
    Lanham, Respondent, vs. Lanham and others, Appellants.
    
      September 10
    
    September 29, 1908.
    
    
      Marriage: Divorce: Statute prohibiting remarriage within year: Construction and effect: Evasion by marriage in another state: yar lidity: Common-law marriage.
    
    1. A state has power to declare that marriages between its own citizens contrary to its established policy shall have no validity in its courts, even though they he celebrated in other states under whose laws they would ordinarily he valid; hut the legislative intention that a statute should have such effect should be quite clear.
    2. Sec. 2330, Stats. (Supp. 1906; Laws of 1905, ch. 456) — providing that it shall he unlawful for any person divorced by any court of this state to marry again within one year, and that any such marriage shall he null and void — is a declaration of public policy and is clearly intended to control the conduct of residents of this state whether they be within or outside its boundaries.
    3. When persons domiciled in this state and subject to the provisions of said statute 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 statute and will not be recognized by the courts of this state.
    [4. Whether a judgment of divorce 'under the laws of this state should/not he construed as containing an inhibition of marriage of either party within one year which must he given “full faith and credit” (under sec. 1, art. IV, Const. U. S.) in all other states, so that such a marriage is not valid anywhere, is not decided.]
    6. For the purpose of evading the statute above mentioned a divorced woman was married in Michigan to another resident of this state. They returned here and cohabited as husband and wife until the husband’s death some months after the expiration of a year from the divorce. They had talked about a remarriage after the year, but it never took place on account of' the husband’s illness and death. Held, that there was no common-law marriage.
    Appeal from a judgment of tbe circuit court for Monroe county: J. J. Ebuit, Circuit Judge.
    
      Reversed.
    
    Tbe plaintiff applied to tbe county court of Monroe county for an allowance for ber support out of the estate of James W. Lanham, deceased, claiming that she was tbe widow of said deceased. Tbe application was contested and. denied .in tbe county court, but on appeal that judgment was reversed and an allowance granted, and from this judgment tbe heirs of lanham appeal.
    Tbe facts are few and simple. On and prior to tbe 15th day of September, 1905, tbe plaintiff was a resident of this state and was tbe wife of one J. E. Sherman. On tbe day named she obtained a judgment of divorce from Mr. Sherman for tbe purpose of marrying tbe deceased, who was then a resident of Wisconsin and a man eighty-four years of age. After the divorce both parties learned that tbe law of Wisconsin prohibited tbe plaintiff from marrying again'until tbe expiration of one year from tbe divorce. Eor tbe purpose of avoiding tbe effect of tbe law they went to Menominee, Michigan, October 10, 1905, and were there married by a justice of tbe peace, and returned to Wisconsin on tbe following day. They immediately assumed tbe relations of husband and wife and lived and cohabited together in Monroe county until Lanham’s death March 13, 1907. On March 8,-1907, tbe plaintiff made application to the county judge of Monroe county for a permit to marry Lanham, but be was then very ill and no ceremony was ever performed.
    The circuit court concluded that there was a valid common-law marriage between the parties, resulting from their living and cohabiting together as man and wife after the expiration of one year from the date of the decree of divorce, and held that the plaintiff was the lawful widow of the deceased and entitled to an1 allowance as such.
    
      For the appellants there was a brief by Higbee & Higbee, and oral argument by E. C. Higbee.
    
