Concurring Opinion by
Cercone, J.:This is an appeal by defendant from the lower court’s entry of a $20.00 per week order for support of *137wife and child. Defendant had sought to prove during the lower court proceedings that his marriage to the petitioner was not a valid one, there subsisting a valid prior marriage between him and his first wife. The trial judge refused to permit defendant to introduce such a defense because there had been no decree of annulment of the marriage.
This assessment of the situation by the court below is contrary to the governing law, which is, “. . . that a marriage is void may be shown in any legal proceeding where it is a pertinent matter. Newlin’s Estate, 231 Pa. 312, 314, 80 A. 255; Com. v. Mudgett, 174 Pa. 211, 253, 254, 34 A. 588; Maurer v. Maurer, 163 Pa. Superior Ct. 264, 270, 60 A. 2d 440.” The decree of annulment which the court below found necessary would only have declared the invalidity of the marriage, a fact which exists independent of the decree. As stated in Commonwealth ex rel. Knode v. Knode, 149 Pa. Superior Ct. 563 (1942) : “A decree of annulment in reality does not annul the marriage, for it does not speak only from its date; it merely declares that the marriage was void from the very beginning. It does not create a new status but, on the contrary, affirms that there has been no change in status. A nullity in law is not comparative, to be measured by degrees; it is absolute, implying that the thing has no legal existence. Such decree is no more than a declaratory judgment, judicially determining with certainty and finality that there never was a valid marriage.” A void marriage is a nullity whether or not declared so by a decree of annulment, and that such nullity can be shown by the defendant in a support action has already been expressed in Maurer v. Maurer, 163 Pa. Superior Ct. 264, at 270, 271 (1948) : “If void in Pennsylvania, the marriage was no less a nullity, regardless of whether so declared in an annulment proceeding. Klaas v. Klaas, 14 Pa. Supe*138rior Ct. 550; Com. ex. rel. Knode v. Knode, supra. . . The advantage given the libellant by the 1935 Act in permitting him to prosecute an annulment proceeding, is more seeming than real. Without a decree of annulment, under the cases above cited, the invalidity of the present marriage might be declared ... in a proceeding brought by respondent for her support. . .”
. The court below, during the proceedings, questioned petitioner as to her knowledge of defendant’s subsisting prior marriage, but, of course, such knowledge or lack thereof would be immaterial to the .issue of the validity of her marriage to defendant. The subsisting prior marriage rendered defendant incompetent to enter into another valid marriage contract whether or not petitioner knew of such fact of incompetency.
The decision in Commonwealth ex rel. DiDonato v. DiDonato, 156 Pa. Superior Ct. 385 (1945), relied on by the court, below, is in no way inconsistent with the law as here stated. Since the defendant in that case had secured a decree of annulment by the time of his second support hearing, the court relied on that decree of annulment as establishing .the invalidity of the marriage, even though at. the first support hearing defendant did not contest the. validity of the marriage. The court there clearly pointed out that even at the original, hearing the defendant “might have offered testimony of his prior subsisting marriage as a defense to his liability for support of relatrix.”
I would reverse the action taken by the court below and remand the matter for further hearing in which defendant could proceed with his defense of the invalidity of his marriage to petitioner.