Griffin, J.c.c., Temporarily Assigned.
The issue in this case involves the reinstatement of alimony based on the following undisputed facts. The marriage of plaintiff Susan Richards and defendant Francis Richards was dissolved by a Nevada divorce decree on September 30, 1969. The decree incorporated a support and property rights agreement which provided that defendant was to pay to plaintiff as alimony, "the sum of $175 a month, said payments to continue for her natural life or until she shall remarry."
In July 1972 plaintiff participated in a marriage ceremony with a James J. Kelly. Consistent with the divorce decree defendant at that time ceased making alimony payments. Almost three years thereafter the 1972 marriage was annulled in New Jersey based on a prior undissolved marriage of the purported husband. No support was awarded in connection with the annulment. Plaintiff now seeks to reinstate the alimony from defendant for the period subsequent to the annulment. It is plaintiff's contention that her purported second marriage was void and of no legal effect because of its bigamous nature. As a result she submits that a remarriage never occurred and that defendant must still comply with his alimony obligation.
The alimony provision of the agreement between the parties is in accord with N.J.S.A. 2A:34-25 which has been interpreted by the courts of this State to be mandatory. The courts retain no discretion to allow the wife alimony payments following a subsequent marriage. Ferreira v. Lyons , 53 N.J. Super. 84 (Ch. Div. 1958); Flaxman v. Flaxman , 57 N.J. 458 (1971).
Is plaintiff's purported marriage to Kelly a "remarriage" within the terms of the agreement and the statute? It must be understood that plaintiff's subsequent marriage
can only be construed as being void in nature. N.J.S.A. 2A:34-1(a) provides that judgments of nullity may be rendered "in all cases, when: Either of the parties has another wife or husband living at the time of a second or other marriage." In New Jersey a purported marriage such as this is void and not merely voidable. Hansen v. Fredo , 123 N.J. Super. 388 (Ch. Div. 1973).
The case of Minder v. Minder , 83 N.J. Super. 159 (Ch. Div. 1964), involved a mentally infirm plaintiff whose second marriage was annulled on the basis of her incompetence to enter into the bonds of matrimony. The court held that because plaintiff was unable to consent, the marriage was void and the divorced husband's obligation to pay alimony was not terminated. In ruling N.J.S.A. 2A:34-25 inapplicable to void subsequent marriages, the court relied on the historical distinction between void and voidable marriages. Void marriages were regarded as a nullity ad initio , with no attendant rights or obligations. Voidable marriages were traditionally considered valid, but capable of being adjudged a nullity. Applying this reasoning, the court declared plaintiff's void marriage to be of absolutely no legal effect, hence plaintiff had never remarried.
Subsequently, in Flaxman v. Flaxman , 57 N.J. 458 (1971), the Supreme Court had an opportunity to rule on the effect of an annulment of a voidable (as opposed to a void) marriage on the first husband's alimony obligations. It held that the first husband need no longer pay. That decision explicitly declined to rule on the question now before this court, that is, the effect of a wife's void subsequent marriage on the first husband's duty to continue alimony.
In Sharpe v. Sharpe , 57 N.J. 468 (1971), decided the same day as Flaxman, supra , the Supreme Court affirmed the lower court's decision disallowing the revival of payments upon the annulment of the wife's voidable second marriage. There, again, the court made no ruling as to marriages of a void nature.
As mentioned in both the Minder and Flaxman, supra , opinions, decisions in other jurisdictions have refused to allow a revival of alimony payments, regardless of the second marriage's classification as either void or voidable. In Gaines v. Jacobsen , 308 N.Y. 218, 124 N.E. 2d 290 (Ct. App. 1954), the court found no further payments to be due from the first husband. This ruling was predicated on the enactment of a statute which provided for a husband to pay alimony to his wife after an annulment as well as after a divorce. The court held that the wife's marriage to her second husband, even though absolutely void, resulted in a termination of any future support obligation by the first husband. Such action by the wife was termed a "remarriage" within the purview of the statute that terminates the divorced husband's duty to make further payments after another marriage by his former wife.
In reaching its decision the Gaines court discussed the case of Sleicher v. Sleicher , 251 N.Y. 366, 167 N.E. 501 (Ct. App. 1929). There the court had held that the first husband's obligation was revived upon the annulment of the wife's second marriage. The court (124 N.E. 2d at 293) noted that "at the time of the Sleicher decision it was impossible for a wife to obtain alimony or other support upon annulment of a marriage." To have held otherwise than the court did in Sleicher would, therefore, have deprived the wife in that case of any source of support whatsoever. The court viewed the passage of the statute allowing for alimony upon annulments of marriages to be determinative of the issue presented. Because the wife ...