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HITCHENS v. HITCHENS

September 29, 1942

HITCHENS
v.
HITCHENS



The opinion of the court was delivered by: EICHER

This motion to dismiss complaint poses the question whether a Maryland marriage, contracted by a male between eighteen and twenty-one years of age and a female between sixteen and eighteen years of age, without consent of parents, the domicile of both parties before and after the marriage being in the District of Columbia, is annullable by this Court.

In the first place, does this Court have jurisdiction in the sense of having the power to annul a Maryland contract? *fn1" Jurisdiction of the parties, of course, is clear.

 Since the decree of annulment goes back to the question of inception of the marriage status, it is the view of some authorities that for such defects the state where the marriage took place alone can declare its nullity. *fn2" However, by what appears to be the general rule, it is recognized, that the court of the domicile of the parties has jurisdiction to annul a marriage contracted elsewhere. *fn3" In determining whether such a decree will be rendered, however, the court of the forum will be governed by the principles of the marriage law of the state which, under the appropriate Conflicts of Law rule, determines the validity of the marriage in question. *fn4" It is admitted, however, that marriages in violation of the strong public policy of the domiciliary state can be declared null and void in a proceeding there. *fn5"

 "The following marriages in said District shall be illegal, and shall be void from the time when their nullity shall be declared by decree, namely: * * *

 "Second. Any marriage the consent to which of either party has been procured by force or fraud. * * *

 "Fourth. When either of the parties is under the age of consent, which is hereby declared to be eighteen years of age for males and sixteen years of age for females."

 And provision *fn7" is further made that: "If any marriage declared illegal by the foregoing sections shall be entered into in another jurisdiction by persons having and retaining their domicile in the District of Columbia, such marriage shall be deemed illegal, and may be decreed to be void in said District in the same manner as if it had been celebrated therein."

 Thus there is no policy here which declares marriages contracted by females over sixteen or males over eighteen without consent of their parents to be repugnant and void. *fn8" It follows, therefore, that the determinant of the right to annulment must be the law as it prevailed in the state where the marriage occurred. *fn9"

 The applicable Maryland statute as adopted in 1939 states. *fn10" "It shall be unlawful within this State for any female below the age of sixteen years or any male below the age of eighteen years to marry, or for a parent to permit any such female or male to marry, except on the certificate of a licensed physician, which shall be presented with the application for the marriage license, to the effect that the girl is pregnant, or for any female between the ages of 16 and 18 years, or for any male under the age of twenty-one years, to marry unless the parent or guardian of such male or female, in person or by signed affidavit, assent thereto, and in the case of a female, swear or affirm that she is over the age of sixteen years, and in the case of a male, swear or affirm that he is over the age of eighteen years."

 Thus it is seen that the present statute not only purports to make essential the consent of the parents of females under eighteen and males under twenty-one, but also to establish the minimum age for marriage at sixteen for females and eighteen for males. However, the statute leaves it uncertain as to whether marriages contracted in violation of such provision are void or voidable, on the one hand, or are valid with certain penalties attaching, on the other hand. *fn11"

 The previous Maryland statute provided: *fn12" "No such license [marriage] shall issue unless the male be above the age of twenty-one years and the female above the age of eighteen years; provided, however, that if the parents or guardian assent thereto, in person or by writing, attested by two witnesses, such license may issue and the fact of such assent shall be made part of the record aforesaid."

 Under that statute as under the present law it was not certain whether a marriage contracted without parental consent was void or voidable, or valid and proper, although subject to the penalties therein provided. *fn13" While no Maryland decisions were handed down interpreting the earlier statute it would seem that the latter answer is correct. *fn14" This is in accord with the general rule that unless the statute expressly declares a marriage contracted without the necessary consent of the parents to be a nullity such statutes will be construed to be directory only so that the marriage contract itself will be valid although penalties may be imposed upon the parties. *fn15" It is accepted, therefore, that prior to the 1939 statute the marriage law of Maryland was essentially that of the common law, namely, that if either spouse was under the ...


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