Summary
explaining that "regulating domestic relations does not permit the marriage contract to be annulled for the same reasons that a mercantile contract may be set aside"
Summary of this case from In re GeraghtyOpinion
No. 5222.
Argued January 5, 1965.
Decided March 31, 1965.
1. Annulment of a marriage for fraud is granted only with extreme caution.
2. The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life.
3. Allegations that the plaintiff was of Catholic faith and that the defendant falsely concealed a prior marriage terminated by divorce were held insufficient to support a petition for annulment where any religious impediment to the plaintiff's marriage had been removed by death of the divorced husband.
Petition by the husband to vacate a decree of legal separation and to annul marriage on the grounds of misrepresentation and fraud by the wife. The wife moved to dismiss the petition on the ground it does not state a cause of action for annulment. The questions of law raised by the motion to dismiss were reserved and transferred without ruling by Morris, J.
The parties were married in 1959 after executing an antenuptial agreement by which each waived any rights in the property of the other. In 1963 the defendant filed a petition for legal separation and the plaintiff filed a cross-libel for divorce. On April 5, 1963 the Court decreed a legal separation to the defendant for extreme cruelty, dismissed the plaintiff's cross-libel for divorce and approved a property settlement pursuant to the stipulation of the parties and their counsel.
On October 16, 1963 the plaintiff petitioned to vacate the decree of legal separation of April 5, 1963 and to annul the marriage. The petition alleges that the plaintiff "is a practicing member of the Roman Catholic Church," that the defendant falsely represented that she was a widow when in fact she was a divorcee and that her former divorced husband was living at the time of marriage in 1959 and that in fact she was not a widow until his death on July 28, 1962.
Lemieux St. Pierre (Mr. Robert A. St. Pierre orally), for the plaintiff.
Sheehan, Phinney, Bass, Green Bergevin (Mr. Gerard O. Bergevin orally), for the defendant.
"Generally speaking, the concealment of a previous marriage or divorce, or a misrepresentation with respect thereto, is not such a fraud as will constitute ground for annulment." 3 Nelson, Divorce and Annulment s. 31.41 (2d ed. 1945). It is the general rule supported by the weight of authority that the concealment of a previous marriage terminated by divorce is an insufficient ground for annulment. Cassin v. Cassin, 264 Mass. 28; Trask v. Trask, 114 Me. 60; Annots. 23 A.L.R. 180; 33 A.L.R. 835; 58 A.L.R. 326; 46 Harv. L. Rev. 1034 (1933).
In this state annulment of a marriage for fraud is granted "only with extreme caution." Diamond v. Diamond, 101 N.H. 338, 339. In that case it was held that a false representation as to a former marriage was not such fraud as would warrant an annulment. "Annulment is not granted for any and every kind of fraud." Patey v. Peaslee, 99 N.H. 335, 339. See Grimes, Pitfalls in Domestic Relations Proceedings, 1 N.H.B.J. (No. 4) 15, 22 (1959). For better or worse we have not considered annulment of a marriage an easy substitute for legal separation or divorce. Deception in the marital quest may result in an unhappy marriage but to grant annulment ". . . merely because of deception regarding past conduct would in many cases in practical effect extend the divorce legislation far beyond its limits and restrictions." Heath v. Heath, 85 N.H. 419, 429. Consequently the standard for the annulment of a marriage is both strict and stringent. "The fraudulent representations for which a marriage may be annulled must be of something essential to the marriage relation — of something making impossible the performance of the duties and obligations of that relation or rendering its assumption and continuance dangerous to health or life." Heath v. Heath, supra.
We recognize that the majority rule followed in this state is strict and may in some cases cause distress or anguish to the victim of the false representation but the public policy reflected in our statutes (RSA ch. 458) and decisions regulating domestic relations does not permit the marriage contract to be annulled for the same reasons that a mercantile contract may be set aside. Cf. Kingsley, Fraud as a Ground for Annulment of a Marriage, 18 So. Cal. L. Rev. 213, 227, 228 (1945).
When plaintiff sought relief in this case any religious impediment to the plaintiff's marriage had been removed by the death of the divorced husband. We conclude that the plaintiff has stated no ground for vacation of the decree of separation and substitution of a decree of annulment. The motion to dismiss should be granted. Oswald v. Oswald, 146 Md. 313; Madden, Persons and Domestic Relations 17 (1931).
Remanded.
All concurred.