Untitled Texas Attorney General Opinion ( 1969 )

.TroRpImY o-=II- October 27, 1969
Hon. J. Silly Marley Opinion No. M-502
County Attorney
Crosby County Re: Whether, pursuant to
Crosbyton, Texas Sections 1.91 and 1.92
of the Texas Family Code,
certain groups of under-
age persons may declare
themselves married by
filing a declaration of
informal marriage, and
Dear Mr. Marley: related questions.
Your recent letter requesting the opinion of this
office concerning the referenced matter states, in part, as
follows:
"The County Clerk of Crosby County has
requested that I obtain from you an opinion
on the following questions dealt with by the
statutes under the family section, to-wit:
"(1) Under House Bill 53, Family Code
(Adopting Title 1) Subsection E (Marriage
without formalities): Can persons declare
themselves married by said referred affidavit
even though they may (one or both) be under
18 or 19 (as the case may be) without
parental consent?
“(2) Reference to the same statute as
above described: Can children...under 14
(female) and 16 (male) make such a declara-
tion...and be considered legally married by
informal declaration without formalities?
Code "(3) Under Sec. 103 (b) (4) of the Family
: Do County Clerks and their deputies
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Hon. J. Billy Marley, Page 2 (M-502)
take at face value the statement of a person
that they have been divorced for a period of
six months or more, or must they require the
said persons to show proof of such divorce period?*
- The Family Code of Texas, which becomes effective on
January 1, 1970, was enacted in House Bill Number 53 (Acts
61st Leg. R.S. 1969, ch. 888, p. 2706). The Code provides
two means by which persons may declare they are married: (a)
ceremonial marriage, for which a marriage license, medical
examination, and proper solemnization are required, or (b)
declaration of informal marriage pursuant to the provisions of
Sections 1.91 and 1.92 of the Code. The informal marriage
procedure is designed to provide prima facie evidence of common
law marriages.
Common law marriages are recognized in Texas. 38
Tex.Jur.Zd 4f, Marriage, Sec. 15. The Code does not change
the law as to the validity of these marriages; in fact, it
recognizes the validity of the continuing existence of such
marriages in making provision for the declaration of informal
marriage procedure; -
Section 1.91 of the Code provides:
" (a) In any judicial, administrative, or
other proceeding,
-. the marriage of a -
man and woman
may ne proved by evidence that:
(1) a declaration of their marriage
has been executed under Section 1.92 of this
code; or
(2) they agreed to be married, and
after the agreement they lived together in
this state as husband and wife and there
represented.to others that they were married.
"(b) In any proceeding in which a marriage
is to be proved under Subsection (a) (2) of this
section! the agreement of the parties to marry
may be inferred if it is proved that they lived
together as husband and wife and represented to
others that they were married." (Rmphasis added.).
Section 1.92 of the Code provides:
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Hon. J. Billy Marley, Page 3 (M-502)
"(a) A declaration of informal marriage
shall be executed on a form prescribed by the
Bureau of Vital Statistics of the State Depart-
ment of Health and provided by the county clerk.
Each party to the declaration shall provide the
information for which spaces are provided in
the form.
"(b) The declaration form shall contain:
....
(2) spaces for each party's full
name..., address, date of birth..., and race;
(3) a printed declaration reading:
'We, the undersigned declare that we are
married to each other by virtue of the
following facts: On or about (date) , we
agreed to be married, and after that date we
lived together in this state as husband and
wife and in this state 'representedto others
that we were married.';
(4) a printed oath reading: 'I
SOLEMNLY SWEAR (OR AFFIRM) THAT THE ABOVE
DECLARATION IS TRUE, THAT THE INFORMATION I
HAVE GIVEN HC?.EIiiIS CORRECT, THAT I AM NOT
PRESENTLY MARRIED TO ANY OTHER PHRSON,.XiD
THAT I AM NOT RELATED TO THE OTHER PARTY TO
THE DECLARATION I!ITHINTHE DEGREES PROHIBITED
BY LAW;';
(c) The county clerk shall:
(1) determine that all necessary
information is entered on the form;
(2) administer the oath to each
party i
....
(d) The county clerk shall record the
declaration, deliver the original of the
declaration to the parties, and transmit a
copy to the Bureau of Vital Statistics.
(e) A declaration executed under this
section is prima facie evidence of the marriage."
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-
Hon. J. Billy Marley, Page 4 (R-502)
Sections 1.91 and 1.92, supra, nowhere provide for
the county clerk's requiring proof of age, nor for an indication
of parental consent, as regards the declaration of informal
marriage form. These sections qlso mention no minimum age
limit to be met by persons executing the declaration form.
It is well settled that parties to common law marriages
must possess the same criteria of competency to contract marriage
that their ceremonial marriage counterparts are required to
meet if their common law marriage is to be held valid. 38
Tex.Jur.2d 51, Marriage, Sec. 15; accord: Hardy.v. State, 38
S.W. 615 (Tex.Crim. 1897, no writ) Jackson v. Banister, 105 S.W.