    They argued, among other things, that the marriage was not valid in this state. Sturgis v. Sturgis (Oreg.) 93 Pac. 696; Estate of Stull, 183 Pa. St. 625, 39 L. R. A. 542; Pennegar v. State, 87 Tenn. 244, 2 L. R. A. 103; Sussex Peerage Case, 11 Cl. & E. 85; Williams v Oates, 21 N. C. (5 Ired. Law) 535; State v. Tutty, 41 Eed. 153; Gonn v. Conn, 2 Kan. App. 419, 42 Pac. 1006; McLennan v. McLennan, 31 Oreg. 480, 50 Pae. 802, 38 L. R. A. 863; Kruger v. Kruger (Ill. Super. Ot.) 36 Nat. Corp. Rep. 442; Williams v. Williams, 63 Wis. 58; ZahorTca v. Geith, 129 Wis. 498, 505; Story, OonfL Laws, secs. 86, 87; Wharton, Confl. Laws, secs. 159-165&. There was an entire absence of proof, as to the law of Michigan, and in such case a court of this state must presume the law there to be the same as here. Rape v. Heaton, 9 Wis. 329; MacCarthy v. Whitcomb, 110 Wis. 113; Hyde v. German Nat. Bank, 115 Wis. 170; Hynes v. McDermott, 82 N. T. 41; Bailey v. State, 36 Neb. 808, 55 N. W. 241; People v. Loomis, 106 Mich. 250, 64 N. W. 18; Comm. v. Graham, 157 Mass. 73, 16 L. R. A. 578; Jackson v. Jackson, 82 Md. 17, 34 L. R. A. 776; Comm. v. Stevens, 196 Mass. 280, 82 N. E. 33. The relationship between these parties having been illegal in its inception, it must be held to have been continued, unless there is affirmative proof of subsequent marriage. Drawdy v. Hesters, 130 Ga. 161, 60 S'. E. 451; Comm. v. Stevens, 196 Mass. 280, 82 N. E. 33; Thompson v. Thompson, 114 Mass. 566.
    
      Eor tbe respondent there was a brief by Masters, Graves & Masters, and oral argument by B. B. Graves.
    
    They contended, inter alia, that when a marriage is established by evidence or admissions it is presumed to be valid, and the burden of establishing the contrary fact rests on the party who attacks it. 26 Oyc. 8 IN. In case of conflicting presumptions in civil cases, the presumption in favor of marriage generally prevails over all others. 3 Elliott, Ev. § 2486; Johnson v. Johnson, 114 Ill. 611, 55 Am. Eep. 883, 2 N. E. 232. The burden of proving restrictions in another state upon the remarriage of divorced persons is upon the person alleging them. State v. Shattuclc, 69 Vt. 403, 40 L. E. A. 428; Hutchins v. Kimmell, 31 Mich. 126, 18 Am. Eep. 164; Ward v. Morrison, 25 Vt. 593, 601. The weight of authority holds that if a marriage between divorced persons is valid according to the lex loci, it will be upheld by the courts of the state which enacted the statute prohibiting it and in which the parties to the marriage are domiciled, notwithstanding that the parties went out of the state to solemnize the same for the express purpose of evading the law of the domicile and of the forum. Hills v. State, 61 Neb. 589, 57 L. E. A-. 155, and note; Gomm. v. Lane, 113 Mass. 458; Medway v. Needham, 16 Mass. 157; Boss v. Boss, 129 Mass. 243; Van Voorhis v. Brintnall, 86 .N. V. 18, 40 Am. Eep. 50Sr„Thorp v. Thorp, 90 N. Y. 602, 43 Am. Eep. 189; Moore v. Hegeman, 92 N. Y. 521, 44 Am. Eep. 408; State v. Shattuck, 69 Vt. 403, 40 L. E. A. 428; State v. Bichardson, 72 Vt. 49, 47 Atl. 103; Phillips v. Madrid, 83 Me. 205, 12 L. E. A. 862; Fullers Admr v.‘ Fuller, 40 Ala. 301; State v. Bentley, 75 Vt. 163, 53 Atl. 1068; Sutton v. Warren, 10 Met. 451; Putnam v. Putnam, 8 Pick. 433; State v. Weatherly, 43 Me. 258, 69 Am. Dec. 56; Comm. v. Hunt, 4 Gush. 49; Stack v. Stack, 6 Dem. Sur. (N. Y.) 280; In re Ghace, 26 B. I. 351, 69 L. E. A. 493. The principal cases holding contrary views are Williams v. Oates, 27 N. C. (5 Ired. Law) 535; Estate of 
      
