On appeal from the Superior Court of New Jersey, Chancery Division-Family Part, Bergen County, Docket No. FM-02-203-06.
The opinion of the court was delivered by: Cuff, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Parrillo and Gilroy.
We granted leave to appeal an order denying defendant Babak Haghighi's motion to dismiss the divorce complaint filed by plaintiff Faranak Yaghoubinejad. We reverse and remand for entry of an order dismissing the complaint because the June 30, 2001 marriage was "absolutely void."
The following facts are undisputed. Plaintiff and defendant participated in a marriage ceremony on June 30, 2001, in Short Hills. The ceremony was witnessed by Kurosh Haghighi and Mehdi Yaghoubinejad. The certificate recites that the ceremony was performed in accordance with the Islam religion and there appears to be a signature of the person who solemnized the marriage. The parties never obtained a marriage license.
On July 15, 2005, plaintiff filed a complaint for divorce. She alleged that the parties separated on June 30, 2003, and sought a divorce based on more than eighteen months continuous separation. N.J.S.A. 2A:34-2d. Defendant obtained an order to show cause initially returnable on August 11, 2005, requiring plaintiff to produce evidence of a legal marriage and an order requiring plaintiff to withdraw her complaint. Following oral argument on August 19, 2005, the motion judge denied defendant's request for relief by order dated August 22, 2005. He reasoned that the various validating acts cured any defect in the ceremony. Thereafter, on August 25, 2005, the judge issued a written opinion pursuant to Rule 2:5-1(b).
In his letter opinion, the judge acknowledged that N.J.S.A. 37:1-10 abolished common law marriages and further declared that no marriage shall be valid after the effective date of the statute unless the parties obtain a marriage license. The judge, however, relied on Taub v. Taub, 87 N.J. Eq. 624 (E. & A. 1917), which held that a marriage license was not a prerequisite to a valid marriage. He also referred to the Validating Acts. The judge noted that "the Validating Acts . . . serve to validate those marriages that would otherwise be invalid due to failure to adhere to the statutory requirements for a marriage to be deemed valid." He proceeded to hold that "the mere failure to obtain a marriage license" does not invalidate the marriage. The judge then declared "this marriage was in fact valid." We disagree.
Our research determines that the judge's reliance on Taub, supra, is misplaced and that all but one of the various Validating Acts address only defects in the solemnization of the marriage and do not excuse the failure to obtain a license. The one that does not address a solemnization defect does not provide any basis to validate this marriage.
N.J.S.A. 37:1-10 provides:
[N]o marriage contracted on and after December first, nineteen hundred and thirty-nine, shall be valid unless the contracting parties shall have obtained a marriage license as required by [N.J.S.A.] 37:1-2 . . ., and unless, also, the marriage, after license duly issued therefor, shall have been performed by or before any person, religious society, institution or organization authorized by [N.J.S.A.] 37:1-13 . . . to solemnize marriages; and failure in any case to comply with both prerequisites aforesaid, which shall always be construed as mandatory and not merely directory, shall render the purported marriage absolutely void. (emphasis added.)
The statute accomplishes three things. First, it abolishes common law marriage. Second, it requires that a license to marry be procured before the ceremony. Third, it requires that the marriage be solemnized by an authorized person or entity.
The Supreme Court has characterized the language of N.J.S.A. 37:1-10 as "broad and sweeping and should not be narrowly construed." Dacunzo v. Edgye, 19 N.J. 443, 450 (1955). It also observed that the Legislature employed "unusually peremptory terms." Ibid. Commenting on the language of N.J.S.A. 37:1-10 that declares a non-conforming marriage "absolutely void," the Court stated that "[i]t is axiomatic that a void act has no validity from the ...