CATHERINE FREITAS VITAL vs. ANTHONY REGO VITAL.

DOLAN, J. This is a libel for affirmation of marriage. See G. L. (Ter. Ed.) c. 207, Section 14. The libel also contains prayers that the libellant be given the custody of the minor child of herself and the libellee and that an allowance be made to her for her support and that of the minor child. The ordering part of the decree entered by the judge, from which the libellant appealed, reads as follows: "It is decreed that the marriage of the libellant to this libellee is void in accordance with the provisions of General Laws Chapter 207, Section 10, and it is further decreed that the libellant contracted said marriage with the libellee with the full belief that he was capable of contracting said marriage, and that his former wife had been divorced, leaving the party to the former marriage free to marry again, and that the issue of her said marriage, namely, Mildred Rego Vital, is and shall be the legitimate issue of the libellant." The recitals of the decree include a statement of the material facts upon which the judge based his decision. See Curley v. Curley, 311 Mass. 61, 67, and cases cited. They may be summed up as follows: At the time of the marriage of the parties on July 2, 1927, the libellee was married to another. His then wife had obtained a decree of divorce which did not become absolute until July 7, 1927, and the libellee was thereafter prohibited from remarrying for two years. The parties were married on July 2, 1927, in Rhode Island, into which State the libellee went for the purpose of avoiding the laws of this Commonwealth and intending to continue to reside in New Bedford. Said marriage of the libellant to the libellee is void here, but the libellant contracted said marriage in the full belief that the libellee was capable of contracting said marriage and that he had been divorced from his then wife and was free to marry her. The parties thereafter on September 15, 1928, "went through a religious ceremony in . . . Providence, but that was simply a religious ceremony because the first ceremony had not been performed in church. It was not under the authority of

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any license of the civil authorities, and even if it had been it would have made no difference to the final result. Thereafter the parties lived together in good faith on the part of the libellant until after the expiration of two years from the date of the divorce aforesaid of the libellee's wife from him." We construe this to mean from the date when the decree nisi became absolute. [Note p187-1]

The libellant contends that, upon the facts found, she is entitled to a decree affirming her marriage under the provisions of G. L. (Ter. Ed.) c. 207, Section 6, which reads as follows: "If a person, during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract with due legal ceremony and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to the former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment, and the issue of such subsequent marriage shall be considered as the legitimate issue of both parents." General Laws (Ter. Ed.) c. 207, Section 4, provides as follows: "A marriage contracted while either party thereto has a former wife or husband living, except as provided in section six and in chapter two hundred and eight, shall be void." General Laws (Ter. Ed.) c. 208, Section 21, [Note p187-2] provides that "Decrees of divorce shall in the first instance be decrees nisi, and shall become absolute after the expiration of six months from the entry thereof, unless the court within said period for sufficient cause, upon application of any party interested, otherwise orders." General

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Laws (Ter. Ed.) c. 208, Section 24, [Note p188-1] provides that "After a decree of divorce has become absolute, either party may marry again as if the other were dead, except that the party from whom the divorce was granted shall not marry within two years after the decree has become absolute." General Laws (Ter. Ed.) c. 207, Section 10, provides that "If any person residing and intending to reside in this commonwealth is disabled or prohibited from contracting marriage under the laws of this commonwealth and goes into another jurisdiction and there contracts a marriage prohibited and declared void by the laws of this commonwealth, such marriage shall be null and void for all purposes in this commonwealth with the same effect as though such prohibited marriage had been entered into in this commonwealth."

General Laws (Ter. Ed.) c. 207, Section 10, imposes no other consequences upon a marriage contract entered into in a foreign jurisdiction in violation of its provisions than those that would follow had the contract been entered into at the same time in this Commonwealth. The purpose of G. L. (Ter. Ed.) c. 207, Section 10, was to except marriages entered into in violation thereof from the "general rule of law . . . that a marriage contracted elsewhere, if valid where it is contracted, is valid here, although the parties intended to evade our laws, unless . . . the marriage is one deemed `contrary to the law of nature as generally recognized in Christian countries.'" Commonwealth v. Graham, 157 Mass. 73, 75, and cases cited. So, as in the case of marriages within the Commonwealth in violation of c. 208, Section 24, marriage contracts entered into without the Commonwealth in violation of the provisions of c. 207, Section 10, are void just as though they had been entered into here. The present case is therefore governed by the same principles as though the marriage in question had been entered into in this Commonwealth.

