Mutations of the Rule of Fraud in Marriage

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TThhee CCaatthhoolliicc LLaawwyyeerr
Volume 1
Article 3
Number 3 Volume 1, July 1955, Number 3
MMuuttaattiioonnss ooff tthhee RRuullee ooff FFrraauudd iinn MMaarrrriiaaggee
William F. Cahill, B.A., J.C.D.
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This is the second of two articles comparing the canonical rule of
error and the American decisional and statutory rules of fraud in mar-
riage. The first article, "Fraud and Error in the Canon Law of Mar-
riage," appeared in I CATHOLIC LAWYER 83 (April, 1955).
MUTATIONS OF THE RULE
OF FRAUD IN MARRIAGE
WILLIAM F. CAHILL, B.A., J.C.D.*
Voidable Marriages: A Jurisdictional Concept
F
ROM earliest times until the Divorce and Matrimonial Causes Act of
1857,1 direct adjudication of the validity of marriage was reserved in
England to the ecclesiastical courts. It appears, however, that the lay
courts would find a marriage null on certain limited grounds, where that
finding was collateral to a question properly before the common law
courts or the Chancery. Of course, the finding of nullity of marriage was
res judicata only between the parties to the suit in which that finding had
been made. An example of such collateral finding is that of the New York
Chancellor in Aymar v. Roff.2
Chancellor Kent ruled upon a form of marriage entered into by a girl
under the age of 12, "as a frolic." She had disavowed her act before the
Master of Rolls on her twelfth birthday, and again before the Chancellor
some ten days later. The relief prayed and granted was not a direct declara-
tion of nullity, but a decree restraining the defendant from any contact
with the girl. It seems that the Chancellor founded his holding upon the
common law which, according to Blackstone,3 made void ab initio the
marriage of a girl under twelve.
A statute of Henry VIII,4 whose direct purpose was to limit the extent
of certain canonical impediments to be adjudicated by the ecclesiastical
courts of the Anglican Church, had the indirect effect of clearly limiting
*Priest of the Diocese of Albany; Professor of Comparative Law in the Graduate
Division of the School of Law of St. John's University.
'20 & 21 Vict., c. 85.
2 3 Johns. Ch. 49 (N.Y. 1817).
BI. Comm. *436.
4 32 Henry VIII, c. 38 (1540).
THE CATHOLIC LAWYER
the respective competencies of the ecclesias- the rule on error, in those courts, was the
tical and lay courts in matters of marriage. same as that in the Code of Canon Law to-
The statute, in this latter respect, was not a day. Marriage was a nullity if consent,
pure novelty, but it gave to the lay courts a though apparent, was not real. Consent in
new power, predicated upon their acting to any of these four cases, and in these only,
enforce the Act of Parliament, to inhibit was not real consent: consent not directed
petitioners from seeking decrees of nullity to the person contemplated, consent directed
in the ecclesiastical courts upon grounds to a union other than marital, consent which
outside the statutory limits. More important positive law made ineffective because based
for our purposes here, the Henrician statute upon error of servile status of the partner,
limited collateral findings of nullity in the and consent vitiated by failure of a postulate
lay courts to three grounds: want of age, which had been made a condition sine qua
want of reason, and previous marriage with non.
