(specially concurring).
I concur in the result.
In this case, both the complaint and judgment were couched in such language as to require the State Compensation Fund to present further testimony showing exactly upon what basis the judgment was entered. This is unlike the complaint and judgment in State Compensation Fund v. Reed, 12 Ariz.App. 317, 470 P.2d 465 (1970) (review denied) where the exact grounds upon which the annulment was based were ascertainable from the complaint and judgment. The Fund in this case failed to show exactly upon what basis the trial court entered its judgment and therefore in my opinion did not susstain its burden of establishing a valid collateral attack on the decree of annulment. For this reason alone I would uphold the award of the Industrial Commission.
However, I cannot concur in the conclusion reached by my colleagues that prior false and fraudulent misrepresentation of religious beliefs is a sufficient *386ground, standing alone, to sustain a decree of annulment under our statute.
While the case of Southern Pacific Company v. Industrial Commission of Arizona, 54 Ariz. 1, 91 P.2d 700 (1939), does, as quoted in the majority opinion, speak of marriage as a contract and that those elements which would void an ordinary civil contract could void a marriage contract, it is clear from Hallford v. Industrial Commission of Arizona, 63 Ariz. 40, 159 P.2d 305 (1945), exactly of what these acts must consist:
“ * * * Petitioner has cited cases
disclosing that marriage contracts entered into by reason of fraud have been held voidable rather than void. We think it unnecessary to discuss these decisions, however, because here the fraud or misrepresentation alleged was not of such a character as goes to the very essence of the marriage relation so as to be in effect an impediment to the contract. The decisions cited by petitioner arose under statutes specifically authorizing annulment where the marriage is induced by false representation. Annulment, under our statute, can be allowed only where the cause is of such a character as to be an impediment to the marriage contract(Emphasis Added)
Obviously, the belief or disbelief in God is not an impediment to marriage itself, for numerous valid marriages are performed in civil ceremonies where the question of one’s belief in a supernatural being is never called into question. Also the very nature of the ground (i. e. belief in a supreme deity), is one which traditionally has been subject to serious intellectual discussion and disagreement. To say that to fraudulently take one side of this argument or the other is an impediment to two people entering into a marriage contract is to ignore the traditional function of marriage, that is to provide the responsible unit for the care and rearing of children.
Having stated this, I can well understand and appreciate the mental anguish and sense of loss that might well occur to a deeply religious person when he or she finds out that the other partner to the marriage does not believe in a principle which can be a basic foundation for a happy and successful marriage. Such mental anguish and sense of loss may very well be a ground for dissolving that marriage, but not, in my opinion, a ground for saying the marriage never existed.
Moreover, to add this rather subjective, nebulous ground to the grounds for annulment is, to me, dangerous precedent. While no serious consequences flow from our granting an annulment in this case (except monetarily to the Fund), the granting of an annulment rather than a divorce in a given case may have some drastic consequences on a relationship which has traditionally enjoyed a public interest in its maintenance, or in the case of severance, the rights flowing from that previous married status, for example community property rights.
From the standpoint of traditional legal precedent, the only jurisdiction which I have found which grants an annulment because of false and fraudulent misrepresentations as to religious tenets is New York. See Williams v. Williams, 194 Misc. 201, 86 N.Y.S.2d 490 (1947) ; Taylor v. Taylor, 181 Misc. 306, 47 N.Y.S.2d 401 (1943). However, cases dealing with domestic relations from that jurisdiction are suspect, because of New York’s longstanding limited ground for divorce (adultery only).
For the foregoing reasons, I am unable to concur that the belief or disbelief in a supreme deity is an impediment to the marriage contract which would sustain a decree of annulment.