Zule v. Zule , 1 N.J. Eq. 96 ( 1830 )

The Chancellor.

This case presents a singular state of things. The complainant alleges, that she was lawfully married to the defendant, in the year 1807 ; and lived, and cohabited with him, a number of years, as his lawful wife ; that he afterwards treated her cruelly, spent all her property, and deserted her, and then married another wife, one Catharine Gulick, on account of which he was indicted for polygamy. She prays a decree of divorce from bed and board, together with an order for alimony and maintenance.

The defendant admits the marriage to the complainant, in 1807, but sets up that he was partially intoxicated, and did not know what he was about. That in the year 1796, he was lawfully married in Scotland, to one Christiana Shearer, by whom he had children, and who was still living in 1807, at the time of his marriage with the complainant; and therefore that the marriage with the complainant was wholly void. He denies the charges of cruelty and desertion, and admits the subsequent marriage with Catharine Gulick, and the indictment for polygamy.

The fact of the marriage in Scotland is fully supported; and I think it is sufficiently proved by the testimony, that the first wife was living at the time of the marriage with the complainant. If so, that marriage was, in the language of our statutes, invalid from the beginning, and absolutely void. The first contract still existed. It was not affected by the fact, that the husband and wife were resident in different quarters of the globe. The great principle on this subject, as recognised in all Christian nations, is, that nothing save death, or the judicial sentence of some competent tribunal, can dissolve the marriage relation. 1 Blac. Com. 440.

It is evident, the complainant’s bill is not framed to meet such a case. She comes into court praying for a separation or divorce, a mensa et thoro. This always presupposes a pre-ex-isting valid marriage: it is founded on some cause subsequent to the marriage, and does not dissolve the relation. It consists with a subsequent reconciliation of the parties, as well as a subsequent cohabitation upon proper terms. All this is totally inconsistent with the case before the court; and a decree of divorce, a mensa et thoro, would be as repugnant to the situation and rights of the parties, as it would be to the law of the land, and the feelings of the court. But such is the relief sought by the bill; while the only relief that consists with the case made, is a divorce, a vinculo matrimonii, on the ground of the prior marriage. Where there is a decree of divorce on this ground, it is different from other decrees of divorce, a vin-culo matrimonii, growing out of other causes. It rests on different principles, and is more disastrous in its results. It considers the marriage null and void, and the connection between the parties meretricious, and not connubial: the children are deemed illegitimate, and subject to all the legal disabilities of illegitimate issue. Such decree cannot be made in this case as now presented.

Whether, if a proper case were made, and such decree rendered, the complainant would be entitled to alimony, it is not necessary now to consider. The rule in regard to property, seems to be, that the wife would be entitled to receive what she possessed before the supposed marriage, if it remained unexpended or undisposed of.

The bill must be dismissed, but without costs.