Machransky v. Machransky ( 1927 )

MAUCK, J.

“The record shows that the parties were Jews, and we take judicial notice of the fact that they had very limited civil rights in Russia in 1901. The plaintiff testifies positively that he procured a Rabbinical divorce some time thereafter. The record further shows that the defendant had expressly admitted that they had been divorced.

The word GET among the Jews signifies a divorce. It is usually prepared by a scribe employed by the husband, signed by the latter and witnessed and delivered by the husband to the wife. Standard Dictionary. It announces in unequivocal terms that the parties are divorced and that the wife is at liberty to remarry. Under Jewish jurisprudence, the husband’s right to divorce was absolute. The wife had the right to compel the husband to give her a divorce on certain grounds and in such case was entitled to the return of her dowry. Kadashin’s Jewish Code of Jurisprudence;. 513 et seq. Nothing appears in the record of the law of Russia at the time in question, but the record does disclose these facts: Both parties were resident in Russia and were there married. Thereafter the husband divorced the wife and she received the return of her dowry of three hundred roubles. Thereafter, in Russia, the husband remarried, his second wife bore him a child and this family moved to America. It might be that the testimony establishing these facts was not the best testimony, but it was unohjected to and is sufficient to establish all that it purports to prove. The intimate, relationship between the Jewish law and the church are well known. When, therefore, it was shown that the parties had a Rabbinical GET or divorce, we understand it to have been a divorce in accordance with Jewish law. The evidence at least does not show that this process of divorce violated any law of Russia, and the presumption is that it did not. Furthermore the record unequivocally shows the second marriage of the husband in Russia, and it must be assumed that such marriage was not unlawful.

While this system of divorce does not conform to present standards in this country, its validity is to be determined by the law of the country that at .that time had jurisdiction over the parties. Each country establishes its own canons of marriage and divorce. In Ohio the power to divorce was at one time and elsewhere is now deemed to be a legislative function. In England it was for centuries and elsewhere still is in the exclusive jurisdiction of the church. Unless the law of the foreign domicile offends some positive law of this state, its action in divorcing its subjects or citizens cannot be questioned here. A striking illustration is found in the Massachusetts Reports.

In Turkey the law provided that a wife who is married to a Christian might, by renouncing Christianity and adopting the Mohammedan faith and marrying a Mohammedan be, by virtue of these facts alone, released from the obligations of her first marriage. That is to say no legal procedure is necessary at all; that the facts recited of their own vigor, worked a dissolution of the marriage relationship.

It was held by the Supreme Court of Massachusetts, in Kapigian v. Minassian, 212 Mass. 412, that the parties to that marriage relation, being domiciled in Turkey at the time, were, by virtue of the Turkish law, divorced in this summary method, and that the divorce was valid in Massachusetts.

There, is no question that the plaintiff Mach-ransky and the second woman to whom he was married have ever since lived as husband and wife and have raised their children as such. We must assume that when they entered upon the marriage relation in Russia that they did so pursuant to law; that they are now husband and wife and their children are legitimate.

Our conclusion is that the Common Pleas Court was right when it found that the parties here were divorced in Russia, and in so decreeing. The rest of the decree assuming to again divorce them was surplusage, but it is not harmful and need not be disturbed.”

(Middleton, PJ., and Thomas, J, concur.)