Ports, Horace G.

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Penn State Dickinson Law: IDEAS

Volume 33 Issue 4 Dickinson Law Review - Volume 33, Issue 4 3-1-1929 Annulment of Marriage Under Declaratory Judgments Act Horace G. Ports Follow this and additional works at: https://ideas.dickinsonlaw.psu.edu/dlra Recommended Citation Horace G. Ports, Annulment of Marriage Under Declaratory Judgments Act, 33 DICK. L. REV. 239 (1929). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol33/iss4/4 This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact lja10@psu.edu. DICKINSON LAW REVIEWNotesANNULMENT OF MARRIAGE UNDER DECLARA-TORY JUDGMENTS ACT-Two recent decisions, Duchi v.Duchi,1 and McCalmont v. McCalmont,2 the former grant-ing a decree of nullity of a purporting marriage under therecent Declaratory Judgments Acts and the latter refusingto grant a decree under the same act, present an interest-ing question on the subject of the annulment of marriagesin this commonwealth.By common law principles and by statutory provisionsmany purporting marriages in this commonwealth are voidor voidable. Thus, since the essentials to all contracts,capacity and consent, must be present to constitute a validmarriage,4 a marriage entered into by a person when in-sane is absolutely void, 5 and if the appearance of consentwas based on mistake as to the legal effect of the cere-mony, as where one party acts in jest," or on a mistake asto the identity of the person,7 the purporting marriage islikewise void. Bigamous marriages,8 marriage of divorcedperson with paramour,9 and incestuous marriages in casesof persons related in a direct lineal line, or of brotherand sister1 ° are likewise absolutely void.Other marriages forbidden by reason of consanguinity n1111 Pa. D. & C. 610 (1928).293 Pa. Super. 203 (1928).3June 18, 1923, P. L. 840.41n re Stevenson, 272 Pa. 291; Torrence's Est., 47 Pa. Super. 509;Wandall's Est., 29 Pa. Dist: 1132.5In re Newlin, 231 Pa. 312; may be declared so even after deathof either or both parties, Bell v. Bennett, 73 Ga. 784; Hagenson v.Hagenson, 258 Ill. 197, 101 N. E. 606.OBarclay v. Com., 116 Ky. 275, 76 SW 4; Blumenthal v. Blumen-thal, 31 N. J. Eq. 194; McClurg v. Terry, 21 N. J. Eq. 225; Barnes v.Wyethe, 28 Vt. 41.7Delpit v. Young, 51 La. Ann. 923, 25 S. 547; Meyer v. Meyer,7 Oh. Dec. (Reprint) 627; 2 Kent Comm. p. 77."Klass v. Klass, 14 Pa. Super. 550.9Adams v. Adams, 2 Chest. Co. 560; Stull's Est. 183 Pa. 625.'0 Sutton v. Warren, 10 Metc. (Mass.) 451, 452; Wightman v.Wightman, 4 Johns Ch. (NY.) 343."Act of Mar, 13, 1815, sec, 5, P. L. 150; Act of June 24, 1901,P. L. 597,DICKINSON LAW REVIEWor affinity 12 are merely voidable. 18 Likewise impotency, 1fraud or duress, 15 intoxication 0 and non-age' existing atthe time of the marriage, make the purporting marriagevoidable.But only in the case of a bigamous marriage haveour statutes provided for an annulment 18 and even in thatcase it is provided that the procedure shall be the same asin cases of divorce. The Act of 1815 declares marriageswithin certain degrees of consanguinity and affinity "voidto all intents and purposes."' 19 They are in fact only void-able 20 and the said act makes no reference to the annul-ment of such void (voidable) incestuous marriages, butprovides that "It shall and may be lawful for the courtsof common pleas to grant divorces from the bonds of mat-rimony in such cases." However such a divorce has theeffect of an annulment1.2  Our statutes also provide for thegranting of divorce for impotency 22 existing, or for fraudor duress 2 practiced, at the time of the marriage. Suchdivorces also have the effect of annulments.In summary we note, that Pennsylvania has a divorceprocedure, with the effect of an annulment, for bigamousand incestuous marriages, and for marriages voidable forimpotency existing at, and for fraud or duress practicedat, the inception of the marriage. But there is no proce-dure whatsoever to annul purporting marriages on the12See acts in preceding note.'sWalter's App., 70 Pa. 392; Parker's App., 44 Pa. 309; Schofieldv. Schofield, 51 Pa. Super. 