Mistresses & Matrimony

Up to last week the U. S. was evenly divided on "common law" marriages. In 24 States a man and a woman, if they lived decently and publicly together long enough as husband & wife, were accepted as such in the eyes of the law. despite the fact that their union was unhallowed by the church, unsanctioned by statute. In the other 24 States an eligible bachelor's mistress never could attain the legal status of a wife by merely passing herself off as such.

Last week New York tipped the national balance against "common law" marriages 2540-23 by legislating them out of existence. Governor Lehman signed a bill which decreed that hereafter no marriage within the State shall be valid unless solemnized by a clergyman or a civil officer. The measure does not disturb those already living in informal wedlock. Its advocates predicted that it would strip "golddiggers" of their strongest weapon in claiming a widow's right in a dead man's estate. Its opponents feared it would work hardship upon ignorant, simple women who thought they were getting married by a mere say-so.

"Common law" marriages are of primary interest to the States as they affect property inheritances. Last week's law had one of its roots in the famed Erlanger-Fixel case (TIME. Dec. 28. 1931). Early in 1930 Abraham Lincoln Erlanger, wealthy theatre man, died, bequeathing to his brother and sisters an estate estimated at $75,000,000.* In 1912 he had been divorced, forbidden to remarry in New York State. At his death appeared a buxom ex-chorus girl named Charlotte Pixel who. as "Mrs. Erlanger," contested the will. The trial lasted for twelve weeks before Surrogate John Patrick O'Brien, now Mayor of New York. Charlotte Pixel called 125 witnesses to swear that she had been publicly recognized and accepted as Erlanger's wife. One witness described an Atlantic City boardwalk scene in which Erlanger declared he was "doubly married" to Charlotte Fixel. About 75 other witnesses appeared to tell how Erlanger considered himself single, how he expressed a desire to be rid of "this woman." Surrogate O'Brien decided for Charlotte Fixel. His ruling entitled her to sue for a widow's share in the Erlanger estate. Said he in a 500-page decision: "The real picture [of the evidence] presents a union of two sympathetic persons, for a time illicit but not because of a lack of matrimonial intent; a decade of mutual fidelity unstained by even a suggestion of difference or inconsistency; a blending of two lives such as are lived by the average husband and wife faithfully devoted to each other. . . . The relationship of husband and wife was consummated and confirmed by their subsequent cohabitation, acknowledgment, habit and repute." While New York mistresses were losing their legal standing last week, New York wives were also being shorn of some of their power when Governor Lehman signed four bills effecting the first changes in the State's alimony laws in half a century. Up to last week the New York civil law, as a punitive measure, required a judge to jail a husband who was in default on his payments to his divorced wife. Incarceration was on the technicality of contempt of court--that is, the husband's refusal to pay what the judge had ordered. Whether the husband was able to pay or not made no difference. Once behind bars, his debt continued to mount, burying him under it. Many a vengeful ex-wife kept her husband in jail rather than accept an alimony cut. Many a vengeful ex-husband stayed in jail rather than pay his wife a penny. In New York City prisons alone last week were 130 delinquent alimony payers when the new laws became effective. Judges were now given wide discretion. If a husband could not pay because he was jobless and without property or income, the court was free to suspend its contempt orders, let him go. By his power to modify alimony payments, a judge likewise could keep divorce debts from piling up on an imprisoned husband. No longer could irate wives, as a matter of legal right, demand the permanent jailing of their men. In New Jersey last week Governor Moore signed a bill whereby a divorcee who remarries loses her alimony from her first husband.

*Later accountings reduced it to $124.

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