Taub v. Taub

• Decision Date: 18 June 1917
• Docket Number: No. 118.,118.
• Citation: 101 A. 246,87 N.J.Eq. 624
• Parties: TAUB v. TAUB.
• Court: New Jersey Supreme Court

101 A. 246

87 N.J.Eq. 624

TAUB

v. TAUB.

No. 118.

Court of Errors and Appeals of New Jersey.

June 18, 1917.

(Syllabus by the Court.)

Appeal from Court of Chancery.

Petition by Stanley J. Taub against Margaret Pangburn Taub for the annulment of a marriage. From a decree of the Court of Chancery dismissing the petition, petitioner appeals. Reversed, and record remitted to Court of Chancery for the entry of a decree annulling the marriage.

Michael T. & Hugh C. Barrett and Roy F. Anthony, all of Newark, for appellant. Condiet, Condict & Boardman, of Jersey City, for respondent.

TRENCHARD, J. This is the husband's appeal from a decree dismissing his petition for the annulment of his marriage.

The appellant and respondent were married in this state on April 22, 1915, by a minister of the gospel. At the time of the marriage the appellant was under the age of 18 years. He reached that age June 22, 1915. The respondent was 20 years of age. The parties did not reside together after the marriage. The marriage was in no way confirmed after the appellant reached the age of 18. On July 10, 1915, he filed his petition praying for the annulment of the marriage on the ground of his nonage at the time of the ceremony. The learned advisory master advised a decree dismissing the petition on the ground that the provisions of the Divorce Act authorizing annulments of marriage because of nonage of the parties did not apply where the parents of the minor had consented to the marriage. It is from that decree dismissing the petition that this appeal is taken. We are constrained to think that the decree was wrong.

The proceeding was pursuant to paragraph 6 of section 1 of the Divorce Act (P. L. 1907, p. 474; C. S. p. 2022), which provides:

"Decrees of nullity of marriage may be rendered in all cases * * * 6. At the suit of the husband when he was under the age of eighteen at the time of the marriage, unless such marriage be confirmed by him after arriving at such age."

It is argued that this provision of the Divorce Act has been repealed. We think not. It is not contended that it has been expressly repealed. But it is argued that it has been repealed because inconsistent with the provision in section 8 of the Marriage Act (P. L 1912, p. 310), which reads as follows:

"If any such male applicant for a license to marry shall be a minor under the age of twenty-one years, or any such female applicant under the age of eighteen years, such license shall not be issued unless the parents or guardian of the said minor, if there be any, shall first certify under their hands and seals in the presence of two reputable witnesses, their consent thereto: which consent shall be delivered to the assessor, registrar or clerk issuing the license. If the parents, or either of them, or guardian of any such minor shall be of unsound mind, then the consent of such parent or guardian to the proposed marriage shall not be required," etc.

Since in the present case the parents of the appellant consented to the marriage in the form prescribed by the above section, it becomes necessary to determine whether or not paragraph 6 of section 1 of the Divorce Act is by implication repealed pro tanto, to the extent of the alleged repugnancy, by the above-recited provision of the Marriage Act. We think it was not.

At the outset it is to be remarked that a marriage license is not requisite to make a valid marriage. A marriage performed without a license for that purpose is as valid as one performed after securing the proper license. The provisions of the Marriage Act with regard to licenses both for minors and for others are penal in their nature, section 10 providing that, if any person having authority to solemnize marriages shall perform any marriage ceremony without the presentation of a license therefor, obtained in accordance with the provisions of the act, he shall be deemed guilty of a misdemeanor. P. L. 1912, p. 311. The burden is thus placed on the officer performing the marriage ceremony to see that the proper legal forms have been observed but if such officer, through design or oversight, fails to require the production of marriage license, the marriage nevertheless is a binding one. The license therefore appears to be merely an additional safeguard against hasty and ill-considered marriages and affects in no way the validity of the marriage.

Next it is to be observed that the provisions of the Marriage Act of 1912 requiring the consent of the parents of a minor before the issuing of a license were not new legislation, but merely re-enactment of provisions already in the statutes. Legislation on this subject is first found in section 5 of "An act concerning marriages," passed March 4, 1795 (Paterson's Laws p. 159), and the subsequent legislation, including that of 1912, is, in effect a mere re-enactment of the Paterson Act. It is also found in P. L. 1866, p. 960, section 1 of which provides that no person having authority to join persons together in the holy bonds of matrimony shall marry any male under the age of 21 years or female under the age of 18 years unless the parents or guardian shall be present and give their consent thereto, or until the minor applying to be married shall have produced a certificate in writing under the hand of the parents or guardian. And section 2 provides that, if any such officer shall marry any minor without the consent of the parents or guardian, such officer shall, for every such offense, forfeit $300. These provisions were incorporated in the revision of the Marriage Act of 1874 (Rev. St. 1874, p. 459), found with various slight amendments in General Statutes, p. 2003, §§ 3, 4, and 5.

In 1902 the Marriage Act was again revised (P. L. 1902, p. 490), and the same provisions were incorporated, forming sections 3, 4, and 5. Up to the time of this latter act there was no requirement of a marriage license. In this revision, however, for the first time appeared provisions requiring the obtaining of a marriage license. Section 6, etc. The license was required only from nonresidents. If such nonresident was a male under 21 years or a female under 18, the license could not be issued except upon the consent of the parents or guardian. Section...