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Lopez v. Lopez

Decided: July 18, 1968.

JULIO LOPEZ, PLAINTIFF,
v.
CARIDA RODRIQUEZ LOPEZ, DEFENDANT



Rosenberg, J.c.c. (temporarily assigned).

Rosenberg

On July 10, 1968 plaintiff Julio Lopez appeared at a hearing before me seeking to annul his marriage to defendant Carida Rodriquez Lopez. It is clear from the pleadings that on or about May 4, 1966 a contract for marriage by proxy was entered into between said parties wherein plaintiff, a resident of New Jersey, and defendant, a resident of Havana, Cuba, executed and then forwarded between the respective countries documents of marriage while each remained in his own country.

Initially, in order to resolve the status of these parties, it is first necessary to determine which law to apply. In Bucca v. State, 43 N.J. Super. 315 (Ch. Div. 1957), plaintiff, a resident of New Jersey, met his alleged wife on a visit

to Italy and married there. Subsequently, on his return to this State he sought to bring his alleged wife here. Nowhere in the moving papers was there any evidence that plaintiff intended to remain in Italy and establish his domicile there.

"* * * It may, therefore, be inferred that it was the intention of these parties at the time of the ceremony in Italy to establish their family domicil in New Jersey. Therefore, the validity of the status of these parties should be determined by the law of New Jersey." (at p. 321)

In the instant case the facts at the hearing disclosed that plaintiff, a resident of New Jersey, had met his alleged wife in Cuba and on his return here had asked her to marry by proxy, to which she agreed. The proxy was then executed. Thereafter, he had endeavored several times without success to arrange for her to come to New Jersey by telephoning her and withdrawing money for her passage.

Therefore, under the reasoning in Bucca, it may be inferred that at the time the proxy marriage was entered into, the parties intended to make New Jersey their family domicile. Consequently, the validity of the proxy marriage should be determined by the law of New Jersey.

Research has failed to disclose any statute or case law in this State respecting the validity or invalidity of proxy marriages. In other states where common law marriages were recognized as valid, proxy marriages were also considered valid. 55 C.J.S. Marriage ยง 6. In New Jersey, however, N.J.S.A. 37:1-10 in effect invalidates all common law marriages which may have been declared valid according to common law principles and, in addition, provides that any marriage contracted after 1939 is invalid unless there is a valid license and solemnization. Dacunzo v. Edgye, 19 N.J. 443, 451 (1955).

Does a proxy marriage meet the statutory requirements of N.J.S.A. 37:1-10 and other appropriate sections of that chapter? A clear example of a court invalidating a proxy marriage which did not comply with a statutory provision

is found in an Ohio case, Respole v. Respole, 34 Ohio Aps. 1, 70 N.E. 2 d 465, 170 A.L.R. 942 (C.P. 1946). In that case plaintiff, a resident of Ohio, entered into a proxy marriage in West Virginia. The court, in applying West Virginia law, stated:

"Since proxy marriage is not authorized by the statutory law of West Virginia and no exact ceremony is provided for celebrating the rites of marriage then the statutory law of West Virginia comprehend and requires a solemnization of the marriage ceremony as that term is generally understood and applied in law. Solemnization of marriage, or the celebration of the marriage ceremony or rites comprehends a personal appearance together by the contracting parties before one authorized by law to celebrate marriage ceremonies, and that the marriage ceremonies or rites be entered into and performed by the parties to such marriage together with the minister or other person authorized to perform such in the ...


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