Arthur Garfield Haysis an attorney practicing in New York City. He was manager of the New York State La Follette campaign, 1924.
is an attorney practicing in New York City. He was manager of the New York State La Follette campaign, 1924.
MODERN MARRIAGE AND ANCIENT LAWS
MODERN MARRIAGE AND ANCIENT LAWS
BY ARTHUR GARFIELD HAYS
“Are we married?” This was a query recently put to a New York lawyer. The woman wanted to have been married, but wished not to be married any longer; at the same time she rather objected to a divorce. The man did not care much about it, so long as he could marry, or marry again, without too much inconvenience arising from the earlier entanglement. The lawyer’s answer was so obvious that it might have been made by a layman: “How do I know?”
The two had been living together, had called each other husband and wife, and had in general passed as such, but at the beginning of the relationship each had felt that if one wanted to be free the other would not hold him or her; it was agreed that they should have no financial responsibility for each other and that there should be nothing about the arrangement whichwould make it last “till death do us part.” In speaking of themselves as “husband and wife” they had intended the words to represent merely a formula of their own.
Now common-law marriage as recognized in New York State consists in a meeting of the minds—a contract. Thus, if two people live together as husband and wife this may be evidence of a common-law marriage. No formal agreement is necessary. But if there has not been even a private agreement of marriage their living together would be unimportant. If they wished to separate they would need no divorce, for they would never have been married. By passing as husband and wife they might gain the social advantages that come from a recognized relationship, and, since there had been no definite agreement, they might save the inconvenience of divorce if they wished to separate. Difficulty arises only when both parties do not agree that there was no agreement. Sometimes one party claims there was and the other that there was not. Then the very indefiniteness of the tie means added difficulty and publicity in breaking it.
In order to avoid future disagreement one couple made a contract in which they stated that they lived as husband and wife in order to avoid social stigma, but that as between themselves there was no agreement of marriage. The situation was trying because they always felt they were living a lie. Their answer was that society foolishly demanded either a penalty or a form and they preferred to provide the form. Fortunately, neither ever had to swear to the status and they felt that this contract—which provided for future maintenance of the wife and custody of the children—solved the problem or doubt of a life-long relationship. To those who made ethical objection, they answered that they were willing to contract on matters which concerned their wills, but knew it was contrary to human nature to contract on matters which concerned their emotions.
Not long ago in New York City a young woman who had scruples about promising to love a man forever expressed to the city clerk her unwillingness to use the form of marriage ceremony which he had produced committing her to love, honor, and cherish the man for therest of his or her life. She said she was in good faith willing to contract to marry, and that she would do the best she could to make the marriage successful, but that was all; to which the clerk answered that if she were entering marriage in that spirit she should not be married at all. He was finally persuaded that the parties could be tied merely by agreement on her part to become the man’s wife and on his part to become her husband.
If the law seems full of vagaries on the problem of entering marriage it is still more perplexing and technical when it concerns the question whether or not two people are still legally married when one has obtained a supposed divorce—so much so that it is not at all uncommon for a lawyer to be faced by a client asking whether or not he, or she, is really married. Some years ago a man was married in Philadelphia and later, having separated from his wife, went to New York. She obtained a decree of divorce in Pennsylvania, the papers having been served on him in New York. He married again and died a generation later, leaving a considerable fortune and three children by his secondmarriage. The first wife, or her attorneys, then discovered that the original divorce was not legal, since the Pennsylvania courts had not acquired a jurisdiction which would be recognized in New York. Since the man had left the estate to his “wife,” there were complications. As the question involved the meaning of a will, the matter was one of intention and it was not difficult to prove that the deceased intended as his beneficiary the woman whom he regarded as his wife. But had he owned real estate at the time of his divorce the first wife might have had a dower interest, and had his status become one of public importance his enemies might successfully have charged him with bigamy.
