTION OF THE STATUS IS ALL SUFFICIENT. NO OTHER ACT, SUCH AS COHABITATION ( DAVIS V. STOUFFER, 132 MO. APP. 555, 112 S. W. 282), IS NECESSARY TO COMPLETE THE INSTITUTION OF THE STATUS WHERE THE MUTUAL ASSENT CONTEMPLATES A MARRIAGE IN PRAESENTI. WHY SHOULD THE PHYSICAL PRESENCE OF THE PARTIES BE ESSENTIAL TO THE LEGALITY OF THIS CONTRACT, ANY MORE THAN OF ANY OTHER? IT IS NOT FOR US TO DEVISE MEANS OF MAKING COMMON-LAW MARRIAGES DIFFICULT. IT IS OUR DUTY TO RECOGNIZE THE LAW AS IT EXISTS. NOR IS THERE ANY REASON WHY THE PARTIES SHOULD BE WITHIN THE SAME JURISDICTION. THE EXISTENCE AND VALIDITY OF THE CONTRACT MUST BE DETERMINED BY THE LAW OF THE PLACE WHERE IT IS LEGALLY REGARDED AS MADE. HERE, HOWEVER, THERE IS NO POINT IN THE SUGGESTION, FOR BOTH OF THE STATES INVOLVED APPROVE COMMON-LAW MARRIAGES.

THE JUDGMENT IS AFFIRMED.

IN THE PRESENT CASE, BY A STIPULATION IN THE MARRIAGE CONTRACT BETWEEN JOSEPHINE M. SERRAINO AND JOSEPH VACCARO, JR., THE PARTIES THERETO AGREED THAT THE VALIDITY OF THE CONTRACT AND ALL THE RIGHTS, POWERS AND DUTIES OF THE PARTIES THEREUNDER ARE TO BE GOVERNED BY THE LAWS OF THE STATE OF PENNSYLVANIA,"WHERE BOTH OF THE PARTIES HERETO ARE PRESENTLY DOMICILED.'

GENERALLY, THE VALIDITY OF A CONTRACT IS GOVERNED BY THE LAW OF THE PLACE WHERE IT WAS MADE OR ENTERED INTO. IN THE CASE OF GREAT NORTHERN RY. CO. V. JOHNSON, SUPRA, THE PLACE WHERE IT WAS ENTERED INTO WAS FIXED AS MISSOURI, THE PLACE FROM WHICH THE ACCEPTANCE WAS MAILED. IN THE PRESENT CASE, JOSEPHINE M. SERRAINO ACKNOWLEDGED THE AGREEMENT DECEMBER 3, 1943, AND APPARENTLY MAILED THE CONTRACT TO HER FIANCE WHO ACKNOWLEDGED IT,"IN FOREIGN SERVICE," DECEMBER 31, 1943. WHATEVER THE EFFECT IN A CONTRACT OF MARRIAGE OF THE RECOGNIZED EXCEPTIONS TO THE RULE THAT A CONTRACT IS GOVERNED BY THE LAW OF THE PLACE WHERE IT WAS MADE IN CASES WHERE THE PARTIES CLEARLY APPEAR TO HAVE CONTRACTED WITH REFERENCE TO THE LAW OF ANOTHER JURISDICTION OR WHERE THE CONTRACT IS TO BE PERFORMED IN ANOTHER JURISDICTION, IT IS TO BE NOTED THAT BOTH OF THE PARTIES TO THE PRESENT CONTRACT ARE SAID TO BE DOMICILED IN THE STATE OF PENNSYLVANIA.

SCHOULER, IN HIS TREATISE ON MARRIAGE (6TH EDITION) VOLUME 2, SECTION 1261, NOTE 36, STATES THAT " INVADING ARMIES CARRY THE MATRIMONIAL LAW OF THEIR DOMICILE WITH THEM" (CITING AUTHORITIES) AND THAT--- AS QUOTED HEREINBEFORE FROM SECTION 1212 OF SAID TREATISE--- "THE ADJUTANT GENERAL, ON DECEMBER 21, 1918, ADVISED THE MILITARY AUTHORITIES THAT THEY MIGHT ASSIST SOLDIERS IN CONTRACTING MARRIAGES WITH WOMEN AT HOME, ADVISING THEM, HOWEVER, OF THE DANGERS OF THIS COURSE, THAT THE VALIDITY OF SUCH MARRIAGES WOULD DEPEND ON THE LAW OF THEIR DOMICILE, AND THAT THE LEGALITY OF SUCH MARRIAGES WAS IN THIS COUNTRY A MATTER OF GRAVE UNCERTAINTY.' (ITALICS SUPPLIED).

