The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears eighty percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one's likelihood of divorce to thirty percent. Women who marry at age twenty-one or younger, moreover - and one in ten U.S. women do - experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who will frequently have invested more in market work and education.While the social cost of early marriage is significant, U.S. policy disregards the hundreds of thousands of young people currently married or divorced, as well as those who may be contemplating early marriage. A comprehensive analysis of early marriage and its regulation is overdue, and this Article undertakes that task.The Article argues that a historic confluence of cultural and structural changes has simultaneously transformed the social function and meaning of modern marriage and prolonged the course of development to adulthood. It advances a new conception of "marital capacity" to supplant the current legal concept of consent, which is inadequate in the context of marriage. This new conception recognizes adolescents' and emerging adults' cognitive abilities to understand and voluntarily consent to marriage, but also accounts for their psychosocial immaturity and incomplete acquisition of other abilities required to sustain modern marriage.The median age at first marriage is rising, reflecting gradual social adaptation to these cultural and structural changes. Legal adaptation, however, has lagged. Even though law is only one of the structural influences on family formation, legal change bringing the marital age in line with the modern social institution will go far to alleviate the strain on individuals and cost to society imposed by early marriage.INTRODUCTIONIn 2010, the U.S. Senate unanimously voted to enact the International Protecting Girls by Preventing Child Marriage Act of 2010.1 The bill aimed "[t]o protect girls in developing countries through the prevention of child marriage,"2 and Secretary of State Hillary Rodham Clinton joined its drafters in denouncing "'all cases of child marriage as child abuse.'"3 The bill's explicit target was marriage by individuals below a country's legal minimum age, but its factual findings all alluded to marriage by girls under eighteen.4The irony apparently lost on U.S. lawmakers who supported the bill is that child marriage is not limited to developing countries but is also a domestic practice; more than one in ten of all U.S. women surveyed between 2001 and 2002 had married before age eighteen, with an estimated 9.4 million having married at age sixteen or younger.5 In 2010, more than 500,000 U.S. teens were married, divorced, separated, or widowed.6What is surely the most familiar statistic of modern American family life - that nearly half of all marriages end in divorce7 - obscures significant and consistent variations in marital stability depending on the age at which people first marry. For decades now, age at marriage has been the most consistent and unequivocal predictor of marital failure.8 Of marriages entered at age twentyfive or later, fewer than thirty percent end in divorce.9 Of marriages entered before age eighteen, on the other hand, nearly seventy percent end in divorce.10 The earliest marriers, those adolescents who enter marriage in their mid-teens, experience marital failure rates closer to a sobering eighty percent.11 Not until age twenty-two does marital stability improve significantly and do marriage dissolution rates begin to level off, although marriages entered at later ages are more stable still. 12The costs of child marriages (those entered before age eighteen) as well as early marriages more generally (those entered at age twenty-one or younger) extend beyond the likelihood of their dissolution. …