Same - Agreements In Derogation Of The Marriage Relation

164. As a general rule, any agreement which restrains the freedom of parties to marry, or the freedom of choice in marrying, or impairs the sanctity and security of the marriage relation, or is otherwise in derogation of such relation, is contrary to public policy.

Agreements which restrain the freedom of marriage are discouraged on political and social grounds, as injurious to the increase of population and the moral welfare of the citizen. Agreements not to marry are therefore void. A promise to marry no one but the promisee, for instance, on penalty of paying her a certain sum, has been held void because there was no promise of marriage on either side, and the agreement was purely restrictive.9 So, also, a wager in which one man bet another that he would not marry within a certain time was held void, as giving to one of the parties a pecuniary interest in not marrying.90 A contract between two persons to prevent the marriage of a third is illegal, as tending to break up contemplated marriages and to lead to "slander and other illegitimate practices injurious and detrimental to the well-being of the community and of the public generally." 91 It has been said, however, that "the general rule that contracts in restraint of marriage are void has no application to second marriages;"92 and contracts providing for the payment to a surviving or divorced spouse of a certain income so long as he or she remains unmarried have been sustained.93 Contracts restraining the freedom of choice in entering into a marriage, such as marriage brocage contracts, or promises made upon consideration of the procuring or bringing about of a marriage, are held illegal on social grounds.94 Such a contract is void, although it is merely to hasten an intended marriage 95 or to bring about a marriage of parties already engaged.96

85 West v. Camden, 135 U. S. 507, 10 Sup. Ct. 838, 34 L. Ed. 254; Gage T. Fisher, 5 N. D. 297, 65 N. W. 809, 31 L. R. A. 557. See "Contracts," Dec. Dig. (Key-No.) § 121; Cent. Dig. § 504

86 Willbur v. Stoepel, 82 Mich. 344, 46 N. W. 724, 21 Am. St. Rep. 568; Attaway v. Bank, 93 Mo. 485, 5 S. W. 16; Lum v. McEwen, 56 Minn. 278, 57 N. W. 662; Guernsey v. Cook, 120 Mass. 501; Dickson v. Kittson, 75 Minn. 168, 77 N. W. 820, 74 Am. St. Rep. 447; Sauerhering v. Reuping, 119 N. W. 184, 137 Wis. 407. Contract by officer of corporation for purchase by him of claim against the corporation. McDonald v. Haughton, 70 N. C. 393. Contract by officer of railroad company to locate a station at a particular place or to build the road to a certain point in consideration of benefit to himself. Peckham v. Lane, 81 Kan. 489, 106 Pac. 464, 25 L. R. A. (N. S.) 967, 19 Ann. Cas. 369; McGuffin v. Coyle, 16 Okl. 648, 85 Pac. 954, 86 Pac. 962, 6 L, R. A. (N. S.) 524. See "Contracts," Dec. Dig. (Key-No.) §§ 113, 121; Cent. Dig. §§ 50k, 521-541.

87 Simon v. Garlitz (Tex. Civ. App.) 133 S. W. 461; Torpey v. Murray, 93 Minn. 482, 101 N. W. 609; Standard Lumber Co. v. Butler Ice Co., 146 Fed. 359, 76 C. C. A. 639, 7 L. R. A. (N. S.) 467. See "Contracts;' Dec. Dig. (Key-No.) § 113; Cent. Dig. §§ 521-51,1.

88 Greenh. Pub. Pol. pp. 292-326.

89 Lowe v. Peers, 4 Burrows, 2225. See Hogan v. Curtin, 88 N. T. 162, 42 Am. Rep. 244. Where a contract to care for another during his life, and not to marry, is performed, it will be enforced, notwithstanding that the promise not to marry is void. King v. King, 63 Ohio St. 303, 59 N. E. Ill, 52 L. R. A. 157, 81 Am. St. Rep. 635. See "Contracts;' Dec. Dig. (Key-No.) § 111; Cent. Dig. §§ 515-520.

90 Hartley v. Rice, 10 East, 22. And see Chalfant v. Payton, 91 Ind. 202, 46 Am. Rep. 586; James v. Jellison, 94 Ind. 292, 48 Am. Rep. 151; Sterling v. Sinnickson, 5 N. J. Law, 756; Bostick v. Blades, 59 Md. 231, 43 Am. Rep. 548. But see Shafer v. Senseman, 125 Pa. 310, 17 Atl. 350. See "Gaming," Dec. Dig. (Key-No.) § 5; Cent. Dig. §§ 5-15.

91 Sheppey v. Stevens (C. C.) 177 Fed. 484. See "Contracts," Dec. Dig. (Key-No.) § 111; Cent. Dig. §§ 515-520.

92 In re Appleby's Estate, 100 Minn. 408, I11 N. W. 305, 10 L. R. A. (N. S.) 590, 117.Am. St. Rep. 709, 10 Ann. Cas. 563. See "Contracts," Dec. Dig. (Key-No.) § I11; Cent. Dig. §§ 515-520.

93 in re Appleby's Estate, supra; Jones v. Jones, 1 Colo. App. 28, 27 Pac. 85. See "Contracts," Dec. Dig. (Key-No.) § I11; Cent. Dig. §§ 515-520.

94 Arundel v. Trevillian, Rep. Ch. 47; Crawford v. Russell, 62 Barb. (N. Y.) 92; Duval v. Wellman (Com. Pl. N. Y.) 1 N. Y. Supp. 70; Id., 124 N. Y. 156, 26 X. E 343; Johnson's Adm'r v. Hunt, 81 Ky. 321; Wenninger v. Mitchell, 139 Mo. App. 420, 122 S. W 1130; Hermann v. Charlesworth, [1905] 2 K. B. 123, 74 L. J. K. B. 620, 93 Law T. 284, 54 Wkly. Rep. 22, 21 Times Law R, 36S. See "Contracts," Dec. Dig. (Key-No.) § I11; Cent. Dig. §§ 515-520.

95 Jangraw v. Perkins, 76 Vt. 127, 56 Atl. 532, 104 Am. St. Rep. 917. Sec "Contracts," Dec. Dig. (Key-No.) § I11; Cent. Dig. §§ 515-520.

96 MORRISON v. ROGERS, 115 Cal. 252, 46 Pac, 1072, 56 Am. St. Rep. 95,

Agreements are also contrary to public policy if they directly tend to disturb or prejudice the status of a lawful marriage after it has been entered into. Agreements for separation of husband and wife are valid if made in prospect of an immediate separation;97 but if they provide for a possible separation in the future they are illegal, and it is immaterial whether they are made before or after marriage, because they give inducements to the parties not to perform "duties in the fulfillment of which society has an interest." 98 "An agreement for an immediate separation is made to meet a state of things which, however undesirable in itself, has in fact became inevitable. * * * To allow validity to provisions for a future separation would be to allow the parties in effect to make the contract of marriage determinable on conditions fixed beforehand by themselves." 99