Summary
In Jimenez v. Jimenez, 93 N. J. Eq. 257, 261, 116 A. 788, the Chancellor raised the doubt whether under such circumstances a wife could acquire a domicile here to enable her to sue for annulment of a voidable marriage.
Summary of this case from Pennello v. PennelloOpinion
No. 50/133.
02-28-1922
JIMENEZ v. JIMENEZ.
Isadore Rabinowitz, of Paterson, for petitioner.
(Syllabus by the Court.)
Petition by Alice Jimenez against Ralph Jimenez for annulment of marriage. On final hearing on master's report and depositions ex parte. Petition dismissed.
Isadore Rabinowitz, of Paterson, for petitioner.
WALKER, Ch. This is a petition for annulment of marriage, brought by the wife on the ground that she was under the age of consent at the time of the performance of the ceremony, and has not confirmed the marriage since attaining that age. The petition alleges that the parties were married on or about March 4, 1918, in the city and state of New York; that by an act of the Legislature of New York, being chapter 19 of the Laws of 1909 (Consol. Laws, c. 14), it is inter alia provided that a marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto is under the age of legal consent, which is 18 years, and which statute remained in full force and effect as the law of New York at the time of the marriage of these parties; that at that time petitioner was 15 years and 8 months old, and at the time of filing this petition was of the age of 18 years and 11 months, having been born July 19, 1902; that she has not confirmed or ratified the said marriage; that she was a bona fide resident of New Jersey at the commencement of this action; and prays that the marriage may be decreed to be null and void pursuant to our statute. All the facts as pleaded are corroborated and sufficiently verified.
Marriage, as to its dissolution, is governed by the lex domicilii. Bolmer v. Edsall, 90 N. J. Eq. 299, 306, 106 Atl. 646. And this applies to nullity suits as well. The petitioner claims to be domiciled in New Jersey and invokes the jurisdiction of our court. Therefore her case must be decided by the application of our law.
Our statute provides that a decreeof nullity of marriage may be rendered at the suit of the wife when she was under the age of 16 (not 18) years at the time of the marriage, unless such marriage be confirmed by her after arriving at such age. P. L. 1907, p. 474, § 1, subdiv. V; Comp. Stat. p. 2021.
The petitioner testifies inter alia that immediately after her marriage to the defendant on March 5, 1918, she went to live with her husband in New York state, and lived with him until the month of November. 1918, at which time she went home to Rutherford, N. J., to her father and mother, and has never seen her husband since. She says:
"I have never ratified or confirmed my alleged marriage with the defendant since I have become 18 years of age, having left my husband permanently in November, 1918, and never having heard from him since, when I was the age of 16 years and 4 months. I have never received any letters from him, nor have I written to him since I left him."
It will be observed that the petitioner says that she has not confirmed her marriage with the defendant since becoming 18 years of age; but, according to her own statement, she was 16 years and 4 months old (16 years, 3 months, and several days precisely) when she left him.
We do not grant divorces or nullity of marriage under the statutes of New York, but those of our own state only. The petitioner has evidently mistaken the provision of our divorce act, that divorce (not nullity) may be granted where the cause of action alleged was recognized in the jurisdiction in which the party resided at the time the cause arose, as ground for similar relief asked for in an action in this state. P. L. 1907, p. 474, § 6(b). Therefore, if nullity is to be decreed, it must be because our statute, not that of New York, provides the remedy, and it does not, as this young woman lived with her husband upwards of 3 months after she was 16—the age at which, under our statutes, she must make her election to confirm or repudiate the marriage.
I have found no case which prescribed the length of time considered necessary to ratify and confirm a marriage after coming of the legal age of consent by the spouse who was married under such age. In Bishop M. D. & S. vol. 1, § 577, the learned author states that an obvious way of confirming is by continuing to cohabit or by sexual intercourse. In Com. Dig. vol. 2, p. 73, it is stated that, if persons marry under legal age, the husband or wife may agree or disagree at his or her age of consent, and, at page 74, that if either at the age of consent once agree to the marriage they cannot afterward disagree; and this is also laid down in Hubback on Succession, *272. There is no testimony that this young woman disagreed to her marriage upon attaining the age of 16 years, and, if there were, the disagreement would be without effect because she continued to cohabit with her husband for upwards of 3 months, as just stated. I presume that cohabiting with him for the shortest possible time after attaining the age of consent, and indulgence in sexual intercourse, would confirm the marriage. It is, of course, to be presumed that these parties had sexual intercourse during the 3 months and more they lived together after the wife attained the age of 16 years. It seems to me that there is a strong analogy between nullity for this cause and nullity under the general jurisdiction for fraud where the marriage has not been consummated. See Bolmer v. Edsall, 90 N. J. Eq. 299, 106 Atl. 646; Ysern v. Horter, 91 N. J. Eq. 189, 110 Atl. 31; Dooley v. Dooley (N. J. Ch.) 115 Atl. 268. That is, if there has been reconsummation after attaining the age of consent, with full knowledge as to age, the right of nullity may be gone.
Another thing: The statute of New York is not the same as ours, and if the provision as to divorce in our state that a decree may be granted where the injured party came into this state after the cause of action arose, where that cause was recognized in the other jurisdiction at the time it arose, was provided also for nullity suits, still the provision would not come in aid of the petitioner here. The provision in New York that 18 shall be the age of consent to marriage by a female, and 16 in our state, are quite different; and that difference is pointedly manifested in this case, for here the petitioner confirmed her marriage by living with the defendant after the age of consent provided by our statute, which defeats her application, when, if she continued to live in New York and sought redress in its courts on the same state of facts she presents here, she might have been afforded relief.
The question of domicile suggests itself. The law is settled that it is the right of the husband, acting for the benefit and not in tyranny to the wife, to determine where the matrimonial domicile shall be. Bishop M. D. & S. vol. 1, § 1713. In other words, the husband fixes the domicile. And the matrimonial domicile of these parties was in the state of New York. The wife's leaving the husband and coming here to her parents was an actual desertion, and the question arises: Could she in doing this, even if her marriage was voidable, obtain an independent domicile herself in this state to enable her to bring a nullity suit here?
Because, for the other reasons above set forth, the petitioner's suit must fail, it is unnecessary to decide this question.
Let the petition be dismissed.