For reversal and remandment -- Chief Justice Weintraub and Justices Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the Court was delivered by Proctor, J.
The sole issue before us is whether a woman's right to alimony from her former husband under a separation agreement incorporated into a divorce decree is revived by the annulment of the woman's second marriage on grounds which rendered it voidable. The Chancery Division held that the right was revived. 109 N.J. Super. 500 (1970). On plaintiff's motion we certified the matter directly to this Court before argument in the Appellate Division.
The facts pertinent to this appeal are not in dispute. Plaintiff and defendant were married and had two children. On June 15, 1966, the parties entered into a separation agreement. The agreement provided, inter alia, that the plaintiff
wife retain custody of the two children and that the defendant pay $50 support a week for each child and $169.23 a week for the plaintiff. The agreement contemplated that the plaintiff's right to alimony terminate if she should divorce the defendant and remarry. Thereafter plaintiff instituted a suit for divorce and obtained a judgment nisi on January 31, 1968. The judgment became final on May 1, 1968 and incorporated the separation agreement. Two months later, on July 4, 1968, plaintiff married a Frederick Green. On July 19, 1969, plaintiff's marriage to Green was annulled. The annulment was based on Green's fraud in that he never intended to have children or to consummate the marriage. Defendant refused to reinstate the wife's alimony following the annulment, and his refusal resulted in the present litigation.
The question of what effect the annulment of a second marriage has upon an award of alimony from a first marriage has never been before an appellate court of this state. There is no question but that a valid second marriage extinguishes a wife's right to alimony from her first husband. N.J.S.A. 2A:34-25; Ferreira v. Lyons, 53 N.J. Super. 84 (Ch. Div. 1958). In Minder v. Minder, 83 N.J. Super. 159 (1964) our Chancery Division held that a second marriage which was void by reason of the wife's mental incapacity did not extinguish her right to alimony from her divorced husband. See also Cecil v. Cecil, 11 Utah 2d 155, 356 P. 2d 279 (1960). A major difference between a void marriage and a voidable marriage is that the latter is treated as valid and binding until its nullity is ascertained and declared by a competent court, whereas the former does not require such a judgment. Ysern v. Horter, 94 N.J. Eq. 135, 139 (Ch. 1922); Steerman v. Snow, 94 N.J. Eq. 9 (Ch. 1922). Since the second marriage in the present case was voidable rather than void, Grobart v. Grobart, 107 N.J. Eq. 446 (Ch. 1931), aff'd 109 N.J. Eq. 129 (E. & A. 1931), Minder did not present the precise question which is before us today. The trial court found no distinction between void and voidable
marriages and thus relied on Minder. It reasoned that since a judgment of annulment of a voidable marriage relates back and renders the marriage void from the beginning, the judgment of annulment gave a voidable marriage the same effect as a void marriage. 109 N.J. Super. at 501.
It has been said, as the trial court here held, that a judgment annulling a voidable marriage relates back and renders the marriage void from the beginning. Wigder v. Wigder, 14 N.J. Misc. 880 (Ch. 1936). The doctrine of "relation back" is a legal fiction fashioned by the courts to promote justice between the parties to a voidable marriage. See Sefton v. Sefton, 45 Cal. 2d 872, 875, 291 P. 2d 439, 441 (1955); "Comment, Effect of an Invalid Remarriage on Alimony Payments," 24 Wash. & Lee L. Rev. 326, 331 (1967). Despite the fiction, voidable marriages have been given legal effect in some cases. For example, a voidable marriage has been given sufficient validity to provide consideration for a gift, American Surety Co. of New York v. Conner, 251 N.Y. 1, 166 N.E. 783 (1929), and to make a remarriage bigamous, Ysern v. Horter, supra at 139. Courts have been particularly wary of applying the "relation back" fiction where it might adversely affect the rights of innocent third parties. See Sefton v. Sefton, supra at 875, 291 P. 2d at 441 and cases cited therein. The decision of whether to apply the fiction in order to revive a wife's right to alimony from her former husband requires an examination of the policies involved.
Of course we recognize that there is a strong policy of insuring some source of support for a wife who obtains a divorce. Generally this support will come from her former husband. However, N.J.S.A. 2A:34-25 and most separation agreements as the one in the present case mandate termination of such support upon a wife's remarriage. One of the reasons for termination is that, upon remarrying, the wife obtains a new source of support. This does not mean, however, that termination of the second marriage reinstates support from the first husband merely because support is unavailable
from the second husband. We know, for example, that if the remarriage ends in divorce or if the second husband dies penniless, she may not look again to her former husband. See Gaines v. Jacobsen, 308 N.Y. 218, 223, 124 N.E. 2d 290, 293 (1954); Nelson v. Nelson, 282 Mo. 412, 221 S.W. 1066 (1920); Brandt v. Brandt, 40 Or. 477, 67 P. 508 (1902). And there are sound reasons for not allowing her to do so. When she enters into a second marriage ceremony, she holds herself out as having remarried. And her first husband is entitled to rely upon her new marital status. He may assume that his financial obligations to her have ceased and reorder his own affairs accordingly. This freedom from such obligations may lead him to change his mode of living or even to remarry and establish a new family. We can see no sound reason for treating an annulment any differently from a divorce or death in this regard. A husband whose wife enters into a voidable second marriage is no less likely to rely on the validity of that marriage than is one whose former wife enters into a valid second marriage. In the present case it appears that the defendant has remarried and taken on all of the responsibilites of that remarriage. We think that under the terms of the separation agreement as incorporated into the divorce decree and N.J.S.A. 2A:34-25, he was entitled to so rely and recommit to other purposes assets previously chargeable to alimony.
Were we to hold otherwise, a husband, whose divorced wife had remarried, could never be certain that the financial responsibility for his former wife would not shift back to him. Moreover, only she and her second "husband" ordinarily would know whether there was cause for an annulment, and the option would be hers either to annul or ratify the marriage. Grobart v. Grobart, supra. Thus, where the marriage is voidable -- a circumstance of which the former husband is probably not even aware -- the marriage nevertheless might continue indefinitely. ...