DISSENTING OPINION I do not agree with the majority opinion in this case. In my opinion the construction they have placed on § 40-1403a, Burns' 1940 Replacement (1947 Supp.); Acts 1947, ch. 162, § 8, p. 523, not only completely destroys the legislative objective of this Act but it is in conflict with universally recognized rules of law on the subject of marriage.
"Marriage is the institution that is the foundation of the family and of society. It is regarded as basic to morality and civilization, and of vital interest to society and the state, greater even than the private interests of the spouses." 35 Am. Jur., Marriage, § 8, p. 185.
"Except as limited by constitutional provision, the legislature of each state has authority, with respect to the matrimonial contracts of its own citizens, to regulate the qualifications of the contracting parties, the forms or proceedings essential to constitute a marriage, the duties and obligations it creates, its effect on property rights, and the causes for its dissolution." 55 C.J.S., Marriage, § 2, p. 809.
"The general rule is that the validity of a marriage is determined by the law of the place where it was contracted; if valid there it will be held valid everywhere, and, conversely, if invalid by the lex loci contractus, it will be held invalid wherever the question may arise." 55 C.J.S., Marriage, § 4b, p. 811.
"A common-law marriage entered into in a jurisdiction which recognizes the validity of such a marriage will be recognized as valid in another jurisdiction, regardless of the rule which prevails in the latter jurisdiction with respect to the validity of common-law marriages. The converse is equally true — a marriage void where it is celebrated is void everywhere." 35 Am. Jur., Marriage, § 168, p. 285. *Page 59
We know that common-law marriages are illegal and void in the State of Illinois. The record in this case is clear and positive that the appellant and decedent began living together while they were citizens of that state. It is equally clear that they were not married in accord with the provisions of the law of Illinois. Therefore, their living and cohabiting together was illicit and it gave neither party any of the rights or privileges of married persons.
In the case of Compton et al. v. Benham et al. (1909),44 Ind. App. 51, 58, 85 N.E. 365, this court said:
"When the facts show that an apparently lawful marriage was in fact an illicit relation in its beginning, the rule, as quoted in Williams v. Williams (1879), 46 Wis. 464, at page 480, is: `A cohabitation illicit in its origin is presumed to be of that character, unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual matrimony by mutual consent.'"
See also: Meehan v. Edward Valve etc. Co. (1917),65 Ind. App. 342, 344, 117 N.E. 265; Mayes v. Mayes (1925),84 Ind. App. 90, 147 N.E. 630; Dunlop v. Dunlop (1935),101 Ind. App. 43, 50, 198 N.E. 95; Young v. General Baking Co. (1937),104 Ind. App. 658, 661, 12 N.E.2d 1016; Cossell v. Cossell (1945), 223 Ind. 603, 605, 63 N.E.2d 540; 55 C.J.S., Marriage, § 43, Subd. 2, p. 898; 60 A.L.R. 546n; 94 A.L.R. 1006n.
The subject-matter of § 40-1403a, supra, is "wife." Webster's New International Dictionary defines "wife" in these words: "A woman united to a man in lawful wedlock; a married woman; spouse; — correl. of husband." *Page 60 (My emphasis). Therefore, it seems clear that when the legislature said: "The term `wife' as used in this subsection shall exclude a common-law wife unless such common-lawrelationship shall have existed openly and notoriously for a period of not less than five years immediately preceding the death, etc.," it meant by the emphasized words the relationship of a "wife." Surely it could not be said that if a married woman left the home of her legal husband and lived openly and notoriously together with another man for a period of five years or more, and if then her legal husband died, and a year later the man with whom she had been living illicitly died, that she would be entitled to compensation benefits under the provision of the Act. Yet, that is the effect of the majority holding in this case, because, they hold the period they lived together illicitly in Illinois should be recognized by Indiana as a part of their married life, for the reason Indiana tolerates common-law marriages.
It seems to me the majority opinion has completely ignored the firmly established general rule heretofore cited, that the validity of a marriage is to be determined by the law of the state in which it was contracted.
The above referred-to section of the Act merely requires that the parties to a common-law marriage must have lived together as husband and wife for a period of not less than five years after the marriage was entered into. It does not require, as the Industrial Board seemed to believe, that the parties to such a marriage must have lived in this state for five years.
However, in the view I take of this case, since the record is clear and positive that there was no marriage in Illinois, then even if the evidence is sufficient to show that a common-law marriage was entered into after appellant and decedent moved to Indiana, the common-law *Page 61 marriage relationship not having continued for five years, appellant was properly denied compensation. Therefore, I would regard the words "in Indiana" in the Board's finding and award as surplusage and affirm the award.
NOTE. — Reported in 88 N.E.2d 398.