Page:Harvard Law Review Volume 32.djvu/855

819 JURISDICTION TO ANNUL A MARRIAGE 819 Only a few American cases have raised the question of jurisdic- tion for annuhnent of a marriage, and they cannot be said, in spite of pretty flat statements of a rule in the texts, to establish any definite trend of authority. New York started out with a statement to the effect that "... the lex loci which is to govern married persons and by which the contract is to be annulled, is not the law of the place where the contract was made, but where it exists for the time, where the parties have their domicil . . ."^^ a perfectly true statement as regards divorce, which the court was talking about, and which the reference to Story sustains. In a later case^^ New York citizens went into Canada and went through a marriage ceremony. The girl was under age and subsequently the marriage was declared a nullity by the New York court. The point emphasized was that the parties were residents of New York. While the distinction between annulment and divorce was not made, and divorce cases were cited and relied on, yet the result is not improper. New York law has the final word in saying whether a marriage status was created between New York people. A later case on similar facts was decided by the Court of Appeals the same way.^^ The policy of these cases may or may not be right. They do not fit the American doctrine that a marriage good where cele- brated is good everywhere. But from a jurisdictional standpoint, if a state refuses to recognize a marriage status for its citizens when married outside the state in violation of its law, it has the power to do so. That is the only point here. A Vermont case,^ while relying on the statement found in Bishop, nevertheless presents the same facts, for the petitioner was a Vermonter when he married in Massachusetts. The New Jersey case of Blumenthal v. Tannenholz^^ denied the authority of a New Jersey court to annul a marriage which had taken place in New Jersey, which the complaining party alleged to have been ^ Church, J., in Kinnier v. Kinnier, 45 N. Y. 535 (1871). "* Cunningham v. Cunningham, 206 N. Y. 341, 99 N. E. 845 (1912). The case is criticized in 26 Harv. L. Rev. 253; Hall v. Hall, 67 Misc. 267, 122 N. Y. Supp. 401 (1910), was to the same effect, though it is to be noted that it does not appear therein where the parties were domiciled at the time of the marriage. " Barney v. Cuness, 68 Vt. 51, 33 Atl. 897 (1895). « 31 N. J. Eq. 194 (1879).
 * 2 Mitchell V. Mitchell, 63 Misc. 580, 117 N. Y. Supp. 671 (1909).