Taylor v. Taylor , 249 Ala. 419 ( 1947 )

I am in accord with the opinion of the majority in so far as it holds that the marriage of the parties should be annulled and that the cross-bill of Jennie Kathleen Taylor should be dismissed. However, I am constrained to dissent in so far as the opinion holds that the "annulment is effective only from this date" and that the decree of annulment does not illegitimize the child.

In the case of Henley et al. v. Foster, 220 Ala. 420,125 So. 662, 664, Mr. Justice Bouldin, writing for this court, said: "Annulment proceedings differ materially from those for divorce. Divorce with us is statutory. Annulment rests upon general equity powers. Divorce fixes the future marital status; annulment, that of the past and present."

Under the majority opinion in this case the annulment proceeding is in no wise retroactive. It affects not the past, but the future. Such, in my opinion, is diametrically opposed to the holding in the case of Henley et al. v. Foster, supra.

In my opinion the case of Henley et al. v. Foster, supra, clearly shows that the rule in this jurisdiction has been that a decree of annulment illegitimizes children born after the marriage which the decree declares null and void. I think the profession is entitled to know what is the rule of this court on a matter of this kind. The majority opinion makes some reference to the Henley Case and says that it should not apply in this case, but the reasons given as to why it is not applicable are, in my judgment, ontirely inadequate. If they do not approve of the rule in the case of Henley et al. v. Foster, supra, they should have overruled it.