American marriage laws in their social aspects

Preface

SOMEONE has remarked that the whole of social reform is implied in social case work — if it be thorough enough. This is an overstatement ; social reform has many approaches, and we could ill afford to dispense with a single one of them. It does happen, however, that the plan of study to which the present Digest is merely preliminary grew out of social case work in one of the large family agencies of New York, and that this brief study illustrates, in a fashion, the relation between the social worker's attempt to find a way out for a few people in grievous trouble and human issues of wider significance.

I have served for several years on the committee of a society for family social work to which have been referred its especially puzzling problems of individual welfare. In about three-fifths of all the cases so referred, the committee found that the core of the difficulty centered around marital maladjustments. (Their proportion in the whole work of the society, it should be added, would not be nearly so large.) These troubles of the Smiths, the Browns, and the Robinsons brought more forcibly to our attention than ever before certain ancient evils and certain proposed remedies. As a part of the general public, we had already noted the alarming increase in the number of divorces, but we had never fully realized before the close relation between divorce and our ill-devised, variously-administered marriage laws. We began to wonder why so much attention had been given to the defects of our divorce laws and so little to those regulating marriage. Of course, law is only a small part of the problem as compared with public education and early training, yet it shapes our social ideals, in part at least, besides having much to do with the practical adjustments of daily living.

To those who champion one wholesale remedy for marital unhappiness, the plans growing out of this committee work — plans for a series of brief studies to be made by the Russell Sage Foundation— will seem futile. To those, on the other hand, who believe in beginning where we are and in securing each advance step as we

PREFACE take it, statements that present the facts about the present laws, about their administration, and about the effect of both as observed in the lives of real people, will serve a useful purpose.

The first fruits of our endeavors will be found in a small book appearing simultaneously with this Digest — a study by Miss Colcord of Broken Homes and the social treatment of family desertion.1

Mr. Hall and Miss Brooke have compiled the present summary of our marriage laws and of certain proposals made by others for their reform as preliminary merely to an inquiry into the way in which the laws on our statute books are actually administered. Their administration has even more to do with family welfare, of course, than have the laws themselves. This first part of the larger study is put out promptly, however, because it will be of immediate service to the many who are now at last becoming interested in marriage law reform.

Leagues of women voters are interested in bringing reason and essential justice into this much neglected field; so are the officers of domestic relations courts, the more socially minded members of the bar, the social agencies of the country, and the churches. All will be eager, therefore, to measure, with the aid of these pages, the width of the gap between the proposals for reform made by leading authorities and the actual laws of the various states as here summarized. And no one can note, in each state, the distance thus shown to exist between the possible and the actual, I believe, without becoming more interested in the subject.

Then, if readers will accept a further suggestion, their examination of the provisions in their own state could be followed by some inquiry into the way in which the statutes regulating marriage are enforced there. What, in detail, is the interpretation put upon the marriage laws in daily practice? How are licenses issued? How carefully is the intention of the law made clear to unsophisticated people? How are evasions punished? The authors of these pages would welcome any light upon these topics, which will constitute their next subject of study.

Mary E. Richmond.

New York, May, 1919.

1 Colcord, Joanna C: Broken Homes, a Study of Family Desertion and Its Social Treatment. New York, Russell Sage Foundation, 1919.

