San Francisco History

California Marriage Law
California Law Review, 1919

"PERSONS: AGE OF CONSENT FOR MARRIAGE: ISSUING LICENSE WITHOUT PARENT'S APPROVAL.—The case of Johnson v. Alexander1[1918) placed squarely before an Appellate Court of California for the first time two important questions: (1) What is the "age of legal consent" for the purpose of marriage as used in the Civil Code,2 and (2) what is the effect of a marriage solemnized according to the forms outlined in the Code except that the license was issued to a female fifteen years of age without the consent of the parents or guardian as prescribed in the statute.3 The first point had been referred to in a dictum previously, and fifteen years for females and eighteen years for males, as provided in section 56 of the Civil Code [passed in 1872], had been stated as the ages of consent.4 [1915]. This view was adopted by the principal case. The code section5 involving the second point had been definitely construed before, but a case under the old marriage act of 18506 was cited to show, that while a third party joining in marriage a male under twenty-one or a female under eighteen may be guilty of a misdemeanor, the marriage is neither void nor voidable. The same principle, the court holds, applies to a clerk issuing a license without the consent of the parents or guardian, as required by the present law.

At common law there could be no question of parental consent where males had attained the age of fourteen and females the age of twelve years.7 [1859] If the infants were under seven years of age the marriage was absolutely void, but parties over seven years of age and under the age of consent, could enter into a voidable marriage. No form was required, mutual assent and cohabitation between the parties being the only requirements.8 Statues providing different age limits and prescribing certain forms to be observed in the celebration of marriage have been generally enacted. Frequently two provisions are found with reference to age, one fixing the ages above which infants may consummate marriage (usually from 15 to 18) and one requiring parental consent where parties are under other designated ages (usually 18 for females and 21 for males). Rarely, however, have they stated definitely what the effect of a failure to comply with their provisions shall be, and the general attitude of the courts toward these laws is well expressed by the widely quoted language of the United States Supreme Court: “No doubt a statute may take away a common-law right; but there is always a presumption that the legislature has no such intention, unless it be plainly expressed.” Therefore, in speaking of the legislature’s control of marriage, the Court continues, “Whatever directions they may give respecting its formation or solemnization, courts have usually held a marriage good at common law to be good notwithstanding the statutes, unless the contain express words of nullity.”9 [1877]

In accord with this view courts have usually held that where statutes change the common law age of consent, marriages by parties under the designated ages are not void, but merely voilable. They are in fact good for all civil purposes until action is brought by the part under age to annul such marriage.10 The bigamy laws apply to a second marriage by either party,11 and the male is liable under a criminal statute applicable to delinquent husbands.12 With reference to forms prescribed by statute for the celebration of marriage the same interpretation has governed and the common-law marriage has been upheld unless made expressly void. Some courts even interpret the word void to mean voidable.13

What is sometimes called a minority view prevails in some states, but it is really not so much a minority view of courts as of legislatures. Some statues are so worded as to leave no question fo interpretation, as where common-law marriages are made expressly void. Among these jurisdictions are North Dakota, where the statute provides that marriages shall be entered into “only as provided by law”;14 and California. In this state, since the amendment of the Civil Code of 1895,15 common-law marriages are not valid.16 The question in this jurisdiction is, then, as to which parts of the Civil Code governing marriage are directory and which mandatory.

There are, according to the express provision of the Code,17 only three kinds of marriage that are absolutely void from the beginning, viz.: incestuous marriages, marriages between persons of different races, and bigamous marriages. All others are valid or voidable.18

As to the question of age, only marriages by females under fifteen, or males under eighteen, years of age without the parents’ or guardian’s consent are voidable.19 [1907] Consent by others than the parties to the contract is unnecessary if the female is fifteen years old and the male eighteen.20 Section 69 of the Civil Code is, therefore, to this extent merely directory. Furthermore, if the parties are above seven years of age and have parental sanction, as prescribed by the Code, an absolutely binding marriage is formed.21 This is practically the uniform hold of all courts, although Michigan22 held a marriage invalid where parental consent was not given, and New York, because of several conflicting statutes, was forced to the conclusion that, though consent had been given to the marriage of a seventeen-year-old girl by her parents, the right of annulment still existed.23

On principle, the holding of the instant case with reference to age is not open to any objection considering the Code provisions. It is clear that marriages of infants are not made expressly void by statute and that the most reasonable interpretation of sections 56, 69, and 82 of the Civil Code taken together is that section 56 fixes the “age of legal consent.” That caution should be used in declaring marriages void is also uniformly conceded because of the disastrous effects following such action.

