Kilburn v. Kilburn

Citations

• 89 Cal. 46
• 26 P. 636
• 1891 Cal. LEXIS 767

Syllabus

<p>Marriage—Construction of Code—“Marital Rights, Duties, ob Obligations”—Definition.—The words “marital rights, duties, or obligations,” contained in section 55 of the Civil Code, which provides that consent to marriage “ must be followed by a solemnization, or by a mutual assumption of marital rights, duties, or obligations,’’refer to such rights, duties, and obligations as arise from the contract of marriage and constitute its object, and embrace what the parties to the contract mutually agree to perform toward each other and to society.</p> <p>Id. — Contract of Marriage — Agreement to Live together — Assumption of Marital Rights and Duties — Cohabitation. — The mutual agreement of the parties to live together in the professed relation of husband and wife is essential to create a contract of marriage, and the contract, when made, imposes upon the parties to it the obligation to do so; and there can be no assumption or entering upon the discharge of the duty or obligation, within the meaning of section 55 of the Civil Code, without the cohabitation of the parties consenting to a present marriage.</p> <p>Id. — Divorce — Insufficient Proof of Marriage. — In an action fora divorce, where the evidence shows that after the parties had consented to a marriage without solemnization, there was no cohabitation, and nothing to indicate to the community that they had assumed the marriage relation, a finding that the contract of marriage was followed by a mutual assumption of marital rights, duties, and obligtions is not sustained by the evidence.</p> <p>Id. — Adultery — Evidence of Second Marriage.—In an action for divorce on the ground of adultery, where the marriage between plaintiff and defendant is not sought to be proved by the presumption arising from cohabitation, evidence of the defendant’s marriage to the woman with whom he is charged to have committed adultery is inadmissible.</p>