564."4A. C. v. B. C., 11 Wkly. N. C. (Pa.) 479; A. C. v. B. C., 10 Wkly.N. C. 569; and cases cited 38 C. J. p. 1288, sec. 18.'8 Barnett v. Kimmell, 35 Pa. 13, (fraud); Richards v. Richards,19 Pa. Co. 322, (duress).IOPrine v. Prine, 36 Fla. 676, 18 S 781, 34 LRA 87.'7See generally Tiffany, Dom. Rel. p. 21 and 22 LRA. NS. 1202;Marriage within the age of consent seems to be neither strictly ,voidnor strictly voidable, but rather inchoate and imperfect. 2 Kent.Com. 78, 79; 1 Bishop, secs. 143-153; 1 BI. Com. 436.'8Act of Apr. 14, 1859, P. L. 647, amend. Mar. 29, 1927, P. L. 71.'9Act of Mar. 13, 1815, P. L. 150, sec. 5.soParker's App., 44 Pa. 309; Walter's App., 70 Pa. 392.2 tFaust v. Faust, 25 Pa. Dist. 952; McClain v. McClain, 40 Pa.Super. 248.22Act of Mar. 13, 1815, P. L. 150, see. 1., reenacted and amended,June 28, 1923, P. L. 886.28Act of May 8, 1854, P. L. 644.DICKINSON LAW REVIEWground of insanity,24 intoxication, mistake, jest, non-age,2 5or other legal incapacity.26 However, the nullity of a voidmarriage may be shown in any legal proceeding where itis a pertinent matter.2 7Thus if a marriage is absolutely void or voidable, nosentence of avoidance is absolutely necessary'B - "yet, aswell for the sake of good order of society as for the peaceof mind of all persons concerned, it is expedient that thenullity of the marriage should be ascertained and declaredby the decree of a court of competent jurisdiction. '29Many states have statutes giving jurisdiction in suitsfor nullity of marriage, and it is held almost universally inthis country that a suit to annul an invalid marriage willlie, independently of any statutory authority therefor. Suchsuits are held to be within the ordinary jurisdiction of thecourts of equity.30  But in this Commonwealth it has beenheld that the courts do not have such jurisdiction independ-ent of statute.3 1 Thus many invalid or voidable marriagescan only be attacked collaterally, and at a time when soquestioned, witnesses and parties may be dead or unavail-24The Act of Apr. 13, 1843, P. L. 233, sec. 8, amend. Apr. 18, 1905,P. L. 211, does not make insanity a ground for divorce. Baughman v.Baughman, 34 Pa. Super. 271. The act with its amendment relates toprocedure only, and does not declare a new cause of action. Divorceserroneously entered under this act were validated by the Acts ofMay 3, 1909, P. L. 390, sec. 1, and May 13, 1927, P. L. 991, sec. 1.2 5Seibert v. Seibert, 3 Pa. D. & C. 142.26As spouse divorced for adultery is forbidden to marry the para-mour during life time of spouse by first marriage. Act of Mar. 13,1815, 6 Sm. L. 286, 289, sec. 9.; and cases cited in note 9, supra.27Heffner v. Heffner, 23 Pa. 104; Thomas v. Thomas, 124 Pa.646; Wayne Twp. v. Porter Twp., 138 Pa. 181; Clark's Fst., 173 Pa.451; Divver's Est., 22 Pa. Super. 436.28But the act of Mar. 27, 1903, P. L. 102, makes it a misdemeanor-"if any person who has entered into a contract of marriage with an-other person, whether the marriage be valid in law or not, shall,while the other contracting party be alive, and before said marriagehas been declared void or annulled by the decree of a proper courtof record, go through any form of marriage recognized as bindingunder the laws of this commonwealth with any other person,-and-where the first marriage shall be valid in law, the second and allsubsequent marriages shall be bigamous and void".292 Kent. Com. 76.8°See Tiffany, Dom. Rel., p. 60, and cases there cited.8BPitcairn v. Pitcairn, 201 Pa, 368.DICKINSON LAW REVIEWable, and during the interim property and civil rights ofthe parties remain uncertain and unfixed. The merits ofhaving the status of the parties determined judicially in adirect proceeding cannot be questioned, but prior to 1923,no such procedure was available in this Commonwealth.Does the Declaratory Judgements Act give the needed re-medy?The reason for the general acceptance and widespreadadoption"2 of this procedural reform is largely attributedto its intrinsic merits in effecting the removal of cloudsfrom legal relations and in simplifying the adjudication ofcontested issues, and in preventing, rather than merely cur-ing, legal injury."3"The purpose" of the act "is to settle and to affordfrom uncertainty and insecurity with respect to rights,status and other legal relations, and is to be liberally con-strued and administered. 