Hite

It is held in the majority opinion in this case that when alimony and suit money, pendente lite, is prayed for in an action for divorce, the marriage being denied, then upon the'preliminary hearing the fact of marriage must be established by a preponderance of evidence, or the application should be denied. Upon the .final hearing it is onjy necessary to establish the marriage by a preponderance of evidence. Hence, if the conclusion of the court be sound, the result is that in every case where the marriage becomes an issue of fact there can be no such thing as alimony and suit money. For, if the woman is able to establish the marriage by a preponderance of evidence without the money to assist her, she has no need'of the money, and her application should be denied for that reason. If she can establish the fact of marriage upon the preliminary hearing by a preponderance of evidence, without; money, she can as readily establish that fact upon the final hearing without money/ If she be able to establish the fact of marriage by a preponderance of evidence without money, then she need not go to the trouble of establishing that fact until the final hearing. It is thus made plain that the…

This is an appeal from an order allowing alimony and suit money in an action for a divorce.

Plaintiff contents herself in her complaint, so far as her cause of action is concerned, with the averment of her marriage to defendant and a charge of - adultery against him. Defendant denies the marriage, and avers that the person with whom he is charged to have committed adultery is his lawful wife. He also charges that plaintiff, since her alleged marriage to him, has had illicit relations with other men.

The order or judgment appealed from was made after notice and a hearing upon which many affidavits were read, as were also depositions of the parties.

*390 In addition to the showing as to her lack of means and the facilities of the defendant, the plaintiff states that she will require thirty or forty witnesses, many of them to prove that the parties have cohabited together as husband and wife, and are generally reputed to be such, and that the defendant has frequently so represented. In her deposition she states that the contract consisted simply in this, that the defendant said to her, “You are my wife.” That no witnesses were present, and that she had refused longer to live with…

I concur in the judgment of . reversal. It is only a wife who can claim alimony (Civ. Code, sec. 137), and, when the fact of marriage is in issue and unproved, there is no one in that position. To allow a woman *396 alimony for the purpose of enabling her to prove that she is a wife seems to me to involve a glaring absurdity, and to allow it every time she makes a prima facie case of marriage by her pleading or affidavit Would result in something more serious than an absurdity.

If a husband sues for a divorce, alleging a marriage, of course there can be no question” of the right to alimony, if he is able to pay and the wife is in need. If he sues to annul a marriage upon the ground that it was void, ab iniiio, by reason of fraud, pre-contract insanity, et cetera, the granting of alimony pendente lite would be proper, because a formal marriage is alleged and will remain a lawful and established marriage in the absence of affirmative proof by him of the existence of some fact, or facts, which will invalidate it. In such a case, I concede the propriety and justice of allowing the wife (for until the fraud or other invalidating circumstances are established she is the wife) money to…

Further consideration upon the rehearing of the question involved herein has led me to the conclusion that the court erred in making the order appealed from. The question involved in the appeal is to be determined by the statutes of this state, irrespective of the decisions thereon by the ecclesiastical and chancery courts of other jurisdictions, however serviceable the opinions of those courts may be in arriving at a proper construction of these statutes. “The code establishes the law of this state respecting the subjects to which it relates” (Civ. Code, sec. 4); and section 137 of the same code provides: “While an action for divorce is pending the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” As such order can be made only in behalf of the wife, it is essential that the applicant for the order make it appear to the court that she is the wife of the respondent. In an action for divorce by the husband, it would appear from his complaint that the defendant is his wife, and no further showing of this fact would be required; but in an action by a…

I dissent, and think that for the reasons given in the opinion in Department the order appealed from was there properly affirmed, and should be adhered to. It seems to he admitted that in a divorce suit, although the marriage be denied, still an allowance for alimony .to the wife may be rightfully made before the determination of the issue of marriage at the final hearing of the case. But that *401 would be of little advantage to the plaintiff if at the preliminary hearing “the marriage must be proved” in the sense in which that proposition is meant in the opinion of the majority of the court. In the case at bar, the issue of marriage or no marriage is the main issue in the case, and according to the majority opinion she cannot be allowed any aid for the purpose of procuring evidence on that issue unless, without such aid, she had already proved it; although she may have no means at all, she must still rely entirely upon herself in obtaining evidence and procuring counsel in support of her side of that issue. Whether or not she has made sufficient proof at the preliminary hearing to warrant the court in allowing her aid in preparing herself for the final adjudication of that issue…