On appeal from the Superior Court, Appellate Division, whose opinion is reported in 33 N.J. Super. 504 (1955).
For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by Oliphant, J. Wachenfeld, Jacobs and Brennan, JJ., concurring in result.
This is an appeal from a judgment of the Appellate Division of the Superior Court affirming a judgment of the Superior Court, Chancery Division, in an action for annulment brought by the respondent in which the appellant counterclaimed for separate maintenance for herself and two children of the marriage.
Certification was granted in this case under R.R. 1:10-2(d) since the Appellate Division had decided an important question of law which has not been, but should be settled by this court.
The parties were ceremonially married in New Jersey on June 24, 1945, and have resided here ever since. They cohabited and held themselves out as husband and wife from the date of the marriage until February 10, 1952, when they separated. Two children of the marriage have been in the appellant's custody ever since. The parties met in 1944 and discussed marriage in the early spring of 1945, and in May 1945 they and their respective mothers appeared before a Catholic priest in Newark at which time the appellant informed the priest she was single and had never been married.
When she applied for her marriage license she expressly stated under oath that she was single but left blank the question as to whether she had ever been divorced.
In September 1951, six years after the marriage, the appellant informed the respondent that she had been married before and divorced. An investigation finally disclosed that the appellant had married one Byrne in 1935; that Byrne had sued for divorce on the ground of adultery and secured a decree nisi awarding him custody of their three children, and the appellant had seen the children only once since then. The decree nisi was entered on April 25, 1945 and the said decree did not become final until July 26, 1945, which was one month and two days after the date of the appellant's marriage with the respondent here, June 24, 1945.
The trial court found as a fact that the appellant had, before her marriage, held herself out as a single woman who had never been married and that the respondent believed her representations, and further that the first definite information the respondent had of the prior divorce was when his attorney gave him the results of an investigation early in 1953, and that the appellant had concealed from the respondent her prior marriage and he never learned until a year and a half after he left appellant on February 10, 1952 that she had a husband living when he married her.
We have reviewed the record in this case, as did the Appellate Division, and after giving due regard to the opportunity of the trial court to judge the credibility of the witnesses we concur in the finding of fact made by the lower two tribunals. R.R. 1:5-3(a). The Appellate Division likewise concurred in the conclusion of the trial court as a matter of law that (1) the ceremonial marriage between the parties was and is void; (2) there was not and could not be a common law marriage, notwithstanding the fact that they went through a ceremonial marriage, resided together as husband and wife for some years and children were born of the marriage, because L. 1939, c. 227, N.J.S.A. 37:1-10, abolished common law marriages in this State; (3) that under R.S. 9:15-2 the infant children of the marriage are legitimate even
though the ceremonial marriage of the parents be annulled; (4) that under the proofs the plaintiff was not estopped by his conduct, nor should relief be denied him because he came into equity with unclean hands; (5) giving due weight to the provisions of N.J.S. 2 A:34-1, a judgment of nullity would not be against the best interests of the children of the marriage.
A judgment nisi was entered on May 27, 1954, dismissing the appellant's counterclaim and the ceremonial marriage entered into on June 24, 1945 was declared a nullity; the judgment of nullity was held not to be against the interests of the children of the marriage since R.S. 9:15-2 declared them legitimate notwithstanding the annulment of the marriage, and custody of the children was awarded to appellant and respondent was directed to pay the appellant $15 per week for the support and maintenance of each of them.
The questions here presented which call for decision by this court are:
1. Does N.J.S.A. 37:1-10 abolish all common law marriages occurring subsequent to December 1, 1939?
2. Does N.J.S.A. 37:1-10 apply to a case where the requirements of a license and ceremony are met but an impediment existed which was later removed?
The Appellate Division, in an able opinion by Judge Goldmann, held that the statute in question abolished and denied recognition to any common law marriages and that it did apply where the impediment was subsequently removed and made the marriage void absolutely for all purposes.
The statute, L. 1939, c. 227, N.J.S.A. 37:1-10 provides:
"Nothing in this chapter shall be deemed or taken to render any common law or other marriage, otherwise lawful, contracted before December first, nineteen hundred and thirty-nine, invalid by reason of the failure to take out a license as herein provided. But no marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license as required by section 37:1-2 of this Title, and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious
society, institution or organization authorized by section 37:1-13 of this Title to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory, and not merely directory, shall ...