The opinion of the court was delivered by Consodine, J.c.c. (temporarily assigned).
Defendant moves to vacate the portions of the judgment nisi in this matter relating to the payment of $150 weekly by the defendant for the support and maintenance of plaintiff; the maintenance of a medical, hospital and surgical policy to her benefit; an order directing trustees William J. Camarata and Irving Mandelbaum to pay over to defendant the balance of $7,500, held in trust by them; and the return to defendant of an insurance policy on his life in the sum of $30,000. The agreement was incorporated in the judgment nisi.
The agreement predicated its benefits on plaintiff's not remarrying.
On March 22, 1962 plaintiff was readmitted to Overbrook Hospital where John Canning was also a patient. On September 7, 1962 plaintiff escaped from the hospital aided by John Canning, and they were married on September 10, 1962 in Elkton, Maryland.
Thereafter, application was made to the Superior Court of New Jersey, Chancery Division, for the appointment of a guardian for plaintiff. After a hearing her sister Nancy L. Busch was appointed as guardian. The guardian then instituted proceedings to annul the purported marriage between plaintiff and John Canning on the ground that plaintiff was incapable of consenting to the marriage by reason of her insanity or incompetency. On February 19, 1964, after a contested hearing, judgment nisi annulling the marriage between the plaintiff and John Canning was entered, which judgment provided:
"* * * That the said pretended marriage between June L. Minder and John V. Canning was from the beginning a nullity and should and shall be deemed to have been and to be null and void, and that the plaintiff and defendant did not and could not thereby contract in marriage, and that they are so far as said ceremony of marriage may affect them each unmarried. * * *"
The questions involved on this motion are:
A. Whether the obligation of a divorced husband to pay alimony will be affected by a subsequent void marriage where such marriage is annulled by reason of the wife's lack of consent occasioned by her mental incapacity to comprehend the nature of her act.
B. Whether the plaintiff's subsequent void marriage is a "remarriage" within the meaning of N.J.S. 2A:34-25, and within the meaning of the agreement incorporated in the judgment nisi ?
Out of the confusion in jurisdiction between the ecclesiastical and temporal courts of England grew the distinction between void and voidable marriages. This distinction is firmly rooted both in the common law and in the law of New Jersey. A voidable marriage is valid and not ipso facto void, until sentence of nullity is obtained. A void marriage is void ab initio. The judgment of nullity is merely declaratory that no marriage in law ever existed, while in a ...