Hansen v. Fredo
| Court | New Jersey Superior Court |
| Writing for the Court | McKENZIE |
| Citation | 303 A.2d 333,123 N.J.Super. 388 |
| Parties | James F. HANSEN, Plaintiff, v. Patricia Ann FREDO, otherwise known as Patricia Ann Hansen, Defendant. |
| Decision Date | 29 March 1973 |
Page 388
v.
Patricia Ann FREDO, otherwise known as Patricia Ann Hansen, Defendant.
Chancery Division.
Page 389
[303 A.2d 334] Gabriel Kirzenbaum, New Brunswick, for plaintiff.
McKENZIE, J.C.C., Temporarily Assigned.
Plaintiff sues for annulment on the ground that at the time of the marriage ceremony in question his prior marriage had not been terminated.
Plaintiff married for the first time on January 4, 1965. Following a separation his wife informed him in the early part of 1967 that she had gotten a divorce from him. He received no divorce papers and made no request for the same.
Thereafter, on April 3, 1967 plaintiff went through a form of marriage ceremony with defendant before a justice of the peace in Georgia. Two children were born of the marriage.
His first wife actually did not obtain a judgment of divorce in New Jersey until November 2, 1967. Plaintiff testified that it was not until about November 1968 that he ascertained that his first marriage had not been dissolved at the time of the second. He did not separate from defendant until April 1969.
Under the foregoing circumstances, is plaintiff barred from obtaining a judgment of annulment?
A marriage contracted while one of the parties is lawfully married to another is void Ab initio and not merely viodable. Dacunzo v. Edgye, 19 N.J. 443, 117 A.2d 508 (1955); Chirelstein v. Chirelstein, 12 N.J.Super. 468, 79 A.2d 884 (App.Div.1951); Thompson v. Monteiro, 58 N.J.Super. 302, 156 A.2d 173 (Ch.Div.1959). This was the common law rule. Rooney v. Rooney, 54 N.J.Eq. 231, 34 A. 682 (Ch.1896).
Page 390
At one time there was some question as to whether a court of equity could refuse to declare a bigamous marriage void. See Rooney v. Rooney, Supra. This issue was resolved by our former Court of Errors and Appeals in Tyll v. Keller, 94 N.J.Eq. 426, 120 A. 6 (1923). It was there held that plaintiff had the burden of proving by a preponderance of the evidence that he had no knowledge of the prior marriage. Plaintiff having failed to persuade the court in this respect, his petition was dismissed.
This rule has been the subject of criticism on the ground that to bar a plaintiff from relief under such circumstances amounts to 'bigamy by estoppel.' See Note 3 Rutgers L.Rev. 295 (1949); 12 N.J. Practice (Herr, Marriage, Divorce and Separation), § 1385 at 20 (1963). Nevertheless, the Tyll case has been followed and our courts have consistently refused to grant an annulment to a plaintiff who has failed to establish his lack of knowledge of the impeding...
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O'Connor v. Altus
...inasmuch as Altus' counsel Page 113 informed the court he was 'authorized to acknowledge service for him and he will do so.' Id. at 387, 303 A.2d at 333. Our grant of plaintiffs' petition for certification, 64 N.J. 152, 313 A.2d 212 (1973), and defendants' cross-petition for certification, ......
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Faustin v. Lewis
...149, 152-153, 387 A.2d 390 (Ch.Div.1978); Ramshardt v. Ballardini, 129 N.J.Super. 445, 447, 324 A.2d 69 (Ch.Div.1974); Hansen v. Fredo, 123 N.J.Super. 388, 390-391, 303 A.2d 333 (Ch.Div.1973). See, also, Skoloff, New Jersey Family Law Practice, "Annulments" (3 ed. 1976), § 2 at 132. [412 A.......
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O'Connor v. Altus
...Kelly v. Borwegen, 95 N.J.Super. 240, 244, 230 A.2d 532 (App.Div.1967). Further, we are not in a position to ascertain what part of the [303 A.2d 333] ultimate amount awarded to plaintiff, if any, was allotted to these Page 387 alleged ailments. Thus, the new trial previously ordered shall ......
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Callaghan v. Leonard
...her marriage to defendant, but his conduct and good-faith efforts are sufficient to entitle him to an annulment also. Hansen v. Fredo, 123 N.J.Super. 388, 303 A.2d 333 (Ch.Div.1973); Tonti v. Chadwick, 1 N.J. 531, 536, 64 A.2d 436 Exercise of the general equity powers of this court consiste......
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O'Connor v. Altus
...inasmuch as Altus' counsel Page 113 informed the court he was 'authorized to acknowledge service for him and he will do so.' Id. at 387, 303 A.2d at 333. Our grant of plaintiffs' petition for certification, 64 N.J. 152, 313 A.2d 212 (1973), and defendants' cross-petition for certification, ......
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Faustin v. Lewis
...149, 152-153, 387 A.2d 390 (Ch.Div.1978); Ramshardt v. Ballardini, 129 N.J.Super. 445, 447, 324 A.2d 69 (Ch.Div.1974); Hansen v. Fredo, 123 N.J.Super. 388, 390-391, 303 A.2d 333 (Ch.Div.1973). See, also, Skoloff, New Jersey Family Law Practice, "Annulments" (3 ed. 1976), § 2 at 132. [412 A.......
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O'Connor v. Altus
...Kelly v. Borwegen, 95 N.J.Super. 240, 244, 230 A.2d 532 (App.Div.1967). Further, we are not in a position to ascertain what part of the [303 A.2d 333] ultimate amount awarded to plaintiff, if any, was allotted to these Page 387 alleged ailments. Thus, the new trial previously ordered shall ......
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Callaghan v. Leonard
...her marriage to defendant, but his conduct and good-faith efforts are sufficient to entitle him to an annulment also. Hansen v. Fredo, 123 N.J.Super. 388, 303 A.2d 333 (Ch.Div.1973); Tonti v. Chadwick, 1 N.J. 531, 536, 64 A.2d 436 Exercise of the general equity powers of this court consiste......