Page:Harvard Law Review Volume 32.djvu/847

811 JURISDICTION TO ANNUL A MARRIAGE 8ii tion in rem. But it cannot set aside what the former sovereign con- trolling ihe res has done. The Supreme Court of South Dakota seems entirely correct in holding that when first cousins were married in California, where they lived, and where such a marriage was legal, a decree of annulment could not be granted in South Dakota, where such a marriage was forbidden, even after the pe- titioner has made a home there.^* Corson, J., said: "The courts in this state are clearly without authority under the general principles applicable to the law of marriages to annul a marriage legal and valid in a state where the same was contracted, and where the parties were domiciled." The correctness of the actual result is emphasized by the cautious reservation, in a concurring opinion by Whiting, C. J., adopted by the remainder of the court, wherein he declined to express an opinion on the criminal liability of the parties for cohabitation in South Dakota. It could well be that while the California marriage could not be annulled. South Dakota could punish cohabitation of cousins, whether married or not, if such association was abhorrent to Dakota morals. If this position is sound, and jurisdiction to annul a marriage is not to be assumed by the law of the domicile of the parties, what law can decree it null and void? The logical answer is, that since the annulment goes back to the question of inception of the marriage status, it ought to be the law by which the status would come into being that should say that despite the form this man and woman went through they never became husband and wife.^^ It would not matter whether the parties at the time the question arises had become domiciled in another jurisdiction. The state pronouncing the decree of nullity is not seeking to affect a res over which it no longer has control; it is saying that no res, that is, marriage relation- ship, ever came into being. It certainly can do that, as well as it can control a judgment pronounced in one of its own courts. Further, the question should be referred back to this jurisdiction. In the matter of dissolving a marriage status, state X, where the parties are personally present, will not give a divorce decree to 2^ Garcia v. Garcia, 25 S. D. 645, 654, 127 N. W. 586 (1910). ^^ This view is taken in a well-written note on the point in 26 Harv. L. Rev. 253. The note writer probably, and the present writer certainly, is indebted for the idea to a suggestion made by Prof. Joseph H. Beale in his course on the Conflict of Laws.