3 4 Certainly its purpose wouldjustify its use in declaring invalid marriages, void.It confers jurisdiction to determine and declare "rights,status and other legal relations" which are affected by, oras to which a question arises under a statute, contract,etc. 3 5  A question as to the validity of a marriage is onewhich concerns the "status" of the man and woman underthe marriage "contract," and in most instances is also aquestion "arising under a statute." Therefore a declara-tion of annulment of a marriage would appear to comedirectly within the enumerated powers of Section 2. Morethan that, Section 5, specifically provides that the enumer-ated powers do not limit and restrict the general powers inany proceeding where declaratory relief is sought, in whicha judgment or decree will terminate the controversy orremove an uncertainty. Who would deny that such a de-cree would not remove much uncertainty in all cases of in-valid or voidable marriages?In the case of Duchi v. Duchi, supra, a decree wasgranted under the Declaratory Judgments Act, annuling amarriage between first cousins.32For comment on Declaratory Judgments consult list of articlescited in 34 Har. L. R. 697; for list of states passing the UniformDeclaratory Judgments Act see footnote p. 466 of Kariher's Petition,284 Pa. 455, where cases upholding its constitutionality are also cited.33Borchard in 34 Har. L. R. 697.84Sec. 12, "Construction", Declaratory Judgments Act, supra."5Sections 1 and 2, Declaratory Judgments Act, supra.DICKINSON LAW REVIEWIn the case of McCalviont v. McCalnont, supra, thepetitioner was the paramour of a woman divorced for adul-tery in Pennsylvania. He married the said woman inMaryland during the life time of her former husband.Both were residents of Pennsylvania and the Act of Mar.13, 1815, 6 Sm. L. 286, sec. 9, forbade such marriage. Thecourt refused the petition for a declaratory judgment ontwo grounds: First, that the act should not be resortedto where, as here, a method has already been establishedfor the speedy determination of the issues involved, citingList's Est., 284 Pa. 255; Second, that it is a matter of judi-cial discretion whether or not jurisdiction will be taken ofany particular case.Its second reason is sustainable, 36 but the first is notas no other remedy of any kind is available to annul amarriage on the facts of the instant case.37 In List's Est.,supra, a decree was asserted to be unwarranted by reasonthat an equally speedy determination of the question couldbe had under a proceeding already pending'8  The case'ofMcCalnmont v. McCalmont, supra, being sustainable on theground that the court could by the exercise of judicial dis-cretion refuse to render a declaratory judgment - cannotbe cited as an authority that a marriage will not be de-clared invalid under the act in a proper case.Since other jurisdictions provide adequate procedurefor annulment, cases of invalid marriages are not so likelyto arise in other jurisdictions under the Declaratory Judg-ments Act, and no cases have as yet been digested. Butseveral cases in England, where the act has been in exist-ence since 1852, have made declarations of the status ofparties under purporting marriages.8 9Our supreme court has said that the act can be made ofreal use 40 and if a case involving the annulment of a mar-riage is brought before it under the Declaratory JudgmentsAct, may it act accordingly.HORACE G. PORTS."6Kariher's Petition, supra.; Sec. 6. of the act, supra.37Note 25, supra.38 Accord, Dempsey's Est., 288 Pa. 459.39In re Phillips (1919), 1 Ch. 128, 88 L. J. Ch. N. S. 27, 120 L. T.N. S. 213, 35 Times L. R. 98, 63 Sol. Jo. 116; Despatie v. Tremblay(1921), 1 A. C. (Eng.) 702, 124 L. T. N. S. 674 (1921) W. N. 67, 27Times L. R. 395, 90 L. J. P. C. N. S, 121,'°Kariher's Petition, supra.

Annulment of Marriage Under Declaratory Judgments Act

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Annulment of Marriage Under Declaratory Judgments Act

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