Putnam's Handy Law Book for the Layman

Husband and Wife. - The law, while regarding marriage as a contract, adds something more, for it cannot be terminated by the will or consent of the parties; a contract on the other hand in most cases can be. To constitute a marriage there must be an agreement or mutual assent by the parties. This agreement must be made freely, seriously and not as a joke. False representations of health, wealth, etc., do not invalidate the agreement, yet [138]these may be grave enough to have that effect. Consent may be obtained by deceit or compulsion so gross as to justify a court in declaring that the parties were never legally married. A person may be too defective mentally to give an intelligent assent. A subsequent mental weakening would be no ground for annulling a marriage. An Illinois court recently remarked, it is a harsh rule that would permit a married man whose wife later in life became insane to put her away on account of her misfortune. If one were so intoxicated that he did not act intelligently, he could avoid his marriage.

A male at common law can marry at fourteen, a female at twelve. By statute a later date, twenty-one for males and eighteen for females has been fixed in many states. The right to disaffirm a marriage on the ground of non-age, unlike the parties to a contract, applies to both parties.

In this country marriage is regulated largely by the states, though a movement has been started to make marriage and divorce a matter of national regulation.

As marriages are of higher character than other contracts relating to the ordinary dealings of men, even those that are prohibited by law are for reasons of public policy not always void. They are therefore not void, simply because the formalities prescribed by statute in obtaining the license and solemnizing the marriage have not been observed, when the parties afterward live together like other married people.

A marriage ceremony is not void though performed by one outside his jurisdiction, or not having a license obtained at the proper place. Persons who improperly grant licenses and solemnize marriages may themselves suffer legally, but their [139]wrongful action cannot be visited on others. The principle still prevails in most states that a marriage which is good by the common law, though contrary to statutory forms unless there is an express prohibition, is a valid marriage. In a few states a common law marriage is invalid.

A marriage that is valid by the law of the state where it was made, is valid everywhere. Nevertheless, the courts have great difficulty in applying the principle. Suppose that the resident of a state, for the purpose of evading its marriage laws, should go into another state and have the marriage solemnized, and then return, is the marriage valid in that state? No, but to lessen the rigor of the rule, the courts hold that both parties must have intended to evade the law, if, therefore, one of them was innocent the marriage was valid.

After marriage the husband's domicile becomes that of his wife, and her refusal to follow him without good cause, would be in law a desertion. It is said that a promise before marriage not to take her away from her mother and friends will not justify her in refusing to go with him. If, however, she had immediately after marriage, determined to separate from him and to take legal steps to that end, she could legally remain.

A married woman by the common law is answerable personally for her crimes as though she were unmarried, unless they were committed in her husband's presence. When together the law presumes she acted from his coercion, he therefore must be the sufferer, while she escapes. This rule though does not apply to the gravest crimes; for these both are liable. Like so many other legal rules the difficulty is in applying it. How near to the husband must she be when committing a wrong [140]to render him liable and escape herself. In one of the cases a married woman was properly indicted for unlawfully selling intoxicating liquors. At the time of selling them she was alone in the room, though she had sold them by her husband's order.

As the law regards husband and wife as one person, many peculiar things flow from this relation. Thus one cannot steal from the other; but either is criminally liable for an assault committed on the other. By statute in some states the right of either party to sue the other for wrongs has been greatly extended; nor is the husband liable for wrongs committed by his wife unless he participated in them. For example, in some states he is not liable for slanderous words spoken by her in his absence; in other states his liability continues. On the other hand, a wife who can manage and control her separate estate may in turn be liable for the wrongs of her husband while he is acting with authority as her agent.

A husband has a right of action for damages against any person who alienates his wife's affections. Nor can he be defeated by showing that he and his wife did not live happily together. Such facts though may be used to prove that her society was worth less than it would have been had they lived happily, in fact, by money valuation was not worth three cents. A husband forfeits his right to sue others for entertainment when his own misconduct justified and actually caused the separation, otherwise his remedy is complete against all persons whatsoever who have lent their countenance to any agreement for breaking up his household. On the other hand, this is a one-sided rule in some states; in others a wife has the same right to [141]sue for the alienation of her husband's affections as he has for the alienation of hers.