the spouse surviving. To these, the Statute In England the common usage was, even
4 & 5 Philip and Mary, c. 8, added the want when speaking of Canon Law, to employ
of consent of guardians of women less than the term "fraud" instead of the canonically
fifteen years of age. There the matter stood correct term "error." Fraud, of course, in-
in Blackstone's time, as he explains in Chap- volves elements referable to two persons,
ter 15 of his Commentaries. the deceiver and the person deceived. The
Blackstone here introduces us to the elements of materiality, falsity, and reliance,
terminology of "void marriage" and "void- pertain to the victim's consent. That there
able marriage" which is to recur again and was factual misrepresentation, made scien-
again in the present discussion. In his time, ter, with intent to cause the victim to act
and in the common law received here at thereon, has reference to the deceiver's
the Revolution, a void marriage was one guilt. Because the object of inquiry of the
whose nullity could be declared collaterally Canon Law in such cases of alleged nullity is
in a lay court proceeding, while a voidable the act of consent, considerations referable
marriage was one which could not be de- to the deceiver's guilt were not and are not
clared null except by an ecclesiastical judge. important. It is imperative to keep this dis-
Neither in the common law nor in the tinction in mind when we set out to compare
Canon Law was any marriage which had the canonical rule in such cases with the
been valid at its inception capable of dissolu- rules developed in American law. Also help-
tion by court decree. ful to the reader whose background is the
common law is the similar distinction in
Canonical Rule: Void for
the common law of fraud: "Fraud in the
Fraud in the Factuni
factum renders the writing void at law,
Marriages alleged to be null for fraud
whereas fraud in the treaty renders it void-
were to be adjudicated in the ecclesiastical
able merely."5 The "factum" here is the
forum only; they could not be attacked, even
marriage itself, created by consent of the
collaterally, in a proceeding before a lay
parties; the "treaty" here includes all acts by
tribunal. If such question there arose, the
which one is induced to consent to marriage,
proceeding halted until determination of that
incidental question was had in the church ' Whipple v. Brown Bros. Co., 225 N.Y. 237, 241,
court. The rule on fraud, or more properly 121 N.E. 748, 749 (1919) (per Collins, J.).
JULY, 1955
all acts by which his consent is procured. In such a marriage void."'10 He therefore predi-
the Canons, marriage is valid and never cated his decree upon the general powers of
voidable where there is real consent to chancery in reference to lunatics. That
marry; marriage is never void or voidable jurisdiction, he asserts, was inherent in
because the real consent was procured or chancery, though direct adjudication of nul-
induced by error or by fraud, except in the lity of marriage was reserved, in England,
statutory case of error as to slavery. to the ecclesiastical courts. Kent's assump-
tion is that in America, where no ecclesiasti-
Direct Decrees of Nullity in
cal courts are established by municipal law,
Early American Courts
the latent matrimonial aspect of the chan-
In the early years of American inde-
cery jurisdiction of lunacy must be con-
pendence, the state courts afforded in cases
sidered to come into free operation.
of fraudulent marriage a single type of re-
lief, the decree of nullity. There were not His successor, Chancellor Sanford, in
then statutes, such as have been later enacted Ferlatv . Goian," makes a similar argument
in many of the states, authorizing divorce to establish his power of decreeing nullity
where a man married in ignorance of his of a marriage contracted under fraud and
wife's previous unchastity,6 or making a nul- duress. Here it is the general power of chan-
lity ab initio and warranting divorce in any cery to adjudge the nullity of contracts
marriage obtained by fraud,7 or empower- fraudulently executed, which is extended to
decree a marriage void, where, "in Eng-
ing the court to make a marriage void by its
land, the ecclesiastical courts would have
decree where consent thereto had been ob-
tained by fraud.8 Therefore, the theory cognizance of such a question and would
underlying the action was then in the Amer- annul the marriage.''12 Sanford's finding of
ican courts, as it had been in the ecclesiasti- fact is well within the rule of fraud in the
cal courts of England and as it is now in the English ecclesiastical courts: "though she
tribunals of the Catholic Church, a singular gave an apparent consent at the moment of
and simple theory: where there was, through the celebration, yet it fully appears that this
fraud in the factum, an appearance of con- consent was feigned . . . and that this mar-
sent without its reality, there was a marriage riage was a foul fraud practiced upon her by
the defendant."13
void ab initio.
In 1820, Chancellor Kent of New York In Clark v. Field,14 the Supreme Court of
declared the nullity of a marriage which the Vermont, on an appeal from chancery,
petitioner had entered while in a state of reached a result quite similar as extending
mental derangement, from which state she chancery jurisidiction of void contracts to
had recovered at the time of the action.9 declare nullity of a marriage celebrated with-
Here, the Chancellor hesitated to decree out real consent. The woman there was
nullity upon the common law premises, for shown to have understood and intended, to
the suit was "instituted purposely to declare the knowledge of the man, that she was not
married by the ceremony unless they should
6 1 Md. Code 76, §25 (1860): Va. Code 530, §6
(1860). o Id. at 346.
' Ga. Code §§30-102, 30-103, 30-104. " 1 Hopk. Ch. 478 (N.Y. 1825).
'N.Y. Rev. Stat., Pt. 11,c. 8, tit. 1, §4 (1828). "Id. at 495.
'Wightman v. Wightman, 4 Johns. Ch. 343 (N.Y. Id. at 493.
