Haight, J.
This action was brought to annul the marriage between the plaintiff and the defendant, which was alleged to have taken place on the 30th day of January, 1910, in the state of New Jersey. The plaintiff, whose maiden name was Amia Prell, is a daughter of Otto and Anna Prell, with whom she had lived all of her lifetime at No. 107 Seventh avenue, New York city. She, on the date of her marriage, was under the age of eighteen years. The defendant was about forty years of age and for about two years had been a boarder at the house of the plaintiff’s parents. On the day of the marriage-the defendant took the plaintiff to the city hall in the city of New York, where he asked for a license to marry her. After failing to obtain a license he took her to Westwood, New Jersey, where he procured a minister to perform the marriage ceremony, and then they returned to New York and to
her father's and mother’s house, where they continued to reside the same as they had theretofore lived until Easter Sunday following such marriage. They did not, however, cohabit together or have sexual intercourse. On Easter Sunday the defendant appears to have returned home intoxicated and then announced to the plaintiff’s parents that he was boss, that he had married their daughter, that she was his wife and' that he proposed to have her; which was the first that the parents had heard of the marriage. A scene followed in which the police were called in, a complaint was made by the defendant of an assault by the plaintiff’s mother, upon which she was arrested and taken before the Magistrate’s Court, where, upon a hearing, she was discharged and the defendant was compelled to quit the house of the parents, where he had theretofore been a boarder. Subsequently this action was brought.
The plaintiff and the defendant were both residents of this state at the time of the marriage and have continued to be'such residents ever since. Their only absence was during the time they took to go to New Jersey for the ceremony and return. Under the statute then in force in New Jersey, it was provided, in so far as is now material, “That no justice of the peace, minister of the gospel, or other person having, or pretending to have, authority to join persons together in the holy bonds of matrimony, shall many , any male under the age of twenty-one years, or female under the age of eighteen, years, unless the parent or parents, guardian or guardians, or person or persons under whose care and government such minor or minors shall be, be present and give consent thereto,” etc. (General Statutes of New Jersey, vol. 2, page 2005.) A revision of this statute appears to have been made in 1910, as appears from the Compiled Statutes of New Jersey (Vol. 3, page 3217), in which a license is now required to be procured before the marriage can he solemnized, which is similar to our statute in this
state upon the subject. But inasmuch as this revision did not take effect until July, 1910, it was not in force at the time of the marriage of the parties hereto, and, consequently, it may not now be considered.
It will be observed that the statute in force at that time, which was read in evidence upon the trial of this action, does not state whether the marriage of a person under the age specified by the statute shall be void or valid. Ordinarily a contract which is prohibited by statute is a void contract and unenforceable. But marriage contracts have always been considered as involving questions of public policy, and the interests of others than those of. the contracting parties, and should, therefore, be ■ con- __ strued in accordance with such policy. The legislatures, therefore, of most of our states have deemed it-unwise to permit marriage contracts to be entered into between minors whose judgment and discretion were still imma-, ture. And yet where the contract has been made which has been followed by cohabitation, it has not been- considered good policy to declare such marriage void, for it might be followed by the birth of children whose legitimacy might be affected thereby. It has, therefore, been held in several states that statutes prohibiting a marriage under an age specified, in the absence of an express declaration that it should be void, were directory merely and the contract not void but voidable. (See 26 Cyc. Law and Pro., and authorities there cited.) Such appears to be the construction placed upon the statute under consideration by the courts of New Jersey.
In the case of
Titsworth
v.
Titsworth
(78 N. J. Equity, 47) an action was brought by the husband to have the marriage set aside on the ground that he was under age at the time of the marriage. In that case the plaintiff had taken the defendant, to whom he had been paying attention, to a clergyman’s house, in company with her brother and sister as witnesses, and there married her, he representing himself to be of the proper age. He then
returned with his wife to her mother’s house and there lived and cohabited with his wife for about a month. Then he returned to his parents’ home, and subsequently brought the action. Stevenson^ V. C., says with reference thereto that ‘ ‘ Under our statute, if there be issue, the same will be legitimate, and I think the view is a correct one, that in a case like this a decree of nullity operates practically to render void at the time of its rendition what up to that time was a valid but
voidable marriage
and thus amounts to a decree of divorce
a vinculo.