IN REGARD TO THE LAW GOVERNING THE VALIDITY OF CONTRACTS OF " MARRIAGES OF CITIZENS OR RESIDENTS ABROAD OR OUTSIDE STATE," IT IS STATED IN 35 AM. JUR., SEC. 173, AS FOLLOWS:

UNDER CERTAIN CIRCUMSTANCES THE LEX DOMICILII GOVERNS THE VALIDITY OF CONTRACTS OF MARRIAGES, AS, FOR INSTANCE, WHERE THE MARRIAGE IS PERFORMED BY OR UNDER THE AUSPICES OF THE DIPLOMATIC REPRESENTATIVE OF THE COUNTRY OF WHICH THE PARTIES ARE CITIZENS; OR ON BOARD A MAN-OF WAR IN A FOREIGN PORT, OR IN THE CASE OF THE MARRIAGE OF A SOLDIER WITHIN THE LINES OF THE ARMY WHILE SERVING ABROAD; OR WHERE THE MARRIAGE BECAUSE OF LEGAL OR RELIGIOUS DIFFICULTIES COULD NOT BE PERFORMED IN ACCORDANCE WITH THE LOCAL LAW; OR IN THE CASE OF A MARRIAGE CELEBRATED IN A COUNTRY OR PLACE WHERE THERE IS NO LAW APPLICABLE TO THE CASE. AND, WITH REGARD TO THE LAW GOVERNING MARRIAGE BY MAIL, KOEGEL, IN HIS TREATISE " COMMON LAW MARRIAGE" REFERRED TO HEREINBEFORE, STATES, AT PAGE 137, AS FOLLOWS:

ORDINARILY, A PROMISE MADE BY MAIL OR TELEGRAPH "SPEAKS" TO USE THE LANGUAGE OF MR. JUSTICE LINDLY "IN THE PLACE WHERE IT IS RECEIVED. WHILE, THEREFORE, THE PLACE OF MAILING A LETTER MAY IMPOSE A LIABILITY THIS MUST BE SUBJECT ALSO TO THE LEGISLATIVE POWER OF THE PLACE OF RECEIPT, TO THE EXTENT OF AFFECTING THE NATURE OF THE OFFICER AND THE INSTRUMENTALITIES BOTH OF OFFER AND OF RECEIPT.' BUT IN THE CASE OF AMERICAN SOLDIERS, AS WAS NOTED IN LAW NOTES ( LAW NOTES FOR MARCH, 1919) THERE IS A DOUBT WHETHER THE MEMBERS OF THE ARMY OF OCCUPATION CAN BE SAID TO BE IN ANY SENSE SUBJECT TO GERMAN LAW OR WHETHER ANY ACT OF THEIRS WHICH IS SANCTIONED BY MILITARY LAW BY THE LAWS OF THE UNITED STATES CAN BE INVALID BECAUSE OF CONFLICT WITH THE LOCAL REGULATIONS OF GERMANY. HOWEVER, MANY OF THE "CONTRACTS" WERE SENT TO THE EXPEDITIONARY FORCES WHERE THE MAN SIGNED IT, AND THEN RETURNED IT TO THE UNITED STATES FOR SIGNATURE BY THE BRIDE.

