18 N.J. Eq. 43 | New York Court of Chancery | 1866
This is an application by the complainant, for the continuance and increase of alimony, pendente lite, and for counsel fees to enable her to prosecute her suit.
The bill is filed to compel the defendant to furnish support and maintenance to the complainant, who alleges that she is the lawful wife of the defendant, and entitled to this relief under the tenth section of the divorce act.
In a bill of this kind it is no doubt proper that alimony, pendente lite, and suitable counsel fee should be allowed to the wife, as well as in suit for divorce. They come within the reason of the rule, and the case of Denton v. Denton, 1 Johns. C. R. 364, seems an authority for it. The only question is, whether, under the circumstances of this case, as it now appears before the court, it should be ordered.
The late Chancellor, upon the facts then appearing in the case, ordered a counsel fee and alimony, but limited the latter to the first day of this term; evidently intending that the continuance of it should depend upon the case as it should then stand.
The answer fully and explicitly denies the fact of marriage, and charges the complainant with the attempt to prove a marriage, by procuring some one to personate the defendant at a pretended ceremony, got up for such fraudulent purpose. This answer is under oath, and the evidence, so far as taken on that point, is conflicting and contradictory. There is no proof that the complainant Avas ever acknowledged or treated by the defendant, openly and publicly, as his wife, for any period. There is no proof of cohabitation, or living together as man and Avife. There is proof of meretricious intercourse before the alleged marriage, and that like intercourse Avas continued afterward.
But in all such cases, where the fact of marriage is denied, under oath, it should appear, to the reasonable satisfaction of the court, that a marriage in fact has taken place, or that the woman has been openly treated, by the alleged husband, as his wife. Bishop cm Mar. and Div., § 570, 579. There is no precedent for allowing alimony or counsel fee where the fact of marriage, or cohabitation as man and wife, is denied.
In the case of Smyth v. Smyth, 2 Addams 254, the court, because a marriage de facto was neither proved against, nor confessed by, the husband, refused to make an order for alimony, but, there being no denial of marriage, and it being alleged or pleaded against the husband, recommended that it should be allowed during vacation. The ease of Smith v. Smith, in 1 Edw. C. R. 255, does not seem to be either well reported or fully considered, yet it would not support this application, though it goes further than any other. There was in that case no answer, but a plea denying the fact of marriage, and sworn to. But it did not deny that they had cohabited, or lived together as man and wife.
The application is denied.