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Enoch Arden Doctrine

spouse absent remarriage marriage

The Enoch Arden doctrine consists of the legal principles involved when a person leaves his or her spouse under such circumstances and for such a period of time as to make the other spouse believe that the first spouse is dead, with the result that the remaining spouse marries another, only to discover later the return of the first spouse. Generally, in most states, it is safer for the remaining spouse to secure a DIVORCE before marrying again.

The Enoch Arden doctrine is named from the title of the famous poem of Alfred, Lord Tennyson, which recounted the story of a sailor who after being shipwrecked for ten years returned home to discover that his wife remarried. The sailor, however, refused to disrupt the remarriage. Jurisdictions recognized the need to deal with Enoch Arden marriages since, traditionally, a person can lawfully be married to only one spouse at a time. In an Enoch Arden situation, the spouse who has remarried does so based upon the GOOD FAITH belief that the absent spouse is dead. Nevertheless, he or she could be legally charged with, and prosecuted for, bigamy. Under both canon and COMMON LAW, the remarriage was regarded as void ab initio and any children born of it were considered illegitimate. In some jurisdictions, the spouse who remarried could also be sued by the new spouse for ANNULMENT or divorce on the ground of bigamy. These harsh results led state courts and legislatures to resolve such cases.

Many jurisdictions passed statutes based upon one enacted in 1603 during the reign of King James I of England, which barred the conviction of a spouse on bigamy charges if he or she remarried seven years after the absent spouse disappeared without any knowledge that the absent spouse was alive. Such statutes transformed the probability of the death of the absent spouse into a legal certainty. States subsequently liberalized the original statute by permitting remarriage after a five-year period as opposed to a seven-year period.

Such statutes do not, however, endow the remarriage with legal status if the absent spouse is alive. Additional legislation was necessary to provide a means for legal recognition of the remarriage. A spouse who plans to remarry can commence an action for divorce based upon desertion, if he or she can establish that the absent spouse intended not to resume their marital relationship and willingly left home without justification for the requisite time period.

The facts of many Enoch Arden cases do not establish desertion, however. Legislatures have taken a variety of approaches to solve this difficulty. Some statutes provide for the judicial dissolution of a marriage, provided a spouse has been absent for five consecutive years without any knowledge that he or she is alive, the spouse who commences the dissolution proceeding believes that the absent spouse is dead, and a diligent search was undertaken but there was no evidence that the absent spouse is alive. A spouse must obtain a dissolution of the marriage by the court before he or she can legally remarry or else the remarriage will be void as a bigamous marriage. Statutes usually require the spouse who initiates the proceedings to place a notice for a specified time in a newspaper judicially regarded as most likely to give notice to the absent spouse. Such SERVICE OF PROCESS by publication satisfies the constitutional requirements of DUE PROCESS OF LAW in regard to the dissolution of the marriage, but it does not necessarily affect property or other rights.

Another statutory approach involves a court inquiry made when the spouse planning to remarry applies for a marriage license. The absent spouse receives notice by publication, and the outcome of the proceeding is a court finding of the death of the absentee, provided a diligent search was conducted. Although such a procedure recognizes the common-law presumption of death after seven years' unexplained absence, it permits a finding of death where the absence has been for a shorter time. Once the court makes a finding that the absent spouse is dead, the appropriate agency can issue a marriage license to the applicant and the remarriage is and remains valid, even if the absent spouse returns.

Other jurisdictions dispense with the requirement of legal proceedings and recognize the validity of a remarriage when the spouse is absent and there is no knowledge that he or she is alive for a statutory time period. A few states modify this general rule by either refusing to treat the remarriage as valid if the absent spouse and his or her survivor agreed to separate or if the survivor has not made reasonable inquiries to locate the missing person.

CROSS-REFERENCES

Marriage.

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