I concur in the judgment of . reversal. It is only a wife who can claim alimony (Civ. Code, sec. 137), and, when the fact of marriage is in issue and unproved, there is no one in that position. To allow a woman *396alimony for the purpose of enabling her to prove that she is a wife seems to me to involve a glaring absurdity, and to allow it every time she makes a prima facie case of marriage by her pleading or affidavit Would result in something more serious than an absurdity.
If a husband sues for a divorce, alleging a marriage, of course there can be no question” of the right to alimony, if he is able to pay and the wife is in need. If he sues to annul a marriage upon the ground that it was void, ab iniiio, by reason of fraud, pre-contract insanity, et cetera, the granting of alimony pendente lite would be proper, because a formal marriage is alleged and will remain a lawful and established marriage in the absence of affirmative proof by him of the existence of some fact, or facts, which will invalidate it. In such a case, I concede the propriety and justice of allowing the wife (for until the fraud or other invalidating circumstances are established she is the wife) money to make her defense.
But when a woman sues for a divorce, and is met at the very threshold of the proceeding by a denial that she ever was a wife, the case is entirely different. She must establish the marriage before she can claim alimony or suit money, and she must establish it at a trial and by satisfactory evidence. Even if this conclusion involved the inconveniences and hardships which counsel have depicted in their arguments, it would be none the less inevitable, but in my opinion such instances of hardship will rarely, if ever, arise. In a case of this aspect the plaintiff is not limited to a bare allegation of marriage in general terms. She may allege the specific facts from which the inference of marriage arises, with all the circumstances of time and place, and the defendant, in order to put the fact of marriage in issue, will be compelled not only to deny marriage in general terms, but also to make specific denials of the facts which prima facie constitute marriage. To make such denials he must expose himself to the danger of being convicted of perjury if the facts alleged are true. If it be said that- this is not sufficient security to plaintiff, I answer that it is at least equal to any security the defendant or the court can have that the plaintiffs claim is not wholly fictitious.
In this case, the defendant makes a complete denial of the *397facts alleged by plaintiff as constituting a marriage. And until that issue is tried and determined by final judgment the plaintiff has no claim upon him as his wife.
Undoubtedly, there are1 numerous cases in this country which can be cited in opposition to this view, but the sounder reason and the more trustworthy authorities sustain it. In my opinion it is sustained by the reasoning of Judge Folger in the case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, cited by Justice Temple, and still more fully sustained by the decisions to which Judge Folger refers.
Of course, it has been assumed in what has been here said that there is no serious contention on the part of the respondent that the superior court has tried and finally determined the issue of marriage in her favor. There is, in fact, no such claim. The whole argument in support of the order appealed from is that it required only a prima facie showing by ex parte affidavits to sustain it, and that the issue of marriage is still to be tried.