Consodine, J.c.c. (temporarily assigned).
By motion the inherent power of Chancery is challenged.
Suit for custody and support of the children of the marriage of the parties disclosed that plaintiff had secured a one-day Alabama divorce in which suit defendant filed an appearance through his wife. Plaintiff returned to the marital domicile from Alabama. She remained there several months and then married. Defendant counterclaimed to void the divorce decree and for divorce on the ground of adultery. At this stage the parties settled their differences and plaintiff requested a dismissal of the suit.
The court, faced with these facts, on its own motion and after refusing dismissal appointed counsel in the framework of this case to contest the validity of plaintiff's Alabama divorce, in preservation of "the State's interest in the maintenance of the matrimonial relationship, repeatedly stressed in our decisions as fundamental in our public policy * * *." Loeb v. Loeb, 91 N.J. Super. 333, 335 (App. Div. 1966) modifying 89 N.J. Super. 568 (Ch. Div. 1966); certification granted 48 N.J. 144 (1966).
This action of the court is predicated on a long line of our cases to the effect that:
"It has been well said that in the granting of divorces the state, as well as the parties, is interested, and that the public is represented by what is called 'the conscience of the court' and a judicial investigation of all such cases, particularly when they are ex parte should be pursued with the utmost vigilance for the purpose of determining the bona fides of the application." Griffiths v. Griffiths, 69 N.J. Eq. 689, 691 (Ch. Div. 1905).
See also, Duerner v. Duerner, 142 N.J. Eq. 759 (E. & A. 1948); Schlemn v. Schlemn, 31 N.J. 557, 585 (1960) (dissent by Francis, J.) 11 N.J. Practice, (Herr, Lodge, Marriage, Divorce and Separation) § 1064, pp. 338-340 (1963).
New Jersey is not alone in the doctrine of Griffiths v. Griffiths, supra. It has been repeatedly declared that the State is a third party to every divorce proceeding and has a definite interest in guarding against the granting of divorces except in instances clearly within the statutory authority. The State, moreover, has exclusive control of the matrimonial status of those domiciled within its borders, and may unquestionably dictate the grounds, and the only grounds, upon which that status may be terminated. 1 Nelson, Divorce and Annulment (2 d. Ed. 1945), § 1.07 p. 15.
The public interest has been well bespoken in Maynard v. Hill, 125 U.S. 190, 8 Sup. Ct. Rep. 723, 31 L. ed. 654, (1888):
"Other contracts may be modified, restricted, or enlarged, or entirely released, upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution in the maintenance of which, in its purity, the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress."
And in 2 Bishop, Marriage, Divorce and Separation, § 496, pp. 663 and 664 (1891), that eminent authority wrote that the court establishes the justice of the complaint as between the parties ...