Part I Some Proposals For Marriage Law Reform

I. Common Law Marriages 14

II. The Marriageable Age 17

III. Notice of Intention to Marry 18

IV. The Marriage Celebrant 19 V. State Registration of Marriage 21

VI. Inter-State Relations 21

VII. A Summary of the Commissioners' Acts 22

Part II The Marriage Laws By Topics

I. Introduction 29

II. Summary of Laws by Topics 31 a. Requirement 34

b. Where the License is Obtained 35

c. Advance Notice, Objections, etc. % 36

d. Parental Consent 37

e. Form of the License 38

f. Record of the License 39

g. Life of the License 39

h. Other Requirements and Prohibitions 39 a. The Celebrant 41

b. Presentation of the License 42

c. Form of Ceremony 43

d. Other Requirements and Prohibitions 43

TABLE OF CONTENTS

II. Summary of Laws by Topics {continued)

PAGE a. Certificates and Their Distribution 44

b. Local Record 45

c. State Record 45

8. Other related subjects 47

Part III The Marriage Laws By States

PAGE PAGE

Alabama 51 Nebraska 91

Arizona 53 Nevada 93

Arkansas 54 New Hampshire 94

California 56 New Jersey 96

Colorado 57 New Mexico 98

Connecticut 59 New York 99

Delaware 61 North Carolina 101

District of Columbia 63 North Dakota 103

Florida 64 Ohio 105

Georgia 65 Oklahoma 106

Idaho 66 Oregon 108

Illinois 68 Pennsylvania 110

Indiana 69 Rhode Island 112

Iowa 71 South Carolina 114

Kansas 72 South Dakota 115

Kentucky 74 Tennessee 116

Louisiana 75 Texas 118

Maine 77 Utah 119

Maryland 79 Vermont 120

Massachusetts 80 Virginia 122

Michigan 83 Washington 124

Minnesota 85 West Virginia 126

Mississippi 87 Wisconsin 127

Missouri 88 Wyoming 131

Montana 90

Part I Some Proposals For Marriage Law Reform

I

SOME PROPOSALS FOR MARRIAGE LAW REFORM

IN PLANNING this brief study, its authors originally proposed to print their digest of existing marriage laws — or of things as they are — at the beginning. But they soon realized that most people would be more interested in things as they ought to be, and would prefer to examine first of all the proposals for reform of students who had given this subject of our American marriage laws detailed attention. Most readers will wish to know, of course, how the laws of their several states compare with those of other states, but they will be especially eager to discover the extent to which their state laws fall below the standards advocated by competent authorities. To facilitate this comparison a summary of the recommendations of certain of these authorities is presented in the followlowing pages.1

The first reaction of those who begin to think about that tangle of conflicting and obscure enactments which now make up the marriage laws of this country is to decide that there should be one law for the whole United States, preferably a federal law, or failing that an identical law for every state. The motives, most of them unconscious, behind this desire for uniformity are somewhat mixed. Those who favor a federal law do so chiefly because they believe that only through such a means can at all satisfactory standards be everywhere applied; at lease that their application by the route of state legislation would be a slow and wearisome process. A federal law is the royal road to their goal. Those on the other hand who think in terms of uniform state laws are controlled by a feeling that uniformity for its own sake, in this matter, is a great social gain.

All critics agree that we need far greater uniformity than we now have, but many doubt whether a uniformly good result would be

1 Miss Richmond has explained in the Preface that this is only a preliminary study, to be followed by other books or pamphlets, describing the ways in which existing laws are administered, and the effects of their administration as traced in the case records of family social agencies, probation departments, and so on.

obtained if a single law were imposed on all states by vote of Congress, without the adaptations that make enforcement easier in the different sections of the country, or whether this could be achieved even if such a law were enacted everywhere by state legislatures. The history behind the obligatory religious ceremony in Maryland, which is obligatory nowhere else, the ethnological differences between the Mexican girls of Texas, the Italians of our large cities, and the natives of New England, as these differences may affect the fixing of the " marriageable age"; the town unit for local marriage license administration in New England in contrast to the county unit usually found elsewhere — these and many other factors have to be reckoned with. In the words of ex- Justice Charles Evans Hughes, there has to be a "statesmanlike appreciation of past, present and future" in pushing for legislative reforms, especially for reforms that touch social institutions older than recorded history itself. "If there were centered in Washington," continues Mr. Hughes, "a single source of authority from which proceeded all the governmental forces of the country — created and subject to change at its will — upon whose permission all legislative and administrative action depended throughout the length and breadth of the land, I think we should swiftly demand and set up a different system. If we did not have states we should speedily have to create them. We now have them, with the advantages of historic background, and in meeting the serious questions of local administration we at least have the advantage of ineradicable sentiment and cherished traditions."1

