Opinion
Docket No. 25, Calendar No. 42,661.
Decided June 5, 1944.
Appeal from Jackson; Williams (Benjamin), J. Submitted April 5, 1944. (Docket No. 25, Calendar No. 42,661.) Decided June 5, 1944.
Bill by Gilbert H. Evans against Betty Jane Ross to annul a marriage because defendant was under age. Decree for defendant. Plaintiff appeals. Reversed and remanded for further proceedings.
John J. Gallagher, for plaintiff.
Plaintiff filed a bill of complaint to have his marriage to defendant declared void. The facts are not in dispute. A marriage ceremony between Gilbert H. Evans and Betty Jane Ross was performed on April 16, 1943, at Jackson, Michigan. The application for a license stated that Gilbert H. Evans was 27 years of age and that Betty Jane Ross was 19 years of age. As a matter of fact Betty Jane Ross was 15 years of age at the time of the marriage. The parties separated prior to her 16th birthday and have not cohabited together since. The bill of complaint was filed prior to defendant's 16th birthday. When the cause came on for trial, and after the taking of some testimony, the trial judge dismissed the bill of complaint by virtue of 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110), which reads as follows:
"A bill to annul a marriage on the ground that one of the parties was under the age of legal consent, may be exhibited by the parent or guardian entitled to the custody of such minor; or by the next friend of such minor; but in no case shall such marriage be annulled on the application of a party who was of the age of legal consent at the time of the marriage, nor when it shall appear that the parties, after they had attained the age of consent, had freely cohabited as man and wife."
Plaintiff appeals and urges that 3 Comp. Laws 1929, § 12704 (Stat. Ann. § 25.21), repeals by implication 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110), and that under the later statute a man of full age may bring an action to have a marriage to a girl under 16 years of age declared void.
3 Comp. Laws 1929, § 12753, is Rev. Stat. 1846, chap. 84, § 34, and was last amended by Act No. 150, Pub. Acts 1848. — REPORTER.
Prior to the enactment of Act No. 352, Pub. Acts 1921 (3 Comp. Laws 1929, § 12704 [Stat. Ann. § 25.21]), the law as to the age of consent read as follows:
"Every male who shall have attained the full age of eighteen years, and every female who shall have attained the full age of sixteen years, shall be capable in law of contracting marriage, if otherwise competent." 3 Comp. Laws 1929, § 12690 (Stat. Ann. § 25.1).
The effect of a marriage solemnized between parties under legal age was as follows:
"In case of a marriage solemnized when either of the parties was under the age of legal consent, if they shall separate during such nonage, and not cohabit together afterwards, or in case the consent of one of the parties was obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be deemed void without any decree of divorce or other legal process." 3 Comp. Laws 1929, § 12724 (Stat. Ann. § 25.82).
The law limiting the rights of the applicant for annulment of marriage was as stated in 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110).
Under the above act the marriage was voidable. The minor was the only person in whose behalf an action could be commenced.
In May v. Meade, 236 Mich. 109, the validity of a marriage consummated prior to the effective date of Act No. 352, Pub. Acts 1921, was questioned in a workmen's compensation case. The husband and wife cohabited together after the minor attained the age of consent. We there held that by reason of cohabitation of the parties after the minor became of marriageable age the marriage became valid ab initio and the husband could not assert its invalidity.
See, also, People v. Slack, 15 Mich. 193; People v. Pizzura, 211 Mich. 71 (10 A.L.R. 405).
The following is the pertinent part of Act No. 352, Pub. Acts 1921 (3 Comp. Laws 1929, § 12704 [Stat. Ann. § 25.21]):
"No marriage, common law or ceremonial, in this State shall be contracted where the female is under the full age of 16 years, and any such marriage, if entered into, shall be void."
It must be presumed that the legislature in enacting the above act had in mind the decisions of our court upon the previous acts referred to. The language used strongly indicates that it was the intention of the legislature to make such marriages void, except marriages performed by the judge of probate.
It follows that 3 Comp. Laws 1929, § 12753 (Stat. Ann. § 25.110), being in conflict with 3 Comp. Laws 1929, § 12704 (Stat. Ann. 25.21), the latter repeals the former by implication.
The marriage being void, there was nothing to annul, but plaintiff had a right to an adjudication as to the date of the birth of Betty Jane ROSS. If Betty Jane Ross was under the age of consent at the time the marriage ceremony was entered into, then an order should be entered determining said marriage to be void.
The cause is remanded to the trial court for further proceedings in harmony with this opinion. No costs are allowed as the construction of a statute is involved.
NORTH, C.J., and STARR, BUTZEL, BUSHNELL, BOYLES, and REID, JJ., concurred with SHARPE, J. WIEST, J., concurred in the result.