Clarke v. Clarke

11 Abb. Pr. 228

Opinion

Sutherland, J.

Conceding that the representations of the defendant, as to the death of his first wife, were fraudulently made, and that the plaintiff would not have married him had she known or supposed that his first wife was living, yet it is clear to me that such fraud or deception does not furnish sufficient ground for dissolving the marriage contract between the plaintiff and defendant, and for declaring it to have been void from the beginning. It was not a fraud in or as to a material matter or thing, within the ordinary or legitimate purposes of marriage, and the supposed intention or purposes of parties in .contracting marriage. The plaintiff had a fancy that she would never marry a man who had been divorced from his wife. She had a right to indulge this fancy, but it does not follow because she was deceived and induced unknowingly to marry a divorced man, that she should be indulged in such fancy afterwards to the extent of having her marriage judicially declared void. I find neither precedent nor principle for declaring a marriage void for fraud as to or in such a matter or thing. Motion for divorce denied.