Interim Decision #1318 

MATTER or AGOEDEMOS 

In VISA. PETITION Proceedings 

A-15192045 

Decided by Board February 3,1984 

Under Indiana law petitioner's marriage in that State while under 16 years of 

age, the age of consent for females, is voidable and not void; therefore, in the 

absence of action to void the marriage, it is considered valid for immigration 

purposes and will sustain a visa petition to accord her spouse nonquota status. 

The ease comes forward on appeal from the order of the District Director, Chicago District, dated December 10, 1968, denying the visa 

petition for the reason that evidence presented in support of the visa 

petition indicates that the petitioner was born on February 8, 1948, and 

married the beneficiary on June 12, 1963; therefore, the petitioner's 

marriage in Indiana was not legal in that the age of consent for females 

entering into marriage in that state is sixteen. 

The petitioner, a native-born citizen of the United States, seeks 

nonquota status on behalf of her husband, a native and citizen of 

Greece, born April 27, 1942. The parties were married at Crown 

Point, Lake County, Indiana, on June 12, 1963. The visa petition indicates that the petitioner was born on February 8, 1947, at Milwaukee, 

Wisconsin. However, the file contains the birth certificate of the 

petitioner showing. that she was actually born on February 8, 1948, 

and her birth certificate was filed on March 6, 1948. 

An attempt was made to resolve the discrepancy in the age of the 

petitioner. The petitioner's mother was interviewed on November 4, 

1963, by a Service investigator. She insistedthat her daughter was 

16 years of age at the time of her marriage and that she accompanied 

her daughter and was present during her marriage to the beneficiary 

and gave her consent to the marriage. She would not furnish details 

of the nature of the consent nor would she furnish any information 

concerning an alleged subsequent church wedding ceremony in Milwaukee. She indicated that her daughter and her husband, the bone444 
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ficiary, were then living in Chicago. The petitioner's attorney stated 

that the beneficiary expected to start work in Chicago on November 

11, 1903, but that the petitioner returned from Chicago to reside with 

her grandmother in Milwaukee. Reference is made to an affidavit of 

the beneficiary that he became acquainted with his wife about three 

months before their marriage and that their marriage was 

consummated. 

Upon the basis of the documentary evidence present in the record 

concerning the birth of the petitioner, it is established that she was 

born on February 8, 1948, and that at the time of her marriage on 

June 12, 1963, she was fifteen years and four months old. 

The issue in the case is whether the marriage of the petitioner to 

the beneficiary is a legal one in view of the fact that she was under the 

age of consent for females before entering such a marriage. The State 

of Wisconsin, where the parties resided at the time of their marriage, 

provides in section 245.02 of the Wisconsin Statutes of 1961 that every 

female person who has attained the full age of marriage shall be 

capable in law of contracting a marriage if otherwise competent; 

that if the female is between the ages of 16 and 18, no license shall be 

issued without the consent of the parents given before the county clerk 

under oath or certified under the hand of such parents and properly 

verified by affidavit before a notary public or other official authorized 

by law to take affidavits, which certificate shall be filed of record in 

the office of record in the office of said county clerk at the time of the 

application for said license. Section 245.04 provides if any person 

residing and intending to continue to reside in Wisconsin, who is disabled or prohibited from contracting a marriage under the laws of that 

state, goes into another state or country and there contracts a marriage 

prohibited or declared void under the laws of Wisconsin, such marriage 

shall be void for all purposes in Wisconsin with the same effect as 

though it had been entered into in Wisconsin. The Indiana Statutes, 

section 44-101, provides the same minimum age requirement of 16 

years, but provides that if satisfactory proof is furnished to the judge 

of any circuit, superior or juvenile court that the female is pregnant 

or that the parties desire to be married to each other and that the 

parents consent thereto, then the judge may waive the minimum age 

requirement and by written instrument authorize the clerk of the court 

to issue the marriage license to the parties if they are otherwise qualified by law. Another provision of the Indiana Statutes, section 44-

202, provides that if the female is under the age of eighteen years the 

marriage license cannot be issued unless the application for the license 

is accoMpaiiied by a verified written consent by the parents and after 

due consideration and investigation, the judge may direct the clerk 

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to issue a license without requiring the submission of any required 

consent; that a person applying for a license to marry is required to 

submit a certified copy of his birth record or other written evidence of 

the date and place of birth. The penalties for failure of the clerk to 

observe these requirements are established. Section 44-106 provides 

that in the cases of voidable marriages, such as where either of the 

parties to a marriage :than be incapable from want of age, tip came 

may be declared void on application of the capable party but the 

children of such marriage begotten before the same is annulled shall 

be legitimate. 

The pertinent question in the ease is whether this marriage was void 

or voidable under Wisconsin or Indiana law. It has been held that 

a marriage entered into by persons below the age of consent and above 

the age of seven years who are capable of consummating the marriage 

is voidable and not void; that during the time intervening between 

such a marriage and a divorce on the ground of nonage the marriage 

is valid, subject to a condition subsequent, such as a disaffirmance of 

the marriage• The marriage of a woman when only fifteeen years of 

age is not an absolute nullity but is valid until annulled by the judgment of a e,ourt.a In Indiana it has been held that females under 16 

years of age cannot contract valid marriages and any female may have 

such a marriage annulled unless the same is ratified after arriving at 

the age of 16 years.° Section 44-106 of the Indiana Statutes includes 

in the list of voidable marriages those contracted by persons incapable 

from want of age. When either of the parties to such a marriage shall 

be incapable from want of age, the same may be declared void on application of the incapable party in the case of want of age by a court 

having jurisdiction to decree divorce; but the children of such marriages begotten before the marriage is annulled shall be legitimate. 

The law appears to be clear, that both in the State of Wisconsin and 

in the State of Indian; the marriage of a, person under the age of 

consent is voidable and not void; that it may be ratified after arriving 

at the age of 16 years; and that it is valid between the date of the marriage and the date of the divorce decree for nonage, subject to a condition subsequent such as a disaffirmane,e. As far as the record shows 

the evidence indicates that the parties have consummated their 

marriage and there is no indication of any act of disaffirrnance. The 

parties appear to be living together except that they appear to be 

temporarily separated due to the necessity of the beneficiary in obtainSwenson v. Swenson, 179 Wis. 530 192 N.W. 70; 17 Op. Atty. Elen. WU. 351. 

a state v Cone, 56 Wis. 498.57 N.W. 50. 

Henneger v. Lomas,145 Ind. 287, 44 N.E. 462. 

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lug employment in Chicago during which time the petitioner has 

returned. to Milwaukee. 

The fact that the petitioner might be permitted to disavow if she 

does not ratify it after the age of 16 does not disturb the fact that it 

is, at present, a valid and bona fide marriage. 4Upon the present 

record the appeal will be sustained. 

ORDER: It is ordered that the appeal be sustained. and that the 

visa petition be approved for nonquota status. 

4Of. Matter of 0—, 9I. & N. Dec. 89. 

447