Our Changing Morality: A Symposium

by Unknown

“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 which would 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 the rest 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 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.

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 the bona fides of 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. We are 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 of residence, 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.