      Stull, 183 Pa. St. 625, 39 L. R. A. 539; Pennegar v. Stale, 87 Tenn. 244, 2 L. R. A. 703; Kinney v. Comm. 30 Gratt. 858, 32 Am. Rep. 690; Dupre v. Boulard’s Ex’r, 10 La. Ann. 411; State v. Kennedy, 76 N. C. 251, 22 Am. Rep. 683. No more reason exists for giving tbe statute under consideration extraterritorial force than any other legislative enactment forbidding in unqualified terms the doing of an act, and which must always be understood as forbidding the thing in the»state. Charles v. People, 1 N. Y. 180; Sims v. Sims, 75 N. Y. 466; Nat. T. Co. v. Gleason, 77 N. Y. 400; Van Yoorhis v. Brintnall, 86 N. Y. 18; Western T. & C. Co. v. Kilderhouse, 87 N. Y. 430; Phillips v. Madrid, 83 Me. .205, 12 L. R. A. 862. In the following cases'where the original cohabitation was preceded by a ceremonial marriage which was void because one of the parties was already married, it was held that the continuance of the cohabitation after the removal of the impediment by the death of the former husband or wife, in connection with circumstances tending to show that the parties regarded their relations as of a matrimonial character and held themselves out as husband and wife, created a presumption of marriage, although there was no evidence of another ceremony. Hyde v. Hyde, 3 Bradf. Sur. 509; Donnelly v. Donnelly s Heirs, 8 B. Mon. 113; Fenton v. Reed, 4 Johns. 52, 4 Am. Dec. 244; Adams v. Adams, 57 Miss. 267; Appeal of Reading F. Ins. & T. Co. 113 Pa. St. 204, 57 Am. Rep. 457-463, note; Chamberlain v. Chamberlain, 68 N. J. Eq. 736, 62 Atl. 680; Schuchart v. Schuchart, 61 Kan. 597, 50 L. R. A. 180; Petit v. Petit, 45 Mise. 155, 91 N. Y. Supp. 979; Eaton v. Eaton, 66 Neb. 676, 60 L. R. A. 605; Manning v. Spurclc, 199 Ul. 447, 65 N. E. 342; Barker v. Valentine, 125 Mich. 336, 51 L. R. A. 787; In re Schmidt, 42 Mise. 463, 87 N. Y. Supp. 428; 1 Bishop, Mar., Div. & Sep. §§ 970, 975, 979; TJniv. of Mich. v. McGuckin, 62 Neb. 487, 57 L. R. A. 917; Teter v. Teter, 88 Ind. 494; S. C. 101 Ind. 129; Flanagan v. Flanagan, 122 Mich. 386, 81 N. W. 258.
   Winslow, O. J.

Sec. 2330, Stats. (1898), as amended by cb. 456, Laws of 1905, provides, among other things, that “it shall not be lawful for any person divorced from the bonds of matrimony by any court of this state to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void.” A proviso to the section authorizes the circuit judge to grant permission to the divorced parties to remarry within the year, but this is of no moment here. The first question is whether the Michigan marriage was valid notwithstanding the provisions of this law.

The general rule of law unquestionably is that a marriage valid where it is celebrated is valid everywhere. To this rule, 'however, there are two general exceptions which are equally well recognized, namely: (1) Marriages which are deemed contrary to the law of nature as generally recognized by Christian civilized states; and (2) marriages which the lawmaking power of the forum has declared shall not be allowed validity on grounds of public policy. An exhaustive review of the many and somewhat conflicting authorities upon this general subject will be found in a note to Hills v. State in 57 L. R. A. at p. 155; S. C. 61 Neb. 589, 85 N. W. 836. The first of these exceptions covers polygamous and incestuous marriages and has no application here, and the question presented is whether the case comes within the second exception.

