The action was brought to procure the annulment of a marriage solemnized in New Jersey between the parties who were and are residents of this state. The ground upon which this annulment is sought is that, at the time of the marriage, the plaintiff was under the age of eighteen which, by our statute, is fixed as the age of legal consent. (Domestic Relations Law, sec. 7, subd. 1.) Although the defendant neither appeared nor answered in the action the learned court at Special Term held that the plaintiff was not entitled to the relief for which she prays, and at the Appellate Division there was a unanimous concurrence in that view. The case presents two questions: 1. Was the marriage valid in the state of New Jersey where it was solemnized? 2. If it was valid there, can it be held invalid here?
Upon the question whether this marriage was valid in New Jersey, the plaintiff made proof of but one *Page 350 statute of that state, and our own research has disclosed no other. By that statute all persons authorized to join persons in the bonds of matrimony are forbidden to perform the ceremony in any case where the male is under the age of twenty-one or the female is under the age of eighteen, "unless the parent or parents, guardian or guardians, or person or persons under whose care and government such minor or minors shall be, be present and give consent thereto, or unless the minor applying to be married, whether male or female, shall have produced a certificate of consent, in writing, under the hand of the parent or parents, guardian or guardians, or if such minor, so applying to be married, have no parent or guardian, then under the hand of the person or persons under whose care and government he or she may at that time be." The statute proceeds to provide in detail for the authentication of such certificate, and for the manner in which the functionary who is called upon to perform a marriage ceremony may protect himself against the penalty of the statute in a case where no certificate is presented and he shall suspect that there is misrepresentation or fraud in respect of the age of any person applying to be married.
This statute, it will be noted, does not invalidate marriages between minors, and it does not even declare them to be voidable. It is simply a law of regulation which imposes upon those who are authorized to perform the marriage ceremony the duty of observing the specified statutory details to the end that the evils of premature and ill-considered marriages between persons of immature years and undeveloped characters may be minimized as much as possible. Human experience has long since demonstrated that such marriages cannot be entirely prevented and that to invalidate them ipso facto would be to create two evils where but one existed before. The New Jersey legislature, recognizing this obvious truth, has sought to render the statute effective by imposing a penal *Page 351 upon those who officiate at such marriages in defiance or neglect of its mandates. There the law significantly stops and leaves the parties to the marriage where they have placed themselves. This is the view which the courts of New Jersey seem to have taken of this statute. In Wyckoff v. Boggs (7 N.J.L. 139) the action was against a clergyman to recover the specified penalty, and the case on appeal turned upon the admissibility of evidence to establish the consent of the parents of one of the parties to the marriage. There the court assumed without discussion that the marriage was valid and that the only question was whether the defendant was liable to the penalty. A similar position was taken in an action for dower where the right to recover depended upon the validity of the marriage of the claimant. (Pearson v.Howey, 11 N.J.L. 13.) And in Massachusetts, under a precisely similar statute, the Supreme Judicial Court upheld the validity of a marriage between minors without the consent of parents or guardians. (Partin v. Hervey, 1 Gray [Mass.], 119.) Other states with such statutes have followed the same rule. (Hunter v. Milam, [Cal. 1895] 41 Pac. Rep. 332; Fitzpatrick v.Fitzpatrick, 6 Nev. 63; Warwick v. Cooper, 37 Tenn. 659;Governor v. Rector, 29 Tenn. 57; Pool v. Pratt, 1 D. Chip. [Vt.] 252.) Quite apart from the authorities, however, it is almost an axiom of the law that unless such a marriage is expressly condemned as void if contracted without the prescribed consent, the statute is to be construed as entirely directory in this respect and the marriage will be valid even though the law may entail penalties upon the officiating authorities who fail to comply with its commands. It is perfectly plain, therefore, that neither in the statute nor the decisions of New Jersey can the plaintiff find support for the action which she seeks to maintain in our courts; and if we were at liberty to look to the common law the result would be the same, for under that the age of consent is fourteen in males and twelve in *Page 352 females. (Bennett v. Smith, 21 Barb. 439, 441; Partin v.Hervey, 1 Gray, 119; 1 Chitty's Blackstone and Kent's Com.)