1820). "13 Vt. 460 (1841).
THE CATHOLIC LAWYER
have another solemnization. The court which the husband was alleged to be im-
makes the point that she did not consent to potent.20 Referring to the Wightman and
marriage in praesenti.'5 Ferlatc ases, he said, "These marriages were
Chancellor Zabriskie of New Jersey, in clearly void; and this court pronounced the
McClurg v. Terry,'6 found that he had au- sentence of nullity. If these two decrees are
thority to declare void a marriage solem- denominated divorces, they do not arrogate
nized by the parties acting in jest. He relied to this court any general power of divorce,
upon the construction of chancery powers in cases not prescribed by our statutes."2t
in the Ferlat and Clark cases, and invoked a
grant implied in the State Constitution, New York Statute: Voidable
where the Chancellor was vested with chan- Means Rescissible
cery powers withdrawn from the legislature.
The New York divorce statute to which
The legislature had had power to declare
Sanford referred had been enacted in
marriages void.17
1787; 2 the sole ground in the statute was
The New York Chancellors had gone adultery. Another statute, enacted in
beyond the powers of the lay judges of 1788,23 implied that the courts had power of
England. Kent's holding of nullity in the declaring nullity of marriage, as it exempted
Wightman case was not collateral to the is- from the penalties of bigamy a person who
suance of an injunction, as his finding of remarried "where the former marriage hath
nullity in the Aymar case had been. The de- been or shall be, by the sentence or decree
cision in Wightman v. Wightman was a di- of any such court, declared to be void and
rect adjudication of the nullity of a lunatic's of no effect." The Commissioners to Revise
marriage. Sanford, finding nullity for fraud the Statute Laws noted Sanford's holding in
and duress in the Ferlat case, went further the Burtis case, "that the whole jurisdiction
and invaded the class of marriages which, in of the court of chancery in relation to mar-
Blackstone's classification,' 8 were voidable riage, except where the contract is void on
only. the same ground that other contracts may
Kent, speaking obiter in the Wightman be avoided, is conferred and limited by
case, had speculated that an American chan- statute. '24 They recommended that, in sev-
cellor might declare null any marriage con- eral specified circumstances, the marriage
tracted contrary to natural law.'9 But be in law, not absolutely void, but "void
Sanford held that the chancery powers over from the time its nullity shall be declared
lunatics' contracts and to declare nullity of by a court of competent jurisdiction." 25
contracts void for fraud or duress marked Included in this section, as enacted, were
the limit of the New York chancellor's marriages contracted in want of age or
power to adjudicate directly nullity of mar- understanding, in want of physical capacity,
riage. He therefore found he had not juris- and "when the consent of either party shall
diction to declare the nullity of a marriage in
'Burtis v. Burtis, I Hopk. Ch. 557 (N.Y. 1825).
Id. at 475.
21 Id. at 567.
"'21 N.J. Eq. (6 C.E. Greene) 225 (1870). 2' Laws of N.Y. 1787, c. 69.
" Id. at 229. "Laws of N.Y. 1788, c. 24.
I B1. Comm. *434 et seq. " 2 N.Y. State Comm'rs to Revise the Statute
Wightman v. Wightman, 4 Johns. Ch. 343, 347- Laws on N. Y., Report 2 (1828).
351 (N.Y. 1820). 25I bid.
JULY, 1955
have been obtained by force or fraud.''2-1 the proper remedy in such cases and from
The Revisors' note points out "some of these the theory that marriage procured by fraud
marriages are absolutely void, by the exist- was either void ab initio or it was valid.