By statute great changes have been made in the way of permitting married women to retain their property and manage it, and to do business. Formerly, all the personal property of a married woman went immediately by law to her husband, and he became responsible for her debts. She still retained her real estate and the management of it. Now, very generally, she also retains her personal property, also the income, very much as if she were unmarried. She often appoints him as her agent to manage her property, and when thus acting he is responsible to others and to her like any other agent. He may contract for erecting any building or improvement on her land, but should he contract in his own name for such improvement she cannot be held therefor, nor can any one who has done work or furnished materials put a lien thereon for them. It may be added that his right to act as her agent is never implied solely from the marital relation.

A wife may act in a representative capacity as agent for her husband, or for other persons, and may execute a power conferred on her by deed or will. She may also be appointed to act as executor, administrator or guardian, though under the common law theory her husband's consent was needful to her acceptance of any of these undertakings.

The common law relations of husband and wife have been greatly changed by statute since about 1844. "It is now," says Peck, "the usual rule of law throughout the United States, established in each state by its own statutes that the wife retains title to the property owned by her before marriage or acquired by her during the marriage, and the right to manage, use or sell it, without the concurrence [142]of her husband. The right to contract, and to sue and be sued, naturally follows from her ownership and control of her property; in most of the states these rights are expressly conferred by statute; and in some they have been held to result by necessary implication."

The husband is generally relieved from liability for her debts or for her torts, except for such debts as are for her support or that of the family, or are within her express or implied agency to act for him. The common law estate of dower and curtesy are retained in some of the states, in the larger number they are materially modified by statute, or wholly abolished and replaced by a right of succession to each other's property as defined by statute.

The distinctive duties resting on a husband are to provide a home, to support his wife and children, to protect her and them from injury or insult. Thus a husband has the same right to protect his wife, to assert and maintain her rights, even to kill a person, if necessary in her defense, that he would have in his own behalf.

The duty of a husband to provide a home implies his right to select and fix the marital abode. The wife must live with him, and a refusal on her part to live in the home provided by him would constitute her a deserter. But he must select a home in good faith and in reasonable accordance with his means and their accustomed mode of life.

It is his duty to maintain order and law in his household. He is therefore liable to prosecution should his wife carry on the illegal sale of liquor, or in other ways defy the law.

A husband cannot chastise his wife, but he may use force to restrain her from committing a violent criminal wrong. Says a competent author: "That [143]depends rather on the right of every one to use reasonable efforts to prevent violence and crime than on any peculiar power of the husband over the wife, and it would also justify like restraint of the husband by the wife."

It is the duty of the wife to assist in the maintenance of the family by such reasonable labor as the necessities of the family and their circumstances in life and financial position require; while the husband has no right to require her to do more than to care for the house and the family in the customary and proper manner. He cannot compel her to engage in business, to work for wages, nor to work for him in his business. The services of any kind which either may render to the other, or for the family, are rendered in consideration of the marriage relation, and of the mutual benefit received therefrom and neither has any right of action against the other for them.

It should be noted that the legislative revolution for the benefit of married women has chiefly affected the property relations of husband and wife, while their personal rights remain quite as before. Probably no single rule of the common law was so bitterly resented and so difficult to defend, as the vesting in the husband of the sole guardianship of their children. By statute in many states both parents are made guardian of them, and if they separate, the welfare of the children is regarded as the decisive question in fixing their guardianship, rather than the superior right of either parent.

A husband and wife by the modern law may agree to live separately. The arrangement in some states is effected through a trustee, in others this may be done by the parties themselves. By this the parties may agree on the disposition and division of their [144]property when this can be done freely and intelligently. A separation agreement made through fear of her husband cannot be sustained.