A similar conviction had already been expressed by Woodrow Wilson, who says in his Constitutional Government: "The remedy for ill considered legislation by the states, the remedy alike for neglect and mistake on the part of their several governments, lies not outside the states, but within them. The mistakes which they themselves correct will sink deeper into the consciousness of their people than the mistakes which Congress may rush in to correct for them, thrusting upon them what they have not learned to desire. They will either themselves learn their mistakes, by such intimate and domestic processes as will penetrate very deep and abide with

1 Hughes, Charles Evans: Presidential Address before the Bar Association of New York State, Jan. 14, 1916.

them in convincing force, or else they will prove that what might have been a mistake for other states or regions of the country was no mistake for them, and the country will have been saved its wholesome variety."1

The arguments of both men are directed primarily against an unwonted extension of federal action. As to state action it is safe to assume that ordinarily no greater uniformity will be obtained than is adapted to local conditions. Legislatures will attend to that. Nevertheless those who offer recommendations for uniform state laws will do well to bear in mind that there are limits beyond which many feel that uniformity is not necessary and may be unwise. Certain recognized essentials should of course be uniform ; but it is also very desirable, in a field left so largely heretofore to haphazard development, that opportunity be given for intelligent experimen tation .

In so far as the desire for uniformity springs from more than an unthinking worship of it as a fetish, it is based on a fear that without uniform laws on marriage those who live in states with high standards will suffer through the ease with which their laws may be nullified so long as trips for the purpose of marriage may be made to a neighboring state where standards are lower. There is a quite general feeling that states are helpless to protect themselves from such attacks upon their standards. For those who share this feeling special attention is called to page 47, on which are listed the nine states which have apparently found a way, through special laws, to avoid this danger. These laws, more fully discussed at the point referred to, provide in effect that residents of a state cannot evade its laws if they go elsewhere to be married and then return to their home state. How thoroughly such provisions have accomplished their purpose can of course be shown only through a careful study of local administration. Even if they were completely successful there would still be the possibility that a high standard state might suffer from the lower standards of its neighbors,2 but

1 Wilson, Woodrow: Constitutional Government in the United States, p. 187. The Columbia University Press, 1908.

2 For a discussion of this possibility — the coming into a state to live of bona fide residents of a lower standard state — see page 21, following, and page 46 in Part II, The Marriage Laws by Topics.

II the champions of a reasonable diversity contend that this danger is slight in comparison with the gains which come from the fact that through diversity in our laws the value or worthlessness of new provisions in the more progressive states is being demonstrated, while people in the other states wait and watch. Uniformity demands that all shall wait until all can agree on the next forward step. Those who see value in diversity are willing enough to agree that the line of progress is toward uniformity, and that this may possibly lead to a federal law later on; but they contend that more rapid progress can be made at present by means of state action, and that each step thus taken can be tested before it is generally adopted.

The proposals of the moderate progressives, looking to a rationalization of our marriage laws, are here given under the following seven heads:

2. The marriageable age

3. Notice of intention to marry

4. The marriage celebrant

5. State registration of marriages

7. Summary of the Commissioners' Acts.

The four authorities selected for this summary are the Commissioners on Uniform State Laws (referred to throughout as Mthe Commissioners"); George Elliott Howard, author of A History of Matrimonial Institutions; Willystine Goodsell, author of The Family as a Social and Educational Institution; and Frank Gaylord Cook, whose series of articles, published in 1888, are still quoted as among the most original contributions to the subject of marriage law reform.1

The hotly debated proposals for marriage restriction in the interest of eugenics are not emphasized by any of these writers, nor are they included in this summary of recommendations. Their enactment in a few states2 is too recent to justify inclusion in a list of

1 These articles appeared in Vol. 61 of the Atlantic Monthly and are entitled respectively "The Marriage Celebration in Europe," p. 245, "The Marriage Celebration in the Colonies," p. 350, "The Marriage Celebration in the United States," p. 520, and "Reform in the Celebration of Marriage," p. 680.

