PUTATIVE MARRIAGE. This marriage is described by jurists as "matrimonium
putativum, id est, quod bona fide et solemnitur saltem, opinions conjugis
unius justa contractum inter personas vetitas jungi." Hertius, h.t. It is a
marriage contracted in good faith, and in ignorance of the existence of
those facts which constituted a legal impediment to the intermarriage.
2. Three circumstances must concur to constitute this species of marriage. 1st. There must be a bona fides. One of the parties, at least, must have been ignorant of the impediment, not only at the time of the marriage, but must also have continued ignorant of it during his or her life, because, if he became aware of it, he was bound to separate himself from his wife. 2d. The marriage must be duly solemnized. 3d. The marriage must have been considered lawful in the estimation of the parties, or of that party who alleges the bona fides.
3. A marriage in which these three circumstances concur, although null and void, will have the effect of entitling the wife, if she be in good faith, to enforce the rights of property, which would have been competent to her if the marriage had been valid, and of rendering the children of such marriage legitimate.
4. This species of marriage was not recognized by the civil law; it was introduced by the canon law. It is unknown to the law of the United States, and in England and Ireland. In France it has been adopted by the Code Civil, art. 201, 202. In Scotland, the question has not been settled. Burge on the Confl. of Laws, 151, 2.