The present case comes within the literal provisions of G. L. (Ter. Ed.) c. 207, Section 6, since at the time of the marriage of the parties the decree of divorce obtained by the former wife of the libellee had not become absolute, and accordingly

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that marriage was then "in force." Rollins v. Gould, 244 Mass. 270, 272. Eldridge v. Eldridge, 278 Mass. 309, 312. We are, however, of opinion that under the proper interpretation of Section 6 the prior marriage continued "in force" for the purposes of Section 6 during the period after the decree of divorce became absolute within which the libellee was prohibited from remarrying. Within the meaning and for the purposes of Section 6, the prior marriage of the libellee continued "in force" not only until the decree of divorce became absolute but also until the impediment created by G. L. (Ter. Ed.) c. 208, Section 24, ceased to exist. That was so held in Commonwealth v. Josselyn, 186 Mass. 186, 187-188. That case was an indictment for polygamy. The defendant was found guilty and his exceptions were overruled. The facts were these: The defendant was divorced by a wife whom he had married on July 20, 1887. The decree nisi of divorce was made absolute on November 11, 1894. On June 15, 1896, that is, within two years thereafter, the defendant married one Wiley. They lived together as husband and wife until November 2, 1903. On November 9, 1903, the defendant married one Trommer. That marriage was the subject of the indictment. Holding that, when entered into, the marriage of the defendant to Wiley was invalid, the court, speaking through Knowlton, C.J., said: "There was evidence tending to show that the second marriage contract was entered into with due legal ceremony, that the parties thereafter lived together as husband and wife, that the marriage was entered into by the wife in good faith, in the full belief that the former marriage had been annulled by divorce, that the impediment to the marriage was removed by the decree of divorce previously entered and the lapse of two years from the entry of the decree, and that the parties then continued to live together as husband and wife, the wife acting in good faith. Under the instructions of the court the jury must have found all these propositions in favor of the contention of the Commonwealth, and in accordance with the testimony of Linda G. Josselyn. It follows that she and the defendant are deemed to have been legally married, and their children are

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deemed to be legitimate issue of both parents, if it can be said that, at the time of the marriage, the former marriage was still in force within the meaning of the statute. The statute applies only to cases in which at the time of the `marriage ceremony, a former husband or wife of one of the parties was living, and the former marriage with such person was still in force.' This [St. 1895, c. 427, now G. L. (Ter. Ed.) c. 207, Section 6] is a remedial statute intended for the protection of persons who marry innocently and in good faith, and of their children. It is intended to cover cases in which the marriage is invalid by reason of a previous marriage of one of the parties, that makes it illegal for him or her to contract a second marriage. In this case, for many purposes, the former marriage was not in force at the time of the second marriage. But in reference to the subject to which the statute relates it was in force. It was in force as a restraint upon this defendant which precluded him from entering into a lawful marriage. The words `in force' are used in reference to the effect of the former marriage upon the right of the party to marry again. They are not used in reference to the effect of the marriage upon rights of property, or upon the personal relations of the former husband and wife. As to such matters, and as to the right of the libellant to marry again, the former marriage was not in force. But, as to the matters for which this statute was designed to provide a remedy, it was in force. The question to be determined in the construction of the statute is not affected by the fact that it arises upon the trial of an indictment. It is precisely the same as if an issue of the legitimacy of the children were before the court in a civil suit. The jury were rightly instructed that, upon the facts stated, the marriage was in force within the meaning of the statute, and upon the findings of the jury the statute was applicable. The impediment was removed by a proper decree of divorce. It is immaterial that the decree had been entered before the marriage in question. It had not then removed the impediment, because the law provided that the impediment should continue until the expiration of two years from the entry of the decree of divorce. When the

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time expired, the removal of the impediment was effected by the decree" (pages 188-189). See Smith v. Smith, 58 Fed. (2d) 883.

