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Friday, October 17, 2014


2A:34-1. Causes for judgments of nullity
Judgments of nullity of marriage may be rendered in all cases, when:
a. Either of the parties has another wife or husband living at the time of a second or other marriage;
b. The parties are within the degrees prohibited by law. If any such marriage shall not have been annulled during the lifetime of the parties the validity thereof shall not be inquired into after the death of either party.
c. The parties, or either of them, were at the time of marriage physically and incurably impotent, provided the party making the application shall have been ignorant of such impotency or incapability at the time of the marriage, and has not subsequently ratified the marriage.
d. The parties, or either of them, lacked capacity to marry due to want of understanding because of mental condition, or the influence of intoxicants, drugs, or similar agents; or where there was a lack of mutual assent to the marital relationship; duress; or fraud as to the essentials of marriage; and has not subsequently ratified the marriage.
e. The demand for such a judgment is by the wife or husband who was under the age of 18 years at the time of the marriage, unless such marriage be confirmed by her or him after arriving at such age.
f. Allowable under the general equity jurisdiction of the Superior Court.
The New Jersey Courts have held that where a marriage has been consummated, the fraud alleged must be of an extreme nature, that goes to one of the essentials of marriage. V.J.S. v. M.J.B., 249 N.J. Super. 318 (Ch. Div. 1991). The courts have also held that nondisclosure of a prior marriage and divorce does not qualify as an extreme enough fraud to annul a marriage. Gerard v. Distefano, 84 N.J. Super. 396 (Ch. Div. 1964).
New Jersey law further held that there is a strong presumption in favor of the latter of two successive marriages involving a common participant, and the presumption is that the first marriage was terminated by death, divorce, or annulment before the party entered into the second marriage. Prater v. AFTRA Health Fund, 23 F. Supp. 2d 505 (D.N.J. 1998). In order to rebut the presumption, the burden is on the challenging party to prove by clear and convincing evidence that the first marriage was not terminated and the parties were, at the time of the marriage, free from disabilities against a lawful marriage. Id. The New Jersey courts have even held that the petitioner, in order to get an annulment based upon his wife's incapacity to enter into marriage, had the burden to show by a preponderance of the evidence proof of his wife's previous marriage, the fact that her previous husband was still alive, that she and her previous husband were never divorced, and the petitioner was unaware of the facts when he entered into the marriage. Tyll v. Keller

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