(dissenting).
The majority opinion has adopted a rule which goes further than our Court or any other Court has gone and proceeds to overrule a case which has been the law in this State for forty-four years. Clark v. Barney, 24 Okl. 455, 103 P. 598. Although the foregoing case is stricter than the present general rule it is still sound in my judgment. The present general rule appears to be that, if parties desire marriage and do what they can to render their union matrimonial, but one of them is under a disability, their cohabitation thus matrimonially meant, and continued after the disability is removed, will, in law, make them husband and wife from the moment that such disability no longer exists, although there are no special circumstances to indicate that the parties expressly renewed their consent or changed their mode of living after the removal of the impediment. 104 A.L.R. p. 12, Note II a.
There is no question but that Francis Bracey who called herself Francis Oling-house entered into a void ceremonial mar*715riage with Glenn Olinghou'se in Bentonville, Arkansas, on the 4th day of June, 1949, at which time Glenn Olinghouse was married to Jerry Olinghouse. Both Francis Bracey and Glenn Olinghouse knew that Glenn Olinghouse was married and undivorced from Jerry Olinghouse. It is the settled rule in this and many other jurisdictions that:
“If intercourse between persons of opposite sex was illicit in its inception because of their failure or disability to enter into a marriage by ceremony or by agreement, it is presumed to continue so, and the burden of proving a subsequent intermarriage rests on the party asserting it; and the mere fact that the parties continued to cohabit does not give rise to a presumption of marriage. This presumption applies where a prior marriage is shown to have been in existence at the time of a second marriage, and the burden of proving a remarriage to the second spouse after the dissolution of the first marriage by death or divorce rests on the party asserting the validity of the second marriage.” 55 C.J.S., Marriage, § 43 d(2), p. 898.
Francis Bracey became pregnant by Glenn Olinghouse when she was a single woman and he was a married man. It was an illicit or meretricious relationship as there was a legal impediment to their marriage. There is nothing about this void marriage and subsequent cohabitation that was in good faith. Glenn Olinghouse entered into a void ceremonial marriage to give his putative child a name. It was not a solid marriage. There was nothing to indicate that he intended to make Francis Bracey his wife from there on. He certainly did not desire marriage. It was a “fly-by-night” affair at best.
There is evidence that though a divorce from him was granted Jerry Olinghouse on August 24, 1949, that he lived with her as husband and wife after the divorce. This Court held in Horrigan v. Gibson, 87 Okl. 1, 206 P. 219, that if during the cohabitation with one woman the man cohabits with another woman no presumption of a marriage with either arises. There was evidence that Jerry and Glenn Olinghouse had not so lived as husband and wife after the divorce but in my opinion the evidence that they did so live is the stronger.
In former opinions we have approved as a marriage a relationship that resulted from the impediment to marriage having been removed and the parties continued to live together and hold themselves out as husband and wife in good faith and with matrimonial intentions. Those elements do not exist in the purported marriage under consideration. After the baby of the parties died, Glenn Olinghouse said he was through and after that the parties did not carry on the family relationship with honest intentions and proper purposes.
I submit that the rule laid down in Clark v. Barney, supra [24 Okl. 455, 103 P. 600], which is as follows:
“ * * * Under said admission the parties knew that they had not the capacity to consummate a marriage contract, and when they assumed such relations they knew it was unlawful and adulterous; nothing being bona fide. And whilst it is the policy of the law to encourage legitimacy, yet, in order to do so, it will not encourage licentiousness. This relation in its inception being bigamous and adulterous, after the death of the said Margaret Barney there is no presumption of a change of relation, and if there was such a change it must expressly appear by proof, to place the parties in the eyes of the law in a lawful relation. Common-law marriage grows out of good faith, honest intentions, and proper purposes, and if wilful bigamous relations, after the death of the party who has been wronged by the other spouse, are to ripen per se by the continuance of such-cohabitation, without any perceptible change in the manner of such relations, into a common-law marriage in order to put the seal of legitimacy upon such cohabitation, it would tend to put a premium upon the disregard of marital relations, rather .than the ukase of the law against it.”
the better rule in those cases where good .ith is lacking. In all the cases where we *716have not followed the rule in Clark v. Barney, supra, there was a definite showing of matrimonial intention by a long continued living together, a definite desire to be married and the holding out as husband and wife to the exclusion of all others.
I dissent.