Under the majority opinion a boy of 17 or a girl of 14 may marry without the knowledge or consent of the parents or guardians, and the parents or guardians are powerless to do anything about it. This, in my opinion, was not the intention of the lawmakers as evidenced by the statutes of this state, and I, therefore, dissent. *Page 807
With reference to age, Who may marry in this state? Any male 21 years of age, or over, or any female 18 years of age, or over. These persons do not require the consent of any one except themselves. Who may not contract marriage? Boys under 17 and girls under 14. These may not marry even with the consent of parent or guardian. Between the ages of 17 and 21, a boy may marry provided his parent or guardian consents. Between the ages of 14 and 17 a girl may marry provided her parent or guardian consents. Between the ages of 17 and 21 of the boy, and the ages of 14 and 17 of the girl the assent of parent or guardian is as essential as is the assent of the boy or the girl, at least that is what the statute provides, as I shall presently show.
Section 9016, Pope's Digest, the first section of the chapter on Marriages, provides that "Marriage is considered in law a civil contract, to which the consent of the parties, capable in law of contracting, is necessary."
With certain exceptions, all contracts of minors are voidable, because they are deemed incapable of contracting. It is as much the purpose of the law to protect minors from improvident marriage contracts as it is to protect them from other improvident contracts. And what is that protection? The law requires that the minor boy or girl shall first obtain the consent of parent or guardian, because he or she is not deemed capable of assuming this most solemn and important of all human contracts without the consent of his or her parent or guardian.
The majority quote 9044, Pope's Digest, which provides how minors may obtain licenses to marry, but, in my opinion, they give it no effect when it is held that minors may contract a valid marriage without compliance with its provision. This section provides that ". . . it shall be the duty of the clerk before issuing the license (when he is in doubt as to the ages of all parties applying for license) to require the party applying therefor to produce satisfactory evidence of the consent and willingness of the parent or guardian of such party or parties to such marriage, . . ." *Page 808
Why impose this requirement if its enforcement is unimportant? What purpose will it serve if not enforced? Why have such a law at all? The answer to this last question must be — unless the language quoted is a mere assemblage of meaningless words — that the law does not permit minors to contract a marriage unless the parent or guardian also consents.
Section 9021, Pope's Digest, provides: "When either of the parties (not both) to a marriage shall be incapable, from want of age or understanding, of consenting to any marriage, . . ., the marriage shall be void from the time its nullity shall be declared by a court of competent jurisdiction."
There is a wise presumption of law in favor of the validity of any marriage, and the marriage of minors is not void but is voidable. The parent or guardian must object immediately after being apprised that an unauthorized marriage has been consummated, otherwise they will be presumed to have consented, and the marriage is not to be annulled until and unless the parent or guardian disaffirms the marriage. The proof here is that suit to annul this marriage was brought four days after the boy's parents were apprised of his marriage.
In the case of Bickley v. Carter, 190 Ark. 501,79 S.W.2d 436, we annulled a marriage upon the ground that the female was intoxicated to the extent that she was incapable of consenting; but this relief was granted upon the showing that the parties had not cohabited together after the marriage. Had they done so, the contract of marriage would have been ratified and would thereafter have been valid.
But does the parent or guardian have the right to disaffirm an unauthorized marriage of child or ward? The case of Kibler v. Kibler, 180 Ark. 1152, 24 S.W.2d 867, answers that question.
There, a minor 16 years of age married a girl of about his own age under threat of prosecution for seduction if he did not marry her. A divorce was denied on that account, but it was granted at the suit of his mother on account of his age. It was there said: "This suit *Page 809 was therefore properly brought by the mother of the boy as his natural guardian and next friend, . . ."
In that case a child born of the marriage, although the marriage was annulled, was declared legitimate, because it is provided in 3475, Crawford Moses' Digest (4342, Pope's Digest) that "The issue of all marriages deemed null in law, or dissolved by divorce, shall be deemed and considered as legitimate."
Section 9039, Pope's Digest, provides that "All persons hereafter contracting marriage in this state are required to first obtain a license from the clerk of the county court of some county in this state." A marriage license is, therefore, essential to a valid marriage in this state, and the statute hereinabove quoted requires the icon sent of parent or guardian before a license may be issued to a boy under 21 or a girl under 18.
If we refuse to give effect to and to enforce these mandatory statutory provisions, the result must be that any boy over 17 or any girl over 14 may contract a marriage which the parent or guardian cannot annul if there was found a county clerk, or a deputy, whose willingness to earn the fee allowed by law for issuing a marriage license induced him to accept as true the affidavit of the parties as to their ages, although he may know the affidavit is false. In the instant case it does not appear that even an affidavit was made.
We quoted with approval in the Kibler case, supra, a statement of the law from 33 of the chapter on Divorce and Separation in 9 R.C.L., to the effect that an infant is not concluded by false representations of his age so as to bind himself by false representations of his age, and that ". . . an infant incapable for want of age of entering into a valid marriage is incapable also of estopping himself by a fraudulent declaration of his age from asserting its invalidity in an action to annul it,. . . ."
The majority say that a marriage will be annulled only upon the ground authorized by statute. Section 9021, Pope's Digest, from which we have already quoted, provides that a marriage may be annulled when either of the parties is incapable, from want of age, of consenting *Page 810 to the marriage. For the reasons stated, young Witherington was incapable of consenting to the marriage, and it should be annulled at the suit of his parent unless we are to discard the provisions of the law intended to prevent secret marriages of impetuous minors.
In the case of Cox v. State, 164 Ark. 126,261 S.W. 303, a youth of 20 made affidavit that the girl he proposed to marry was 18, when, in fact, she was only 14 years of age. He made affidavit to that effect, and was convicted under an indictment charging him with the crime of perjury, and we affirmed the sentence. One of the principal arguments made in that case was that the false affidavit was immaterial and could not, therefore, be the subject of perjury. We held, however, that the false statement as to the girl's age was material, and it was material because there was no authority in the law for the issuance of a license to marry a girl under 18 years of age in the absence of the consent of the parent or guardian of the girl.
The provisions of our statute herein referred to are wise and are mandatory, and should be enforced, and the relief here prayed by the father of young Witherington should be granted. I, therefore, dissent.