mer husband or wife was then in force; 3. That either party was of unsound mind, unless such party after coming to reason freely cohabit with the other as husband or wife; 4. That the consent of either party was obtained by fraud, unless such party afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as husband or wife; 5. That the consent of either party was obtained by force, unless such party afterwards freely cohabited with the other as husband or wife; 6. That either party was, at the time of the marriage, physically incapable of entering into the married state, and such incapacity continued and appears to be incurable.155

§ 2708. Action, by whom brought, and when. 1. For causes mentioned in subdivision 1. By the party to the marriage, who was married under the age of legal consent, within four years after arriving at the age of consent; or by a parent, guardian, or other person having charge of such nonaged male or female, at any time before such married minor has arrived at the age of consent; 2. For causes mentioned in subdivision 2: By either party during the life of the other, or by such former husband or wife; 3. For causes mentioned in subdivision 3: By the party injured, or relative, or guardian of the party of unsound mind, at any time before the death of either party; 4. For causes mentioned in subdivision 4: By the party injured within four years after the discovery of the facts constituting the fraud; 5. For causes mentioned in subdivision 5: By the injured party within four years after the marriage; 6. For causes mentioned in subdivision 6: By the injured party within four years after the marriage.156

§ 2709. Children of annulled marriage. Where a marriage is annulled on the ground that a former husband or wife was living, or on the ground of insanity, children begotten before the judgment are legitimate, and succeed to the estate of both parents.157

§ 2710. Custody of chidren. The court must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent, and may also provide for

155 Cal. Civil Code, § 82.

156 Id., § 83; and see People v. Beevers, 99 Cal. 286.

157 Id., § 84.

their education and maintenance out of the property of the guilty party.1

158

§ 2711. Effect of judgment of nullity. A judgment of nullity of marriage rendered is conclusive only as against the parties to the action and those claiming under them.1

159

§ 2712. Place. It is well settled that a marriage which is valid under the law of the place where celebrated is valid everywhere. It would follow that a marriage in another state, which, if solemnized in California, would be voidable, could not be annulled in the latter state, unless it was voidable in the state where it was solemnized for a reason recognized by the California Code. In Medway v. Needham, 16 Mass. 157; 8 Am. Dec. 131, it was held that a marriage which is good by the laws of the country where it is entered into, is valid in any other country; and although it should appear that the parties went into another state to contract such marriage, with a view to evade the laws of their own country, the marriage will nevertheless be valid in the country where the parties live; but this principle will not extend to legalize incestuous marriages so contracted.160 An action to annul a marriage goes to the inception of the relation, the marriage itself; while an action for divorce, strictly speaking, is for causes subsequent to the marriage, and in relation to which a different, though not uniform, rule prevails.

§ 2713. Antenuptial unchastity. While neither party to a contract to marry is bound by a promise made in ignorance of the other's want of personal chastity, and either is released therefrom by unchaste conduct on the part of the other, unless both parties participate therein,161 yet antenuptial unchastity is not, as a rule, ground for annulling a marriage. In an extreme case, as where a man married a common prostitute without knowledge of her character, there seems to be doubt." Cases where there was actual pregnancy, by a stranger, at the time of the marriage, authorize an annulment. In Baker v. 158 Cal. Civil Code, § 85.

159 Id., § 86.

162

160 See, also, Putnam v. Putnam, 8 Pick. 433; West Cambridge v. Lexington, 1 id. 505; 11 Am. Dec. 231; Pearson v. Pearson, 51 Cal. 120; True v. Ranney, 21 N. H. 52.

161 Cal. Civil Code, § 62.

162 See Bishop on Mar. & Div., vol. 1, § 179 et seq.

Baker, 13 Cal. 87, the court said: "It can not be pretended that the condition of the defendant was not a most material circumstance to the consent required for the validity of the contract. Its concealment operated as a fraud upon the plaintiff of the gravest character. His contract was with her and for her; it referred to no other person, much less included a child of bastard blood. A child imposes burdens and possesses rights. It would necessarily become a charge upon the defendant, and through her upon the plaintiff. It would become a presumptive heir of his estate. * * * A woman, to be marriageable, must at the time be able to bear children to her husband, and a representation to this effect is implied in the very nature of the contract." "163 It is not necessary to prove express representations on her part that she was chaste.164

§ 2714. Alimony. In an action by a man, to obtain a decree declaring void a marriage, for the reason that the defendant at the time of such marriage had a living husband, the fact being admitted, the court will not grant the defendant alimony and a counsel fee; because she is admittedly not the wife of plaintiff, 168