2 For a summary of these special provisions see page 39, (3h) .

tested and tried next steps, but the new measures will receive especial attention in our proposed study of marriage law administration.

The opinions of two of our authorities regarding the general need for reform in American marriage laws1 is expressed in the following quotations :

It may reasonably be doubted whether any people in occidental civilization has marriage laws so defective as ours. Almost every conceivable blunder has been committed.2

In no part of the whole range of human activity is there such imperative need of state interference and control as in the sphere of the matrimonial relations.3

"The law makes clear and full provision for contracts affecting the sale of houses and lands, horses and dogs, and goods and chattels of every description ; and why marriage, the most important of all human contracts, should not be as anxiously defined and provided for, and thus placed beyond the reach of both fraud and doubt, appears to me to be one of the greatest anomalies in the law of a Christian country." These are the words of an eminent Scotch lawyer, with reference to the law of Scotland. They equally apply to the common law of the United States.4

A striking illustration of the general defect against which this complaint is lodged appears in a statement recently noted in the Montana Code of Laws to the effect that "the provisions of other portions of the Code in relation to contracts and the capacity of persons to enter into them have no application to the contract of marriage."

That two of our authorities do not regard the proposals here made as panaceas for all our matrimonial ills is apparent from the following paragraphs:

It should clearly be understood at the outset that the moderate progressives, in favoring reform of the domestic relations codes of the various nations are not unduly optimistic with regard to the happy results to be secured by such methods.

1 It is interesting to note that the marriage laws in one of our dependencies, the Panama Canal Zone, reflecting as they do the laws of continental Europe, are nearer the standards recommended by our authorities in at least two particulars than are the laws of most of our states. Thus common law marriages are not recognized, and a 15 days' notice of intention to marry is required. In addition a solemnization must be before a civil official, his secretary, and two witnesses, the celebrant being obliged to inquire of the contracting parties whether they join in matrimony of their own free will, and to inform them of the nature of the contract and of the mutual duties they are to assume.

2 Howard, George Elliott: "Social Control of the Domestic Relations," Papers and Proceedings, American Sociological Society, Vol. V, p. 222. The University of Chicago Press, 1911.

3 Howard, George Elliott: A History of Matrimonial Institutions, Vol. Ill, p. 184. The University of Chicago Press, 1904.

Every thoughtful social observer must realize soon or late that good laws do not guarantee good societies, good homes or good characters. The most that enlightened legislation can accomplish is to furnish certain external conditions and influences favorable to wholesome social life in one or more of its multiform phases. Beyond this it can do little. But to secure wise and equitable conditions of life is one of the most essential functions of government.1

A wide field for beneficent legislation therefore remains; and although morality " can not be legislated into a people," it is precisely by wise measures of this character that the lawmaker can render powerful aid in the creation of an environment favorable to moral and social progress.2

It is in the spirit expressed in the above paragraphs that the recommendations of these writers have been assembled and presented here in summary form.

I. COMMON LAW MARRIAGES All four authorities urge that common law or non-ceremonial marriages be explicitly declared null and void. Such marriages are still recognized in 26 states, and possibly are valid in six other states in which their exact status has not been clearly settled.3 Since courts have frequently reversed themselves on the subject, it is urged that the status of such marriages be made sure by statutory enactment. For reference to the changes in the situation in the last 15 years due to the passage of new laws or to court decisions, see page 32.

