Eastwood, Goldmann and Francis. The opinion of the court was delivered by Francis, J.c.c. (temporarily assigned).
[22 NJSuper Page 115] Appellant sought an annulment of her marriage to respondent on the ground of fraud. After hearing, an adverse judgment was entered because of the insufficiency of her proof.
The record discloses that both parties had been married previously; appellant was a widow and respondent divorced. Each had a child by the first marriage.
Appellant's claim, which was presented under the general equity jurisdiction of the Chancery Division of this court, is that respondent was guilty of fraud which affected an essential of the marriage. Her factual contention, as it appears on this appeal, is that some time before the ceremony she and respondent agreed that she would continue to work thereafter until certain outstanding debts of his were paid, that in the meantime sexual intercourse would be engaged in with some contraceptive device and that upon discharge of the obligations contraception would cease. Then they would have children. She alleges that subsequent to their marriage on July 14, 1951 she retained her employment and in accordance with their agreement fecundation was insured against; their earnings were pooled and at the end of five months the bills were paid. Thereafter on the night of January 23, 1952 she requested intercourse without contraception, saying that she wanted children. An argument ensued in the course of which her husband asserted that before the marriage he never intended to have children and that she should keep on working because he had no intention of supporting her and her child. And she claims that the following morning he packed his belongings and left their home.
The approach to the examination of the testimony adduced at the hearing to determine what was established in fact, must be made with an awareness of certain doctrinal guides appearing in our case law. Procreation of children has been described as "the most important object of matrimony" (Turney v. Avery , 92 N.J. Eq. 473 (Ch. 1921) and its "controlling purpose" (Raymond v. Raymond , 79 A. 430 (Ch. 1909).
The marriage contract is regarded as a triaded one, with the State as the third party, because the status achieved thereby is the foundation of our society. The public interest
as represented by the State, of necessity, being opposed to dissolution of the compact, the law has declared that annulment will be granted only when the fraud is of an extreme nature and goes to an essential of the marriage and where the proof thereof is clear and convincing. Rhoades v. Rhoades , 10 N.J. Super. 432 (App. Div. 1950); Lindquist v. Lindquist , 130 N.J. Eq. 11 (E. & A. 1941); Carris v. Carris , 24 N.J. Eq. 516 (E. & A. 1873); "N.J. Practice Series," (Herr on Marriage, Divorce and Separation), Sec. 946. Undoubtedly if a prospective husband or wife prior to the marriage formed a fixed determination never to have children, did not communicate that fact to the intended spouse, and then refused to engage in marital relations without contraception, fraud of the required character would exist. Bolmer v. Edsall , 90 N.J. Eq. 299 (Ch. 1919). However, in view of the conclusion we have reached on the factual problem presented, it is not necessary to pass upon any question of public policy or unclean hands arising out of an agreement to prevent procreation for a limited time after marriage.
Respondent interposed no defense at the trial. However, this did not lift the heavy burden which the appellant was required to carry in proving and corroborating her claims. Nor did it relieve the trial court of the obligation, which the appendix shows he recognized, of evaluating the proof and the credibility of the witnesses carefully in the light of the controlling principles to which reference has just been made. Cf. Hafner v. Hafner , 66 N.Y.S. 2 d 442, 445 (Sup. Ct. 1946).
Appellant testified that Buccino promised that they would have children after the marriage if she helped him by continuing to work until his bills were paid. She said nothing about any premarital conversation or agreement on the subject of use of contraceptives after the ceremony; nor anything about the length of time it would take through their joint efforts to satisfy the debts. Since the law recognizes that persons approaching matrimony do not always
discuss the question of procreation of children, it assumes that they do not intend to frustrate this important end of their union but rather that they intend to bring it to its normal fruition. As was said in Gerwitz v. Gerwitz , 66 N.Y. Supp. 2 d 327 (Sup. Ct. 1945):
"Implicit in the marriage contract is the representation that the parties will have normal and natural relations and that they will not do anything which will frustrate the normal and natural result of those relations. Where nothing is said prior to the marriage by a spouse on the subject of children, it is presumed that he or she intends to enter ...