APPEAL from the Circuit Court of Cook County; the Hon. BERNARD
B. WOLFE, Judge, presiding.
MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Judith Wolfe, plaintiff, sued her husband, James Wolfe, defendant, for divorce. Defendant filed a countercomplaint for annulment on the grounds that he had been induced to marry plaintiff by her fraudulent representation that her former husband was dead when, in fact, he was alive, plaintiff having been divorced from him. Defendant claims that his religious beliefs would have prevented him from marrying plaintiff, a divorced woman, while her former husband was living.
After the case was tried before an advisory jury, the court, on motion of defendant, directed a verdict for defendant and dismissed plaintiff's complaint for divorce. The jury returned a verdict in favor of defendant on his countercomplaint for annulment and the trial court entered a judgment for annulment on the verdict. Thereafter, based on plaintiff's post-trial motion, the trial court set aside the annulment judgment and dismissed defendant's countercomplaint for annulment for want of equity. Defendant appeals, contending that the plaintiff's false representation made to induce a marriage which violated defendant's religious beliefs, constitutes fraud which goes to the essence of the marriage relationship thereby providing grounds for annulment and that the judgment granting the annulment should be reinstated.
We reverse the trial court's ruling on plaintiff's post-trial motion with regard to the annulment and reinstate the judgment for annulment.
The record indicates that the parties were married in March 1965, and separated in November 1973. One child, John, was born to the couple. On December 14, 1973, plaintiff filed suit for divorce on grounds of extreme and repeated mental cruelty. Defendant answered the complaint. On May 10, 1974, defendant filed a countercomplaint for annulment alleging that before their marriage, plaintiff had fraudulently misrepresented her status as that of a widow when, in fact, her first husband, from whom she had been divorced, was still alive. Defendant learned that plaintiff's first husband was alive in February of 1974, after the couple had separated and plaintiff had initiated divorce proceedings. The countercomplaint alleged that defendant, a practicing Roman Catholic, would not have married plaintiff if he had known that her first husband was alive and, further, that she knew of his religious convictions before their marriage. Defendant claimed that the alleged fraud vitiated his consent to the marriage. Attached to the countercomplaint were a purported death certificate issued by the State of Arizona, produced by plaintiff as proof of her former husband's death, and an affidavit, completed by plaintiff prior to the parties' marriage and attesting to her widowhood in accordance with the requirements of defendant's church.
Plaintiff answered the countercomplaint denying the material allegations and affirmatively stating that defendant became aware that her former husband was living prior to February 1974, and having such knowledge, continued to cohabit with her.
The case ultimately went to trial before an advisory jury on plaintiff's third amended complaint for divorce and defendant's amended countercomplaint for annulment. The complaint for divorce was dismissed for want of equity on defendant's motion for a directed verdict at the end of the plaintiff's case, and no appeal has been taken from that portion of the order directing the dismissal of the complaint for divorce.
The following testimony was adduced at trial relevant to the complaint for annulment. Plaintiff, Judith Wolfe, called as an adverse witness under section 60 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 60), testified that she previously had been married to and divorced from Thomas Haffner, and that defendant knew this fact. When questioned about the contents of the affidavit executed by her at the time of the parties' marriage, plaintiff admitted that her assertion that her first husband was dead was not true and known by her to be false at the time she signed the affidavit. She also admitted that her former husband had been living at the time she executed the affidavit, but later claimed that she was not sure whether her ex-husband was dead at the time she married defendant. She refused to answer questions regarding the manner in which she obtained the purported death certificate of Thomas Haffner which had been attached to the countercomplaint for annulment, claiming the fifth amendment privilege against self-incrimination. Plaintiff also denied that defendant had refused to marry her as long as her former husband was living.
Thomas Haffner, plaintiff's ex-husband, testified for the admitted purpose of proving that he was in fact alive.
Defendant, James Wolfe, testified that prior to his marriage to plaintiff he had a series of conversations with her in which he told her that as a Roman Catholic he could not marry her because she was divorced. He further testified that plaintiff thereafter informed him she had been notified by an acquaintance that her first husband had been killed in an automobile accident. With the belief that plaintiff was, in religious contemplation, a widow rather than a divorcee, defendant agreed to proceed with marriage plans. Defendant claimed that plaintiff had shown him a purported death certificate of Thomas Haffner before their marriage. He maintained that had he known the ex-husband was alive he would not have entered into the marriage.
Based on this testimony the advisory jury returned a verdict for defendant on the countercomplaint for annulment. In accordance with the jury verdict, the trial court entered an order annuling the marriage.
In response to the various post-trial motions filed by the parties the trial court subsequently entered an order providing, inter alia, (1) that the judgment for annulment was vacated; (2) that the findings of the advisory jury on the issues of annulment were contrary to law and the evidence; and, (3) that the countercomplaint for annulment was dismissed. The defendant appeals from that portion of the final order denying the relief of annulment and from the denial of his post-trial motion.
1 To sustain a cause of action for annulment based on fraud, the law requires proof of fraud which goes to the essence of the marriage contract. (Louis v. Louis (1970), 124 Ill. App.2d 325, 260 N.E.2d 469; Bielby v. Bielby (1929), 333 Ill. 478, 165 N.E. 231.) It must be shown that the fraud was of such a nature as to vitiate the actual consent of the defrauded party.
2 The fraudulent representation giving rise to the action must be of an existing fact, essential to the marriage contract (Louis v. Louis (1970), 124 Ill. App.2d 325, 260 N.E.2d 469), which makes impossible the performance of the duties and obligations of the marriage relationship (Helfrick v. Helfrick (1927), 246 Ill. App. 294), or renders the continuation of the marriage dangerous to life or health (Lyon v. Lyon (1907), 230 Ill. 366, 82 N.E. 850).
Within the framework of these time-honored rules this court must determine whether the false representation made by the plaintiff to induce a marriage in violation of defendant's religious convictions is of such a nature as to constitute grounds for annulment in this State. We believe that it is.
Although fraud has long been recognized as a ground for the annulment of a marriage, the public policy interest in upholding the security of the marriage contract has caused the application of more rigid tests for materiality in suits for annulment than in suits for the rescission of other contracts. Thus, courts> have limited the number of fact situations which will give rise to an action for annulment by determining that many types of fraud are not materially or essentially related to the performance of marital obligations, generally. The early Illinois cases, relied on by plaintiff, reflect this desire to preserve the state of marriage at all costs, even when the relationship is no longer viable.
For instance, it was held that an annulment would not be granted where a woman falsely represented that she was a good, religious woman when in fact she was a prostitute (Beckley v. Beckley (1904), 115 Ill. App. 27); where a woman falsely stated that she had been cured of epilepsy (Lyon v. Lyon (1907), 230 Ill. 366, 82 N.E. 850); and where a man misrepresented to his intended wife that he was chaste, however, another woman was pregnant with his child (Hull v. Hull (1915), 191 Ill. App. 307). Finding in each case that the alleged fraud did not impair the ability of the parties to live together and perform the obligations and duties of marriage, it was reasoned that the defrauded party "got possession of the same flesh and bones he bargained for; * * * `[t]he law makes no provision for the relief of a blind credulity, however it may have been produced.' Kent. Com., vol. 2, p. 78." Beckley v. Beckley (1904), 115 Ill. App. 27, 30-31.
Moreover, in Helfrick v. Helfrick (1927), 246 Ill. App. 294, the court affirmed the dismissal of the complaint for annulment which alleged that the wife had falsely represented to her prospective husband that she was pregnant with his child at the time of the marriage, when, in fact, she was pregnant by another man. The court held that the facts ...