Untitled Texas Attorney General Opinion ( 1946 )

OFFICE OF THE ATTORNEY GENERAL_ OF TEXAS
' AUSHN
GROVER SELLERS
ATTC>RNEY G EN ERAL
Honorable Benton Coopwood
Diatrict Attorney \
Travie County '
Auetin, Texaa
Dear Hr. Coopvoedx Opinion No. 0-?529
Re: Validity of a cer=»onial mar»
riage performed ~y "prexy”
under a power o' a»torney.
He have your letter requesting o egal -»in\on upon
the above-titled subject matter, such letter ben-
follove:
"Ae you are aware, by Ar ‘ .02 of the Pena
Code of Texas, wife desert n c» st ut
a alid marriage
is the duty
in Travia Coun-
must be proved (28 Tex. Jur.
of this office to pr
ty. It will be gr atly
will give me it he validity of a
' under a power
ent of Texas, designated
ecoming married shortly
the date of the contemplated
shipped overseas into the Pacific
y letter 'A' proposed to his fiance,
be one married by proxy, and upon her
, 'A' executed a power of attorney au~
thoriz g a male friend and a resident of Texae,
to apply and obtain a marriage license authorizing
'A' and 'B' to marry, and in 'A'a' place and stead to
give and accept the vowe of marriage at a marriage
ceremony with 'B' to be performed in Texae. The power
of attorney was properly executed and acknowledged by
'A‘ before a legal officer of the Army, who was duly
authorized to take such acknowledgment.
COD.S€
l
"Upon receipt of the power of attorney, 'C,' the
agent designated therein, together with the young '¢\roman,l
'B,' applied for and obtained from a county clerk of
RIT ABS|BTANT
NO COMMUIIC*T|OH ll YD EZ CON.‘!TRUED AE A DEPARTMENTAL OPIHlOl~J UNLES$ APF'F!DVED BY THE ATTORN£Y G¢NERRL DR Fl
Honoreble Benton Coopwood, page 2
Texas a marriage license in the name of 'A' and 'B.'
Thereafter a marriage ceremony was performed by a
justice of the peace of Texas, at which 'C,' in behalf
of his principal, 'A,' exchanged marriage vows with
'B,' and the justice of the peace pronounced 'A’ and
'B' to be husband and wire. The ceremony was performed
in the presence of witnesses, who properly attested to
the marriage, and the marriage license was duly completed
by the justice of the peace, certifying to the performance
of the marriage ceremony between 'A' and 'B' and thereaft~
er returned to and recorded by the county clerk who is-
sued the license.
'Innediately following the ceremony and continuously
thereafter, 'B' assumed and used the name of 'a' and pub-
licly held herself out to be his wife; and immediately
granted by the government to married officers; and
there§§ter each month until 'A's' discharge from the
serviée, he caused monthly allotment checks to be mailed
to 'B,' as 'A's' wife.
to announce themselves as being husband and wife. As a ’ ``
result of the union of this couple, a child has been _ _
born, which was christened and duly registered as the i
legitimate child of 'A' and 'B.' `` .
"At the time of the execution of the power of at»
torney and at the time of the marriage ceremony, both
'A' and 'B' were white adults, over twenty-one years of
age, and were not prohibited by any of the provisions of
Article 4607 from internarriage. 4
"It will be greatly appreciated if you will give
me your opinion as to the validity of the marriage cere~
mony performed as hereinabove set forth, as the precise
235¥1
Honorahle Benton Coopvood, page 3
He think your letter poses a question of great import-
ance and of much consequence to the public at the moment of these
troubled timea.
Generally speaking, the relations, duties, obligations
and consequences flowing from the marriage contract are so import-
ant to the peace and welfare of society as to come under the con~
trol of the State, independent of the will of the parties. The
Legielature may impose such restrictions upon the marital rela-
tions as propriety, morality, and social order demand, provided
such regulations are not prohibitory. The regulation of the mar-
riage relation is exclusively within the power of the several
states and is not subject to Congressional action. Stated another
way,_the power of regulation of marriages within a state belongs
to that state end not to Gongress or another state. The Legis-
lature may prescribe who may marry; the age at which they may marry;
the procedure and form essential to constitute marriage; the
duties and obligations she marital relationship creates; its effect
upon the property rights of the parties, both present and prospec-
tive; and the acts which may constitute grounds for dissolution of
the marriage. (Ruling Case Law, Vol. lB, pp. 386-73 KG. J., Vol.
38, pp. 12?5-6; American Jur., Vol. 351 Pp. 186-9; Tex. Jur., Vol.
28, pp. 701-2, and authorities cited therein). The Legislature
of this Btate has enacted various statutes regarding most of
these things just mentioned. A common-law marriage is valid in
Texas, but the elements and essentials of such marriage will be
more fully discussed herein.