In Turner v. Turner, 189 Mass. 373, 375-376, the court said in part, "While one of the objects of the statute is to protect persons who enter into the marriage relation in good faith, the broad general purpose of the statute is to provide against illegitimacy of children and to protect the public interests. Its purpose is to provide that the marriage ceremony, illegal at first by reason of the existence of an impediment, shall be regarded as taking place at the time the impediment is removed and as covering all marital relations thereafter assumed in good faith. It is immaterial whether the removal of the impediment is known or unknown. Whether known or not, the marriage ceremony becomes operative upon the removal, if the parties continue to live together as husband and wife in good faith on the part of one of them. Such a construction of the statute is not only in accordance with its plain reading, but it carries out the real bona fide intention of the innocent party to contract a valid marriage. Upon the removal of the impediment and the subsequent cohabitation in good faith, the relation becomes such as the innocent party supposed it to be. And such a relation thus once sanctioned in the law, legitimatizes the children and leads to the protection of the moral welfare of the community." It is true that in that case the impediment of a prior existing marriage was removed by the death of the former wife, but the statement we have just quoted from the opinion in that case applies with equal force where the impediment of the existing marriage is removed by a decree of divorce becoming absolute and the impediment that survives the decree ceasing to exist. The Turner case was rested on the provisions of R. L. c. 151, Section 6 (now G. L. [Ter. Ed.] c. 207, Section 6). In the present case the libellee, however, contends that the other cases that we have cited and such other cases as Whippen v. Whippen, 171 Mass. 560, and Gardner v. Gardner, 232 Mass. 253, were governed by R. L. c. 151, Section 10, and its predecessors and not by G. L. c. 207, Section 10, which derives from St.

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1913, c. 360, since the facts upon which they were decided arose at a time when to bring the marriage in the foreign jurisdiction within R. L. c. 151, Section 10, it was necessary that both of the parties thereto should have gone into that jurisdiction with the intent to evade our laws, and further contends that by St. 1913, c. 360, now G. L. (Ter. Ed.) c. 207, Section 10, the marriage is void if either of the parties goes into the foreign jurisdiction and enters into the marriage contract in violation of Section 10. Setting up his own illegal conduct in that respect, the libellee argues that the provisions of G. L. (Ter. Ed.) c. 207, Section 6, do not apply to the marriage in question here, entered into in violation of Section 10. In support of this argument the libellee relies upon Tyler v. Tyler, 170 Mass. 150, Murphy v. Murphy, 249 Mass. 552, and Wright v. Wright, 264 Mass. 453. In Tyler v. Tyler, 170 Mass. 150, a libel for divorce, these facts appeared: The libellant had been divorced from a former husband by a decree in his favor which was made absolute on October 12, 1887. On October 25, 1887, while her former husband was living, she went to New Hampshire with the libellee, both intending to evade our statutes and intending to continue to reside in this Commonwealth. They were married at Salem, New Hampshire, and returned to Lawrence the same day, where they resided thereafter as husband and wife up to the time she left the libellee shortly before the filing of the libel on July 17, 1897. And the court held that the case was governed by Pub. Sts. c. 145, Sections 4, 10 (now G. L. [Ter. Ed.] c. 207, Sections 4, 10) and c. 146, Section 22 (now G. L. [Ter. Ed.] c. 208, Section 24), and was not within St. 1895, c. 427 (now G. L. [Ter. Ed.] c. 207, Section 6) and St. 1896, c. 499; that the latter statutes were not intended to repeal Pub. Sts. c. 145, Section 10 (predecessor of G. L. [Ter. Ed.] c. 207, Section 10), and that the marriage was void. Accordingly the libel was dismissed. The implication, if any, in that case to the effect that what is now G. L. (Ter. Ed.) c. 207, Section 6, did not apply to marriages entered into in violation of Section 10 was unnecessary to the decision. That it did not apply to the facts of that case is obvious. In Ewald v. Ewald, 219 Mass. 111, where the libellant who sought to have annulled

