
    Robert J. Wilson, Admr., Appellee, vs. Robert J. Cook, Appellant.
    
      Opinion filed December 17, 1912.
    
    1. Marriage—power of State to regulate marriages of its citizens in other States. Every State has power to declare that marriages between its citizens in foreign .States in disregard of the statutes of the State of their domicile will not be recognized by the courts of the latter State though valid where celebrated.
    2. Same—exceptions to rule that a marriage valid where celebrated is valid everywhere. Marriages which are. contrary to the law of nature, as generally recognized by Christian nations, and marriages which are declared by positive law to have- no validity, are exceptions to the general rule that marriages valid where celebrated are valid everywhere.
    3. Same—marriage in violation of section la of Divorce act is void wherever celebrated. Section 1 a of the Divorce act, (Laws of 1905, p. 194,) which prohibits either party from marrying another person within one year from the time the divorce was obtained, is not merely penal in character, but is a statute lawfully imposing upon citizens of this State, as a positive policy of the State for the protection of the morals and good order of society against serious social evils, an incapacity to contract marriage, and a marriage contracted in disregard of its prohibition is void wherever celebrated.
    4. Same—when there can be no presumption of 'a common law marriage. The amendment of section 4 of the Marriage act, which declares common law marriages thereafter entered into to be null and void, went into effect July 1, 1905, and no presumption of a common law marriage can arise from the fact that parties who attempted marriage, after such date, in violation of section 1 a of the Divorce act, continued to live together as man and wife until the death of one of them. .
    
      Appeal from the Probate Court of Madison county; the Hon. J. P. StrBuber, Judge, presiding.
    B. R. Burroughs, and Burroughs & Ryder, for appellant :
    In the absence of evidence our courts presume that the common law obtains in a foreign State. Schlee v. Guckenheimer, 179 Ill. 593.
    Where the celebration of the marriage is once shown, everything essential to its validity will be presumed until the contrary is shown. Cartwright v. McGown, 121 Ill. 388; Barber v. People, 203 id. 543; Potter v. Clapp, 203 id. 592; Schmisseur v. Beatrie, 147 id. 210.
    Where persons who are incapable of contracting marriage because of some statutory inhibition leave the State of their domicile, go into another State and there contract marriage according to the laws of that State, such marriage is valid in the State of their domicile upon their return thereto. VanVoorhis v. Brintnall, 86 N. Y. 18; Thorp v. Thorp, 90 id. 602; Putnam v. Putnam, 25 Mass. 433; Commonwealth v. Lane, 113 id. 458; Dickson v. Dickson, 1 Yerg. 26.
    A divorce statute which forbids the re-marriage of the guilty person does not operate against the re-marriage in another State, although the parties go there for the purpose of evading the law of the domicile. 14 Cyc. 729; Medway v. Needham, 16 Mass. 157.
    If parties to a formal marriage, in the beginning, desire and intend marriage in good faith as a matter of fact, but an impediment exists preventing such marriage, and the desire and intention continue after the impediment is removed, and the parties continue in the relation of husband and wife and cohabit as such, it is. sufficient proof of a marriage. Manning v. Spurck, 199 Ill. 447; Land v. Land, 206 id. 288.
    
      E. G. Hill, for appellee:
    Section io of chapter 40 of the statutes of Illinois is an enactment or declaration of a public policy, which applies to those of its residents and citizens who are subject to its provisions, without exception, no matter where they are, and operates as a disqualification to re-marry within the prohibited period. Lanham v. Lanham, 17 L. R. A. 804; Pennegar v. State, 87 Tenn. 244; McLennan v. McLennan, 31 Ore. 480; Stull's Estate, 183 Pa. 625.
    Marriage, as between the parties and the State, is not technically a contract which must be measured and construed in accordance with the laws and rules applicable to contracts generally, but it is a status whereof the rights, obligations, preservation and dissolution are controlled by the State, which is a party interested in it and its dissolution, and laws enacted by the State to govern the same are declarations of a public policy to control all those of its residents and citizens who come within their scope. 19 Am. & Eng. Ency. of Law, (2d ed.) 1159, 1160; Brand v. Brand, 252 Ill. 134; Decker v. Decker, 193 id. 285.
    A common law marriage does not arise by mere continued cohabitation following a void marriage, after the impediment has been removed. Cartwright v. McGown, 121 Ill. 388; Lanham v. Lanham, 17 L. R. A. 804.
   Mr. Chief Justice Dunn

delivered the opinion of the court:

On November 13, 1906, the appellant, Robert J. Cook, obtained a divorce froth his wife in Clinton county, in this State, and on February 13, 1907, was married in St. Louis, Missouri, to Mary A. Moore, who resided in Madison county, in this State. Thereafter, until her death, on January 4, 1912, they resided together as husband and wife on certain premises owned by her in Madison county. Robert J. Wilson was appointed administrator of her estate and filed a petition in the probate court to sell the real estate on which they had lived, to pay debts, making the appellant a defendant, and alleging that the appellant claimed to have been the husband of the deceased at the time of her death and was in possession of the real estate described in the petition, claiming to be entitled to homestead and dower therein. The appellant answered, alleging his marriage to Mary A. Moore as above stated; that they resided on the premises in question at the time of her death and that he was entitled to homestead and dower therein. Upon a hearing the court found that appellant was not the husband of the deceased and was not entitled to homestead and dower in the premises, and entered a decree of sale, from which this appeal is prosecuted.