66 (Tex.Civ.App. 1907, no writ), Hinojos v. Railroad Retirement
Board, 323 F.2d 227 (5th Cir. 1963),w.2382
r6Tex.Civ.App. 1964, no writ).
The rule as to common law marital competency is
succinctly stated in Speer's Marital Rights in Texas (Vol. 1,
3rd. Ed. 1961) as follows:
"It will be observed that in common-l‘awmarriages,
as in the case of statutory marriages, the,parties
must be competent and that there must be no impediment
by reason of statute or otherwise forbidding the
marriage. w (Emphasis added.) Id. at p. 42. ,.
Section.1.51 of the Code sets forth the age requirc-
ments for marriage as follows:
"(a) A male under 16 years of age may not
marry. A female under 14 years of age may not
marry.
"(b) Except with parental consent as pre-
scribed by Section 1.52 of this code, the count
clerk shall not issue a marriage license I
--$7-d
male applicant is under 19 years of age or if the
female applicant is under 18 years of age."
(Emphasis added.)
It is to be noted that neither Section 1.51 (b), supra,
nor any other section of the Code, prohibits conunonlaw marriages
of males under 19 years of age, but over 16 years of age, and of
females under 18 years of age, but over 14 years of age;
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Hon. J. Dilly Marley, Page 5 (M-502)
rather, that section adverts solely to the necessity of naving
parental consent for persons in the above age groups if a license
for a ceremonial marriage is to be validly issued.
The consent of a parent or guardian nas never been
necessary to validate a common law marriage. 35 Am.Jur. 193,
Karriage , Sec. 21; 1 speer's Marital Rights in Texasll(3rd Ed.,
1961); Needam v. Needan, 33 S.E.Zd 288 (Va. Sup. 1945).
Having forbidden males under sixteen and females
under fourteen to marry, the Legislature surely did not intend
to authorize such children to file declarations of marriage
under Sections 1.91 and 1.92 of the Code. However, no such
prohibition of marriage exists for males over sixteen and females
over fourteen.
Accordingly, as regards your first question, it is our
opinion that males under 19 years of age, but over 16 years of age,
and females under 18 years of age, but over 14 years of age, may
file a declaration of infornal marriage as provided by Sections
1.91 and 1.92, supra, for the reason that people in those age
groups are not, and have not been, prohibited from entering into
a common law marriage.
Your second question is, however, answered in the negative.
It is stated that:
"(Bjefore a marriase will be sustained as
a common-law marriage, it must be one not in
violation of any law of this state, for no legal
marriage can exist in violation of law. This is
a solecism. It is but another method of restating
the essential that there must be canable contractinc
parties. Thus, a female under 14 years of age, or i
Section 1.51 (a), supra, clearly forbids any marriage
by either a male under 16 years of age, or by a female under 14
years of age. This statutory prohibition would seemingly encompass
common law, as well as ceremonial, marriages within its purview.
However, a problem is presented by the fact that no age minimum is
specifically required to be net by those executing the declaration
of informal marriage form.
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Hon. J. Billy Marley, Page 6(M-502)
SeCtiOn 1.91 (a), supra, speak8 in terms of a "man" and
a "woman" in describing those persons whose marriages may be declared
The foregoing ambiguity opens the statute to constructionin order
that the legirlativgintent may be.ascertained.
- .
We do not believe the Legislatureintended to include
males under sixteen years of age and females under fourteen
years of age within the provisions of Sections 1.91 and 1.92,
supra. See, generally, 26 Words and Phrases 348-351, under "Man,"
and the numerous authorities cited therein holding a 'manw
to be an adult and not a child or an adolescent.
Furthermore, we feel that if the Legislature had
intended to depart from the settled public policy of Texas that
looks with disfavor on underage marriages (see, e.g., Walter v.
Walter, 433 S.W.Zd 183, 193 (Tex.Civ.App. 1968, no writ), and
authorities therein) it would have announced such a radical
departure in clear, explicit terms. It has been stated that:
"(A) statute should not be given a forced,
fancy, strained, subtle, or technical construction, nor
one that is nonsensical or unreasonable, in the
absence of.compelling language found in the enact-
ment." 53 Tex.Jur.Zd 188-89, Statutes, Sec. 126.
,_
Nor do we believe it was the legislative intent, as
regards Sections 1.91 and 1.92, supra, to sanction the violation
of the express, unrestricted, and unambiguous prohibition of
Section 1.51(a), supra, by males under 16 years of age and females
under 14 years of age. We fully agree with the viewpoint that:
"(W)here the language of a statute is
ambiguous and the meaning of the act is un-
certain, it is proper to consider the general,
legislative, 'or public policy of the state with
regard to-the subject involved....In particular,
a steady and unbroken policy of the law of the
state with respect to,a certain matter is to be
kept in mind when construing a statute.
. . .
"The construction adopted should... be
that which comports with public policy. All
provisions of the statute must be considered, and
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Hon. J. Billy Harley, Page 7 (M-502)
a narrow verbal construction vitiatory of the
public policy must be avoided. And a radical
departure from a settled policy will be decreed
only when clearly required by the words or
implications of a statute." 53 Tex.Jur.Zd
255-56, Statutes, Sec. 176.