Ve quote from Vernon‘s dnnotated Givil Btatutes such
provisions as are pertinent to the subject under discussions
"Art. 4602: All licensed or ordained ministers
of the gospel, Jevish rabbis, judges of the district-
and county courts, and justices of the peace are au~
thorised to oelebrate the rites of matrimony between
persons legally authorized to marry.“
"Art. h$th Persons who desire to marry shall
procure from the County Clerk a license directed to
all_persons authorized by law to celebrate the rites
of matrimony, which shall be sufficient authority to
celebrate such marriage.n
“Art. déohcs Before the County Clerk shall issue
any marriage license the man shall produce a certifi-
cate from a reputable licensed physician to show that
he is free from all venereal dise¢*.wares.‘l
352
honorable Benton Coopwood rsqe 3
l k“``~.
It might appear from e reading of the foregoing statutes
that they are mandatory end that for s marriage to be valid they
must be strictly complied with. However, it has long been establish-
ed in this Stote that these statutory provisions are not mandatory
but ore merely directory, and that a valid marriage may be entered
into without complying with all or any of these requirements.
Grigsby``v. Reib, 153 S.W. 1124; Thompson v. Thompson, 202 S. W.
175; Bobbitt v. Bobbitt, 223 S.H. 478; Speer's Laws of Hsritel
Rights in Texes, 3d Ed. 1929, Sec. 10. lt is else the rule in
this State that even though s marriage be held void as a statu-
tory marriage that such marriage may be valid under the rules of
common lsv if the parties have fulfilled the requirements for s
common~lav marriege, (Holder v. Stste, 29 S. W. 793; Chepmen v.
Chspman, 32 S. W. 56#); therefore, in considering your first
two questions we must of necessity view them both in the light
of the statutory rules and in the light of the common»lav rules.
As for the proposition that a common-law marriage is
valid in Texss, the law is so well settled in this jurisdiction
that it is unnecessary to cite the authorities.
We see then that two psrties, who are otherwise legally
competent to marry, may enter into s valid marriage either by
``folloving the statutory procedure, that is, by procuring a license
end celebrating the rites of matrimony before a duly authorized
official, or they may enter into s valid marriage by fulfilling
the requirements for a common-lew marriage.
In either type of merriage, that is, statutory or common-
lsw, the lew proceeds on the theory that for two parties to reach
the status of husband and wife there must bo a contract whereby
the parties do by words of the present tense agree to become y
thenceforth end unconditionally husband end wife, end that since
s marriage is more than merely a contract there must be‘a consumma-
tion of such agreement. In s statutory marriage_we encounter no
difficulty in finding the consummation of the agreement. The
courts have held the solemnizstion celebration had before s duly
authorized official to be sufficient consummation of the agreement
snd_heve required no further act or acts on the part of the parties
for the marriage to be perfectly velid. Thompson v. Thompson{ 202
S.W. 175; Lopez v. Missouri, K'& T Ry. Go. of Texas, 22 S.H. 695;
Speer‘s Lau of Merital Rights in Texes, supra, Section lh.
The conclusion then is that where the parties procure
the license and solemnize their vovs before a duly authorized
official that even though they should then part end never see each
other again they ere nevertheless husband and wife. Spcer's Law of
Harital Rights in Texss, suprs, Section 14.
Honorable Benton Coopvood, page 5
As to what is required for a valid common-law marriage,
the law is not as clear and definite as in the case of a statn~
tory marriage. Hovever, it is settled, as ve have stated above}
that there must be the agreement and that such agreement must
be consummated. Grigsby v. Reib, supra; Berger v. Kirby, supra;
Speer's Law of Marital Rights in Texas, supra, SeCtion ZO, (and
the authorities cited therein.) The text cited correctly states
the law on this point. We quote therefrom:
”A common-law marriage, as that term is nov
understood in this State, is one not celebrated ac-
cording to the prescribed forms of statute lav, but
one which arises from the agreement between capable
contracting parties to become husband and wife, role
loved by an actual assumption cf that relation. In
other vords, it is the agreement of capable parties
together with cohabitation as man and vife."
_ 7 Therefore, to be a valid common-lav marriage, the mar-
riage contract must be consummated by cohabitation. As stated
in,£he case of Grigsby v. Reib, §npra, ”the cohabitation must be
professedly as husband and wife.“ See also Berger v. Kirby, supra;
'Bohvinglo ¥. Kelfer, et al, 153 S. W. 11}2; Bobbitt v. Bobbitt,
223 Br…H. 478; James v. James, 253 S. W. 1112; Reed v. State, 255
$.W. 619; Bell v. Bouthern Casualty Co., 267 S.W. 531;_Salvini v.
sa_iv_ini,r 2 s.v. (2) 963; services v. partisan 6 s.v. (2) 408;
Humble'Oil & Refini Co. v. Jeffrey, 38 B.H. (2) 374; Wriaten v.