” It will be noted, however, that in that case cohabitation had followed'the marriage and there was a chance, therefore, of the birth of a child. It was the policy of the state to save such children from the taint of illegitimacy, and it was by reason of such policy that the courts have held that statutes prohibiting such contracts were directory merely and that the contracts, therefore, were not void. In cases, however, where there has been no cohabitation and no chance for the subsequent birth of children, such policy of the state no longer obtains. Then there are no rights of issue to be guarded and protected, and it simply becomes a question between the contracting parties. We thus have the question presented in this case as to whether a marriage ceremony performed by a minister, in violation of the statute, between parties, one of whom is imder the age of legal consent, which has not been consummated by cohabitation, is valid and forever binding upon the parties and is beyond the power of the courts of any state to annul or grant the parties relief.
It appears to me that the construction of the statute given below defeats the purpose of the legislature in establishing an age limitation and becomes exceedingly burdensome upon minor children of immature years whose consent to the ceremony may have been obtained without their knowing or comprehending its full meaning and import. No public policy calls for such a construction, and to my mind the legislative intent was to
make such marriages voidable, so that the courts in a proper case may relieve the infant party.
But assuming that under the statutes of New Jersey the marriage was valid, and not voidable, it then becomes necessary to determine the extent of the jurisdiction of our courts in the matter. Our Domestic Relations Law, section l.(Laws of 1909, chapter 19; Birdseye’s Consolidated Laws, chap.
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Haight, J.
This action was brought to annul the marriage between the plaintiff and the defendant, which was alleged to have taken place on the 30th day of January, 1910, in the state of New Jersey. The plaintiff, whose maiden name was Amia Prell, is a daughter of Otto and Anna Prell, with whom she had lived all of her lifetime at No. 107 Seventh avenue, New York city. She, on the date of her marriage, was under the age of eighteen years. The defendant was about forty years of age and for about two years had been a boarder at the house of the plaintiff’s parents. On the day of the marriage-the defendant took the plaintiff to the city hall in the city of New York, where he asked for a license to marry her. After failing to obtain a license he took her to Westwood, New Jersey, where he procured a minister to perform the marriage ceremony, and then they returned to New York and to
her father's and mother’s house, where they continued to reside the same as they had theretofore lived until Easter Sunday following such marriage. They did not, however, cohabit together or have sexual intercourse. On Easter Sunday the defendant appears to have returned home intoxicated and then announced to the plaintiff’s parents that he was boss, that he had married their daughter, that she was his wife and' that he proposed to have her; which was the first that the parents had heard of the marriage. A scene followed in which the police were called in, a complaint was made by the defendant of an assault by the plaintiff’s mother, upon which she was arrested and taken before the Magistrate’s Court, where, upon a hearing, she was discharged and the defendant was compelled to quit the house of the parents, where he had theretofore been a boarder. Subsequently this action was brought.
The plaintiff and the defendant were both residents of this state at the time of the marriage and have continued to be'such residents ever since. Their only absence was during the time they took to go to New Jersey for the ceremony and return. Under the statute then in force in New Jersey, it was provided, in so far as is now material, “That no justice of the peace, minister of the gospel, or other person having, or pretending to have, authority to join persons together in the holy bonds of matrimony, shall many , any male under the age of twenty-one years, or female under the age of eighteen, years, unless the parent or parents, guardian or guardians, or person or persons under whose care and government such minor or minors shall be, be present and give consent thereto,” etc. (General Statutes of New Jersey, vol. 2, page 2005.) A revision of this statute appears to have been made in 1910, as appears from the Compiled Statutes of New Jersey (Vol. 3, page 3217), in which a license is now required to be procured before the marriage can he solemnized, which is similar to our statute in this
state upon the subject. But inasmuch as this revision did not take effect until July, 1910, it was not in force at the time of the marriage of the parties hereto, and, consequently, it may not now be considered.
