Opinion
06-08-1911
PALMER v. PALMER.
Egbert J. Tamblyn, for the motion. Joseph S. Murphy, opposed.
Action by Floyd Palmer against Edna Stonaker Palmer to annul a marriage. On motion to strike out a demurrer. Overruled.
Egbert J. Tamblyn, for the motion.
Joseph S. Murphy, opposed.
HOWELL, V. C. The defendant has demurred to a petition which prays that the supposed marriage between the petitioner and herself be annulled. The marriage took place on February 5, 1911. At that time the petitioner was 17 years and 10 months old. At the time of the filing of his petition to annul the marriage, he was 17 years and 11 months old, so that he was within the ageof consent at the time of his marriage and also at the time of the institution of the proceedings to nullify the same. The demurrer is generally for want of equity, and specifically that the petitioner does not set out any cause for the annulment of the marriage except the nonage of the petitioner. The statute under which the proceeding is taken is the sixth subdivision of the first section of the present divorce act (P. L. 1907, p. 474), which reads as follows: "Decrees of nullity of marriage may be rendered in all cases when * * * VI. 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." The difference between the parties is this: The petitioner claims that he may by virtue of that statute annul the pretended marriage by petition filed at any time. The claim of the defendant, however, is that there can be no disaffirmance of the contract by the petitioner until after he shall have attained the age of consent, which is under our statute the age of eighteen years.
At common law the age of consent was 12 years in females and 14 years in males. The common-law rule was that marriages entered into before seven years of age were entirely void. If entered into between seven years of age and the age of consent, the marriage was an inchoate affair and voidable at the instance of either party; but, if entered Into after the age of consent, it was binding. In my opinion the only change that has been made by our statute from the common law is to raise the age of consent to 16 years in females and to 18 years in the case of males; that the common-law rules regulate the controversy in this case, keeping in mind the consideration that the Legislature has merely changed the age of consent. The subject is one which has been dealt with in a very small number of cases. Comyns in his Digest of the Common Law (Baron and Feme B 5) lays down the rule that a disagreement to the marriage before the age of consent is of no force. The same rule is enunciated in Shelford on Marriage, 284, both writers referring to 1 Rol. 340, L 50. Continuing, Comyns says: "For if the husband disagree before fourteen (then the age of consent) and marry another, the issue of the second marriage is a bastard, but that a disagreement before if the husband marries another after the age of fourteen amounts to a disagreement after the age of consent." Simpson on the Law of Infants at page 74 says "a male infant may contract a valid marriage at fourteen and a female infant at twelve; if they are married infra nubiles annos and agree to marry after those ages there need be no new marriage, but they cannot disagree before the said ages," citing Coke upon Littleton, 79 a. While these authorities appear not to be derived from adjudicated cases, the fact still remains that they are statements made by sages of the law for the guidance of the profession. The cases cited in the briefs of counsel seem to have little or no bearing upon the exact point in controversy in this case. The remark of Vice Chancellor Stevens in Williams v. Brokaw, 74 N. J. Eq. 561, 70 Atl. 665, was upon another point entirely. Neither do I regard the statement made by the Vice Chancellor in Titsworth v. Titsworth (Eq.) 78 Atl. 687, to the effect that the husband might disaffirm the marriage when he should reach the age of eighteen years, or at any time before, to be his definite conclusion so far as the facts in this case are concerned. That case was decided wholly upon a question of the weight and cogency of the evidence. The common-law rule manifestly did not permit a dissent from the infantile marriage until the dissenting party had reached the age of consent, and this, I take it, is the rule that must be deduced from our statutes above quoted. If the husband be married before he is 18, he may have the marriage annulled unless the marriage be affirmed by him after arriving at such age, which plainly indicates that the common-law rule was in the mind of the legislators when this act was passed. It may well be that the petitioner in cases of this sort might change his mind upon arriving at the age of consent and affirm the marriage, in which case it would be irrevocable by the act of the parties. It is this very opportunity that is given to the petitioner by the statute in question. Reverse the order of the sentence, and it will read in this way, "unless the marriage be confirmed by the husband after arriving at the age of 18, he may on arriving at that age have a decree of nullity." The case is somewhat akin to the purchase of chattels by an infant. He may avoid the purchase when he arrives at maturity, but until he so arrives he has no power to disaffirm the contract, nor indeed can he affirm it before that time in such a manner as to make the affirmance binding upon him when he reaches his majority.
The motion will therefore be denied, with costs.