Hrihten, 119 S.U. {§§ 1104. ,
In_HcChesney v. Johnson, 79 B; H. (2) 659, it is said:
?? x 'The agreement is fundamental end cohabitation“
.j;- is an element, but the holding put to the ublic as-
being man and wife §§ the acid test:" IEmp eis EErs)
' g Bince it is the law in Texas that cohabitation is re-
_``quired in cases where it is sought to uphold the validity of a mar-
-riage by the rules of common_law, the question arises, what act or
actafon the part of the parties will fulfill the cohabitation re-
quirement? rThere exists some confusion on this, due mostly to the
fact that the courts have used only general terms in their discus»
eions, and have not undertaken to state specific scts. Even though
this be true, it indicates a recognition of a broad and not a
narrow rule of construction with respect to the act or acts relied
upon to show cohabitation. The broad generic terms thus used, hov-
ever, all indicate the one outstanding purpose, that is, to require
a final consummation of the agreement for common-law marriage by
some act of the parties fairly evidencing their intention to assume
such statua.
p;"|".‘-'(M ' l
Honorable Benton Coopwood, page 6
The Court of Criminal Appeels on overruling a motion for
rehearing in Reed v. State; supra, held that not.only must there
be cohabitation and living together but that such must be professed-
ly as husband and wife.
The El Paso Court of Civil Appeals in Texas Employers
lns. Ass'n. V. Soto, et al, 294 S.W. 639, held that the agreement
must be followed up by a living togethei as husband and wife.
To cite further authorities would merely add length and
not veight, for we have reviewed the cases and can come.to no
other conclusion than that the courts, whether they use the term
"11v1ng togethep," "cohsbiting co§ether,” "eehsbiting ana living
together," or "Iiving together,u holding out to the public,"
”assuming the status,” end the like, note the same principle, that
is, that besides the agreement and the public acknowledgment the
parties must live together as husband and vife. He can draw no
other conclusion than this, when the courts have stated that
there must be a living together or cohabitation in view of the fol-
lowing definition of cohabitation given by Judge Blair of the austin
Court of Civil Appeels in Humble Oil & Refining Company v. Jeffrey,
supre: .,
”As a second act looking to marriage, this agree~
ment wes immediately followed by cohabitation of the
parties, which means, as applied to common-law mer_
riages, and to this case, living together, claiming
to be msrried, in the relationship of husband end
wife, doing_those things ordinarily done by husband
and wife,-* * *."
roe s similar definition of cohabitation, see``speer's
Lav of Marital Rights in Texas, supra, Section``§}, and 23 Texas
Juria., Section 19, page 716. _
Your request for an opinion, of course, contemplates
advice with respect only to the laws of Texas. While, as above
shovn, Texas does recognize common-law marriages to be as valid
end sacred as statutory marriages, there are other states where
common-law marriages are not thus recognized, end we do not, and
cannot speak with reference to the laws of such states. Our opin-
ion is confined to the status of persons entering into a common»
law marriage in this State, and in other states where-the general
rule of comity applies that the validity of a marriage is deter-
mined by the law of the state wherein such marriage is consummated.
80 that, your questions have a possible scope beyond territorial
limits of Texas.
.-.r_¢..u-"‘*"
Honorable Benton‘Coopwood, page 7
Ws assume that your request gross out of the fact that
thousands of our unmarried men and women are in the active service
in the Army of the Hnited States, some of whom are in other lands
far distant from Texas, and that your questions have become import-
ant and even acute because of the natural desire which arises under
such circumstances for a marriage without the necessity for com-
plying with the statutory formalities often difficult, or even
impossible of observance.
Bssring in mind what we have already said as to the
nature and importance to the eace and welfare of society, and bear-
ing further in mind that the, ``stitution of marriage is the Divine
method of peopling the vorld, and is favored by all civilized gov“
ernments, and that the construction of all laws pertaining to mar-
riags, therefors, are liberally construed to support rather than
to destroy marriage, and that all reasonable presumptions are in-
dulged in favor of good faith, innocence and purity of attempts to
create marriages .
_ . We have dwelt largely upon what is known as "common-law
marriages." This, however, has not been without purpose. Tochnical-
ly; there is no such classification in the law books as "proxy nars
riages." The accepted classification of marriages as to validity
are Fstatutory_marriage" and “common-lav marriage.” The term 'Com-
mon-Law Harriage” includes all marriages not performed or celebrat-
ed under the regulations of the statutss, so that whether or not a‘
so-called ”proxy marriags" is valid depends in turn upon whether
the facts surrounding the association constitute a "common-law
marriage.” If so, it is valid to the same extent legally that a
ceremonial or statutory marriage is valid; that is, valid as be~
tween the parties and all the world. There exist possible excep-
tions to the universality of validity with-respect to a common-law
marriage. A common~law marriage consummated in Texas may be in~
valid in another state or country whose laws forbid such marriages.
