DePotty v. DePotty

J. SeaborN Holt, Associate Justice. This is an action by appellant seeking to annul his marriage to ap-pellee. Prom a decree denying and dismissing his prayer for annulment comes this appeal. There appears to be little if any dispute as to essential facts. The parties were united in marriage in the border city of Texarkana on the Arkansas side by a duly ordained minister, whose credentials are not questioned, and the marriage was solemnized in the presence of witnesses according to the forms and customs of the church to which the minister belonged. The parties were fully competent to marry. Prior to the marriage requisite blood tests were had. They lived together for some 16 months prior to the present suit, holding themselves out as husband and wife. Prior to the marriage it appears undisputed that appellant borrowed. from his wife approximately $3,000, which he had not repaid at the time of the marriage. It appears that all requirements for a valid marriage under our marriage statutes',; § 55-201 —55-236, Ark. Stats. 1947, were fully complied with, except the marriage license used was obtained on the Texas side of Texarkana in Bowie County, Texas. The parties at all times, until discord arose shortly before divorce proceedings were filed, lived together in good faith, cohabited as husband and wife, and believed that their marriage was legal. The question presented for our determination, says appellant, is “whether residents of this state may legally contract marriage in this state with a license issued by a foreign state.” Arkansas Statutes § 55-201 provides for the procurement of an Arkansas, license by those contracting marriage. But we have n.o statute providing that a marriage is void where no license is obtained. Here, a marriage license was issued by tbe State of Texas, but no Arkansas license was acquired. If § 55-201 is mandatory, tbe marriage is void. On tbe other band, if tbe statute is merely directory, tbe marriage is valid. Tbe appellant, in bis contention that tbe statute is mandatory relied largely on Furth v. Furth, 97 Ark. 272, 133 S. W. 1037. Tbe issue in that case was whether a common law marriage is valid in this State. In dealing specifically with that issue, tbe court said: “. . . we bold our statutes regulating and prescribing tbe manner and form in which marriages may be solemnized are mandatory and not directory merely. In short, we bold that tbe doctrine of so-called common law marriages has never obtained or become a part of tbe laws of this State.” In tbe Furth case, there was no marriage ceremony of any kind, whereas, in tbe case at bar, there was a ceremonial marriage performed by a duly qualified minister. Although there are some cases to tbe contrary, tbe great weight of authority bolds that marriage license statutes are merely directory. In Feehley v. Feehley, 129 Md. 565, 99 Atl. 663, tbe court said: “There are differences of judicial opinion in various jurisdictions as to what are tbe essential features of a marriage under tbe rules of the common law, but tbe courts are generally in accord upon tbe proposition that a statutory provision for a license to marry shall not be regarded as mandatory, and vital to tbe validity of a marriage, in tbe absence of a clear indication of a legislative purpose that it should be so construed.” Tbe Supreme Court of Nebraska said in Melcher v. Melcher, 102 Neb. 790, 169 N. W. 720: “A marriage may be annulled when one of tbe parties is under tbe age of legal consent at tbe suit of tbe parent entitled to tbe custody of such minor . . . But that no license was obtained or that tbe license was obtained fraudulently is no ground for tbe annulment of a marriage.” “Compliance with license statutes is not generally essential to tbe validity of a marriage, at least in tbe absence of statutory provision expressly making it so essential,” 35 Am. Jur. 195. ‘£ Statutes in tbe various jurisdictions usually require a license to be obtained. While, according to some authorities, such a statute is mandatory and a marriage performed without the required license is void, the general rule with regard to the construction of such statutes is that they are directory merely, and do not destroy the validity of a marriage contracted contrary to their provisions, unless it is provided, expressly or by necessary implication, that the marriage shall be invalid.” 55 C. J. S. 857. A long list of cases from many different states are cited in support of the text. We believe the better view is that of the majority. Affirmed. Justices MoPaddxN and Millwee dissent. Justice Ward concurs.