.TroRpImY o-=II- October 27, 1969 

Hon. J. Silly Marley 

County Attorney 

Crosby County 

Crosbyton, Texas 

Opinion No. M-502 

Re: Whether, pursuant to 

Sections 1.91 and 1.92 

of the Texas Family Code, 

certain groups of underage 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 declaration . ..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 

other proceeding, - . 

judicial, administrative, or 

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 Department 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 'represented to 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?.EIii IS 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!ITHIN THE 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. 196 

r6Tex.Civ.App. 1964, no writ). 

3),w.2382 

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‘aw marriages, 

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 requircments 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 prescribed by Section 1.52 of this code, the count 

clerk shall not issue a marriage license --$7-d I 

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 conunon law 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 

rather, that section adverts 

parental consent for persons 

for a ceremonial marriage is 

(M-502) 

solely to the necessity necessity of naving 

in the above age groups if a license license 

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 construction in order 

that the legirlativg intent may be.ascertained. 

- . 

We do not believe the Legislature intended 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 enactment." 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 uncertain, 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 

provision in the Code: 

"Sec. 1.03 (b). The application 

marriage license) form ahall contain: 

- 

. . . 

following statutory 

(for 

(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'cation for 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 information 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's marital 

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 

proof of 

answer to your third question is that no 

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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