But the same thing may be said of a statutory marriage in a state
which permits the intermarrisgs of blacks and whites. Many states
like rosas forbid such s nnion, and such a miscegenacious marriage
valid in tbs law of its celebration or consummation is invalid in
s Stete where, like Texas, such marriages are expressly fcrbidden.
In a ceremonial marriage vs may assnme, though ve do not
need to decids, that the actual presence of both parties is neces-
sary to the celebration of the rites. With respect to a common‘law
marriage, ve have seen that it consists of two legal elements,
the existence of each of which is essential, that is, proper mutual
agreements for marriags, and the folloving up of cohabitation or
living together in the marital sense. Evory essential to the
CQ
CH
03
Honorable Benton Coopwood, page 8
validity of the commondlav marriage, therefore, may be, and usually
is brought into existence without any character of ceremony whatso-
ever. Indoed, the contract for marriage -- whether ceremonial or
common-law -- is universally almost in private when no other eye
secs and no other ear hearc. Ordinarily, if there ia a listener~
in, ho is an eavesdropper on the lovers. Under no conception of
commondlaw marriage is the necessary cohabitation, living tcgether,
holding out to the public, actual assumption of the atatus, and the
liko, required or contemplated to be accompanied by any cort of core»
mony. Our laws governing this sacred relation, as wo have seen,
deal with the substance and not the form of narriage.
Spacifically, the performance of a ceremony by any one of
any character in connection with a common-lau marriage, would not
hurt, neither would it help in the eyes of the lav. lt vould, hov-
cver, constitute indubitable evidence of thi_voluntary conception
of the marital status of the partiez, in thia, that it would be a
public holding-out by both parties consenting thereto, thus supply-
ing immediately the essential cohabitation or living together in a
matrimonial sense of the contracting parties. This holding-out
would likewise appear where one of the parties stood before the pub~
lie and the other joined in the ceremony by the use of telephonic
connoction. Buch public holding-out is precisely that public hold-
ing~out -- consummation -~ cohabitation ~- which necessarily follows
a purely statutory ceremonial marriage. We can think of no more ap»
propriatc consummation of a common~lav narriage, where by stress of
ill fortune the parties cannot join physically their presence at the
nuptial announcement, than that of a proxy or telephonic public cel¢
ebration. Buch a union is holy, and violates no law of God or man.
Spooifically, it may be said here, however, that thc cele-
bration of the ritez through a third person ac proxy'vould have to
ha authorized factually by the absent marital partoar. Soch author-
ization may be given orally, or in_writing, vitnescod cr unwitnesocd.
Tho first essential, of couroe, of any contract for mar-
riage must bo tho'mutual consent and agreement of the contracting
parties. Therc is no statute or decision in this Btatc requiring
such mutual agreement for marriage to be in vriting. lt nay, there-
foro, as well be oral. Indcod, such lovcro' contracts are usually
oral. Hovever; it is indeed quite fitting, and even most desirable,
that parties intending to consummate a common-law marriage should
reduce their agreement for the marriage to vriting, though it ic not
necessary, as above czplained. Suoh contract may be made aa any other
civil contract between competent parties in any of the ways by which
contracts are allowed to bo evidenced -- that is, by oral agreement,
by telephone communication, by tolegraph, or by the more-enduring
form of a vriting, which need not be witnessed or notarized.
Honorable Benton Coopwood, page 9
In this connection, it must be understood, however, that
as in all other instances or common~law marriage, the telephonic
agreement to become man and wife presently must be followed up by
the actual assumption of that relation, as in any other form of ;re~
contract for such marriage.
- we will here make plain the holding of this department
with respect to the second element of validity of common~lsw
marriages in Texas with respect to the consummation of the con~
tract to become husband and wife.
Admittedly, Grigsby v. Reig, 153 S\ H. 1124, is the out-
standing decision in this State dealing with our immediate subject.
It was written by Chief Justice Brown. It has often been cited
nd followcd, but never departed from nor overruled.
`` Preci¢sung his srguments, the learned older nance
clearly states the two lines of thought prevalent in this cound
try. He says;
_ “In the courts or the different states
of the United_States, there are two lines of
'cases_between which we must chooss, which nr.
Freemen in his notes to cases in 124 nm. St.
Bep. lll, 112, stetes, in substance, as fohnws:
;p*marriege can be binding which does not rest upon