December 6, 2002
DISSOLVING A PLURAL MARRIAGE IN CONNECTICUT
By: Sandra Norman-Eady, Chief Attorney
You asked if Connecticut courts can grant a divorce to the second or third wife of a Connecticut resident who lawfully entered into multiple marriages outside of this state.
Although no Connecticut court has been asked to decide a case based on the specific facts presented in your question, the answer appears to depend on the validity of the marriage.
As a court of unlimited jurisdiction, the Connecticut Superior Court has the power to adjudicate claims, including dissolution of marriage, arising under foreign law unless doing so contravene a strong public policy. The court can generally dissolve a marriage on any one of 10 statutory grounds if at least one spouse lives in the state. If one spouse lives outside of the state, the court jurisdiction is conditioned on that spouse receiving proper notice of the action. However, in order to dissolve a marriage, the state must first recognize the marriage as a valid one.
As a general rule, a marriage valid where the ceremony is performed is valid everywhere and a court in the jurisdiction where at least one spouse resides can dissolve it. Connecticut recognizes an exception to this rule for marriages that are contrary to its strong public policy. In such cases, it appears that no Connecticut court could dissolve the marriage that it does not recognize as valid.
Bigamy, the marriage of a person already legally married, is a crime in Connecticut and has been contrary to state's public policy since the early 1700s. Since the marriage presented in your question meets the statutory definition of bigamy, it could not have been legally performed here; thus, it appears that a Connecticut court would view the second and third marriages as invalid and not grant a divorce.
Although a divorce does not appear possible under the scenario you describe, it may be possible for a Connecticut court to grant an annulment, a decree that the marriage never existed. By law, an annulment must be granted if a marriage is void or voidable under the laws of this state or of the state in which the marriage was performed. Although we do not have enough facts to determine whether the law in the jurisdiction where the marriage was performed contains grounds for an annulment, it appears that bigamy may be the basis for an annulment in this state. While the law does not expressly state that a bigamous marriage is void, the fact that it is a crime and has been for 300 years may be proof of the legislature's intent to declare such a marriage void in this state.
RECOGNITION OF MARRIAGE
A marriage performed in a foreign country that involves at least one Connecticut resident is valid if the parties could have legally married in Connecticut and the marriage conforms to the laws of the foreign country. (A foreign marriage is also valid if it is performed by a licensed or ordained clergyman before a (1) U. S. ambassador or minister to the country or (2) U. S. consular officer within the consular's jurisdiction. ) (CGS § 46b-28). But there is no state statute addressing the validity of foreign marriages involving nonresidents.
In 1961, the Connecticut Supreme Court acknowledged the general rule that a marriage valid where it was performed is valid everywhere (Catalano v. Catalano, 148 Conn. 288 citing Davis v. Davis, 119 Conn. 194,197 (1934)). But the Court recognized CGS § 46b-28 (then CGS § 46-6) as an exception to the rule.
The plaintiff in Catalano was an Italian subject who married her uncle, a Connecticut citizen, in Italy. Although the marriage was illegal in Italy, the couple got legal dispensation in that country to validate it. The couple returned to Connecticut after the marriage and started a family. The husband died shortly thereafter and the wife sought a spousal share of her husband's estate.
The Court held that although the marriage was valid where it was celebrated, it contravened the strong public policy in this state against incestuous marriages (currently CGS § 46b-21); thus, the plaintiff was not the decedent's surviving spouse. In reaching this conclusion, the Court reasoned that CGS § 46b-28 validates only marriages that could have been legally entered into in this state at the time they were performed. Since the consanguinity statute, which dates back to the 1700s, prohibited marriage between an uncle and a niece in this state, the Court found that the couple lacked the legal capacity § 46b-28 makes a prerequisite to the validity of such a marriage. Furthermore, the Court found that the penalty for incest (currently, up to five years imprisonment, a $ 2,000 fine, or both) reflected the state's strong public policy against such marriages.
By law, a person commits bigamy when he marries or purports to marry another person (1) in this state if either is lawfully married or (2) in any other state or country in violation of the laws thereof and knowingly cohabits and lives with such other person in this state as husband and wife. Bigamy is a class D felony, punishable by up to five years in prison, a $ 2,000 fine, or both (CGS § 53a-190).
As with incest, the state's public policy against bigamy dates back 300 years. However unlike incest, the bigamy statute does not state that bigamous marriages are void in this state. Thus, a court would likely analyze whether a bigamous marriage, like an incestuous one, contravenes a strong state policy. In so doing, the court might find that Connecticut courts have refused to enforce claims under foreign law where this state's deeply rooted criminal statute prohibit recognition of the right (Ciampittiello v. Campitello, 134 Conn. 51 (1947); Singh v. Singh, 213 Conn. 637 (1990)).
After this analysis, the court would likely reach the same conclusion as the Catalano and Singh courts when determining the validity of a bigamous marriage.
By law, a court must grant an annulment if a marriage is void or voidable under the laws of this state or of the state in which the marriage was performed (CGS § 46b-40 (a)). An annulment declares that a marriage never existed as opposed to a dissolution, which dissolves an otherwise lawful marriage.
Connecticut courts have declared marriages void and granted annulments based on numerous different grounds, including fraud, mental incapacity, duress, and incest. In fact in 1990, the State Supreme Court held that a marriage between persons related to one another as half-uncle and half-niece is void under General Statutes 46b-21 and 53a-191 as incestuous (Singh, id).
As stated earlier, the law does not expressly state that a bigamous marriage is void. But the fact that bigamy is a crime and has been for 300 years may be proof of the legislature's intent to make such a marriage void in this state (Connecticut Practice, Vol. 7, Family Law and Practice, by Arnold Rutkin and Kathleen Hogan, West 1999).