Opinion
No. 3159.
Decided May 7, 1940.
In the absence of a statute defining the requirements of jurisdiction for annulment of marriage it depends upon common-law principles; which are recognized and adopted in equity.
Where both parties have always been residents of a foreign state no jurisdiction to annul their marriage on the ground of nonage exists merely because their marriage was solemnized here.
Upon principles of comity our courts should not assume jurisdiction to annul marriages solely because they were contracted here and not unless at least one of the parties resides here.
PETITION, for annulment of marriage. The parties were married in Seabrook, New Hampshire, on November 14, 1937. The plaintiff was then nineteen years of age and below the age of consent, while the defendant was eighteen. Both parties are, and always have been, residents of the Commonwealth of Massachusetts. They have never lived together as husband and wife in New Hampshire. No children have been born of their marriage. The plaintiff has never confirmed the marriage since arriving at the age of twenty years. He is now twenty-one. Personal service of the petition was made upon the defendant at Nashua in the County of Hillsborough, New Hampshire, but she has made no appearance.
The above facts were found by Johnston, J., who transferred without ruling the question of the jurisdiction of the Superior Court to grant an annulment.
Wyman, Starr, Booth, Wadleigh Langdell (Mr. Eliot U. Wyman orally), for the plaintiff.
"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 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." Foster v. Foster, 89 N.H. 376.
Neither party to the present proceeding is, or ever has been, a resident. While there was jurisdiction to control their entrance into the marriage status here, it cannot be said that the courts of this state had at all times "power to control . . . [the] marital status" of either since the contract was made here. In Foster v. Foster it was unnecessary "to decide whether the broad language of the statute [P. L., c. 286, s. 5] with reference to the power of the Superior Court to annul marriages voidable for nonage, should be construed as abrogating" the requirements of jurisdiction which depend upon common-law principles recognized in Turner v. Turner, supra. Decision of that point is now required. There is no evidence that the legislature intended to confer upon the Superior Court any jurisdiction over the marriage status where both parties to a contract here have always been resident of a foreign state. Upon principles of comity, our courts should not assume jurisdiction to annul merely because the marriage was contracted here. Jurisdiction should not be exercised unless at least one party resides here.
Petition dismissed.
All concurred.