What is the test for establishing that a marriage is not a statutory marriage?

But since the marriage has been declared void and has been annulled in a direct action between the spouses (Simms v. Simms, 31 Misc.2d 882, 221 N.Y.S.2d 1020, affd. 16 A.D.2d 806) it is unnecessary to rest on the question of statutory construction. Decision may turn on whether the antenuptial contract when made was valid; and whether the performance of a religious ceremonial marriage and subsequent cohabitation as husband and wife met its conditions.

That the contract itself is valid is not open to doubt. It did not prescribe where the marriage was to be solemnized. It was not only valid by Jewish law, but it would be valid at least in some jurisdictions outside of New York where it could have been performed and hence the contract was not interdicted as an unlawful agreement (Matter of May's Estate, 305 N.Y. 486, 114 N.E.2d 4, Supra; Matter of Saffer's Estate, [257 N.E.2d 629] 39 Misc.2d 691, 241 N.Y.S.2d 681, affd. 20 A.D.2d 849, 248 N.Y.S.2d 279; Weisberg v. Weisberg, 112 App.Div. 231, 98 N.Y.S. 260).