For reversal -- Chief Justice Weintraub, and Justices Wachenfeld, Jacobs and Proctor. For affirmance -- Justices Heher and Burling. The opinion of the court was delivered by Jacobs, J. Heher, J. (dissenting).
The Appellate Division, in an opinion reported at 43 N.J. Super. 598 (App. Div. 1957), affirmed the Chancery Division's dismissal of the plaintiff's complaint which sought an annulment of her marriage to the defendant. We granted certification under R.R. 1:10-2.
The plaintiff and the defendant were domiciled in New Jersey as were their respective parents. They ran away from New Jersey to marry and they chose Indiana because they believed "it was the quickest place." The Indiana statutes provide that "females of the age of sixteen" are capable of marriage although they also provide that where the female is within the age of 18 the required marriage license shall not be issued without the consent of her parents. See Burns, Indiana Statutes Annotated, §§ 44-101, 44-202. After their marriage in Indiana on April 23, 1954 the plaintiff and defendant returned immediately to New Jersey where they set up their home. On February 22, 1955 the plaintiff bore the defendant's child. On April 22, 1955 the defendant, having been convicted on several independent charges of automobile theft, was sent to Bordentown Reformatory where he was still confined at the time of the hearing in the Chancery Division. On January 4, 1956 the plaintiff filed her annulment complaint under N.J.S. 2 A:34-1(w)hich provides that a judgment of nullity may be rendered on the wife's application upon a showing that she was under the age of 18 years at the time of her marriage and that the marriage has not been "confirmed by her after arriving at such age"; the statute also provides that where a child has been born there shall be no judgment of nullity unless the court is of the opinion that the judgment "will not be against the best interests of the child." Although the defendant was duly served he did not file any answer and he chose not to contest the plaintiff's proceeding.
The plaintiff's evidence adequately established that she was 16 years of age when she was married and that she did not confirm her marriage after she had reached 18 years of age and the Chancery Division expressly found that an
annulment would be "for the best interests of the child"; nevertheless it declined to grant the relief sought by the plaintiff on the ground that the marriage was valid in Indiana and should therefore, under principles of the conflict of laws, not be nullified by a New Jersey court because of the plaintiff's nonage. In reaching the same result the Appellate Division recognized that the Chancery Division had ample power to nullify the Indiana marriage of the New Jersey domiciliaries (N.J.S. 2 A:34-1(e); Scularekes v. Gullett, 106 N.J. Eq. 369, 371 (Ch. 1930); In re Olcott, 141 N.J. Eq. 8, 11 (Ch. 1947)) but expressed the view that comity dictated that it should not take such action unless there was an imperative New Jersey policy (which it did not find) against marriages of 16-year-old females. See 43 N.J. Super. at page 603. Cf. 2 Beale, Conflict of Laws § 129.1 (1935); Goodrich, Conflict of Laws 417 (3 d ed. 1949); Fleming, "Choice of Law in Nullity Proceedings," 23 Austr. L.J. 458 (1949); Jackson, "Annulment and the Choice of Laws, " 27 Can. B. Rev. 173 (1949); Kingsley, "The Law of Infants' Marriages," 9 Vand. L. Rev. 593, 604 (1956); Taintor, "Marriage in the Conflict of Laws," 9 Vand. L. Rev. 607, 624 (1956); Mann, "The Royal Commission on Marriage and Divorce," 21 Modern L. Rev. 1, 12 (1958).
In 1905 the Court of Chancery had occasion to deal with an application by a New Jersey resident for annulment of an English marriage entered into when she was 14 years of age; the court expressed the view that there could be "no doubt" as to its jurisdiction. After reviewing the plaintiff's evidence of fraud and duress and pointing out that while our law is interested in the permanency and inviolability of the marriage contract "it is equally interested in having it entered into by persons of competent age and judgment," it awarded a decree of annulment. See Avakian v. Avakian, 69 N.J. Eq. 89, 100 (Ch. 1905, per Pitney, V.C.), affirmed 69 N.J. Eq. 834 (E. & A. 1906). In 1907 the Legislature revised the statutory provisions relating to annulments (L. 1907, c. 216, p. 474); it directed that a decree of nullity could be rendered not
only in the case of a bigamous or incestuous marriage (see L. 1902, c. 157, p. 502) but also in any case, among others, where the wife sought the decree and established that she was under 16 at the time of the marriage and had not confirmed it after attaining such age. The history of this enactment was discussed in In re Anonymous, 32 N.J. Super. 599, 608 (Ch. Div. 1954), where Judge Goldmann indicated that its clear purpose was "to discourage child marriages and to protect children from the consequences which a binding marriage involves." See Gibbs v. Gibbs, 92 N.J. Eq. 542, 547 (Ch. 1921). See also Report of the Commissioners Appointed to Attend the Uniform Divorce Law Congress as Delegates for the State of New Jersey which sets forth the reasons expressed by the draftsmen of the 1907 revision:
"In preparing the revised New Jersey statute, the causes for annulment of marriage and for absolute divorce from the bonds of matrimony remain, therefore, without change with one exception -- this is the addition of a provision for annulment of marriages contracted under the age of sixteen for girls and the age of eighteen for boys, which may be annulled at the suit of the injured party only, unless confirmed by such party arriving at these respective ages. This provision was adopted at the adjourned session of the Congress, and the reasons for it are shortly given in the following extract from the address:
'Each State fixes by statute or decision some limit of age, and these ages fixed by the act, while raising the limits fixed by marriages at the common law, are not higher than the age fixed by statutes in many States, protecting females against consent to intercourse. The social conditions now generally existing through the Union do not seem to be such as to call for the encouragement of marriages at an earlier age, and the evils likely to result generally from such immature marriages seem to require their absolute prohibition.'"
In 1928 the Legislature strengthened its policy by increasing the wife's age requirement and providing that the wife could obtain a decree of nullification "when she was under the age of eighteen years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age." See L. 1928, c. 65, p. 139.
The vigor of New Jersey's policy against marriages by persons under the prescribed age is ...