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a marriage that she had entered into in New Hampshire, to which State she had gone to enter into the marriage in violation of our statute, the court refused even to pass upon the validity of her marriage, because she made her wrongful conduct the ground of her application for relief from its consequences, and left her in the position in which she placed herself and dismissed her libel. In the Tyler case the result reached was right on its facts for the same reasons. See also Payzant v. Payzant, 269 Mass. 70, 72. In Levanosky v. Levanosky, 311 Mass. 638, a libel for divorce, where the marriage had been entered into in New York by residents of this Commonwealth before the decree nisi of divorce obtained from the libellee by his former wife had become absolute, but the parties had lived together as husband and wife after the expiration of the two year period therefrom during which the libellee had been prohibited from remarrying, relief was denied the libellant on the ground that she had failed to show as required by c. 207, Section 6, that she married the libellee "in good faith, in the full belief that the former . . . wife was dead, that the former marriage had been annulled by a divorce, or without knowledge of such former marriage." The implication is that otherwise the provisions of Section 6 would have applied and that relief could have been granted thereunder.

Murphy v. Murphy, 249 Mass. 552, was a petition for separate support. The marriage of the parties had been entered into in Providence, Rhode Island (on May 23, 1921), within two years after the respondent's former wife had been granted a divorce from him, by a decree which became absolute on November 13, 1920. The petitioner, however, had acted in good faith, but before the expiration of the two years from the decree absolute the respondent deserted the petitioner. The court held that the marriage was invalid, and that the Probate Court was without jurisdiction to enter the decree of separate support that it had entered, and reversed that decree. In so doing the court based its decision on the provisions of G. L. c. 207, Section 10, stating that, as distinguished from predecessor statutes which had required action by both parties to the contract

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in violation of the statute if the inhibition of the statute was to be applied, Section 10 in its present form rendered such a marriage void notwithstanding the innocence of one of the parties. In the Murphy case c. 207, Section 6, of course did not apply since the parties ceased to live together before the expiration of the two years from the decree absolute of divorce obtained by the former wife of the respondent. The result reached was therefore right, but the case is not authority for the proposition that upon the facts presented in the present case G. L. (Ter. Ed.) c. 207, Section 6, is not satisfied. We do not follow the statement in the Murphy case to the effect in substance that the present form of Section 10 operates to make Section 6 inapplicable to cases of marriages entered into in violation of Section 10.

Wright v. Wright, 264 Mass. 453, was a petition for separate support. The facts were these. The petitioner married the respondent in Pawtucket, Rhode Island, on August 4, 1921, with due legal ceremony. The respondent had been divorced by a former wife by a decree which became absolute on November 12, 1920. By force of G. L. c. 208, Section 24, he was prohibited from remarrying until November 12, 1922. The parties were both residents of Massachusetts and went to Rhode Island for the express purpose of being married, intending to return to Massachusetts and to reside here. The respondent knew, but the petitioner did not know, that at the time of his marriage to the petitioner he could not be legally married in this Commonwealth. The parties returned to Massachusetts and lived together as husband and wife in good faith on the petitioner's part until August 14, 1924. At that time the respondent left her and thereafter did not reside with her. "There was no evidence that the former wife . . . [was] not still alive." The court rejected the contention of the petitioner that her marriage to the respondent "became a legal marriage from and after November 13, 1922, by force of G. L. c. 207, Section 6," and, citing Murphy v. Murphy, 249 Mass. 552, as authority for the proposition that the petition could not be maintained, said in substance that the decision in Whippen v. Whippen, 171 Mass. 560, that, unless both parties to the

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prohibited marriage had the intent to avoid the statutory prohibition then in force, the marriage, valid where solemnized, was not null here, was met by the change in the statute, St. 1913, c. 360, and that Section 6 of G. L. c. 207 did not apply in the case of marriages prohibited by G. L. c. 208, Section 24, and made void by G. L. c. 207, Section 10. Continuing the court said: "The respondent was unmarried after the decree dissolving his former marriage became absolute. At the time of the ceremony at Pawtucket he had no former wife living with whom a marriage was still in force. The impediment to be removed by death or a valid divorce is an existing marriage. No such impediment here existed" (page 456). The decree dismissing the petition was affirmed.

