Opinion
April, 1911.
Kernan Kernan, for plaintiff.
No appearance for defendant.
This is an action for annulment of marriage on the ground of fraud. The defendant makes default in appearing, but a judgment annulling a marriage cannot be rendered by default for want of appearance or pleading without proof of the facts upon which the allegation of nullity is founded. Code Civ. Pro., § 1753.
An action may be maintained to procure a judgment declaring a marriage contract void and annulling the marriage where the consent of one of the parties was obtained by force, duress or fraud. Code Civ. Pro., § 1743; Dom. Rel. Law, § 7, subd. 4.
The fraud complained of in this action is that the defendant represented himself to be twenty-one years of age when, in fact, he was but twenty years and some months, and upon the further ground that he stated to the plaintiff, just prior to the marriage ceremony, that plaintiff need not leave her home, that the fact of a marriage would make no difference in her circumstances or condition and that she could always continue to reside at her home as formerly.
I am of the opinion that such statements upon defendant's part are not sufficient to justify this court in granting a decree of nullity herein.
It is alleged and conceded that the marriage ceremony was legally solemnized by a minister of the gospel. Without further relation on the part of the contracting parties, this became a legal marriage and the relation of husband and wife was created. Jackson v. Winne, 7 Wend. 47; Dom. Rel. Law, § 11.
I am aware of the fact that in some cases, where the marriage has not been consummated (as in this case) by cohabitation, courts have been influenced to give the benefit of all doubts to the parties and release them from their embarrassing position; but there must be always a legal reason and a just cause within the purview of the statute upon which to establish the judgment of the court.
Marriage consent in this State is fixed at eighteen years (Dom. Rel. Law, § 7) and, consequently, neither of these parties could break away from their marriage contract because of nonage. The law recognized them of sufficient age to be responsible for their act, and they are obligated by it.
The facts shown do not empower the court to put asunder the bonds of matrimony. Judgment of annulment is, therefore, refused.
Judgment accordingly.