Ordinarily, people are satisfied with a decree of divorce. It gives them the desired social status. Its technical legality becomes of importance only in connection with estates or the legitimacy of children. But a difficult question arises in case of remarriage. Legality depends upon the jurisdiction of the court. This can be acquired by personal service of papers upon the defendant within the State or a voluntary submission to the jurisdiction by appearing inthe case personally or by attorney. But State courts claim and recognize their own jurisdiction even though papers are served outside the State. Under these latter circumstances, suppose a divorce granted a man in Utah is not recognized in New York. If he remarries in Utah he will have one wife there, while in New York another woman would be his wife and he would be obliged to support her there. If his wife in New York married again, she would be guilty of bigamy. In Utah it would be his duty to live with one woman. New York would attempt to make it his pleasure to live with another, and this on the ground of morality, for, although, ordinarily, the law of the place of the new marriage (in this case, Utah) would apply, yet this would result in his having two wives in New York. So on legal grounds we disregard the divorce, and on moral grounds we negative the second marriage.
Foreign divorces raise the question not only of jurisdiction but of recognition by treaty of a judgment of the particular foreign country. For instance, judgments of French courts are not absolutely binding upon the courts of this country,as are the judgments of sister-States. In the case of Russia, where any two parties by agreement or a single person by request may become divorced, there is no treaty whatever. Occasionally, cases arise where persons abroad have obtained a decree for a rabbinical divorce. Under the old Jewish custom a rabbi could pronounce a divorce and the law of the state permitted a decree to be entered upon his pronouncement. Some states and countries make bids for the divorce business; not long ago an advertisement appeared announcing that a divorce might be had in Yucatan for $25, not, of course, including the expense of travel. Questions of the effect of interlocutory and final judgments, of the provisions of a divorce decree forbidding remarriage within a certain period, of thebona fidesof residence, of the jurisdiction of the court, of treaties with foreign countries may make it difficult to answer the question whether or not two people are legally married.
All this confusion represents a beating of wings against a cage—an endeavor to obtain a legal paper with a red seal which will avoid a situation which two people find intolerable. Weare tending toward a new moral conception of the marriage relationship, well expressed by Premier Zahle of Denmark when submitting a new liberal divorce law: “It is based on the fundamental conception that it is morally indefensible to maintain a marriage relation by legal statute where all the real bonds between the parties are broken. This is a measure which certainly means a great step forward in the recognition of marriage as a moral relation.”
Marriage is a status resulting from a civil contract, but very few people who enter into it know what this contract is. It assumes certain rights and obligations. What are they? That the wage-earner will provide. This is enforcible, at least theoretically. What else? That the parties live in an emotional and mental state designated by an agreement “to love, honor, and cherish,” and, sometimes, “obey.” This is obviously unenforcible. (I make this assertion despite the recent Texas case in which a husband obtained an injunction restraining his wife’s employer from flirting with her.) The contract continues for life, subject to termination for causes which depend chiefly upon the place ofresidence, actual or acquired. If they live in South Carolina and stay there, the contract is indissoluble. In New York the contract may be terminated for adultery, unless the other party has likewise sought refuge outside of marriage; in Alabama, for habitual drunkenness; in Nevada, for neglect to provide for one year; in Kentucky and New Hampshire, for joining a religious sect which believes marriages unlawful; in New Jersey, for extreme cruelty; in Wisconsin, if the parties have voluntarily lived separately for five years; in Massachusetts and a host of other States, for desertion; in Pennsylvania and Oregon, for personal indignities or conduct rendering life burdensome; in Vermont, for intolerable severity; in France, if the parties have other emotional interests; in Denmark, by consent; in Russia, by request. Of course, in most of these states there are other grounds, but the result is that either party can bring about a situation which permits divorce or can make life so intolerable for the other that he or she consents to it. But these grounds must arise subsequent to marriage; the agreement cannot be made in advance.