We do not concur in the reasoning or in the result reached in the Wright case. Neither is supported by the authorities cited. We have already pointed out that the Tyler case cannot be regarded as authority for the proposition that G. L. (Ter. Ed.) c. 207, Section 6, does not apply to marriages entered into in contravention of Section 10, where the requirements of Section 6 have been satisfied. Manifestly for reasons already given the Murphy case cannot be held properly to be authority for that proposition. In so far as the Wright case decides in effect that the impediment to be removed is that of a marriage in force when the subsequent marriage is entered into, that the marriage is annulled by the decree becoming absolute, and that thereafter, notwithstanding the further impediment flowing therefrom, the marriage is not "in force," we do not concur. Nor do we agree with the reasoning of Wright v. Wright [Note p195-1] that Section 6 does not apply to cases coming within the provisions of Section 10 because of the change in Section 10 effected by the enactment of St. 1913, c. 360, or with the statement to like effect in Murphy v. Murphy, 249 Mass. 552, 553-554. The only effect of the change in Section 10 was to make the marriage entered into in violation of Section 10 void without regard to the good faith of one of the parties, just as though it had been entered into in this Commonwealth in violation of G. L. (Ter.

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Ed.) c. 208, Section 24. See Palmer v. Palmer, 265 Mass. 242. We have discovered no case since the enactment of what is now G. L. (Ter. Ed.) c. 207, Section 6, by St. 1895, c. 427 (see R. L. c. 151, Section 6) where it has been held or stated as in Wright v. Wright, 264 Mass. 453, that Section 6 does not apply to a marriage entered into in this Commonwealth in violation of c. 208, Section 24, a marriage admittedly void just as was the marriage in the present case when entered into. On the contrary, in Tozier v. Haverhill & Amesbury Street Railway, 187 Mass. 179, where the marriage in question had been entered into in this Commonwealth in violation of Pub. Sts. c. 146, Section 22 (now G. L. [Ter. Ed.] c. 208, Section 24), and where the plaintiff invoked the aid of R. L. c. 151, Section 6 (now G. L. [Ter. Ed.] c. 207, Section 6), the court impliedly held that in proper case relief could be granted under Section 6, but that the plaintiff had not shown that either of the parties to the marriage contract had entered into it in such circumstances as to bring the case within the statute (page 181). And in Commonwealth v. Josselyn, 186 Mass. 186, the marriage held valid under St. 1895, c. 427 (now G. L. [Ter. Ed.] c. 207, Section 6), had been entered into in this Commonwealth in violation of Pub. Sts. c. 146, Section 22 (now G. L. [Ter. Ed.] c. 208, Section 24). That Section 6 is to be operative in case of a marriage void whether because of the existence of a marriage to a former spouse that is the "in force," or because of the impediments flowing from a decree of divorce, is further evidenced by the provision of G. L. (Ter. Ed.) c. 207, Section 4, that a marriage contracted while either party thereto has a former wife or husband living, "except as provided in section six and in chapter two hundred and eight," shall be void. Section 6 provides expressly for the case of an honest but mistaken belief that the former marriage had been dissolved by a divorce. It seems to be settled that Section 6 applies, therefore, in proper case to marriages entered into in this Commonwealth in violation of c. 208, Section 24, and, as we have already pointed out, marriages entered into without the Commonwealth in violation of Section 10 must be dealt with as to their effect just as though they had been solemnized here in violation of c. 208, Section 24. It follows that in proper case

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the provisions of Section 6 apply as well to marriages entered into in violation of Section 10. In the present case the judge has found every element that is required to satisfy the provisions of Section 6, and the libellant is entitled to the relief in such case thereby ordained.

The decree entered in the court below is reversed, and a final decree is to be entered affirming the marriage of the libellant to the libellee, establishing the legitimacy of the minor child of their union, and after further proceedings setting forth therein such orders as the court may make in the matter of the prayers of the libel that the libellant be given custody of the minor child and that the libellee be required to provide support for the libellant and the minor child. See G. L. (Ter. Ed.) c. 207, Section 14.

So ordered.