Opinion
Decided May 3, 1938.
The law governing the right to a decree of nullity of marriage is the law which determined the validity of the marriage with respect to the matter on account of which the marriage is alleged to be null. P.L., c. 286 does not purport to state the conditions necessary to give jurisdiction of a petition for annulment; and in the absence of statutory jurisdictional requirements jurisdiction depends upon common-law principles, which are recognized and adopted in equity. The jurisdictional provisions of the statute of divorce (P.L., c. 287, ss. 3-5) do not control a petition for annulment. A petition for annulment of a marriage entered into in this state by a person under the age of consent may be maintained under P.L., c. 286, s. 5 though the petitioner is a non-resident if the defendant is a resident.
PETITION, for annulment of marriage. Trial by the court (Lorimer, J.) who found the facts and transferred without ruling the question of jurisdiction.
From the findings of the court the following facts appear. Walter H. Foster, Jr. was married to the defendant at Hancock in this state upon November 10, 1937. Both of the parties were then eighteen years of age, but Walter, Jr. falsely represented that he was twenty-one years old. He then resided and has ever since continued to reside with his parents in Belmont, Massachusetts. The defendant was then and has ever since been a resident of Peterborough in this state. The parties have never lived together as husband and wife outside of this state, and have never lived together continuously in any place. The present petition was filed upon December 15, 1937, in conformity to the statute, P.L., c. 286. Personal service was made upon the defendant, who did not appear and was defaulted.
Wyman, Starr, Booth, Wadleigh Langdell and Eliot U. Wyman (of Massachusetts), (Mr. Louis E. Wyman orally), for the plaintiff.
The statute under which this proceeding is brought reads as follows: "The age of consent shall be in the male, twenty years and in the female, eighteen years. Any marriage contracted by a person below the age of consent, except as hereinafter provided, may in the discretion of the superior court be annulled at the suit of the party who at the time of contracting such marriage was below the age of consent, or at the suit of his or her parent or guardian, unless such party after arriving at such age shall have confirmed the marriage."
We accept as sound the rule that "The law governing the right decree of nullity is the law which determined the validity of the marriage with respect to the matter on account of which the marriage is alleged to be null." Am. Law Inst., Restatement, Conflict of Laws, § 136. This rule does not necessarily involve as a corollary, however, the conclusion that the courts of the state where the marriage was contracted always have jurisdiction to annul it. In the absence of a statute defining the requirements of jurisdiction, it depends upon common-law principles which are recognized and adopted in equity. Turner v. Turner, 85 N.H. 249. The statute here involved does not purport to state the conditions necessary to jurisdiction. The provisions of the analogous divorce statute, P.L., c. 287, ss. 3-5, have no necessary application and are not deemed to be controlling. The defendant was at the time of the marriage, and has ever since remained a resident of this state. The courts of this jurisdiction have at all times had power to control her marital status. The plaintiff has now submitted himself to their control. All the requisites of jurisdiction which received recognition in Turner v. Turner appear to be present.
It is therefore unnecessary for us to decide whether the broad language of the statute with reference to the power of the Superior Court to annul marriages voidable for nonage, should be construed as abrogating those requirements in such cases.
In accordance with the findings of the trial court, there should be a
Decree for the plaintiff.
All concurred.