Marriage

Two perspectives this afternoon on marriage and death.

The UK Independent reports ('Till death us do not part: French woman marries dead fiancé') that Magali Jaskiewicz has married her dead fiancé.

The dead man, father of her two daughters, was killed in a road accident two days after the couple informed the town hall that they planned to become man and wife. That was almost a year ago. Under article 171 of the French civil code it is possible for a bride or groom to marry a dead fiancé, with permission from the French President after providing clear evidence that the people planned to marry and were interrupted by the grim reaper.

The Article dates from December 1959, after De Gaulle was inspired to change the law to enable Irène Jodard to marry deceased fiancée André Capra, a victim of the Malpasset dam disaster. It specifies that -

The President of the Republic may, for grave reasons [no pun in the original], authorise the celebration of the marriage where one of the future spouses is dead after the completion of the official formalities indicating unequivocally his or her consent.

In this case, the effects of the marriage date back to the day preceding that of the death of the spouse.

However, this marriage may not involve any right of intestate succession to the benefit of the survivor and no matrimonial regime is considered to have existed between the spouses.

I haven't yet checked for an exegesis of the Article, which presumably gives the surviving partner some consolation and confers the father's name on the offspring.

The Independent delivers the expected bathos -

The bride wore white but, as the mayor sadly pointed out, she was a widow before she left the town hall. ...

"She left the town hall a widow but she had taken her loved one's name," Mr Caput said. ... "It is a real love story. When the gendarmes brought her the decree signed by the President, she came straight to see me. She said, 'These are my first tears of joy since Jonathan died'."

[Jaskiewicz] dressed all in white, married Jonathan and became his official widow. During the ceremony, a large colour portrait of Jonathan was placed beside her on a wooden stand. ... The bride, relatives and friends and the couple's daughters, Doriane, three, and Kassandra, 18 months, then went to place flowers on the bride-groom's grave.

Supposedly there are around 20 such posthumous marriages in France each year, which on consideration are less bizarre than the retrospective conversion of dead ancestors practiced by devotees of the Church of Latter-Day Saints.

The last major media coverage appears to have been reporting of a 'provocation' by US performance artist Shishaldin, otherwise known for selling her DNA on eBay and running the New York City marathon dressed in salami, so much more original (for anyone who can't remember the Italian Futurists) than dressed as a salami.

'Lautréamont and the Haunting of Surrealism' by Shane McCorristine in 5 Studies across Disciplines in the Humanities and Social Sciences (2009) 31-49 reports that in 2004 Shishaldin

released a report to the media and appeared on British television claiming that she was attempting to marry the Isidor Ducasse aka the Comte de Lautréamont [author of Les Chants de Maldoror and interred since 1870] by invoking an obscure article of the French Civil Code which allows for the marriage between a living citizen and a dead fiancée. Shishaldin wrote a letter to President Jacques Chirac requesting that he authorise this posthumous engagement: En tant qu’artiste, je me sens compulsif pour faire un stand 'bold' à la défense du mariage en tant qu'une union qui ne peut pas être définie, une union des âmes et des spirites, la sorte d'union célébrée par fait d'art et de littérature ..., un mariage d’art et littérature.

Chirac was apparently not amused.

Coincidentally there has been a reference in the New York Times to the 1964 'von Linde' case, a posthumous dissolution of a US marriage that illustrates conceptualisation of marriage as something concerned with heterosexual activity.

In Estelle F Sophian v. Manfred Graf von Linde (10/27/64) the NY Supreme Court Appellate Division First Division upheld the lower court's decision in favour of Ms Sophian, who had sought posthumous annulment of a marriage between her niece and Mr von Linde. The husband, who died in 1968, is otherwise famous as a plastic surgeon who worked on Montgomery Clift's face and as a supporter of gay liberation prior to Stonewall.

The court notes that

The marriage took place on March 1, 1962. On March 11 the couple went on their honeymoon in Haiti. On March 14 the wife died there. The action is brought by an aunt of the deceased wife. No question of the capacity of the plaintiff to bring the suit is raised.

The Annulment was sought on the basis of fraudulent misrepresentations inducing von Linde's wife to enter into the marriage.

here were three causes of action, each based on representations of a different character. The first alleged that defendant misrepresented his age, origin and ancestry. The second alleged that he concealed the fact that he was a homosexual. And the third alleged that he misrepresented his intentions to have normal sexual relations with his wife. The [lower]court dismissed the second cause of action for failure of proof and submitted the other two causes of action to the jury. The latter found for the plaintiff on both causes of action.

The appellate court noted that -

As to the first cause of action, it was established beyond doubt that defendant's real name is Robert Dent and that he is a native of Birmingham, Alabama. He married under the name of Manfred Graf Von Linde, a name which he continues to use; and at the trial he claimed the protection of the Fifth Amendment as to all inquiries as to how he came to adopt it.

It commented that -

In this case the status of the parties, the bald-face fraud practiced for an obvious venal purpose on a woman peculiarly susceptible to this kind of allure, provided an issue as to the fairness of defendant's dealing. Its resolution by the jury is not in conflict with our law.

As for the third cause of action, there is, and there could be, no dispute that, if the defendant never intended to have normal sexual relations with his wife and either concealed or misrepresented this state of mind, it would constitute fraud material to the marriage contract. The objection here is as to the proof that defendant had such an intent. Proof of an intent rarely rises to a degree that absolutely precludes a finding to the contrary. The proof here was as to defendant's statements and conduct after the marriage. Here also the fact that the person whose testimony would be expected to shed the most light on the facts, namely, the wife, was dead, made the proof more difficult. But there was proof, and the greater part of defendant's argument is devoted not to its sufficiency but to its credibility. That was a matter for the jury, and we cannot say that their conclusion was against the weight of the evidence. ... The evidence presented in support of the third cause of action that the marriage between Lucille Rogers and the defendant was never consummated was based on the testimony of the Haitian chauffeur employed by the defendant relating to conversations he overheard by Lucille Rogers and the defendant while they were riding as passengers in the back seat of an automobile.

In discussing Dent/von Linde's sexuality, the court was more cautious, commenting that -

it is unnecessary to consider the appeal from the dismissal of the second cause of action. However, a brief statement of our views might be in order in the event that a retrial should ever become necessary. Dismissal was on the ground of failure of proof. The proof consisted of one act of homosexuality committed some 16 years prior to the marriage. There was also proof that the deceased wife had a very marked aversion to sexual deviation. The court concluded, rightly, we believe, that this single act was not proof of defendant's sexual character, nor was the proof of the wife's aversion sufficient to draw the inference that, had she known of this single act long antedating the marriage, she would not have accepted defendant's proposal. However, subsequent to the verdict plaintiff moved on the basis of newly discovered evidence for judgment on the second cause of action. The newly discovered evidence consisted of records of the United States Navy Department showing a long and continuous history of homosexuality. These records had been subpoenaed for the trial but were not made available by the Navy Department until after the verdict was rendered.