90 NY 602 (1882)
and
86 NY 18 (1881)
Throughout most of its history New York State made it difficult for a married couple to obtain a divorce. Adultery was the sole ground for divorce until 1967. In 2010, New York was the last state to adopt a no-fault divorce law. Divorce was uncommon during the Gilded Age, but changing social conditions and attitudes led to the growing willingness of couples to end their failing marriages, often creating financial complications and increased litigation in the state courts.
In the early 1880s, the Court of Appeals upheld the validity of out-of-state marriages that would have been invalid if consummated in New York even though the parties had gone out of state to evade the restrictive effects of New York’s divorce statute.
In Thorp v. Thorp, the plaintiff husband and defendant wife were residents of New York when they traveled to Pennsylvania to get married in that state. They promptly returned to New York and lived as husband and wife. Mr. Thorp had previously married Emma Reed, in 1855, and a judgment of divorce was entered against him in 1861 in Kings County Supreme Court on the ground of adultery. The 1861 divorce decree, pursuant to the statute then in place, forbade the plaintiff from marrying again during the life of Emma Reed, who was still living at the time of the Pennsylvania marriage.
Mr. Thorp eventually brought a divorce action against his second wife on the ground of adultery. Her sole defense in that action was to assert the invalidity of the Pennsylvania marriage under New York’s divorce statute, which stated: “Whenever a marriage shall be dissolved pursuant to the provisions of this article, the complainant may marry again during the lifetime of the defendant; but no defendant convicted of adultery shall marry again until the death of the complainant.”
The referee appointed by the Special Term of the Superior Court of New York County found for Mr. Thorp, but the Special Term denied the motion to confirm the referee’s report and dismissed Mr. Thorp’s complaint. The General Term of the Superior Court affirmed, holding that Mr. Thorp was not entitled to sue for divorce in New York.
The plaintiff here . . . being forbidden to enter into the contract of marriage during the life of the partner he was bound to cherish and protect, goes into a foreign jurisdiction, sets at defiance the mandate of the court of his domicile by a second marriage, and now appeals to be relieved from the consequences of a contract illegal and void by the laws of his own state.
When the General Term issued its decision in January 1881, the validity of the Pennsylvania marriage appeared to be an open question since the Court of Appeals had never addressed the issue presented in the Thorp case. Later that year, while Thorp’s appeal was pending, the Court of Appeals decided Van Voorhis v. Brintnall.
The marriage of Barker and Elizabeth Van Voorhis ended in divorce based on Barker’s adultery, with the divorce decree declaring it unlawful for Barker to remarry during the life of Elizabeth. While Elizabeth was still alive Barker remarried another woman in Connecticut, returning on the day of the marriage to live in New York. The validity of the remarriage came before the Court of Appeals in the context of a will dispute where the court held that the second marriage, valid under Connecticut law, was also valid under New York law, and that the child of the second marriage was therefore a legitimate heir entitled to share in her grandfather’s will along with the children of Barker’s first marriage with Elizabeth.
Judge George Danforth, writing for a unanimous court, acknowledged that lower courts were divided on the question before the Court of Appeals, and he specifically referenced the recently decided case of Thorp v. Thorp where “a marriage under similar circumstances was held void.” Judge Danforth conducted an extensive review of English and American case law and legal commentaries dating back to the early 19th century, which left no doubt in his mind as to the “general rule of law that a contract entered into in another State or country, if valid according to the law of that place, is valid everywhere.” This longstanding principle also applied to marriage contracts, and the rights of the parties to the marriage contract “must be tried by reference to the law of the country where they originated.”
In the court’s view, the rule that a marriage made according to the laws of one country is valid in all other countries was so universally accepted that even where it appears that the parties went into another state to evade the law of their own country, the foreign marriage will still be recognized in the country where the parties live. As to New York’s statutory prohibition on remarriage in cases of adultery, the court declined to give it extraterritorial application in the absence of express words in the statute to that effect.
Nor are we, in the absence of express words to that effect, to infer that the legislature of this State intended its laws to contravene the jus gentium [law of nations] under which the question of the validity of a marriage contract is referred to the lex loci contractus [law of the place of the contract], and which is made binding by consent of all nations. It professedly and directly operates on all. To impugn it, is to impugn public policy.
When Thorp reached the Court of Appeals a short time later, Judge Benjamin Tracy, writing for a unanimous court, concluded that Van Voorhis “decides all the questions involved in this case, and makes necessary the reversal of the judgment in the court below.” He reiterated that “the validity of a marriage contract is to be determined by the law of the State where it is entered into. If valid there, it is to be recognized as such in the courts of this State, unless contrary to the prohibitions of natural law or the express prohibitions of a statute.” (Such prohibitions of natural law included polygamy and incest).
The court reversed the judgment of the General Term and remitted the case to the Special Term for confirmation of the referee’s report dissolving the marriage in the plaintiff’s favor.
Between 1787 and 1967, adultery was the sole statutory ground for divorce in New York. The prohibition on the remarriage of a spouse guilty of adultery was not eliminated until the Divorce Reform Law of 1966, when five additional statutory grounds for divorce were adopted. In 1879, the Legislature amended the “guilty spouse” statute by permitting remarriage, with court permission, after five years of “good behavior.”
Sources
Susan S. Dautel, “Benjamin Franklin Tracy,” The Judges of the New York Court of Appeals, Rosenblatt ed., at 221.
Comment, “From the Legislature to the Court of Appeals: New York’s Conversion Divorce Under Domestic Relations Law Section 170,” 38 Fordham Law Review 767 (1970).