ing law (referring to Blackstone, Commen-
taries, c. 15). But it is believed that the New Jersey Case: Rescission
interests of society and of the parties con- by Chancery Power
cerned, will be best promoted by placing A similar result was obtained in New
them on the ground stated in this section."2-7 Jersey without aid of a statute.29 The magic
Clearly, then, the purpose and effect of the there was worked by invocation of two lines
Revised Statutes were to make such mar- of cases which are fundamentally incom-
riages voidable only, that is to say, they were patible. Judge Van Syckle, in dissent, re-
to be valid for all purposes in the law unless marks, "The cases (which we have listed as
and until a competent court should "declare the second line) ...a re under a statute ex-
'28
their nullity." tending divorce power to cases of fraud, and
The New York law on fraudulent mar- are, therefore, of no authority here."30
riage here departed from the theory under-
The first line of cases comprises those
lying Sanford's decision in the Ferlat case, used above to indicate development of the
which same theory he expounded more fully
doctrine that chancery is competent to de-
in the Burtis opinion. The motives for the clare on marriages void ab initio because
change may have been good and proper in there was no real, but only apparent con-
the judgment of the Revisors and of the sent.31 The second line of cases was decided
Legislature. It has been suggested that the
under statutes which empowered the courts
motives were to afford the court more effec-
to grant divorce, or to dissolve marriage, or
tive means of enforcing marital obligations to annul, as of the time of the decree, mar-
and of controlling collusive actions, espe- riages in which consent had been obtained
cially where fraud or duress was the ground by fraud.32
asserted. But we are directly concerned here,
The radical fallacy lies, as Van Syckle
not with the sociological motives, but with
pointed out, in confusing decrees of divorce
the juridical effect of the change. Fraudulent
or dissolution with simple declarations of
marriage, under this New York statute, was
the fact of nullity. Though the Massachusetts
no longer void, and there was now no neces-
statute spoke of marriages "supposed to be
sity that the fraud be proved to have such
void, or the validity ... doubted, either for
character as to make away with "the reality
fraud or any legal cause,"33 the court said in
of consent." The consent might be real
the Reynolds case, "The statute does not
enough, but if it were fraudulently obtained,
it would be good ground for a decree. We 'Carris v. Carris, 24 N.J. Eq. (9 C.E. Greene)
516 (1873).
will later trace the vagaries of the New York
Id. at 532.
rule of fraud which followed upon this de- 'o
See notes I, 8, 10, 13, 15 supra.
parture from true declarations of nullity as Baker v. Baker, 13 Cal. 87 (1859); Ritter v.
Ritter, 5 Blackf. 81 (Ind. 1839); Morris v. Morris,
""N.Y. Rev. Stat., Pt. II, c. 8, tit. 1, §4 (1828). Wright 630 (Ohio Ch. 1834); Donovan v. Dono-
"2 N.Y. State Comm'rs to Revise the State Laws van, 91 Mass. (9 Allen) 140 (1864); Reynolds v.
on N.Y., Report 3 (1828). Reynolds, 85 Mass. (3 Allen) 605 (1862).
Ci. I Bishop, Marriage and Divorce §§258, 259 ' Mass. Stat. 1855, c. 27, reenacted in Gen. Stat.
2
(1891); 1 BI. Comm.* 434. c. 107, §4.
THE CATHOLIC LAWYER
provide that fraud shall vitiate a contract of of premarital pregnancy by a man other than
marriage, but only confers an authority on the complainant, who had had no carnal
the court to decree a dissolution of the mar- knowledge of his future wife. All the cases
riage for such cause, as in other cases of advert to the horrendous result of sustaining
nullity."'" And the California statute "... the marriage. The innocent dupe would be
provided that a divorce might be granted forced to maintain bastardy proceedings to
'when the consent of either of the parties free himself from responsibility for the child
to the marriage was obtained by force or thrust upon him, and be bound thereafter to
fraud, upon the application of the injured the woman he had thus publicly pilloried; or
party.' ,,3T.h e Indiana statute upon which he must in secret bitterness maintain the
was based the decision in Ritter v. Ritter,:"! child as his own. If ever there was an ex-
which case is cited in the Reynolds decision, ample of the old saw "hard cases make bad
"enacts that the Circuit Courts shall have law," it is here. That they are hard cases goes
power to grant divorces for any other cause, without saying.
and in any other case, where the Court, in
Reynolds v. Reynolds:
their discretion, shall consider it reasonable
the Essentials Enlarged
and proper. . ..' "" We have not seen the re-
The making of a bad law is most clearly
port of the Morris case, 38 also cited in Rey-
illustrated in the decisions of Chief Justice
nolds v. Reynolds, but Justice Field says of
Bigelow in the Reynolds and Donovan mat-
it, "A divorce was decreed.... ,,3S9in ce in all
ters. He draws a clear distinction in the
these cases, the court is not declaring a fac-
Donovan opinion between the rules of evi-
tual nullity but decreeing a dissolution, we
dence to be employed and the rule of mate-
must insist that the requirement that real
riality to be applied. As to the first, "In
consent shall have been lacking at the time of
determining on the validity of such contract,
celebration is quite beside the point. If the
in order to ascertain whether it shall be
court were to declare that the marriage is in
adjudged void on the ground of fraud under
fact a nullity, it must find such fraud as made
Gen. Sts. c. 107, §4, the same rules of evi-
the consent ineffective from the beginning.
