Needam v. Needam, Record No. 2896.
Decision Date | 05 March 1945 |
Docket Number | Record No. 2896. |
Court | Virginia Supreme Court |
Parties | FRIZELLE NEEDAM, BY LEVIN NEEDAM, HIS FATHER AND NEXT FRIEND v. MILDRED MATTHEWS NEEDAM, AN INFANT, ETC. |
1. MARRIAGE — Validity — Infants — Not Declared Void or Voidable by Statute. — In Virginia there is no statutory provision declaring that the marriage of persons under the age of consent are absolutely void or voidable.
2. MARRIAGE — Validity — Infants — At Common Laws. — At common law, marriages of infants under the age of consent were voidable, at the election of the party under such age, which marriages occurring after they attained the age of consent were absolutely valid.
3. MARRIAGE — Validity — Infants — Necessity for Consent of Parent at Common Law. — At common law, the consent of a parent or guardian was not essential to the validity of the marriage of a minor over the age of consent for marriage.
4. MARRIAGE — Distinguished from Other Contracts. — Rules applicable to ordinary contracts are not applied to marriage contracts because of the nature of the marriage relation and for reasons of sound public policy.
5. MARRIAGE — Validity — Policy Is to Uphold Validity. — The public policy of Virginia is to uphold the validity of the marriage status as for the best interest of society, except where marriage is prohibited between certain persons.
6. COMMON LAW — Prevails in Virginia. — The common law prevails in Virginia, except wherein it has been altered by the General Assembly.
7. MARRIAGE — Validity — Effect of Statutes Requiring Parental Consent. — The general rule is that the effect of statutes prohibiting clergymen or magistrates from marrying minors without the consent of their parents or guardians, or forbidding the issuance of marriage licenses without such consent, and prescribing a penalty for the violation thereof, is not to render such marriages void or voidable, when solemnized without the required consent, the statutes being regarded as directory only, in the absence of any provision declaring such marriages void or voidable.
8. DIVORCE — Marriage Annulment — Code Section 5100 Not Applicable to Marriage of Minors Over Age of Consent. — Marriages of minors over the age of consent for marriage are not "supposed to be void" merely because of the lack of parental consent, so as to make applicable section 5100 of the Code of 1942, authorizing a suit for annulment of a marriage when the marriage is supposed to be void.
9. MARRIAGE — Validity — Statutory Provision for Parental Consent Is Directory. — The provision in section 5078 of the Code of 1942 for parental consent to a marriage is directory and preventive, rather than prohibitive of the consummation of the marriage contract.
10. MARRIAGE — Validity — Infants Over Age of Consent. — Minors over the age of consent for marriage have the capacity to enter into the marriage relation, and their marriage is a permissible status and not merely a contract between infants.
11. DIVORCE — Marriage Annulment — Marriage of Minors without Parental Consent — Case at Bar. — In the instant case, a suit by an infant for annulment of his marriage, the parties, both bona fide residents of Virginia, were married in Maryland without the consent of the parents of either party, and, immediately thereafter, returned to Virginia where they lived together for some months. At the time of the marriage, appellant was approximately eighteen and one-half years of age and appellee seventeen and one-half years of age. Appellant contended that the marriage was voidable at the option of either contracting party, providing the remedy was sought prior to the time the objecting party arrived at the age of twenty-one years. The trial court found that the marriage was valid and binding on the parties and dismissed the bill.
Held: That the decree of the trial court was plainly right.
Appeal from a decree of the Circuit Court of Accomack county. Hon. Jefferson F. Walter, judge presiding.
The opinion states the case.
H. Ames Drummond, for the appellant.
No appearance for the appellee.
We have under review a decree of the Circuit Court of the County of Accomack, entered on March 24, 1944, in which the trial court dismissed appellant's bill praying for an annulment of his marriage with appellee. In the decree of dismissal there is set out the following finding of facts by the court:
The bill and a stipulation by the parties that the decree correctly states the facts comprise the whole record before us.
The petition for the appeal states that "It is the contention of the complainant that said marriage is voidable at the option of either contracting party, providing this remedy is sought prior to the time the objecting party arrives at the age of twenty-one years." It is therein conceded that the marriage is valid in both Maryland and Virginia until it is set aside by a competent judicial tribunal. We are asked to declare the marriage void under the statutes of Virginia and as contrary to the public policy of this State. No question of jurisdiction is raised.
At the time of the marriage of the parties, the appellant was approximately eighteen and one-half years of age and the appellee seventeen and one-half years of age.
The pertinent statutes of Virginia relating to the marriage of minors are found in chapter 204 of the Code of Virginia 1942, (Michie), sections 5078 and 5090. By Code, section 5078 ( ), a person under twenty-one years of age, who has not been previously married, is permitted to marry with the consent of his or her father, mother, or guardian, or if there be none, the judge of a specified court.
Code, section 5090 ( ), provides, with certain exceptions not here material, that "the minimum age at which minors may marry with the consent of the parent or guardian shall be eighteen for the male and sixteen for the female * * *."
Section 5090, as found in the Code of 1887, (section 2254) and in the Code of 1919, (section 5090), fixed the age of consent of the male at fourteen years and that of the female at twelve years, and expressly provided that, "whenever either of the parties was under the age of consent, if they be separated during such non-age, and not cohabit afterwards, the marriage shall be deemed void, without any decree of divorce, or other legal process."
By amendment of section 5090, in 1932 (Acts 1932, chapter 300, page 529), the General Assembly raised the age of consent, and struck out the provision declaring that the marriage of a person under the age of consent, followed by separation, "shall be deemed void."
Neither in section 5090, as it now stands, nor in any other statute, is there any provision declaring that the marriages of persons under the age of...
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