The first question in the case is whether or not the marriage of the appellant and the deceased was valid. Section ia of chapter 40 (Hurd’s Stat. 1911, p. 862,) provides : “That in every case in which a divorce has been granted * * * neither party shall marry again within one year from the time the decree was granted; * * * and every person marrying contrary to the provisions of this section shall be punished by imprisonment in the penitentiary for not less than one year, nor more than three years, and -said marriage shall be held absolutely void.” The marriage of the appellant was within one year from the time the decree of divorce was granted./It is undoubtedly the general rule of law that a marriage valid where it is celebrated is valid everywhere, but there are two well recognized exceptions, viz., marriages which are contrary to the law of' nature, as generally recognized by Christian nations, and those which are declared by positive law to have no validity. Every State has the power to enact laws which will personally bind its citizens while sojourning in a foreign jurisdiction provided such laws profess to so bind them, and to declare that marriages contracted between its citizens in foreign States in disregard of the statutes of the State of their domicile will not be recognized in the courts of the latter State though valid where celebrated. (Roth v. Roth, 104 Ill. 35.) The question, therefore, is whether the statute quoted was clearly intended to apply to marriages contracted outside the State, for unless the intention is clear, the operation of the statute must be limited to marriages within the State.

Formerly laws of this character in other States have usually prohibited the marriage of the party in fault against whom the divorce was granted, and they have been construed as penal in their nature and having no extra-territorial effect. Marriages contracted outside the State have in this view been held valid in States having such statutes. (Commonwealth v. Lane, 113 Mass. 458; VanVoorhis v. Brintnall, 86 N. Y. 18; State v. Shattuck, 69 Vt. 403; Frame v. Thorman, 102 Wis. 654.) This statute is not, however, penal in its character. It is no part of its purpose to punish the wrongdoer, for it treats the innocent and the guilty alike. The State of Wisconsin has a similar statute, which came before the Supreme Court, and the language of the court is applicable here: “Upon no reasonable ground can this general restriction be explained, ex'cept upon the ground that the legislature deemed that it was against public policy and good morals that divorced persons should be at liberty to immediately contract new marriages. The inference is unmistakable that the legislature recognized the fact that the sacredness of marriage and the stability of the marriage tie lie at the very foundation of Christian civilization and social order; that divorce, while at times necessary, should ■ not be made easy nor should inducement be held out to procure it; that one of the frequent causes of marital disagreement and divorce actions is the desire on the part of one of the parties to marry another; that if there be liberty to immediately remarry, an "inducement is thus. offered to those who have become tired of one union, not only to become faithless to their marriage vows, but to collusively procure the severance of that union under the forms of law for the purpose of experimenting with "another partner, and perhaps yet another, thus accomplishing what may be called progressive polygamy; and finally, that this means destruction of the home and debasement of public morals. In a word, the intent of the law plainly is to remove one of the most frequent inducing causes for the bringing of divorce actions. This means a declaration of public policy or it means nothing. It means that the legislature regarded frequent and easy divorce as against good morals, and that it proposed, not to punish the guilty party, but to remove an inducement to frequent divorce. To say that the legislature intended such a law to apply only while the parties are within the boundaries of the State, and that it contemplated that by crossing the State line its citizens could successfully nullify its terms, is to make the act essentially useless and impotent and ascribe practical imbecility to the law-making power. A construction which produces such an effect should not be given it unless the terms of the act make it necessary. The prohibitory terms are broad and sweeping. They declare, not only that it shall be unlawful for divorced persons to marry again within the year, but that any such marriage shall be null and void. There is no limitation as to the place of the pretended marriage in express terms, nor is language used from which such a limitation can naturally be implied. It seems unquestionably intended to control the conduct of the residents of the State, whether they be within or outside of its boundaries./ Such being, in our opinion, the evident and clearly expressed intent of the legislature, we hold that when persons domiciled in this State and who are subject to the provisions of the law leave the State for the purpose of evading those provisions, and go through the ceremony of marriage in another State and return to their domicile, such pretended marriage is within the provisions of the law and will not be recognized by the courts of this State.” (Lanham v. Lanham, 136 Wis. 360.) The following cases are cited as sustaining the view expressed in the opinion: Brook v. Brook, 9 H. L. Cas. 193; Sussex Peaerage case, 11 Cl. & F. 85; State v. Tutty, 41 Fed. Rep. 753; Pennegar v. State, 87 Tenn. 244; McLennan v. McLennan, 31 Ore. 480; Stull’s Estate, 183 Pa. 625. These cases sustain the principle that where a State has enacted a statute lawfully 'impos-^. ing upon its citizens an incapacity to contract marriage by reason of a positive policy of the State for the protection of the morals and good order of society against serious social evils, a marriage contracted in disregard of the prohibition of the statute, wherever celebrated, will be void. In the first of these cases it is said:. “It is quite obvious that no civilized State can allow its domiciled subjects or citizens, by making a temporary visit to a- foreign county, to enter into a contract to be performed in the place of domicile if the contract is forbidden by the law of the place of domicile as contrary to religion or morality or to any of its fundamental institutions.”

It is insisted, however, on the part of the appellant, that the marriage was entered into in good faith, and that, the parties having, after the removal of the disability, con-' tinued the same apparently valid matrimonial relations as before,, the law will presume a common law marriage between them. The amendment to section 4 of the Marriage act, which declared that common law marriages thereafter entered into should be null and void, went into effect on July 1, 1905. There can, therefore, be no presumption of a common law marriage in this case.

The judgment of the probate court was right, and it is affirmed. .

Judgment affirmed.  