The question as to whether the procuring of a license is absolutely essential before marriage may be contracted in California is said by the supreme court to be still an open and debatable question.24 But it may be doubted whether this observation is wholly in accord with the code and with some expressions of the same court. Clearly, “Consent alone will not constitute marriage; it must be followed by a solemnization authorized”25 by the Code, and “it is giving the word ‘solemnization’ too narrow a meaning to confine it to the mere ceremony before the officer or minister”; for “it should be held to include the issuing of the license and the record of the certificate; with the publicity incidental to the license and record; that the purpose of the section must be to facilitate the proof of marriages by requiring their existence to be made public.”26 This interpretation seems in accord with the code provisions.27 However, the principal case did not turn on the question of the necessity of a license, but upon the point as to the effect of the issuance of a license by the clerk in violation of the code provisions.

The finding of the court accords with the provision in the statute that “non-compliance with its provisions by others than a part to a marriage does not invalidate it.”28 Such, too, is the uniform holding of other jurisdictions.29 The officer violating the act may be subjected to punishment, and frequently statutes provide a penalty, but the marriage is not affected.30

On the whole the principal case accords with the tendency to declare no act good at common law invalid unless the statutory provisions expressly so provide, and is practically in complete harmony with other courts on the questions of age and requirements of form.

D. J. W.

1. (Dec. 13, 1918) 27 Cal. App. Dec. 823.
2. § 82, subd. 1.
3. Cal. Civ. Code, § 69.
4. Matter of Guardianship of Ambrose (1915) 170 Cal. 160, 149 Pac. 43.
5. Supra, n. 3.
6. Hunter v. Milam (1895) 5 Cal. Unrep. 107, 41 Pac. 322.
7. Koonce v. Wallace (1859) 7 Jones Law (N. C.) 194.
8. Sharon v. Sharon (1889) 79 Cal. 633, 22 Pac. 26.
9. Meister v. Moore (1877) 96 U. S. 76. See also notes, 7 Ann. Cas. 784; 14 Ann. Cas. 953; L. R. A. 1915 E, 113.
10. Willits v. Willits (1906) 76 Neb. 226, 107 N. W. 379, 5 L. R. A. (N. S.) 767. New York fixes eighteen as the age for both parties, Padula v. Padula (1916) 160 N. Y. Supp. 833.
11. Garner v. State (1913) 9 Ala. App. 60, 64, So. 183.
12. State v. McPherson (1913) 72 Wash. 371, 130 Pac. 481.
13. State v. Parker (1890) 106 N. C. 711, 11 S. E. 517.
14. Schumaker v. Great N. Ry. Co. (1912) 23 N. D. 231, 136 N. W. 85. Brinkerhoff v. Bostwick (1885) 99 N. Y. 185, 1 N. E. 663 is quoted to the effect that “such expressions as ‘required by law,’ ‘regulated by law,’ ‘allowed by law,’ ‘made by law,’ ‘limited by law,’ ‘as prescribed by law,’ ‘a law of the state,’ are of frequent occurrence in the Codes and other legislative enactments; and they are always used as referring to statutory provisions only.”
15. Cal. Civ. Code, § 55.
16. Norman v. Norman (1898) 121 Cal. 620, 54 Pac. 143, 66 Am. St. Rep. 74, 42 L. R. A. 343; Estate of Shipp (1914) 168 Cal. 640, 144 Pac. 143.
17. Cal. Civ. Code, §§ 59, 60, 61.
18. People v. Souleotes (1915) 26 Cal. App. 209, 146 Pac. 903.
19. People v. Gonzales (1907) 6 Cal. App. 255, 91 Pac. 1013; People v. Beevers (1893) 99 Cal. 286, 33 Pac. 844.
20. Matter of Guardianship of Ambrose, supra, n. 4.
21. People v. Souleotes, supra, n. 18.

22. People v. Schoonmaker (1899) 199 Mich. 242, 77 N. W. 934.
23. Kruger v. Kruger (1910) 122 N. Y. Sup. 23. See note on Trial Marriages in New York, 26 Yale Law Journal, 622.
24. See cases, supra n. 16.
25. Cal. Civ. Code, § 55; cases, supra, n. 16.
26. Sharon v. Sharon (1888) 75 Cal. 1, 16 Pac. 345.
27. Cal. Civ. Code, § 68.
28. Id.
29. Gray v. Lentz (1917) 173 N. C. 343, 91 S. E. 1024, L. R. A. 1917 E. 863; Browning v. Browning (1913) 89 Kans. 98, 130 Pac. 852, Ann. Cas. 1914 C, 1288; L. R. A. 1916 C, 737; note, 1917 E, 868; 18 R. C. L., § 70.
30. Id.

Source: Age of Consent: Marriage and issuance of a license without approval of parents. (1919) 7 Cal. L. Rev. 279. [California Law Review]


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