A wife who voluntarily enters into an agreement of separation covering all property rights cannot, after her husband's death, have it set aside and then claim her rights in his estate, except in some states where community rights exist. On the other hand, her right to share in her husband's estate is not lost though she lives apart from him by agreement, unless this shows a clear intention to relinquish all claims to his estate.

The husband must support his wife. This is the law everywhere. While they live together the law presumes that he has given her authority to purchase necessaries on his credit, and therefore a tradesman can recover who shows that they were thus living and that the things furnished befitted their condition in life. When she is living apart from her husband the presumption is the other way, and a tradesman cannot recover without proof of the fact of her husband's authority to let her have the goods. But when she is living apart from him for good cause, and would starve if the things needful to sustain life did not come from some source, she has an absolute right to pledge her husband's credit for them.

What are the things for which she may pledge her husband's credit?

Those required to sustain life and preserve decency, besides other things to maintain her in her social condition. Wearing apparel, furniture, jewelry, even legal expenses incurred in regaining her conjugal rights have been included.

Besides agreements to live separately, the law for several causes permits absolute separation. These [145]are prescribed by statute, and vary greatly in the different states. Adultery is a cause recognized in all of them, for which an absolute divorce can be granted. Cruelty is another cause, almost as general, though more difficult to define. Actual violence is not necessary to constitute cruelty, threats of violence with an intention to do bodily harm will suffice. Again, the cruelty must be unmerited. If she has justly provoked the indignation of her husband, then his cruelty presents a different aspect. Nevertheless, if his cruelty bears no relation to her wrongful beginnings, she still has good ground for separation.

Desertion is a general ground of divorce, the law in every state prescribing a period of time, quite often three years. The period must be continuous. An offer to return made by the deserted spouse in good faith at any time before the separation has run for the statutory period will bar a divorce, but not if the offer is made afterward. Again, a husband who drives his wife away from him by his misconduct deserts her as clearly as if he had left her. To cease living together for the time fixed by statute is not desertion unless this was done intentionally. For example, separation on account of business, sickness, etc., is not desertion. Not only must there be an intention to leave the other party, this must be without consent.

Another cause for divorce, quite generally recognized, is habitual drunkenness. This must be of a gross and confirmed nature. While other causes exist the most general have now been mentioned. In some states there is a more general ground, any reason rendering married life a failure. Of course, much depends on the discretion, mental and moral make-up of a judge in applying the facts to a cause [146]for separation that is so general. An agreement in advance to make a cause of divorce is everywhere condemned by the law.

Divorces are of two kinds: from the bond of marriage, often called absolute divorces, which put an end to the marriage relation and render the parties single; and divorces from bed and board, limited divorces, more accurately called judicial separations, in which the marriage relation is not dissolved, but the injured party is given the right to live separate from the other. In more than half of the American states no distinction is made between kind of divorce, all divorces are absolute, from the bond of marriage.

The legal effect of divorces is still a grave matter. When a divorce has been legally granted by a state, the courts of every other state for obvious reasons recognize and try to uphold the decree or judgment, though not all of them, and consequently strange results follow. Thus a person who was married and living in New York leaves his wife for good reason and goes to Connecticut. After acquiring a legal residence there and proper standing in a court, he applies for a divorce, the proceedings are regular in every respect and a divorce is granted. He marries again and takes his wife to New York for a visit. There he is sued by the first wife for support, moreover, by the laws of New York he is an adulterer. In New York he is still married to the first wife, in Connecticut to the second. If children are born of the second marriage they are legitimate as long as they live in Connecticut, illegitimate should they go to New York. One of the latest legal writers on this difficult subject says: "Foreign divorce judgments granted in states where the plaintiff had obtained an actual, bona fide residence, will [147]doubtless continue to be recognized by the great majority of our states, but the states of New York, California, Maryland, Massachusetts, Vermont, South Carolina, Pennsylvania, and possibly some other states, which have adopted the extreme New York doctrine, are permitted by the rule established in the Haddock case - a decision by the Supreme Court of the United States - to continue to refuse recognition of divorce judgments in other states."

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