It will be observed that the statute in force at that time, which was read in evidence upon the trial of this action, does not state whether the marriage of a person under the age specified by the statute shall be void or valid. Ordinarily a contract which is prohibited by statute is a void contract and unenforceable. But marriage contracts have always been considered as involving questions of public policy, and the interests of others than those of. the contracting parties, and should, therefore, be ■ con- __ strued in accordance with such policy. The legislatures, therefore, of most of our states have deemed it-unwise to permit marriage contracts to be entered into between minors whose judgment and discretion were still imma-, ture. And yet where the contract has been made which has been followed by cohabitation, it has not been- considered good policy to declare such marriage void, for it might be followed by the birth of children whose legitimacy might be affected thereby. It has, therefore, been held in several states that statutes prohibiting a marriage under an age specified, in the absence of an express declaration that it should be void, were directory merely and the contract not void but voidable. (See 26 Cyc. Law and Pro., and authorities there cited.) Such appears to be the construction placed upon the statute under consideration by the courts of New Jersey.
In the case of
Titsworth
v.
Titsworth
(78 N. J. Equity, 47) an action was brought by the husband to have the marriage set aside on the ground that he was under age at the time of the marriage. In that case the plaintiff had taken the defendant, to whom he had been paying attention, to a clergyman’s house, in company with her brother and sister as witnesses, and there married her, he representing himself to be of the proper age. He then
returned with his wife to her mother’s house and there lived and cohabited with his wife for about a month. Then he returned to his parents’ home, and subsequently brought the action. Stevenson^ V. C., says with reference thereto that ‘ ‘ Under our statute, if there be issue, the same will be legitimate, and I think the view is a correct one, that in a case like this a decree of nullity operates practically to render void at the time of its rendition what up to that time was a valid but
voidable marriage
and thus amounts to a decree of divorce
a vinculo.
” It will be noted, however, that in that case cohabitation had followed'the marriage and there was a chance, therefore, of the birth of a child. It was the policy of the state to save such children from the taint of illegitimacy, and it was by reason of such policy that the courts have held that statutes prohibiting such contracts were directory merely and that the contracts, therefore, were not void. In cases, however, where there has been no cohabitation and no chance for the subsequent birth of children, such policy of the state no longer obtains. Then there are no rights of issue to be guarded and protected, and it simply becomes a question between the contracting parties. We thus have the question presented in this case as to whether a marriage ceremony performed by a minister, in violation of the statute, between parties, one of whom is imder the age of legal consent, which has not been consummated by cohabitation, is valid and forever binding upon the parties and is beyond the power of the courts of any state to annul or grant the parties relief.
It appears to me that the construction of the statute given below defeats the purpose of the legislature in establishing an age limitation and becomes exceedingly burdensome upon minor children of immature years whose consent to the ceremony may have been obtained without their knowing or comprehending its full meaning and import. No public policy calls for such a construction, and to my mind the legislative intent was to
make such marriages voidable, so that the courts in a proper case may relieve the infant party.
But assuming that under the statutes of New Jersey the marriage was valid, and not voidable, it then becomes necessary to determine the extent of the jurisdiction of our courts in the matter. Our Domestic Relations Law, section l.(Laws of 1909, chapter 19; Birdseye’s Consolidated Laws, chap. 14, vol. 1, page 1021) provides as follows: “A marriage is void from the time its nullity is declared by a court of competent jurisdiction if either party thereto :
“ 1.
Is under the age of legal consent, tohich is eighteen years
/
“2. Is incapable of consenting to a marriage for want of Understanding ;
“ 3. Is incapable of entering into the married state from physical cause ;
“4. Consents to such marriage by reason of force, duress or fraud ;
“5. Has a husband or a wife by a former marriage living, and such former husband or wife has absented himself or herself for five successive years then last past without being known to such party to be living during that time.”
