CHAPTER XXXIV.

MARRIAGE AND DIVORCE.

SECTION I.

MARRIAGE.

The relation.-Marriage, so far as its validity in law is concerned, is a civil contract. It differs from an ordinary contract in that the rights and obligations of the parties are fixed by law. Consent brings the parties together, but mutual consent is not sufficient to dissolve the tie existing between them. There is no statute which points out in what manner the contract must be entered into to render it valid. It need not be in writing or in the presence of witnesses, but there must be an agreement between the parties that they will hold towards each other the relation of husband and wife, with all the responsibilities and duties which the law attaches to such relation. There need not be any solemnization, although such is generally performed and provided for by law. There may be a "common law marriage", i. e., when the parties live and cohabit together as husband and wife and are commonly accepted as such by their neighbors and declare that they are husband and wife, this cohabitation, repute and conduct is sufficient evidence to prove a lawful marriage in fact. But when the cohabitation was illicit in its origin, it will be presumed to continue so until the contrary is shown. In the United States, a marriage valid where contracted, is valid everywhere, unless such marriage is contrary to the laws of nature as usually recognized by Christian countries, (incestuous or polygamous), or unless against the laws or public policy of the place where their validity is questioned. When a foreign marriage is solemnized in a church by a person assuming the office of a priest or minister, the presumption is that the marriage was in accordance with the laws of the foreign country and is valid.

Who may solemnize marriage.--"Marriage may be solemnized by any justice of the peace, municipal judge, police justice or court commissioner in the county in which he is elected or appointed and throughout the state by any judge of a court of record, and by any ordained minister or priest in regular communion with any religious society and who continues to be such minister or priest." Any licentiate of a denominational body or an appointee of any bishop, while serving as the regular minister or priest of any church of the denomination to which he belongs, provided he is not restrained from so doing by the discipline of his denomination may also solemnize a marriage. Want of authority to solemnize a marriage on the part of the person performing the ceremony does not affect the validity of the marriage.

Marriage license.-A license is now required before a contract of marriage may be regularly entered into. Such license may be obtained from the county clerk of the county where the female resides, or where the marriage is to take place, if she is not a resident of the state. The application for the license must be made at least five days previous to the marriage, must be signed and verified by the applicant before such clerk, stating that the parties applying are of legal age and that no impediment to marriage exists. If the parties are below the age of consent, the personal or written consent of the parent or guardian is necessary. When the consent is in writing, it must be signed by the parent or guardian in the presence of two subscribing witnesses. The license fee is fifty cents and the license is good for one month. Any county judge or judge of a court of record, in his discretion, may authorize a marriage to be performed without first obtaining a license. Failure to obtain a license under such a law has been elsewhere uniformly held not to affect the validity of the marriage, although the person solemnizing a marriage without such license is subject to a fine.

When parent's consent required.-"If any person intending to marry shall be under the age of twenty-one years if a male, or under the age of eighteen years, if a female, and shall not have had a former wife or husband, the consent in person or in writing of the parent or guardian having the custody of such minor, if he or she have either a parent or guardian living in this state, shall first be given to the person

solemnizing the marriage before such marriage shall take place; and if such consent is in writing, it shall be signed by the parent or guardian and attested by two witnesses, one of whom shall appear and make oath before the person who shall solemnize the marriage that he saw such parent or guardian execute the same.

Who may marry.-"Every male person who shall have attained the full age of eighteen years and every female who shall have attained the full age of fifteen years shall be capable in law of contracting marriage, if otherwise competent."

Under this section, marriage by a person below the age limit does not make such marriage void. Such marriage is valid until disaffirmed by either party thereto and annullment thereof by the court. An action to annul a marriage because either party was below the age of legal consent, may be brought before the party reaches the age of consent.

Who shall not marry.-"No marriage shall be contracted while either of the parties has a husband or wife living, nor between parties who are nearer of kin than first cousins, computing by the rule of the civil law, whether of the half or of the whole blood; and no insane person or idiot shall be capable of contracting marriage. And it shall not be lawful for any person divorced from the bonds of matrimony by any court of this state, to marry again within one year from the date of the entry of such judgment or decree and the marriage of any divorced person solemnized within one year from the date of the entry of any such judgment or decree of divorce shall be null and void; but upon application of such divorced person, any court of record or presiding judge thereof, who granted the divorce, in his discretion by order, may authorize the marriage of such divorced person within the year.'

