Whippen v. Whippen

W. Allen, J. We understand the finding in the report of the libellant’s marriage to include the fact of cohabitation. The argument for the libellant is, that, as the libellee had at that time deserted him and been absent from him for seven years, he not actually knowing her to be living within that time, he was not guilty of polygamy, and that cohabitation under such a marriage would not be adultery. Assuming, without deciding, that the words “ not knowing ” in the statute defining polygamy, 295 Pub, Sts. c. 207, §§ 4, 5, have the same meaning as the words “ not actually knowing ” in the report, and that, upon the facts stated in the report, the libellant could not be convicted of polygamy, it does not follow that the cohabitation was not adulterous. Even if the libellant could not be punished under the statute for the marriage, it was void, and did not affect his former marriage. He had a wife from whom he had not been divorced, and, unless there was a presumption of her death, cohabitation with another woman was adultery. Commonwealth v. Mash, 7 Met. 472. Commonwealth v. Thompson, 6 Allen, 591, and 11 Allen, 23. The report expressly finds that there was no presumption of the death of the wife. If there had been such a presumption during cohabitation, there would be much reason for granting a divorce to the libellant, not only because he would not have been guilty of adultery under the criminal law, but because, by reason of her presumed death, he could not have obtained a divorce from his wife. Bodwell v. Bodwell, 113 Mass. 314. The St. of 1884, c. 219, was enacted subsequently. But where there is no presumption of her death, and it does not appear that he did not have reason to believe, and that he did not believe, that she was alive, or that he did not have information of her which would have led to actual knowledge had he made inquiry, the fact that he did not have actual knowledge that she was living is no excuse for cohabiting with another woman after a form of marriage with her. The fact that she had given him cause of divorce from her for desertion did not prevent his subsequent adultery from being such a violation of his marital duties as would preclude him from taking advantage of her wrong. Libel dismissed.