By following
.. .~. the- above
- reasoning, we .feel the conflict
between tne pronibition of underage marriages in Sec. 1.51 (a),
supra, and the lack of a minimum age requirement in Sections
1.91 and 1.92, supra, can be properly resolved. "It is presumed
that several acts or provisions (in a statute) relating to the
same subject were intended to be consistent and to operate
in harmony." 53 Tex.Jur.2d 273, Statutes, Sec. 182. Thus,
"(A)11 acts and parts of acts in pari
materia will, therefore, be taken, read, and
construed together, each enactment in reference
to the other, as though they were parts of one
and the same law. Any conflict between their
provisions will be harmonized....
...
"The rule proceeds on the supposition that
several statutes relating to one subject are
governed by one spirit and policy, and are
intended to be consistent and harmonious 'in their
several parts and provisions." 53 Tex.Jur.Zd 281-84,
Statutes, Sec. 186.
See, also, 53 Tex.Jur.Zd 288 et seq., Statutes, Sec. 189.
It follows that it is not permissible to file a
declaration of informal marriage when the underage condition
of one or both of the parties violates the provisions of Section
1.51 (a), supra. Therefore, when such facts of underage appear
upon the face'of the declaration or are otherwise known to
the county clerk,he shouldnot administer the oath or file the
declaration for record. However, the clerk is not required to
make independent inquiry nor is he authorized to require
additional proof.
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,
1
I
Hon. J. Billy Marley, Page 8 (M-502)
Your third question involves the following statutory
provision in the Code:
"Sec. 1.03 (b). The application (for
marriage license) form ahall contain:
-
...
(4) spaces for indicating whether
each applicant has been divorced, and if so,
whether the applicant has been divorced during
the six-month period preceding the date of
the application....*
Provision is also made by Section 1.03 for the
applicants to sign a-printed oath on the form whereby they swear
to (or affirm) the vb2acity of the statements entered thereon.
Applicants for a marriage license are only required
to furnish the items set forth in Section 1.02 of the Code,
which states as follows:
"Persons applying for a marriage license
shall:
(1) appear together or separately before
the county clerk:
(2) submit for each applicant:
(A) proof of identity and age as
prescribed by Section 1.04 of this code;
(B) a medical examination certificate...
as prescribed by Subchapter B of this chapter;
(C) if applicable, the county judge's
order prescribed by Section 1.05 of this code; and
(D) if required, the documents establishing
parental codea&.-or a court order, as prescribed by
Subchapter C of this chapter;
(3) provide the information for which spaces
are provided in the appli'cationfor a marriage license;
and
(4) take the oath printed on the application
and sign the application before the county clerk."
Section 1.06 of the Code provides that:
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Hon. J. Billy Marley, Page 9 (M-502)
"The county clerk shall:
(1) determine that all necessary information...
is entered in the (marriage license) application
and that all necessary documents are submitted to
him...."
It is our opinion, in answer to your third question,
that the "necessary information" and the "necessary documents"
referred to in Section 1.06, supra, relate only the information
and documents required by Section 1.02 (2), supra, and that the
applicants are not required by law to produce any further infor-
mation or documents relating to Section 1.03 (b) (4), supra.
However.,this opinion is given subject to the provision of Section
1.07 (b) of the Code, which'states:
"The county clerk shall not issue a
license to the applicants if he knows any
facts which would make the marriage void or
voidable under this code."
Thus, unless the county clerk is aware that a statement given
in the license application concerning an 'applicant'smarital
status for the preceding six-month period is false, he need not
require verification of the statement.
It is, therefore, the opinion of this office that your
questions be answered as follows:
The answer to your first question is "yes";
The answer to your second question is "no", and
The answer to your third question is that no
proof of statements made under Section .1.03 (b) (4)
-_ of .the
Code is required, unless Section 1.07 (b) of the code is
applicable.
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Hon. J. Billy Marley, Page 10 (M-502)
SUMMARY
-------
(1) Males undar 19 yeare of age, but over
16 years of age, and females under 18 years of
age, but over 14 years of age, whether or not they
have parental consent, may execute a declaration
of informal marriage pursuant to the provisions
of Sections 1.91 and 1.92 of the Family Code.
(2) Males under 16 years of age and females
under 14 years of age may not execute a declaration
of informal marriage pursuant to the provisions
of Sections.l.91 and 1.92 of the Family Code; and
(3) Applicants for marriage licenses are
not required to furnish proof as to the veracity
of their answers given on the application form
pursuant to Section 1.03 (b) (4) of the Family
Code, unless Section 1.07 (b) of the Family
Code is applicable.
General of Texas
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Arthur Sandlin
Harold Kennedy
Lonny Zwieper
Bill Corbusier
MEADE F. GRIFFIN
Staff Legal Assistant
BAWTBORNE PHILLIPS
Executive Assistant
NOLA WBITE
First Assistant
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