The learned counsel for the appellant, evidently recognizing the perplexity of his position, now invokes the statutes of this state to support his suit. The argument is that marriage is something more than a mere contract; that it establishes astatus which is subject to the law of the domicile; that each state has the inherent right to make its own laws for the regulation of marriage and divorce; and that under our law, which fixes the age of legal consent at eighteen (Domestic Relations Law, sec. 7, subd. 1), the right is expressly given to maintain an action to annul a marriage when either of the parties thereto is under that age. (Code Civ. Pro. sections 1743, 1744.) This argument ignores the fundamental distinction between the contract and the status. The initial validity of a marriage is one thing, and the right to dissolve it for causes arising after it has been established is quite another thing. It has long been definitely settled in our courts that the validity of a marriage is to be determined by the law of the state where it was entered into. If valid there, it is to be recognized as such in the courts of this state, unless contrary to the prohibition of the natural law, or the express prohibitions of a statute. Although every state can regulate the status of its own citizens, yet in the absence of express words we cannot infer a legislative intent to contravene the jus gentium under which the validity of a marriage contract is referred to the lex loci contractus. Such an intent cannot be attributed to the legislature unless it is clearly and unmistakably expressed in the statute. (Van Voorhis v. Brintnall, 86 N.Y. 18.) And this is true, even when parties domiciled here visit other jurisdictions for the sole purpose of contracting marriages forbidden by our own statutes. (Thorp v.Thorp, 90 N.Y. 602; Moore v. Hegeman, 92 N.Y. 521.) *Page 353
The rule that the validity of a marriage contract is generally to be determined by the law of the place where made is not inconsistent with the other rule that every civilized state must have the right to make and enforce laws regulating a relation of such importance as the marriage status. Conflicting laws upon the subject have produced a confusing diversity of judicial decisions, but there are a few fundamental and immutable principles which are guide posts to correct results. Marriage is primarily a contract. In its constitution it is purely personal and consensual. Considered merely as a contract it is valid everywhere if entered into according to the lex loci. The reason for this rule is clearly stated by Mr. Justice STORY in his "Conflict of Laws" (Sec. 121, 7th ed.), where he quotes from the opinion of Sir EDWARD SIMPSON in the historic case ofScrimshire v. Scrimshire (2 Hagg. Const. 395): "All civilized nations allow marriage contracts. They are juris gentium; and the subjects of all nations are equally concerned in them. Infinite mischief and confusion must necessarily arise to the subjects of all nations with respect to legitimacy, successions, and other rights, if the respective laws of different countries were only to be observed, as to marriages contracted by the subjects of those countries abroad; and therefore all nations have consented, or are presumed to consent, for the common benefit and advantage, that such marriages shall be good or not, according to the laws of the country where they are celebrated. By observing this rule, few, if any, inconveniences can arise. By disregarding it, infinite mischiefs must ensue."
But marriage, although initiated by contract, creates astatus with manifold continuing rights, duties and obligations which follow the parties wherever they may go and which cannot be left to their discretion or caprice. These continuing rights, duties and obligations must necessarily be subject to the law of the domicile, for otherwise the state would have no control over its subjects *Page 354 or citizens. This is the status which the lex domicilii assumes to regulate and nothing more. When we thus differentiate the contract and the status we see that what appears to be a conflict of law and jurisdiction is in reality nothing more than a rational and practical adjustment of the law to separate and distinct conditions. The contract itself, that is, the formality by which the marriage is constituted, is governed by the law of the place where it is entered into. If valid there it is valid everywhere. The status, which is the relation of the parties to the state, is governed by the law of the place of residence, without regard to the law of the place where the contract was made. Bishop has very happily expressed this distinction. "Marriage," he says, "as to its constitution, is governed by thelex loci contractus; as to its dissolution by divorce by thelex domicilii."
If this reasoning is sound there will be no difficulty in assigning to their proper sphere and function the statutes of this state and the authorities cited by our brother HAIGHT in his opinion for reversal. Our Domestic Relations Law, and the sections of the Code of Civil Procedure relating to annulment of marriages, are purely local statutes which can have no extra-territorial effect. They were not intended to invalidate marriages contracted in other states or countries and which were valid where made. These statutes, in so far as they relate to the annulment of marriages, were designed to apply only to void and voidable marriages contracted within this state; to such as are universally repugnant to the laws of all civilized countries; and to such as are void or voidable where made, for the same reasons that render them subject to annulment here.
The authorities referred to by Judge HAIGHT are not in conflict with the foregoing views; on the contrary, they simply emphasize the difference between the marital status and the marriage contract. His quotations from Kinnier v. Kinnier (45 N.Y. 535) ; Wade v. Kalbfleisch *Page 355 (58 N.Y. 282) and other decisions of this court in matrimonial actions, establish beyond controversy the power of the lexdomicilii over the marriage relation, which extends even to the point of enacting special statutes dissolving particular marriages without cause, as is illustrated in the case ofMaynard v. Hill (125 U.S. 190.) That is not the power, however, with which we are concerned in the case at bar. The question here is whether it is competent for our courts to invalidate a marriage contract, valid under the laws of the sister state where it was made, upon the sole ground that a similar contract entered into in this state is by our laws made voidable. That question has been correctly decided by the courts below in the dismissal of the plaintiff's complaint, and I think this judgment can be reversed only by judicial legislation.
I vote for affirmance.
CULLEN, Ch. J., VANN, WILLARD BARTLETT and CHASE, JJ., concur with HAIGHT, J.; WERNER, J., reads dissenting opinion; GRAY, J., absent.
Judgments reversed, etc.