dence are to be applied as to other civil con-
But if the court is presuming to dissolve a
tracts."'45 As to the second, "There must be
marriage, it need not find lack of true con-
satisfactory proof either of misrepresenta-
sent; it is free, upon this premise, to dissolve
tion or concealment of some essential fact
the marriage or not according as it finds or
•.. a particular fact which formed the basis
does not find circumstances of injustice, in-
or contributed an essential ingredient to the
equity or even of hardship connected with
the fraud and sufficient to motivate reason- contract. . . .The fact that the respondent
was pregnant with child by a man other than
ably the use of discretion.
the petitioner at the time the contract of
The cases of this second line, like the case
marriage was entered into was material, and
before the New Jersey Court of Errors, were
went to the essence of the contract. This was
of a peculiar type. All involved concealment
settled on full consideration in Reynolds v.
Reynolds v. Reynolds, supra note 32 at 606. Reynolds."" In the Reynolds case, he had
Baker v. Baker, supra note 32 at 102.
L5
said, "Nothing can then avoid it which does
Supra note 32.
Id. at 82. 4oD onovan v. Donovan, supra note 32.
" Supra note 32. ,1I bid.
Baker v. Baker. sutpra note 32 at 104.
JULY, 1955
not amount to a fraud in the essentialia of jects as too severe the opinion of the com-
the marriage relation."'42 He had ruled out mentators on the civil law to the effect that
1
concealment of unchastity and false repre- premarital unchastity of a woman is good
sentations of virtue as going to the essen- ground for "impeaching and vacating the
tialia, but he went on to assert, "It is not marriage."45. Bigelow cites "Voet, 24, 2, 15"
going too far to say, that a woman who has as supporting that view which he rejects.
not only submitted to the embraces of an- Yet when we turn to the writings of the
other man, but who also bears in her womb Dutch jurist at the place cited we find that
the fruit of such illicit intercourse, has dur- Voet's case is the same as Bigelow's: "On
ing the period of her gestation incapacitated the petition of one party, marriage should
herself from making and executing a valid be declared null by the public authority
contract of marriage with a man who takes whenever one has in ignorance married a
her as his wife in ignorance of her condition woman corrupted and made pregnant by
and on the faith of representations that she another, if, after discovering her violation,
is chaste and virtuous. In such a case, the he has not cohabited with her or in any
concealment and false statement go directly other way forgiven the offense."'46 Voet's
to the essentials of the marriage contract. minor premise is the same as Bigelow's:
"". We have supplied emphasis in the that the husband's error concerns a matter
quotation to point out what seems to be the which goes to the essence of marriage. It
only fulcrum of reasoned argument. It re- seems not impertinent that we examine
peats in substance the argument of Justice Voet's development of the argument.47
Field in Baker v. Baker4.4 It assumes the old Voet points out that such a marriage is
ecclesiastical rule that the marriage is void held valid in the Canon Law of the Catho-
ab initio where real consent is lacking, but lic Church.48 Voet argues that it should not
we submit that it misapplies the rule. Where be so because the Canon Law held invalid
a party is truly and permanently impotent at a marriage contracted by a freeman with a
the time of marriage, there might be made slave, if the free person were ignorant of
out an argument that real consent was lack- the other's servile condition.49 He ignores
ing; one may be said to be incapable of con- the fact that Catholic theologians and can-
senting to do what he is incapable of doing. onists have always held that the nullity of
But that a woman who is now capable of such a marriage does not result from any
intercourse, though for a time incapable of natural insufficiency of the freeman's con-
conceiving the child of her husband, is in- sent, but from a positive impediment estab-
capable of consenting to marriage certainly
" Reynolds v. Reynolds, supra note 32 at 608.
does not follow. If it did follow, no sterile "4 Voet, Commentarius ad Pandictas 127 (4th
woman would be capable of marital consent, ed. Bassoni, Remonini, 1827).