THE GENERAL RULE AS TO THE LAW GOVERNING THESE MARRIAGES IS WELL STATED BY WHARTON, CONFLICT OF LAWS, VOL. I, 369, 3RD. USED. AS FOLLOWS:

"CONSENSUAL MARRIAGES ABROAD, BY DOMICILED CITIZENS OF STATES HOLDING SUCH MARRIAGES TO BE VALID, WILL NOT BE INVALIDATED BECAUSE THE FORMS PRESCRIBED IN THE STATE OF CELEBRATION WERE NOT ADOPTED, SUPPOSING (1) IT WAS IMPOSSIBLE TO USE SUCH FORMS, OR (2) THEY WERE REPUGNANT TO THE RELIGIOUS CONVICTIONS OF THE PARTIES OR (3) THEY WERE NOT IMPOSED ON FOREIGNERS BY THE STATE PRESCRIBING THEM.'

IN VIEW OF THE FOREGOING, IT WOULD APPEAR THAT THE VALIDITY OF THE CONTRACT OF MARRIAGE IN THE PRESENT CASE IS TO BE DETERMINED BY THE LAWS OF THE STATE OF PENNSYLVANIA AND THE DECISIONS OF THE COURTS OF THAT STATE.

COMMON-LAW MARRIAGES ARE VALID IN PENNSYLVANIA. COMMONWEALTH V. BOCKES, 103 PA. SUPER. 378, 157 A. 214; STUMP V. STUMP, 111 PA. SUPER. 541, 170 A. 393; FITZPATRICK V. MILLER, 129 PA. SUPER. 324, 196 A. 83. IN MEISTER V. MOORE, 96 U.S. 76, IT WAS HELD THAT A MARRIAGE VALID AT COMMON LAW IS VALID NOTWITHSTANDING THE STATUTES OF THE STATE WHERE IT IS CONTRACTED PRESCRIBED DIRECTIONS RESPECTING ITS FORMATION AND SOLEMNIZATION, UNLESS THEY CONTAIN EXPRESS WORDS OF NULLITY; AND IT HAS BEEN STATED THAT "NO STATUTE (OF THE STATE OF PENNSYLVANIA) MAKES A CEREMONIAL MARRIAGE ESSENTIAL.' MARTINDALE HUBBELL LAW DIGESTS, 1944, PENNSYLVANIA LAW DIGEST, SUBHEADING " MARRIAGE.'

IN 1845 THE COURT OF QUARTER SESSIONS OF PHILADELPHIA COUNTY CONSIDERED THE VALIDITY OF MARRIAGE BY CIVIL CONTRACT IN THE GUARDIANS OF THE POOR V. SAMUEL NATHANS, 2 BREWSTER 149, 152. THE OPINION OF THE COURT IS IN PART AS FOLLOWS:

IT SEEMS TO BE CLEARLY SETTLED IN THE UNITED STATES THAT MARRIAGE IS BUT A CIVIL CONTRACT, AND IT IS NOT NECESSARY THAT A CLERGYMAN OR MAGISTRATE SHOULD BE PRESENT TO GIVE VALIDITY TO THE MARRIAGE; AND IF THE MARRIAGE IS MADE PER VERBA DE PRAESENTI, AND REMAINS WITHOUT COHABITATION, OR IF MADE PER VERBA DE FUTURO, AND IS FOLLOWED BY CONSUMMATION, IT AMOUNTS TO A VALID MARRIAGE, WHICH THE PARTIES (BEING COMPETENT AS TO AGE AND CONSENT) CANNOT DISSOLVE, AND IS EQUALLY BINDING AS IF MADE IN FACIE ECCLESIAE ( SEE 2 KENT, 87; JEWELL V. JEWELL, 1 HOWARD, 231; FENTON V. REED, 4 JOHNS. 52; TAYLOR'S CASE, 9 PAIGE, 611.) THE QUESTION HAS BEEN FULLY CONSIDERED BY THE SUPREME COURT OF THIS STATE, AND HELD TO BE THE LAW HERE, THAT MARRIAGE IS A CIVIL CONTRACT, WHICH MAY BE COMPLETED BY ANY WORDS IN THE PRESENT TIME WITHOUT REGARD TO FORM; * * *

THE ABOVE LEGAL PRINCIPLE WAS RESTATED BY THE PENNSYLVANIA SUPREME COURT IN RICHARD V. BREHM, 73 PA. ST. 140, 144, IN PART AS FOLLOWS:

