[43 NJSuper Page 316] The plaintiff in this proceeding seeks a judgment under the Uniform Declaratory Judgments Act, N.J.S. 2 A:16-50 et seq. , declaring his marriage to his
niece in Italy entitled to full recognition in the State of New Jersey and that plaintiff's cohabitation in the State of New Jersey with his said wife will not be in violation of the provisions of N.J.S. 2 A:114-1, which prohibits the crime of incest.
Santi Bucca, a resident of the City of Newark, New Jersey, married his niece, Antonina Crisafulli, on June 20, 1950 in the municipality of Marcellona, in Italy.
Antonina Crisafulli is the daughter of the sister of Santi Bucca.
Article 87, paragraph 3, of the Italian Civil Code provided that an uncle and niece may not contract marriage between themselves; but that the head of the State or the authorities to whom authority is delegated, can grant dispensation in the case of a marriage between uncle and niece. Santi Bucca alleges that such dispensation was received and that the marriage was a legal and valid marriage under the laws of Italy, where it was contracted. This allegation is not disputed, and for the purpose of this opinion will be considered as established.
Plaintiff desires to bring his alleged wife to New Jersey but the Attorney-General of this State has contended that the marriage is not entitled to recognition in this State and that, if plaintiff and his wife cohabit together in New Jersey, they will be subject to prosecution on a charge of incest.
A marriage between an uncle and niece, if performed in the State of New Jersey, is void. See R.S. 37:1-1:
"A man shall not marry * * * the daughter of his brother or sister. * * * A marriage in violation of any of the foregoing provisions shall be absolutely void."
If an uncle and niece marry in New Jersey, they are guilty of the crime of incest. See N.J.S. 2 A:114-1:
"Persons who intermarry within the degrees prohibited by law, or who, being related within such degrees, together commit fornication or adultery, are guilty of incest, and each shall be punished by a fine of not more than $1,000, or by imprisonment for not more than 5 years, or both."
The question before the court is whether this marriage, valid as performed in Italy, but void if it had been performed in New Jersey, will be recognized by the courts of New Jersey as valid.
The following statements of law are applicable:
55 C.J.S., Marriage , § 4, p. 811:
"The general rule is that the validity of a marriage is determined by the law of the place where it was contracted * * *."
King v. Klemp , 26 N.J. Misc. 140, 147, 57 A. 2 d 530 (Ch. 1947):
"It is a well known principle that the validity of a marriage contract is to be determined according ...