§ 2715. Frauds which invalidate. Those frauds which invalidate a marriage are usually such as negative any consent to be married at all, and are commonly duress, surprise, or stratagem in procuring the marriage, and the fraud must be nearly if not actually coincident with the marriage.166 So of a marriage procured by abduction, terror or fraud;167 or by fraud and force.168 Where the husband had, before marriage to the present wife, represented to her that his former wife was dead, when in fact she was living, he having been divorced from her, these representations, even if fraudulent, are not fraud in a material matter or thing, within the legitimate purposes of marriage. 160

163 See, also, Leavitt v. Leavitt, 13 Mich. 452, 458; and Dawson v. Dawson, 18 id. 335.

164 Donovan v. Donovan, 9 Allen, 140. 165 Appleton v. Warner, 51 Barb. 270.

166 Leavitt v. Leavitt, 13 Mich. 452.

167 Ferlat v. Gojon, Hopk. 478.

168 Sloan v. Kane, 10 How. Pr. 66.

169 Clarke v. Clarke, 11 Abb. Pr. 228.

Annulment of marriage

procured by fraud. See Tomppert v. Tomppert, 13 Bush, 326; 26 Am. Rep. 197.

2716. To annul marriage on the ground of nonage.

[TITLE.]

Form No. 624.

The plaintiff complains, and alleges:

I and II. [As in form No. 615.]

III. That at the time of her said marriage she was residing with her parents, A. B. and D. B., at

.; that at the time of her said marriage she was under the age of fifteen years, to-wit, of the age of fourteen years and one month, and that she arrived at the age of fifteen years on the

... day of

18.. And she avers that her said marriage was contracted and consummated without the consent [and against the will] of her said parents, and that she has not since she obtained the age of fifteen years cohabited with the said defendant.

[DEMAND OF JUDGMENT ANNULLING, ETC.]

2717. Same- by parent.

[TITLE.]

Form No. 625.

The plaintiff complains, and alleges:

I. That A. B. is the daughter of this plaintiff; that she is a minor under the age of fifteen years, to-wit, of the age of .., and has always, until the time of her marriage hereinafter stated, resided with, and been under the care, custody, and control of this plaintiff.

II. That on the .... day of

........

18.., at

she, the said A. B., intermarried with the de

fendant, D. B. III. That the parents of the said A. B. did not, nor did either of them, consent to her said marriage to the defendant. [DEMAND OF JUDGMENT ANNULLING, ETC.]

§ 2718. Minors - age of consent. Any unmarried male of the age of eighteen years or upwards, and any unmarried female. of the age of fifteen years and upwards, and not otherwise disqualified, are capable of consenting to and consummating marriage.170 Consent to and subsequent consummation of marriage may be manifested in any form, and may be proved under the same general rules of evidence as facts in other cases.171 170 Cal. Civil Code, § 56.

171 Id., § 57. This section, as amended by act of March 26, 1895, reads thus: "Consent to marriage and solemnization thereof may

2719. Former husband or wife living.

[TITLE.]

Form No. 626.

The plaintiff complains, and alleges:

I. That she is now, and for more than

last past

has been, a bona fide resident of the state of California, and now resides at

in said state.

... day of

II. That on the was married to the defendant at

18.., she

in said state.

III. That at the time of said marriage the said defendant had a former wife living, and that the defendant's marriage with said former wife was then, to-wit, at the time of plaintiff's said marriage to the defendant, in force, and undissolved by decree of divorce or otherwise.

[DEMAND OF JUDGMENT ANNULLING, ETC.]

$ 2720. Absence of former husband. Where, after a husband has been absent five years, and not heard from, and the wife in good faith, supposing him dead, marries another, the marriage is voidable only, and can not be adjudged void at the instance of a third party.17 172

The plaintiff complains, and alleges:

I. [Allege marriage as in form No. 615.]

II. [Allege residence as in form No. 615.]

III. That at the time of such marriage he [she] was a lunatic, and incapable of contracting a marriage, and has been ever since [or state the duration].

be proved under the same general rules of evidence as facts are proved in other cases."

172 Crosbey v. McKinney, 30 Barb. 47; see Griffins v. Banks, 24 How. Pr. 213. Under section 61 of the Civil Code of California, a marriage is not void because contracted when one of the spouses had a former husband or wife living, where such former husband or wife has been absent and not known to the other spouse to be living for the space of five years before the subsequent marriage, or is generally reputed and believed to be dead at the time of the contracting of the second marriage, but such subsequent marriage is valid until its nullity is adjudged by a competent tribunal. Jackson v. Jackson, 94 Cal. 446; see amendment of 1897.