MARRIAGE IS A CIVIL CONTRACT JURE GENTIUM, TO THE VALIDITY OF WHICH THE CONSENT OF PARTIES, ABLE TO CONTRACT, IS ALL THAT IS REQUIRED BY NATURAL OR PUBLIC LAW. IF THE CONTRACT IS MADE PER VERBA DE PRAESENTITHOUGH IT IS NOT CONSUMMATED BY COHABITATION, OR IF IT BE MADE PER VERBA DE FUTURO, AND BE FOLLOWED BY CONSUMMATION, IT AMOUNTS TO A VALID MARRIAGE IN THE ABSENCE OF ALL CIVIL REGULATIONS TO THE CONTRARY; 2 GREEN. EVID., SEC. 460. MARRIAGE IS A CIVIL CONTRACT WHICH MAY BE COMPLETED BY ANY WORDS IN THE PRESENT TIME, WITHOUT REGARD TO FORM: HANZ V. SEALY 6 BONN. 406. THE FACT OF MARRIAGE THEN MAY BE PROVED AND ESTABLISHED BY COMPETENT AND SATISFACTORY EVIDENCE. * * *

IN MURPHY V. RAMSEY, 114 U.S. 15, IT WAS STATED, AT PAGE 42," COHABITATION IS BUT ONE OF THE MANY INCIDENTS TO THE MARRIAGE RELATION. IT IS NOT ESSENTIAL TO IT.' AND IN BALANTI V. STINEMAN COAL AND COKE CO; SUPERIOR COURT OF PENNSYLVANIA, JUNE 29, 1938, 200 A. 236, IT WAS SAID, AT PAGE 237:

* * * MARRIAGE, IN OUR LAW, IS A CIVIL CONTRACT, AND DOES NOT REQUIRE ANY PARTICULAR FORM OF SOLEMNIZATION BEFORE OFFICERS OF CHURCH OR STATE, BUT IS ENTERED INTO BY WORDS IN THE PRESENT TENSE, UTTERED WITH A VIEW AND FOR THE PURPOSE OF ESTABLISHING THE RELATION OF HUSBAND AND WIFE; AND IF THE TESTIMONY OF THE SURVIVING PARTY SHOWS THAT THERE WAS NO MARRIAGE, ALL THE EVIDENCE ON THE SUBJECT OF COHABITATION AND REPUTATION IS OF NO IMPORTANCE. * * * ALSO, IN RE CRAIG'S ESTATE, 273 PA. 530, 117 A. 221, IT WAS STATED, AT PAGE 222, THAT MARRIAGE IS A CIVIL CONTRACT AND AS A CONTRACT IT MUST BE EVIDENCED BY WORDS IN THE PRESENT TENSE, UTTERED WITH A VIEW TO ESTABLISH THE RELATION OF HUSBAND AND WIFE, AND SHOULD BE PROVED BY THE SIGNATURES OF THE PARTIES, IF IN WRITING, OR BY WITNESSES WHO WERE PRESENT WHEN THE CONTRACT WAS MADE; BUT, IF SUCH EVIDENCE IS NOT AVAILABLE, THE MARRIAGE MAY BE ESTABLISHED BY PROOF OF REPUTATION AND COHABITATION, DECLARATIONS AND CONDUCT OF THE PARTIES, AND SUCH OTHER CIRCUMSTANCES AS USUALLY ACCOMPANY THE MARRIAGE RELATION. SEE, ALSO, IN RE MCGRATH'S ESTATE, SUPREME COURT OF PENNSYLVANIA, JUNE 29, 1935, 179 A. 599.

ACCORDINGLY, IN VIEW OF THE FOREGOING, IT WILL BE CONSIDERED THAT BY THEIR VOLUNTARY AGREEMENT JOSEPHINE M. SERRAINO AND JOSEPH VACCARO, JR., ENTERED INTO A VALID MARRIAGE CONTRACT AND ARE HUSBAND AND WIFE. HENCE, PAYMENT ON THE VOUCHER, RETURNED HEREWITH, IS AUTHORIZED, IF OTHERWISE CORRECT.