How to Nullify a Fraudulent Marriage
In today’s world of divorce, a good marriage is tough to maintain. What is disturbing is when a predator or manipulative person seeks out a prospective spouse and convinces him or her to marry.
I may be overly general when I say that these marriages (I call them a sham marriage) are often between older men and 1) younger/young women, 2) older men and home health aides, and 3) older men and women who develop internet-based relationships. Once married, the predator comes out and the emotional and economic consequence(s) begin. A fraudulent marriage as well as other statutory reasons can support a case for divorce/annulment in NJ.
Here are two examples:
After plaintiff entered into contract for marriage by proxy with the defendant resident of Cuba, defendant repeatedly refused to join the plaintiff in the United States. She presented evidence that the marriage was not consummated and that defendant from inception of the marriage was predetermined not to consummate the marriage. These proofs established that defendant committed such fraud as to constitute ground for annulment.
Then there was the case where plaintiff had been a deeply religious Orthodox Jew throughout her life and, in light of the far-reaching requirements of that religion, could not properly have performed the duties of wife and mother following the rules and teachings of her faith without the support of a husband holding the same beliefs, and where defendant knowingly misrepresented to plaintiff that he was also a practicing Orthodox Jew, and thereby induced plaintiff to marry him, plaintiff was entitled to annulment on the ground of “gross and far-reaching” fraud, though the marriage had been consummated. Husband’s concealment prior to marriage of intent to have children contrary to his signed expressed pre marital agreement not to have children was a fraud which went to the essentials of marriage and warranted annulment.
What are the Laws to Annul a Marriage in NJ?
By legislation effective September 13, 1971, actions for annulments in New Jersey are governed by statute.
N.J.S.A. 2A:34-1 provides:
Judgments to nullify a marriage may be rendered in all cases when:
- Polygamy – Either of the parties has another wife or husband living at the time of a second or other marriage.
- Related by Blood Marriage – The parties are within the degrees of blood line 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.
- Impotency – 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. The key to success is persuading the judge that one party did not know of the other’s condition at the time of the marriage.
- Lack of Mental Capacity – The parties, or either of them, lacked capacity to marry due to want of understanding because of a 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.
- Under Age Marriage – The demand for annulment is filed by the wife or husband who was under the age of 18 years at the time of the marriage unless such marriage was/is confirmed by her or him after arriving at such age.
- General Jurisdiction of the Court – Allowable under the general equity jurisdiction of the Superior Court.
Lack of Consent, Fraud, Addiction Can Justify an Annulment
N.J.S.A. 2A:34-1(d) also provides that an annulment may be granted
“where 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.”
The clause can be broken down into (1) inability to give consent; (2) lack of mutual assent; (3) duress; and (4) fraud as to the essentials of the marriage. In one reported case involving a contested annulment, a Power of Attorney argued that her brother did not have the mental capacity to give his consent to marriage and that the marriage constituted a fraud as to its essentials.
Let’s talk about fraud as to the essentials of the marriage as it offers considerable promise to those who are advocating for the annulment of a marriage.
Fraud as to the Essentials of the Marriage
What do I mean when a marriage is the product of a fraud as to the essentials of the marriage? The courts have defined “fraud in the essentials” to include a number of different factual scenarios in which one spouse omits to mention or misrepresents a fact(s) or issue so material that it goes to the very essence of the marriage relationship constituting grounds for annulment. A court of equity in N.J. has jurisdiction to annul fraudulent contracts including the contract of marriage. However, a determination of whether a spouse’s fraud goes to the essentials of a marriage warranting an annulment must be decided on a case-by-case basis since what is essential to the relationship of the parties in one marriage may be of considerably less significance in another.
Here’s a case example. A woman sued her estranged husband for divorce. During the proceedings, her husband died and left his entire estate to his children by a former marriage and she did not qualify for an elective share. The trial court determined that the husband’s death terminated the wife’s claims for equitable distribution and alimony. The court, however, viewed the action as essentially one of equity and allowed the plaintiff to amend her complaint to pursue alternate equitable remedies to prevent a failure of justice. The Appellate Court affirmed that decision as did the Supreme Court. The Supreme Court characterized the problem as follows: “If she (the widowed spouse) is not entitled to relief under either statute, a plight created by her husband’s supervenient death, we must determine whether the dual statutory schemes express a design to deny any relief at all.” The Court determined that although the wife’s cause of action under the divorce statute was terminated upon the death of her husband, implicit within the statute was an acknowledgement that the statutory scheme of equitable distribution is based on equitable principles.
Does Death End a Case for Annulment?
Unlike impotency which can be filed only when both parties are still alive, a case seeking an annulment based on lack of consent does not end with a spousal death and the marriage can be annulled even after the death of one spouse by his or her representative (i.e., executor). This holding is in accord with general historical discussion of a marriage being void vs. being voidable. With regard to capacity to consent, the courts of this state have held that where there is a lack of capacity to consent, the incapacitated party is not capable of contracting the marriage and the marriage is void ad initio (meaning from the beginning as if it never existed).
General Equity Jurisdiction to Annul
N.J.S.A. 2A:34-1(f) provides that a judgment of nullity may be rendered pursuant to the general equity jurisdiction of the Superior Court, and a Court of Chancery has jurisdiction independent of a statute to annul a marriage for fraud, want of mutual consent, or duress based on its inherent powers to grant equitable relief. The plain language of the law indicates that the legislature provided an express grant of authority to a court of equity to exercise its general equity jurisdiction in those cases that do not fit neatly into one of the specifically delineated categories.
Pursuant to these guiding principles, a court of equity is empowered to prevent one party from acquiring the benefits of marriage when the marriage itself was somehow illicit.
An application for annulment must be timely filed after death because the general grant of authority given to courts of equity to exercise their equitable powers is a deviation from the common law and must be carefully applied.
Fredrick P. Niemann Esq.
Do you have a question(s) on an elder abuse or financial exploitation matter, especially in a fraudulent marriage? If so, contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com to schedule a consultation about your particular concerns. He welcomes your calls and inquiries and you’ll find him very approachable and easy to talk to.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Abuse Attorney