Common law marriage as an American practice has its origin in the English common law, though it has been forbidden by English statute for over 150 years. What alliances of this sort are, or may be, has been expressed in many judicial opinions. Among them the following may be quoted :

It is sufficient if the acts and declarations of the parties, their reputation as married people, and the circumstances surrounding them in their daily lives, naturally lead to the conclusion that, although they began to live together as man and mistress, they finally agreed to live together as husband and wife. (Gall v. Gall, 114, N. Y. 109, 118; 21 N. E. 106, 109.)

These loose and irregular contracts, as a general thing, derive no support from morals or religion, but are most generally founded in a wanton and licentious cohabitation. Hence the law of the state has given them no sanction. (Dennison v. Dennison, 35 Maryland 380.)

1 Goodsell, Willystine: A History of the Family as a Social and Educational Institution, p. 536 sq. New York, The Macmillan Co., 1915.

2 Howard, Matrimonial Institutions, p. 203.

3 For the list of states, see p. 31 (2).

But another judicial decision in Maryland has given them sanction in practice by the use of a legal fiction which the lay mind finds it hard to fathom. In the decision referred to it is stated that "there cannot be a valid marriage without a religious ceremony; but marriage may be proved by general reputation, cohabitation and acknowledgment, and when these exist it will be inferred that a religious ceremony has taken place although evidence may not be obtained of the time, place and manner of the celebration."1

Regarding such marriages Howard writes that "practically all the hardship and social anarchy caused by the canon law at its wickedest survives in our common law marriage, ... a custom which legalizes and virtually invites impulsive, impure and secret unions."2

Goodsell's position is stated with almost equal positiveness as follows :

Is it not an amazing fact that, in a matter which so profoundly affects the dignity and stability of the family institution, society should be so slow to take enlightened action? Surely no legislative reform is more needed than clear and positive statutes declaring such loosely contracted unions null and void.3

It is not merely the public which suffers through the system of common law marriages, for Cook points out that a marriage of this sort "fails to protect not only the contracting parties, but also the families to which they belong. Indeed to protect the latter it makes not the least attempt, and in this respect it is far behind the law of Western Europe."4

It is in his historical discussion of the subject that Cook is most illuminating. We quote him, therefore, at some length.

But our common law is a heritage from the past. ... In the leading nations of Europe, the Roman law has been so modified by statute as to give a system of marriage celebration conducive to the protection of individuals and of the stability of society. In the United States, however, there has been not progress, but retrogression; and today our common law is looser than was the law even in later Rome.5

Ours is the Roman law of Justinian minus the element of parental consent. In Rome, the bridegroom went openly in the daytime to the house of the bride's father, and with his consent led her away to his own home. In most of the United States, he may go by stealth at night, and carry her off without the knowledge or consent of her parents. If, during the proceeding, the runaways seriously

1 Richardson v. Smith, 80 Maryland 89.

2 Howard: Proceedings, op. cit., p. 222.

3 Goodsell, The Family, etc., p. 537. 4 Cook, p. 528. 5 Cook, p. 245.

and voluntarily agree eo instanti to be husband and wife, ipso facto they become such in law.1

The [American] colonists . . . built up for themselves, by custom and by statute, a system adapted to the various phases of society and of religion that existed among them .... The one thing everywhere, without which the marriage tie could not be constituted was a solemnization in the presence of an authorized third person. . . . The colonial system of celebration was continued in the States, and for many years, under the Constitution, remained essentially unchanged. . . . But in the early part of this century there arose in the courts a discussion regarding the nature of our common law, and the relation of that law to our statute law in governing the celebration of marriage — a discussion which since then has constantly increased, and has gradually brought about a revolution unparalleled in the history of our subject. ... It has destroyed the colonial system, and has introduced into our law much of the insecurity, the irreverence, the license, of the Middle Ages. Our common law today is the canon law that existed prior to the Council of Trent.2

It appears that in the course of the discussion referred to most states followed the lead of Chancellor Kent of New York state in upholding common law marriages, while a sturdy group of dissenting states accepted instead the Massachusetts doctrine that such marriages never have had any sanction in this country.

