ENOCH ARDEN DOCTRINE
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 Ten-
nyson, 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 remar-
riage. 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 illegiti-
mate. 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 con-
viction 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 trans-
formed 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 mar-
ital 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 diffi-
culty. Some statutes provide for the judicial dis-
solution 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 mar-
riage. 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 satis-
fies 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 pre-
sumption of death after seven years’ unex-
plained 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
