The opinion of the court states that “Whether or not the evidence established the existence of a valid common-law marriage is the sole question presented for review,” and laboriously attempts to transform this factual question into one of law. Yet, despite its ample treatment of the subject and extensive citation of authorities, the effort falls short of the mark. The Appellate Court found from the evidence that such common-law marriage did exist. Reversal of that determination would require this court to weigh the evidence, a function which is proscribed by statute. (Ill. Rev. Stat. 1957, chap, 110, pars. 89, 92(3) (b).) Therefore, I dissent.
It is undisputed that the Iowa law requires only a present intent to be husband and wife, followed by cohabitation, to constitute a common-law marriage. (Gammelgaard v. Gammelgaard, 247 Iowa 979, 77 N.W.2d 479; In re Estate of Stopps, 244 Iowa 931, 57 N.W.2d 221; Love v. Love, 185 Iowa 930, 171 N.W. 257; Smith v. Fuller, 138 Iowa 930, 108 N.W. 765.) The evidence establishes that Mageed David and Mary Gorra talked it over and wanted to get married in April, 1954; that he took :her-to his home in Iowa where they lived together as husband and wife until June, 1955. This constitutes a prima facie case which would justify the finding of the Appellate Court that “Under" the laws of Iowa there existed a.valid common- ■ law marriage between Mr. and Mrs. David.”
In the face of such finding, this court states: “Furthermore, since the State of Illinois, through its concern for the welfare of the child, is an interested party in the adoption proceeding, it is our opinion that our determination of the marital status is not circumscribed by the testimony of the parties claiming marriage, and that we may consider such evidential factors as conduct and reputation in determining if a contract of marriage, per verba de praesenti, did in fact exist.” (Italics mine.) It then proceeds to analyze a number of evidentiary matters which it states are “significant,” or which “have weighed heavily in the determination of whether a contract of marriage * * * was in fact entered into.” .
Under the traditional principles of conflict of laws, a marriage valid where contracted is valid everywhere. Therefore, it is our duty to recognize this common-law marriage if it was valid in Iowa. (Peirce v. Peirce, 379 Ill. 185.) In this opinion the court has done nothing more than examine all the evidence in the record, as well as certain matters which it refers to as “evidential factors,” and it has then disagreed with the Appellate Court as to the weight to be given the various evidentiary facts in determining the ultimate fact of marriage. This constitutes the usurpation of a function which the legislature vested exclusively in the Appellate Court. I protest this action and believe that the court ought to exercise sufficient judicial self-restraint to refrain from reversing the Appellate Court by the semantic transmutation of a question of fact into one of law.
I would affirm the Appellate Court.