Arado v. Arado

Mr. Justice McDonald delivered the opinion of the court. This writ of error brings up for review a proceeding wherein plaintiff in error’s bill for divorce was dismissed for want of equity and a decree annulling the marriage between the parties was entered on defendant’s cross-bill. The pleadings admitted that the complainant, Elizabeth Arado, and the defendant, David Arado, entered into a ceremonial marriage on October 4, 1894, and for many years thereafter lived together and cohabited as' man and wife; that, as the fruits of the said marriage, two children were born to them, both of whom are still living; that complainant and defendant were cousins of the first degree. Section 1 of our Marriage Act, ch. 89, Hurd’s Bev. St. of Hlinois (J. & A. ft 7345), is as follows; “ That hereafter marriages between * * * cousins of the first degree, are declared to be incestuous and void.” It is insisted by complainant that notwithstanding the aforesaid provision of the statute declaring marriages between cousins of the first degree to be incestuous and void, such marriages are in fact only voidable. • The Legislature, in the interest of morality and for the protection of society, has declared such marriages to be incestuous and - void, and in so doing has by statute clearly expressed the public policy of this State with respect thereto. By section 157 of our Criminal Code, ch. 38, Hurd’s Bev. St. of Illinois (J. & A. 3775), the crime of incest is made a felony, punishable by imprisonment in the penitentiary. It is difficult to conceive of a marriage having any validity, the consummation of which is made a felony. And to so hold would be to do violence to reason and to utterly disregard the express public policy of the State. Williams v. McKeene, 193 Ill. App. 615; In re Wittick’s Estate, 164 Iowa 485, 145 N. W. 913; Wilson v. Cook, 256 Ill. 463. Complainant also invokes the doctrine of estoppel to preclude defendant from assailing the validity of the marriage. Such doctrine cannot be invoked to uphold a relationship which the statute expressly condemns and declares void. Furthermore, where both parties are particeps criminis, as in the case at bar, the doctrine can have no application. It is also contended that marriages between cousins of the first degree are • sanctioned by the church of which the parties hereto were members, and that inasmuch as the marriage ceremony was performed by a minister of that church, it should be upheld under section 5 of our Marriage Act (J. & A. 7347), which provides that “All persons belonging to any religious society, church or denomination, may celebrate their marriage according to the rules and principles of such religious society, church or denomination.” It is a sufficient answer thereto to state that this section refers only to the celebration of marriages, and presupposes that the parties thereto do not come within the inhibitions of section 1, supra. It is finally urged that the court erred in refusing to allow complainant alimony and solicitor’s fees. The allowance of alimony and solicitor’s fees contemplates, as a basis therefor, a valid or at least a voidable marriage contract; and it appearing from the pleadings that the alleged marriage contract in question was void in its inception, the relation of husband and wife never existed between the parties hereto, and hence the court properly refused to make such allowance to the complainant. McKenna v. McKenna, 70 Ill. App. 340. Finding no reversible error, the decree will be affirmed. Affirmed.