A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they be celebrated in other states under whose laws they would ordinarily be valid. In this sense, at least, it has power to give extraterritorial effect to its laws. The intention to give such effect must, however, be quite clear. So the question must be, in the present case, whether our legislature by the act quoted declared a public policy and clearly indicated the intention that the law was to apply to its citizens wherever they may be at the time of their marriage. To our minds there can be no doubt that the law was intended to express a public policy. There have been many laws in other states providing that the guilty party in a divorce action shall not remarry for a term of years, or for life, and these laws have generally been regarded merely as intended to regulate the conduct of the divorced party within the state and not as intended to follow him to another jurisdiction and prevent a marriage which would be lawful there; in other words, they impose a penalty local only in its effect. Under this construction the remarriage of such guilty party in another state has generally been held valid notwithstanding the prohibition of the local statute. Of this class are the cases of Frame v. Thormann, 102 Wis. 653, 19 N. W. 39; Van Voorhis v. Brintnall, 86 N. Y. 18; and State v. Shattuck, 69 Vt. 403, 38 Atl. 81, and others which might be cited.

It is very clear, however, that the statute under consideration is in no sense a penal law. It imposes a restriction upon the remarriage of both parties, whether innocent or guilty. Upon no reasonable ground can this general restriction be explained except 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 tbe desire on. tbe 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 coHusively 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 divorcg 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, no]¡ 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 axe 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 lawmaking 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 un•questionably 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 tbe law leave tbe state for tbe 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. Further than this we are not required to go. This view is sustained by the following cases: Brook v. Brook, 9 H. L. Cas. 193; Sussex Peerage Case, 11 Cl. & F. 85; State v. Tutly, 41 Fed. 753;, Pennegar v. State, 87 Tenn. 244, 10 S. W. 305, 2 L. R. A. 703; McLennan v. McLennan, 31 Oreg. 480, 50 Pac. 802;. Estate of Stull, 183 Pa. St. 625, 39 Atl. 16, 39 L. R. A. 542; Kruger v. Kruger (Super. Ct. Ill.) 36 Nat. Corp. Rep. 442.

Another view of the question, leading to the same result, has been suggested to our minds, which will be stated. The statute cited is an integral part of the divorce law of this-state and in legal effect enters into every judgment of divorce. This being so, must not any judgment of divorce be construed as containing an inhibition upon the parties, rendering them incapable of legal marriage within a year, which must be given “full faith and credit” in all other states, under sec. 1, art. IV, of the constitution of the United States ?' And if it be entitled to receive such faith and credit, how can a marriage within another state be considered valid anywhere ? Are not the parties incapable of contracting such a marriage anywhere, for the reason that they have not yet. been relieved of their incapacity to marry another, resulting from their former marriage, or, in other words, for the reason that their divorce is not complete until the expiration of the year? We suggest these questions without definitely expressing an opinion upon them or making them a ground of decision.

The Michigan marriage being held void, the question recurs whether the finding that there was a common-law marriage, resulting from the fact that the parties lived and co~ habited together as man and wife for about six months, can be sustained. This must be answered in the negative. This court has held that, where cohabitation is illegal in its inception, the relation between the parties will not be transformed into marriage by evidence of continued cohabitation, or by any evidence which falls short of establishing either directly or circumstantially the fact of an actual contract of marriage after the bar has been removed. Williams v. Williams, 46 Wis. 464, 1 N. W. 98; Spencer v. Pollock, 83 Wis. 215, 53 N. W. 490; Thompson v. Nims, 83 Wis. 261, 53 N. W. 502. There was no such evidence here. At most the evidence only shows that the parties continued to live together after the expiration of the year in the manner of husband and wife, and talked about a remarriage, which never took place on account of the husband’s illness and death. The evidence in fact rebuts any inference of remarriage rather than supports it.

. By the Oourt. — Judgment reversed, and action remanded to the circuit court with directions to affirm the judgment of the county court.

Siebeceeb, J., dissents.  