I am in accord with so much of the majority opinion which holds that the appellant is precluded from relief as to his petition for an annulment of marriage. *Page 538
Where one with full knowledge of the factual situation goes through a marriage ceremony with a woman and cohabits with her for a period of time, he cannot thereafter obtain a decree of annulment on the basis that his spouse at the time of the ceremony was the lawful wife of another and at the time of her second marriage a divorce decree previously obtained was invalid.Keller v. Linsenmyer, 101 N.J. Eq. 664 (Ch. 1927). No one can successfully annul a marriage when entered into with knowledge that either party had a former spouse living. Ignorance of the essential facts is a prerequisite of relief. Tyll v.Keller, 94 N.J. Eq. 426 (E. A. 1923); Smith v. Hrzich(Sup.Ct. 1948) 1 N.J. 1.
But I cannot agree with that part of the opinion which relieves the appellant from his obligation to support the respondent. Both parties had the same knowledge and belief that the Mexican divorce decree previously obtained by respondent from a prior husband was sufficiently valid to permit their lawful marriage. Upon this assumption they went through a marriage ceremony and lived together as husband and wife for more than two years. A child was born of the marriage and is now four years old. They separated in November 1945 because of some minor disputes which had occurred and it was not until June 1946, after consulting counsel, that the appellant decided to attempt to annul his marriage upon the ground that the respondent's Mexican decree was a nullity.
As stated in Tyll v. Keller, supra, having tired of his bargain, the luster of which had been temporarily dimmed by petty arguments, and finding no other way out, the husband attempts an annulment of the marriage. So far as I am concerned, although the petition does not so state, his main object in this litigation is to avoid his financial obligation to support and maintain the respondent.
The majority opinion denies his right to annul the marriage on the unclean hands doctrine. As a result, the appellant, although estopped from annulling the marriage, is nevertheless permitted to escape the obligation of support and maintenance. It is a peculiar and strange kind of equity which by its decree prohibits an attack upon the contract itself but abnegates the pecuniary obligation which flows from it. *Page 539
True Caldwell v. Caldwell, 298 N.Y. 146, 81 N.E.2d 60 (1948), so holds, but I am unwilling to subscribe to the reasoning there advanced in this regard. The result arrived at inKrause v. Krause, 282 N.Y. 355, 26 N.E.2d 290 (1940) enforcing the obligation to support by the application of quasi estoppel notwithstanding the marriage was a nullity, is more logical and equitable. The court there held:
"To refuse to permit this defendant to escape his obligation to support plaintiff does not mean that the courts of this State recognize as valid a judgment of divorce which necessarily is assumed to be invalid in the case at bar, but only that it is not open to defendant in these proceedings to avoid the responsibility which he voluntarily incurred."
Equity, founded as it is upon good conscience, should not grant relief to a complainant either directly or indirectly in any attempt which it deems unconscionable. The appellant's effort here to relieve himself of the obligation to support which he voluntarily assumed and continued, in my judgment, is unconscionable and the relief which he asks for should not be granted either in his request by way of annulment or by way of defense to the counterclaim for support by the wife. See Rooneyv. Rooney, 54 N.J. Eq. 231 (Ch. 1896).
Evidence of a ceremonial marriage followed by cohabitation raises a strong presumption of the legality of the marriage, which presumption is founded "in the motives which govern human conduct and in the policy lying at the base of our social system." Sparks v. Ross, 72 N.J. Eq. 762 (Ch. 1907). A party asserting the illegality of a marriage has the burden of negativing every reasonable possibility of its validity. Kellerv. Linsenmyer, supra. If appellant is estopped to deny the validity of the marriage in affirmative relief, which is the decision of the majority opinion, the estoppel should also operate equally to bar his attack upon the marriage when the wife seeks to obtain the enforcement of the obligations based upon that relationship.
For reversal in part: Chief Justice VANDERBILT and Justices CASE, HEHER, BURLING and ACKERSON — 5.
For affirmance: Justice WACHENFELD — 1. *Page 540