In life the duration of marriage depends upon the desires or consent of individuals. In law it is perpetual, subject to termination not by agreement made at the outset, or by later consent, but by court decree. At the time of entering into marriage people usually know merely that somehow, somewhere, some time there is a way out if the situation becomes too strained. Technically, since the contract is for life, a divorce is granted for a breach. Thus there is an implied term, as there is in every contract, that relief is granted for a breach—but what constitutes a breach depends not upon the terms of the contract or the law of the place where the contract is made but upon the jurisdiction where relief is sought—a matter of which the parties ordinarily know nothing when they make the contract. Convention seems to demand that the parties know not what they do.
Modern society, this summary seems to show, has been moving toward freedom of contract in marriage. Those phases which concern the state, such as economic provision and children, must be conserved. But time was—and still is in some places—when marriage itself was atribal or a state matter. Then it became a family matter, determined by the parents, and property and family rights and interests were the important considerations. But parents, knowing by experience that there can be no happiness without security—although there might be unhappiness with it—failed to take into sufficient account the emotional content, and, particularly in the Western World, there developed a certain freedom of contract in making a choice. To-day, when people have come to recognize the necessity of sexual and social compatibility, which cannot be determined in advance, there has come a demand for a further freedom of contract, to which society has responded by more liberal divorce laws. The laws which permit a divorce where parties have not lived together for a certain length of time make the duration of the marriage relation really a matter of consent. They mean in effect that a contract of marriage contains an implied term that it is to continue until the parties consent to its end, and in human relations this means until one party demands its end.
If a person proposed that the law recognizea marriage contract which was to continue until either party desired its termination, he would be regarded as a wrecker of our institutions; but society is doing this very thing—obscurely, perhaps, as an after-effect, not as a preconceived design; blindly, and not with intelligent forethought. Many have suggested that marriages be made harder and divorces easier. But how revolutionary would seem a suggestion that marriage contracts be made in advance, conforming to the teachings of experience, providing for maintenance and custody of children and limited by the understanding of the parties; that those who, for religious or ethical reasons, wished to enter into a life contract be permitted to do so; that those who wished to enter into a contract to terminate by joint consent or at the option of either party likewise be permitted to do so? An objection that this would be dangerous assumes that people choose the present form only because compelled to do so. Individuals are breaking from the old conventions, and the law, usually a laggard by a generation, is following them. In forty-three States desertion is a ground for divorce; in twenty of them,desertion for one year. In seven States, failure or neglect to provide is a ground; in four of them, the period is one year. In some States, if the parties live apart for a certain length of time—in three of them for five years—that is ground for divorce. Is not this divorce by agreement? And by implication, since living together requires the willingness of two parties, the result is a contract which may be ended by either of the parties at any time he or she sees fit—after an intervening cooling period. Thus does freedom creep in by the back door.
Does this work harm to society? There is little difference in the marital or social conditions or in the welfare of children in Norway and Sweden, where there are liberal laws, and in England, where divorce is a long, complicated, and expensive process. No one could discover that he had crossed the State line from New York to Pennsylvania by observation of the state of society, the happiness or apparent duration of marriage, the welfare of children, or the social conventions of the people. Yet in Pennsylvania there was one divorce for every 10.2 marriages in 1922 and only one for every 22.6 inNew York. In South Carolina there are no divorces; in Oregon, the number of marriages to one divorce was 2.6; in Wyoming, 3.9; in California, 5.1. In the District of Columbia, the banner section, there were 35.8 marriages to one divorce. There, as in New York, the only ground is adultery. Yet San Francisco society seems as stable as that of Washington. Of course, the figures do not mean that seven times as many Washington couples as California couples, and four times as many New York couples, make a success of marriage or live together when it has ceased to be a success; but rather, that New Yorkers and Washingtonians solve their marital troubles elsewhere than at home. Thus, in Nevada in 1922 there were more divorces than marriages, because people married in other States repented in Nevada.
Whatever effect it may have on society, the extension of grounds for divorce which has taken place in the last decade, and the modern improvement in communication and travel, which opens other States or foreign countries to an increasing number, brings about a situation by which people, though not free to contract, doavail themselves of means which have the same effect. Revolutionary changes occur unnoticed, while our delusions persist and our sense of conservatism is gratified.