More fully than our other authorities, Cook expresses the fundamental principles of good law that are violated in the recognition of common law marriages. He writes as follows:

It is certainty and simplicity, then, at which first of all the states should aim in dealing with this subject. In the words of Mr. Boyd Kinnear, an eminent English barrister, the law of the marriage celebration should "embrace the maximum of simplicity and the maximum of certainty: of simplicity, because it affects every class, and almost every person, the most humble and illiterate as well as the most exalted or learned, and because it has to be known and acted on in the absence not only of legal advice, but often in the absence of even ordinary common-sense counsel; of certainty, because it affects a contract and social relation the most important that can arise between human beings — because it affects the foundation of society itself, and influences the fate, it may be the eternal fate, of innumerable individuals" . . . Our predominant common law . . . does contain the element of simplicity. ... At the same time, what form [of marriage] is more repugnant to the certainty of the fact of the parties' consent, and hence is more objectionable for the practice of a civilized community? In short, certainty is not to be obtained without publicity, and hence the common law must be repealed. The primary principle of the colonial system must be enacted; that is to say, the interposition of a third person, duly authorized, must be made indispensable to constitute matrimony.3

The Commissioners give no reasons for their recommendation in regard to common law marriages. They simply prescribe in Section XXIII of the act they recommended in 1911 for adoption in all the states1 that "all marriages hereafter contracted" in any other than the prescribed ceremonial manner or without the issuance of a license " shall be null and void." The ceremony was clearly regarded as the more important part, for the Commissioners provide an exception regarding the latter which recognizes the validity of an unlicensed marriage, under specified conditions, if it has been duly solemnized.2

"Common law marriage is now supported," Howard writes, "on two principal grounds. The innocent offspring, we are told, ought not to suffer because the parents have neglected the formalities prescribed by a mere statute.3 Moreover, to declare an irregular, perhaps a clandestine, union void is to invade the most sacred right of the individual."

II. THE MARRIAGEABLE AGE

As to "marriageable age" — the age below which persons may not marry4 — the authorities differ, Howard recommending the age of majority, and the Commissioners' Act leaving the age to be fixed by law in each state.5 In 17 states no marriageable ages have been fixed by law and presumably the common law ages are in force — 14 for males and 12 for females. The usual statutory ages are 18 for males and 16 for females.

Howard says: "The age below which marriage may not be con-

1 An Act relating to and regulating Marriage and Marriage Licenses approved by Conference of Commissioners on Uniform State Laws and recommended for adoption in all the states, August, 1911. This act is known as the "Marriage License Act." The office of the Commissioners is at Columbia, Mo.; Manley O. Hudson is Secretary.

2 For a fuller statement of this exception see page 22.

3 Thus a correspondent in Oklahoma writes: "Our courts have gone the limit in upholding these irregular marriages. This is true, very largely,' because of the fact that we have so many Indians here and many of them so ignorant of the law that a formal marriage is entered into by the more educated class of Indians but the full-bloods usually take up with each other and live as man and wife."

4 For a fuller discussion of the term "marriageable age" and of the ages that have been established, see p. 32, (2). The importance of the question is indicated in a New Mexico decision which reads as follows:

"The marrying of a female under 15 belongs to the class of statutory misdemeanors where knowledge of the person's age and intent to marry when under age is not a necessary element of the offense. In a matter of such importance to the race the law imposes upon the officiating officer the duty of ascertaining at his peril the age of the persons marrying." (Territory v. Harwood, 15 N. Mex. 426.)

5 Section V.

2 17 tracted ought to be that, of legal majority for both the man and woman. 'Majority' is the law's simple device for securing mental maturity in the graver affairs of life. Is not wedlock as serious a business as making a will or signing a deed? Immature marriages are a fruitful source of evil; why should the parent, often ignorant or selfish, have the power of legalizing them by his consent? m