82 N.J. Eq. 466 | New York Court of Chancery | 1913
It is admitted that a marriage was celebrated between petitioner and defendant July 15th, 1902, and that thereafter until shortly before the institution of this suit petitioner and defendant continuously cohabitated as husband and wife and made themselves known to the world as such during all of that time. It is also admitted that at the time of the marriage ceremony petitioner had a husband living against whom a divorce suit was then pending and that the decree in that suit—which decree granted to petitioner a divorce from her former husband— was not in fact .entered until twenty-three days after the ceremonial marriage between petitioner and defendant. The only disputed fact at this time is whether petitioner knew at the time of her ceremonial marriage to defendant that the decree against her former husband had not been then entered; petitioner now claiming that she then believed she had been divorced and defendant now claiming that she then knew she had not been divorced. Defendant claims that his first knowledge of the fact that petitioner had not been divorced prior to his ceremonial marriage to her was obtained by him since the beginning of this suit.
The views stated for the court of errors and appeals by the learned chief-justice in Collins v. Voorhees, as reported in 47 N. J. Eq. (2 Dick.) 555, must be regarded as controlling to this court. If, therefore, petitioner knew at the time of her ceremonial marriage to defendant that she was not then divorced from her former husband and defendant did not know of that fact and has first ascertained that fact since the recent separation of the parties, it seems impossible to grant relief toi petitioner consistently with the rules stated in Collins v. Voorhees, supra, in the absence of some evidence of interchange 'of consent to marriage by the parties subsequent to the date of the removal of the impediment to a lawful marriage other than
The real issue here presented is, therefore, one of marriage or no marriage. In such ease a preliminary order for alimony may be made, but should not be made if the result of that issue appears to be in substantial doubt, for the very foundation of the right is the existence of the marriage status, and the burden of establishing the existence of the marriage relation is on the petitioner. Vreeland v. Vreeland, 18 N. J. Eq. (3 C. E. Gr.) 43; Cray v. Cray, 32 N. J. Eq. (5 Stew.) 25; Freeman v. Freeman, 49 N. J. Eq. (4 Dick.) 102. As it is here admitted that when the marriage ceremony -was performed petitioner had a husband living from whom she had not then been divorced, the burden rests upon her to establish as a fact that she and defendant at that time believed that no impediment existed, if she now seeks to avail herself of the benefits of 'the claim that the subsequent removal of the impediment followed by matrimonial habit and repute presumptively established a new matrimonial compact, for the matrimonial habit and repute, under
A counsel fee was allowed to petitioner in this suit and paid by defendant before defendant ascertained that .petitioner was in fact married at the time of his ceremonial marriage to her. I do not think an additional allowance can be properly made.