.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 personsmay declare themselvesmarried by filing a declaration of informalmarriage, 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 dealtwith by the statutes under the family section, to-wit: "(1) Under House Bill 53, Family Code (AdoptingTitle 1) Subsection E (Marriage without formalities): Can persons declare themselvesmarried by said referred affidavit even though they may (one or both) be under 18 or 19 (asthe 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

...andbe considered legallymarried by informaldeclaration without formalities? Code "(3) Under Sec. 103 (b) (4)of the Family : Do County Clerks and their deputies

-2401-Hon. J. Billy Marley, Page 2 (M-502) take at face value the statement of a person that they have been divorced 

### fora 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) ceremonialmarriage, 

### forwhich a marriage license,medical examination, and proper solemnization are required, or (b) declaration of informalmarriage pursuant to the provisions of Sections 1.91 and 1.92 of the Code. The informalmarriage procedure is designed to provide prima facie evidence of common law marriages.

Common law marriages are recognizedin 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 continuingexistence 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 andwoman 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.toothers 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 theywere married." (Rmphasisadded.). Section 1.92 of the Code provides:

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"(a) A declarationof informal marriage shall be executed on a 

### formprescribed 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 forwhich 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 undersigneddeclare 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 (ORAFFIRM) 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 partyi

.... (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 declarationexecuted 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 qlsomention 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 contractmarriage that their ceremonialmarriage counterpartsare 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), Hinojosv. Railroad Retirement Board, 323 F.2d 227 (5thCir. 196 r6Tex.Civ.App. 1964, no writ).3),w.2382

The rule as to common lawmarital competency is succinctly stated in Speer's Marital Rights in Texas (Vol. 1, 3rd. Ed. 1961) as follows:

"Itwill 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 (Emphasisadded.) Id. at p. 42. ,. Section.1.51 of the Code sets forth the age requircments formarriage 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 prescribedby 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." (Emphasisadded.)
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 femalesunder 18 years of 

### age,but over 14 years of age;

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rather, thatsection adverts parental consentfor persons for a ceremonialmarriage is (M-502)
necessity of naving solely to the necessity license in the above age groups if a license to be validly issued. The consent of a parent or guardian nas never been necessary tovalidate a common lawmarriage. 35 Am.Jur. 193, Karriage, Sec. 21; 1 speer'sMarital Rights in Texasll(3rd Ed., 1961);Needamv. Needan, 33 S.E.Zd 288 (Va.Sup. 1945).

Having forbiddenmales under sixteen and females under fourteen to marry, theLegislature surely did not intend to authorize such childrento file declarations of marriage under Sections 1.91 and 1.92of the Code. However, no such prohibitionof marriage exists formales over sixteen and females over fourteen.

Accordingly, as regardsyour first question, it is our opinion thatmales under 19years of age, but over 16 years of age, and femalesunder 18 years of age, but over 14 years of age, may file a declarationof infornalmarriage as provided by Sections 1.91 and 1.92, supra, for the reason that people in those age groups are not, and have notbeen, prohibited from entering into a common lawmarriage.

Your second questionis, however, answered in the negative. It is stated that:

"(Bjeforea marriasewill be sustained as a common-lawmarriage, itmust be one not in violation of any law of this state, for no legal marriage can exist in violationof law. This is a solecism. It is but anothermethod of restating the essential that theremust be canable contractinc parties. Thus, a femaleunder 14 years of age, or i

Section 1.51 (a),supra,clearly forbids any marriage by either a male under 16 yearsof age, or by a female under 14 years of age. This statutoryprohibition would seemingly encompass common law, as well as ceremonial,marriages within its purview. However, a problem is presentedby the fact that no age minimum is specifically required to be netby those executing the declaration of informal marriage form.

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SeCtiOn 1.91 (a),supra, speak8 in termsof a "man" and a "woman" in describing those personswhose marriages maybe declared The foregoing ambiguityopens the statute to constructionin order 

### thatthe legirlativg intentmay 

### be.ascertained.
- . We do not believe the 

### Legislatureintendedto include males under sixteenyears of age and females underfourteen years of 

### agewithin the provisions of Sections 1.91and 1.92, supra. See, generally, 26 Words and Phrases 348-351,under "Man," and the numerous authoritiescited therein holdinga 'manw to be an adult and not a child or an adolescent.

Furthermore,we feel that if the Legislaturehad intended to depart from the settledpublic policyofTexas that lookswith disfavoron underagemarriages (see,e.g., Walter v. Walter, 433 S.W.Zd 183, 193 (Tex.Civ.App.1968,nowrit), and authorities therein) it would have announced sucha radical departure in clear, explicit terms. It has been statedthat:

"(A) statute shouldnot be given a forced, fancy, strained, subtle, or technical construction,nor one that is nonsensicalor 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 legislativeintent, as regards Sections 1.91 and 1.92, supra, to sanctiontheviolation of the express, unrestricted,and unambiguousprohibitionof Section 1.51(a), supra,by males under 16 years of age and females under 14 years of age. We fully agreewith the viewpointthat:

"(W)herethe languageof a statute is ambiguous and themeaning of the act is uncertain, it is proper to consider the general, legislative, 'orpublic policy of the statewith regard to-the subject involved....Inparticular, a steady and unbroken policy of the law of the state with respect to,a certainmatter is tobe kept in mind when construinga statute.

. . . "The construction adopted should... be that which comportswith public policy. All provisions of the statutemust be considered, and

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a narrow verbal constructionvitiatory of the publicpolicy must be avoided. And a radical departure from a settled policy will be decreed onlywhen clearly required by the words or implicationsof 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 requirementin 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 materiawill, 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 provisionswill be harmonized....

... "The rule proceeds on the suppositionthat several statutes relating to one subject are governedby one spirit and policy, and 

### are intended to be consistent and harmonious 'intheir severalparts 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 informalmarriage when the underage condition of one or both of the parties violates the provisionsof Section 1.51 (a),supra. Therefore, when such factsof underage appear upon the face'of the declaration or are otherwiseknown 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 authorizedto require additional proof.

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# , 1

I Hon. J. Billy Marley, 

### Page 8 (M-502)

Your 

### thirdquestioninvolvesthe provisionin the Code:



### "Sec.1.03 (b). The application marriagelicense)form 

### ahallcontain:
-

... following 

### statutory
(for

(4) spaces for indicatingwhether each applicant has been divorced, and if so, whether the applicanthas 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 formwhereby they swear to (oraffirm) 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 separatelybefore 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 forwhich spaces are provided in the appli'cation for a marriage license; and (4) take the oath printed on the application and sign the applicationbefore the county clerk." Section 1.06 

### of the Code provides that:

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"The county clerk shall: (1) determine that all necessary information... is entered in the (marriagelicense) 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 "necessarydocuments" 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 statementgiven 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

statementsmade 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. BillyMarley,Page 10 (M-502)

SUMMARY ------- 

### (1) Males undar 

### 19yeareof 

### age,but over 16years 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 informalmarriage pursuant to the provisions of Sections.l.91and 1.92 of the Family Code; and (3) Applicants for marriage licenses are not required to furnishproof 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. AssistantAttorney General
APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,

### Vice-Chairman Arthur Sandlin Harold Kennedy Lonny Zwieper Bill Corbusier
MEADE F. GRIFFIN Staff LegalAssistant BAWTBORNE PHILLIPS ExecutiveAssistant NOLA WBITE First Assistant

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