This is an action to annul a marriage on the ground that, at the time it was entered into by the parties, the plaintiff was under eighteen years of age, to wit, of the age of seventeen years and five months.
The complaint alleges that the marriage was contracted in Washington, in the District of Columbia, on January 17, 1910; that at the time the plaintiff was and is now a resident of this State.
The answer denies the allegations of the residence of the plaintiff and for a first defense alleges that prior to the marriage the plaintiff was domiciled in the State of Hew York and the defendant in the State of Maryland, he being a resident of the city of Baltimore; that plaintiff left her place of residence and domicile with the intention of marrying the defendant in Washington and of thereafter living with him as his wife in Baltimore; that defendant was then upwards
Upon demurrer heretofore interposed by the defendant to the complaint, the court gave judgment in the plaintiff’s favor, with leave to defendant to answer, and the case is now presented in such form that consideration is necessarily given to matters of fact and law which were not before the court at that time.
The defendant claims that the. law of the place of the marriage governs and determines its validity; that the statutes of this State are not applicable for the reason that they are not of extraterritorial effect.
In the leading case of Van Voorhis v. Brintuall, 86 N. Y. 18, it was held (quoting from the syllabus) : “ The validity of a marriage contract 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 prohibitions of natural law, or the express prohibitions of a statute ” and further “While every State can regulate the status of its own citizens, in the absence of express words,
The case cited and that of Thorp v. Thorp, 90 N. Y. 602, hold that the foregoing rule is not less operative because the party went into another State to avoid the effect of the laws of this’ State. It is confidently assumed that it will not he seriously contended, if at all, that the marriage of the parties was “ contrary to the prohibitions of natural law,” or violative of the fundamental principles upon which the social fabric of civilized countries is-commonly founded.
In the cases cited, the statutes of this State prohibiting the marriage of a guilty divorced person during the lifetime of the former spouse, and the like provisions, of the judgment founded thereon, were held not to invalidate a marriage entered into in another State by such person in violation thereof; and, while the statutes and the provisions of the judgment were said to he penal in their nature, that they were of no extraterritorial force was expressly decided. These statutes are not so framed as to be applicable to citizens of the State who go to another State for the purpose of evading its provisions and lack in apt words a “ clear and unmistakable expression ” of an intent to be so applicable. R. S. chap. VIII, art. 1, tit. I, § 4, now Dom. Rel. Law, § 8.
The same absence of expression of intent to relate to extraterritorial evasions by its citizens appears from the wording of the statutes fixing the age of legal consent, and it seems logical that the same rule should apply.
While in the former case -the marriage is declared to be void, in the latter it is held to be voidable only, upon declaration of a court of competent jurisdiction, should either or both of the parties thereto be under eighteen years of age.
Dr. Bishop, in his work entitled “ Marriage, Divorce and Separation,” 1891, at chapter XXIX, exhaustively reviews the subject and at section 843 states the general doctrine to be as follows: “ By the International Law of marriage which ought to govern the courts in the absence of any statutes of their own forbidding, a marriage valid by the law of
Without enlarging upon the subject, I am of the opinion that, upon the admitted facts in the case at bar, the marriage in question being valid at the place of celebration must be held to be valid in this- State.
I am aware that the case of Mitchell v. Mitchell, 63 Misc. Rep. .580, holds to the contrary; but it is in some respects distinguishable, in that in this case it in nowise appears, as was there found, that the relation established by the foreign marriage was intended by the parties to be sustained and carried out in this State. On the contrary, it was intended to be sustained and carried out in Maryland, the domicile of the defendant; and the matrimonial domicile of the parties was actually established there.
Aside from the special circumstances of the Mitchell case, and of each of the following cases, I am' disposed to regard Donohue v. Donohue, 63 Misc. Rep. 111, and Cunningham v. Cunningham, 70 id. 129, as more consistent with authority and principle, upon the rule of lex loci contractus and upon the grounds of private international law and general public policy.
The question raised by the second separate defense that the marriage was valid by the law of Maryland, the matrimonial domicile of the parties, which domicile remains unaffected, and hence that the marriage is not voidable in this State at the suit of the plaintiff, while strongly sought to be affirmatively maintained by defendant’s counsel upon principle and by authority, is not passed upon—-otherwise than as may be inferred from what is above written.
That the defendant may deny the power and jurisdiction of the court to annul the marriage, even though he has appeared generally and answered, cannot be' seriously questioned, for the reason that the appearance gives jurisdiction of the person only, andonot of the res, which is the marriage
It is deemed not essential to the disposition of this demurrer to refer to the other cases cited by the counsel in their elaborate and instructive briefs, but rather to be desirable that the principal question considered, and upon which the courts of first instance are seemingly in conflict, should be directly presented, and thus invite an authoritative determination by the appellate courts.
There should be judgment for the defendant upon the demurrer, with costs.
Judgment for defendant.