A marriage contracted while either party has a husband or wife living is void ab initio and needs no decree of dissolution. Marriage between first cousins is legal but marriages within a nearer degree of consanguinity are absolutely void and illegal. Marriage to one related by affinity is not prohibited in this state. Thus, a person may marry his deceased wife's sister. It is probable that the clause prohibiting remarriage within one year has no extraterritorial effect, for our supreme court has decided that a statute of a state, prohibiting a married person who has committed adultery and has been divorced therefor from re-marrying, has no extra

territorial force and hence cannot prevent such person from lawfully remarrying in some other state, although it may subject him to punishment in the former state.

Rights, duties and liabilities arising out of the marital relation.--At common law, husband and wife were looked upon as one, "and the husband was that one." The personal property of the wife became that of the husband after he had reduced same to possession. The dominion of the husband over the wife was fully recognized. This inequality has now disappeared and under modern law the rights of married women have been so increased that they may be said to be practically equal to those possessed by men. Upon her marriage a woman becomes entitled to dower in her husband's real estate. In this connection see the chapter on "Contracts and Property Rights of Married Women," and "Dower" in the chapter on "Homestead and Exemption Rights."

Marriage implies a living together of the parties, and the husband may determine where the domicile shall be, and if he acts in good faith, the wife must follow him. By marriage, the woman changes her name to the surname of the husband, and this remains so even after separation, until changed by decree of court or reputation. It is the husband's duty to support his wife and family according to their station in life. If the parties live together, the wife may buy the necessaries of life, if the husband fails to provide them, on the latter's credit, and he is liable therefor even though he has given express notice that he will not be. But in such cases a husband is only liable for necessaries, and what are necessaries depends largely on their station in life. What may be a necessary for a rich man, may not be for a poor man. It usually embraces whatever is necessary for the life, health and comfort of the wife, such as food, drink, clothing, lodging, medical attendance, etc. A husband may direct where his wife shall trade, and in no case will he be liable for goods bought by his wife if he has fittingly provided for her, unless the debt was contracted by his authority or he has subsequently ratified the act of his wife in contracting the same. Where husband and wife live voluntarily apart, the presumption is that the husband is not liable for the wife's necessaries, and where the wife has deserted the husband without cause, the husband is not liable for necessaries, although the tradesman furnishing the goods had no

knowledge of such desertion.

Where a husband caused the arrest of his wife on a groundless charge, he was held liable for a reasonable fee to an attorney called in to defend the wife, this being a necessary, but where the wife brought an action for a divorce, services rendered the wife by an attorney in such action were not necessaries. "Necessaries are to be provided by the husband for his wife to sustain her as his wife and not to provide for her future condition as a single woman, or perhaps as the wife of another man. It is the duty of the wife to perform services about the household, which may be considered to be a recompense for the husband's duty to furnish her support. The wife is entitled to no compensation for such services. Formerly, the husband could inflict corporal punishment on the wife, but such is no longer allowed. The husband is the head of the family and may to a greater or less extent regulate the affairs of the household. A husband cannot testify for or against his wife, and vice versa, except in actions between themselves and in cases when either acts as agent for the other. By statute, a husband is not liable for the wife's antenuptial debts, but the wife's separate property is liable therefor the same as though she were single. A husband may maintain an action against a person enticing away his wife for the loss of her services and companionship, but a wife cannot, in this state, maintain an action against another person for enticing away her husband. See Seduction.

Parent and child.-There are three leading duties which parents owe to their children: 1) to protect; 2) to educate and 3) to maintain them.

The parent may protect the child from external violence. This is a natural duty and the parent owes it especially while his children are young and comparatively helpless. It is permitted rather than enjoined by law and is seldom the subject of legal controversy.

The duty to educate the child Blackstone pronounces to to be by far the greatest duty which the parent owes the child. Compulsory education laws exist in Wisconsin and all children between seven and fourteen years of age must attend some school, either public, parochial or private at least eight months each school year. All children between the ages of fourteen and sixteen, not regularly and lawfully employed in any useful employment or service at home or elsewhere,