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 second
marriage. 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
in the 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.
Public-domain text, read in full here on John Shaqi.
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