The ultimate decision resulted from the application of the principle that if the parties to a deed are not actually husband and wife, their designation as such, even in the honest belief that they are married, establishes a tenancy in common and not a tenancy by the entirety. Where the marriage contracted in good faith was invalid because of an impediment, and the realty was deeded to the two individuals as husband and wife while the impediment persisted, a subsequent removal of the impediment did not transform the status of the grantees from that of a tenancy in common to one by the entirety.
Tatum v. Tatum, 9 Cir., 1957, 241 F.2d 401, 406, states that 'when a person has contracted two successive marriages, a presumption arises in favor of the validity of the second marriage, and the burden is upon the party attacking the validity of the second marriage to establish existence of the first marriage, and that such marriage has not been dissolved by death, divorce or annulment at the time of the second marriage.' Such a presumption, however, is overcome here by the evidence of the existence of the first marriage and the absence of dissolution thereof. The purported ceremonial marriage of insured and Rhoda in the District is not the beneficiary of the presumption of validity. In Tatum the insured was survived by children by a wife who had divorced him and by a woman with whom he had entered into a ceremonial marriage in Arizona prior to the divorce. The parties to the latter marriage cohabited, both before and after the divorce, in California, in which State both of them were domiciled, and, for a shorter period, in Texas. Common-law marriages were permitted in the latter jurisdiction, and California recognized common law marriages validly created in states which allowed them. The essential elements of a common law marriage in Texas included a mutual agreement to be husband and wife for life, cohabitation as such, and a holding out to the public as having such a status. However, the trial court found that the requisite 'agreement to be husband and wife' had not been made while the parties were in Texas. The Federal Court in California, applying Texas law, concluded that the lack of the requisite agreement precluded achievement of common law spousehood. The Court also rejected the contention that a putative marriage resulted from the Arizona ceremony, because the evidence failed to disclose that the parties entertained 'a good faith belief in the validity of the marriage at its inception * * * (and continuing) throughout the life of the marriage.' When she 'discovered the subsistence of the first marriage,' said the Court in Tatum, 'she ceased to occupy, if she ever had, the status of putative spouse.' The award of the Federal Employees' Group Life Insurance policy proceeds to the surviving children of insured's first wife was affirmed.
The District of Columbia ceremonial marriage in our case could not achieve validity as a common law marriage, even though such marriages are recognized as valid (under other circumstances) in that jurisdiction. Any cohabitation and holding out by the insured and Rhoda of themselves as husband and wife, in the District, or in New Jersey, would be bigamous and meretricious as long as his marriage to Georgia remained undissolved by divorce. Insured's divorce from Georgia in 1948 followed by his continued cohabitation with Rhoda and holding her out as his wife, did not transform his relationship to her into that of a legal marriage.
From the date of his divorce from Georgia in 1948, unitl his death, insured resided and cohabited with Rhoda in New Jersey, and held her out as his wife, both in that jurisdiction and upon occasions of their visits to the District of Columbia. The legality of their relationship must be determined by the law of their joint domicle. I find that domicile to be New Jersey. When the impediment of the prior marriage had been removed by the divorce decree, these persons could not have entered into a legal 'common law' marriage in New Jersey. Could they then, as continuing New Jersey domiciliaries, achieve, by occasional visits to the District of Columbia, a status as 'common law' spouses which they could bring back with them to New Jersey, and which could acquire legality in that jurisdiction? "The removal of an impediment while parties continue to live together as husband and wife gives rise to a common-law marriage." McVicker v. McVicker, supra (76 U.S.App.D.C. 208, 130 F.2d 837); Thomas v. Murphy, 1939, 71 App.D.C. 69, 107 F.2d 268. This was the law of the District of Columbia at the time Rhoda participated in the marriage ceremony there and at the time of the removal of the impediment by the entry of the New Jersey divorce decree in 1948. It is the rule in the District of Columbia that 'when a man and woman who are legally capable of entering into the marriage relation mutually agree, in words of the present tense, to be husband and wife, and consummate their agreement by cohabiting as husband and wife, a common-law marriage results.' United States F. & G. Co. v. Britton, D.C.Cir.1959, 269 F.2d 249, 251. While a marriage, if valid by the law of the State where entered into, will be recognized as valid in every other jurisdiction, Loughran v. Loughran, 1934, 292 U.S. 216, 54 S. Ct. 684, 78 L. Ed. 1219, that rule implies that the validity existed at the time of the entry into the relationship; in this case, October 29, 1941. No such chronological coincidence existed here. Comity between New Jersey and the District of Columbia would not require recognition by the former of a status which may have arisen in the latter if contrary to the policy of the former. See Wilkins v. Zelichowski, 1958, 26 N.J. 370, 373, 140 A.2d 65; Winn v. Wiggins, supra. I discern in N.J.S.A. 37:1-10 an expression of policy by the State of New Jersey to refuse to recognize as valid a common law marriage entered into by its domiciliaries after December 1, 1939. Therefore, as far as the New Jersey law is concerned, Rhoda did not become the lawful widow of the insured. He left no lawful widow, because his former marriage to Georgia had been dissolved. No beneficiary having been named by insured, who was not survived by a widow, his surviving children are entitled to share equally in the proceeds of the policy by the terms of its provisions, and of 5 U.S.C.A. § 2093. United States v. Snyder, 1949, 85 U.S.App.D.C. 198, 177 F.2d 44.
This opinion shall constitute my findings of fact and conclusions of law. Judgment may be entered in accordance with the views herein expressed.
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