"7T he views expressed by Voet were also expressed
and even one presently incapable of inter-
by Beza and Brouwer. According to Philip A.
course by reason of temporary illness could Putnam, Assistant Librarian of the Harvard Law
not validly marry. School Library, the works of all three jurists were
accessible to Chief Justice Bigelow at the library
The Civilians' Rule in Cambridge in 1862.
The Chief Justice of Massachusetts re- 4 c. Quod autem, C. 29, q. 1, of the Decree of
Gratian.
Reynolds v. Reynolds. supra note 32 at 608.
'I Id. at 609. 4'cc. 3, 4 C. 29, q. 2; compare Canon 1083, §2 n.
13 Cal. 87, 103 (1859). 2, C.I.C.
THE CATHOLIC LAWYER
lished by church law." Voet bolsters his of nature" runs very close to what we have
argument by an appeal to the Roman Law" seen to be the Canon Law: "In like man-
which permitted an action for restitution to ner, if there were a Mistake, either as to
the buyer of a woman slave represented to the Person, the Object of Consent, or in
be a virgin but found not to be in that con- any Quality, either relating to Matrimony
dition. Surely the case is not parallel. A man itself, or serving as a Condition on which
marrying establishes a peculiar personal re- the Consent was built ...the contract
lation between himself and the woman he was manifestly void."54
marries; there is no such personal relation
The New York Rules
between the buyer and the property he pur-
Because the relief of annulment of mar-
chases. Further, it is not clear that the buy-
riage for fraud has had its widest use and
er's action for restitution indicates that the
broadest development in New York, our
sale was a nullity; rather it seems to have
discussion of the mutations of the materi-
imposed an affirmative duty upon the seller
ality rule in such actions will be limited
to hand back the price upon surrender of
to the jurisprudence of that state only. In
the slave. Finally, Voet relies upon the text
the New York courts, it seems, four gen-
of Deuteronomy, 22; 20,21 and the Novella
eral rules of materiality have operated: the
(93) of the Emperor Leo. The Scripture
essentialia rule, the consent rule, the Grif-
text, especially when compared with other
fin rule, and the rule of matters vital to
verses in the same chapter where similar
the consent.
penalties of death were imposed upon the
guilty woman whether she was actually Fraud Going to the
married or only espoused, whereas such sins Essence of the Contract
The essentialia rule is perhaps most
when committed by girls who were neither
clearly stated in Fisk v. Fisk5. " There it
married nor engaged were not punished by
was said, "the rule is well settled that no
death, indicates that the offense is techni-
fraud will avoid a marriage which does not
cally an adultery. The usual bill of divorce
go to the very essence of the contract, and
is not mentioned, for the woman is executed
which is not in its nature such a thing as
immediately upon her conviction. The Em-
either would prevent the party from enter-
peror's decree had no reference to voiding
ing into the marriage relation, or, having
or dissolving a marriage, but permitted an
entered into it, would preclude performance
offended fiance to rescind his engagement
and refuse to marry the violated woman.12 of the duties which the law and custom
imposes upon the husband or the wife as a
Not all the classical Protestant jurists
party to that contract."'5 In that case, the
were of Voet's opinion. Pufendorf remarks ,
defendant wife had been previously mar-
upon the law of Deuteronomy discussed
tied and validly divorced, while the plain-
above, calling it "Jewish civil Law,'" and
"very peculiar." His'exposition of the "law tiff supposed she had never been married;
she was, therefore, in the law, capable of
' Cf. St. Thomas Aquinas, Suppl. Q. 52 A. 2, 6.
marriage with him, and so relief was
' Digest 19. 1. 11.5.
12 3 Corpus Juris Civilis 823 (Leipzig, 1854). '4Ibid.
"'P ufendorf, Of The Law of Nature and Nations 6 App. Div. 432, 39 N.Y. Supp. 537 (Ist Dep't
587 (4th ed., Kennett transl., 1729). The phrase 1896).
suggests that Pufendorf believed the law was in- Id. at 434, 39 N.Y. Supp. at 539 (emphasis
tended to operate only within the Jewish nation. added).
