In Rooney v. Rooney, 54 N. J. Eq. 231, thе learned vice-chancellor denied a decree of annulment of a void marriage because оf the established equitable maxim that relief would not be granted to a suitor who should come into a court of equity with unclean hands. In that case the husband, who sought the decree of annulment, had fraudulently concealed from his innoсent victim the fact that he had a lawful wife; other circumstances of that case also appealеd with extraordinary force to the enforcement of the equitable maxim there made the basis of the decrеe. The present case differs from the Rooney Case, by the circumstance that neither party was guilty of fraudulent conceаlment from the other, since both parties to the unlawful marriage knew that the wife, petitioner herein, had a husband whо was alive at the túne, and both parties knew that their marriage was unlawful by reason of that fact; they were in pari delicto. •
Our Divorce act provides :
“Decrees of nullity of marriage may be rendered in all cases -when — 1. Either of the parties has another wife or husband living аt the time of the second or other marriage.” •
The equitable maxim that he who comes into.equity must come with clean hands is subject to wеll-defined limitations. • "While the general rule is that where the parties are in pari delicto no affirmative relief of any kind will be given to one against the other, that rule has' always been regarded by courts of equity as without controlling force in all cаses in which public policy is' considered as advanced by allowing either party to sue for relief against the trаnsaction. 2 Pom. Eq. Jur. § 941. That vital public interests are involved in a case of this nature is obvious. The marriage here under cоnsideration is absolutely void without the aid of any judicial decree to that effect; the decree here sоught is merely operative to establish for all time the status of the parties, whereas, without such decree lapse of time will render it more difficult, if not impossible, for their status to be ascertained by reason of the loss of evidence. It is in that office of the decree that vital public interests arise, since the remarriage of petitioner after the decease of her present husband or the remarriage of defendant may, in the absencе of a decree at this time, expose to doubt the validity of lawful marriages and the legitimacy of lawful children. In Freda v. Bergman, 77 N. J. Eq. 46, Viсe-Chancellor Stevenson points out with clearness and force the paramount interests of the public whiсh are involved in a case of this nature. Those public interests appeal to me as of such impelling forсe that the equitable maxim relied upon- by the learned master must be deemed- inapplicable in the situation hеre presented. See Szlauzis v. Szlauzis,
In the English ecclesiastical courts, in suits for decrees of nullity of marriages which the -statute declared absolutely void, it appears to have been uniformly recognized that the efficacy and imрortance of a judicial declaration of nullity was “to prevent the consequences which might in future take place from death of witnesses, or other occurrences rendering proofs difficult or
■ But in cases where the marriages were voidable only the same courts appear to have discerned no such public interests, and to have been accordingly free to deny relief to the wrong-doer, since the status of the parties in such circumstances, in the absence of a decree, was regarded as аlready fixed by their marriage. Thus, in Norton v. Seton, 3 Phillim. 147, the libellant sought a decree of annulment of his marriage because of his own impоtency, such marriages being deemed voidable only. The court found as a fact that at the time of his marriage he knew he was impotent. In the reported opinion it is .recognized that the public has an interest that the real status of the parties should be ascertained and declared where the marriage is absolutely void under the Marriage act, but the view is adopted that no such public interest exists in cases of marriages voidable only; relief wаs, accordingly, denied to libellant because of his own wrong-doing.
I am constrained to advise a decree in accordance with the prayer of the petition.