
    Harriet Thompson vs. Robert Thompson.
    Where a guilty party in a case of divorce, marries again, without leave of court, during the life of the other party, and afterwards obtains such leave, a continued cohabitation in the belief that the marriage already solemnized is, or has become, legal, does not render it so.
    Libel, for a sentence of nullity of marriage, on the ground that the libellee had another wife living at the time of the marriage.
    At the hearing, before Wells, J., the following facts were proved or admitted : On January 12,1859, the libellee was lawfully married to one Ruth Amelia West, at Boston, in the county of Suffolk. They afterwards lived together as husband and wife at Brookline, in the county of Norfolk, for the period of nineteen months. At the February term, 1867, of the Supreme Judicial Court, holden at Dedham, February 19, 1867, she obtained a decree of divorce from the bonds of matrimony from him for his desertion. November 21, 1867, he and the libellant went together to the office of an attorney at law in Boston, and he, in her presence, signed and made oath to a petition for leave to marry again. She at this time knew of the fact of the former marriage and divorce, and understood that the purpose of the petition was to obtain a decree of court which would have the effect of enabling him to marry again. That evening they were married by a duly qualified minister of the gospel. February 18, 1868, he obtained a decree authorizing him to marry again. From November 28, 1867, up to the time of the granting of this decree, they cohabited together as husband and wife, and from that time, continuously, till about January 1, 1873, under the belief, on her part, that the original marriage between them was, or had become, valid, and with the understanding on the part of both, that by such proceedings and by such subsequent cohabitation, they became, and were lawfully, husband and wife, until about January 1, 1873, when she was advised that the marriage was void. Since February 18,1868, two children had been born to them, and were still living.
    Upon the foregoing facts, the presiding justice was of opinion that the pretended marriage between them was void, and ordered a decree to be entered accordingly, from which decree the respondent appealed, and the case was thereupon reported for the consideration of the whole court.
    
      G. W. Morse & J. H. Hardy, for the libellant.
    No appearance for the libellee.
   Gray, C. J.

To constitute a valid marriage by the law of this Commonwealth, it must be solemnized between parties competent to contract it, and (except in the case of Quakers) before a person being or professing to be a justice of the peace or minister of the gospel. Milford v. Worcester, 7 Mass. 48. Gen. Sts. c, 106, §§ 14-20.

At the time of the ceremony of marriage between these parties, the husband was incapable of contracting marriage in this Commonwealth, because he had been divorced, for his fault, from a former wife (who must be inferred from this report to have been still living), and had not obtained from the court leave to marry again. Gen. Sts. c. 107, § 25. The solemnization of the second marriage, therefore, gave it no validity, and the cohabitation between the parties was unlawful at its beginning, and could only become lawful upon a new solemnization of matrimony after the husband had obtained leave to marry again.

The case, as stated in the report, shows that such new solemnization was not proved to the satisfaction of the presiding judge as matter of fact, and does not require it to be presumed as matter of law. Northfield v. Plymouth, 20 Vt. 582. The mere belief of either or both parties that they were husband and wife does not constitute a legal marriage. White v. White, 105 Mass. 325. A decree of nullity must, therefore, be entered as prayed for. Glassy. Glass, ante, 563.

Decree of rmllity.  