JULY, 1955
denied. The holding had been the same in render sexual relations dangerous65 do not
an earlier similar case.57 But the second incapacitate a person for marriage.
marriage was bigamous and void where
It was held that the plaintiff, who, be-
the divorced person was under prohibition
cause of her religious beliefs, felt she could
to marry,58 and where the defendant had not permit sexual relations to a man she
left a wife abroad and it was not known
had married in a civil ceremony, was bound
whether she was alive or dead when he
to the marriage though he refused religious
remarried. 9 solemnization.66
It was held that the defendant was inca- It will be seen that the statement of the
pacitated for marriage where she was preg- essentialia rule in the Fisk case brings it
nant by another at the time.60 Marriage was well within the ancient rule that there is
annulled where one party had, when marry- nullity where consent is only apparent and
ing, intentions to reject the marital obliga- not real. Some of the applications cited are
tions totally,6' or with reference to the pro- not within the Canon Law rule of substan-
creation of children.62 tial error because they go beyond the
Venereal disease has been held to inca- canonical concept of matrimonial capacity,
pacitate a person for marriage. 3 Sterility 4 as in the case of a divorced person whose
and that sort of epilepsy which does not spouse survives; or because they are prem-
ised on facts which in the canonical view
are not substantial to the marital relation,
7 Clarke v. Clarke, 11 Abb. Pr. 228 (N.Y. 1860).
such as pregnancy at the time of marriage
'Blank v. Blank, 107 N.Y. 91, 13 N.E. 615
and venereal infection; or because the sub-
(1887); Roth v. Roth, 97 Misc. 136, 161 N.Y.
Supp. 99 (Sup. Ct. 1916). stantial nature of the canonical require-
' Minner v. Minner, 238 N.Y. 529, 144 N.E. 181 ment of religious celebration is not recog-
(1924). nized. In spite of such applications of the
' Shrady v. Logan, 17 Misc. 329, 40 N.Y. Supp. rule, the spirit of the ancient principle sur-
1010 (Sup. Ct. 1896); cf. Reynolds v. Reynolds, vives where the object of inquiry is a fraud
supra note 32.
touching the "factum" of the contract, and
61Feynman v. Feynman, 168 Misc. 210, 4 N.Y.S.
causing nullity ab initio.
2d 787 (Sup. Ct. 1938); Lewine v. Lewine, 170
Misc. 120, 9 N.Y.S. 2d 869 (Sup. Ct. 1938); Ryan
v. Ryan, 156 Misc. 251, 281 N.Y. Supp. 709 (Sup. Fraud Procuring the Consent
Ct. 1935); Sheridan v. Sheridan, 186 N.Y. Supp.
470 (Sup. Ct. 1921); Moore v. Moore, 94 Misc. The consent rule, as usually stated and
370, 157 N.Y. Supp. 819 (Sup. Ct. 1916); Robert applied, looks to fraud in the "treaty,"
v. Robert, 87 Misc. 629, 150 N.Y. Supp. 366 (Sup.
which fraud is said to warrant dissolution
Ct. 1914).
62 Coppo v. Coppo, 163 Misc. 249, 297 N.Y. Supp. or rescission of the marriage. In DiLorenzo
744 (Sup. Ct. 1937); Miller v. Miller, 132 Misc. v. DiLorenzo6,7 the court declared, "it is
121, 228 N.Y. Supp. 657 (Sup. Ct. 1938). sufficient that we rely upon the plain pro-
' Meyer v. Meyer, 49 How Pr. 311 (N.Y. 1875).
' Lapides v. Lapides. 254 N.Y. 73. 171 N. E. 911
"Chavias v. Chavias. 194 App. Div. 904, 184 (1930); McGill v. McGill. 179 App. Div. 343.
N.Y. Supp. 761 (2d Dep't 1920): Wendel v. 166 N.Y. Supp. 397 (4th Dep't 1917). afl'd men..
Wendel, 30 App. Div. 477, 52 N.Y. Supp. 72 (2d 226 N.Y. 673, 123 N.E. 877 (1919).
Dep't 1898); Schroter v. Schroter, 56 Misc. 69, 0' Mirizio v. Mirizio. 242 N.Y. 74, 84, 150 N.E.
106 N.Y. Supp. 22 (Sup. Ct. 1907); Devanbagh 605, 609 (1926).
v. Devanbagh, 5 Paige Ch. 554 (N.Y. 1836). 6' 174 N.Y. 467, 67 N.E. 63 (1903).