Section 1143 of the Code of Civil Procedure provides: “An action may also be maintained to procure a judgment, declaring a marriage contract void and annulling the marriage, for either of the following causes, existing at the time of the marriage :
“ 1. That one or both of the parties had not attained the age of legal consent.
“2. That the former husband or wife of one of the parties was living, and that the marriage with the former husband or wife was then in force.
“ 3. That one of the parties was an idiot or lunatic.
“4. That the consent of one of the parties was obtained by force, duress, or fraud.
“
5. That one of the parties was physically incapable of entering into the marriage state.”
Section 1744 of the Code provides that
“
An action to annul a marriage, on the ground that one of the parties had not attained the age of legal consent, may be maintained by the infant, or by either parent of the infant, or by the guardian of the infant’s person, ” etc.
It will be recalled that the parties to this action reside in this state and have so resided ever since and before the marriage. The right of a government, as well as that ■of the several states of the Union, to determine the marital status of its own citizens and prescribe the terms and conditions upon which their relations may he changed is elementary and beyond question.
In the case of
Kinnier
v.
Kinnier
(45 N. Y. 535, 544) Church, Ch. J., in delivering the opinion of the court, says: “ It is now well settled that the
lex loci
which is to govern married persons, and by which the contract is to be annulled, is not the law of the place where the contract was made, but where it exists for the time, where the parties have their domicile, and where they are amenable for any violation of their duties in that relation. (Story’s Conflict of Laws, section 230a.) ”
In the case of
Maynard
v.
Hill
(125 U. S. 190) the action was brought to charge certain lands, .as held by the defendants as trustees for the benefit of the plaintiffs. The lands were owned by David S. Maynard in his lifetime. He was married in the state of Vermont and went to California, under a promise to his wife that he would return but never did so. Subsequently he removed to the territory of Oregon, formed other relations, and then procured the legislature of the territory to pass an act dissolving his marriage with his former wife. This was held to be within the power of the legislature, in view of the fact that he was a resident of the territory and its legislature had the power to determine his status. It would thus seem to follow that if the legislature could
by act annul a marriage without cause, it might provide for the dissolving of marriages, through the courts, of its own citizens, even though the marriage had taken place in a sister state, where such marriages were unauthorized by such state and were against the public policy of the state of their residence.
In
Livingston
v.
Livingston
(173 N. Y. 377, 389) O’Brien, J., says: “A marriage contract may be dissolved
by a direct
or
special act of the legislature,
and such a law does hot impair the obligation of a contract. Marriage is something more than a mere contract. It is a status or institution of society founded upon the consent of the parties and
the subject of regulation by law.
”
In
Wade v. Kalbfleisch
(58 N. Y. 282, 284) Church, Ch. J., in speaking of the marriage contract, remarks: “ It cannot be dissolved by the parties
when consummated,
nor released with or without consideration.
The relation is always regulated by government.
It is more than a contract. It requires certain acts of the parties to constitute marriage, independent of and beyond the contract. It partakes more of the character of an institution regulated and controlled by public authority,
upon principles of public policy,
for the benefit of the community.” (See, also,
Hawkins
v.
Hawkins,
193 N. Y. 409-418, in which Cullen, Ch. J., discusses the same question. Also
Hunt
v.
Hunt,
131 U. S. Appendix, 165;
Haddock
v.
Haddock,
201 U. S. 562-569.)
It must be borne in mind that I have been discussing the question of the powers of the courts of our state to determine the status of our own citizens. I do not question the validity of marriage contracts made in other states confórmatory to the laws of such state, or that they will be recognized as valid in this state, unless they are contrary to the prohibition of natural laws, or to the express provisions of our statute. We would not in this state recognize a contract of marriage in another state in several instances, such as between a father and a daughter,
or where the consent was procured through force, duress or fraud, etc. We do recognize the remarriage of a former husband or wife who has been divorced and has been forbidden to again marry, where such remarriage took place in a state in which it was authorized. But this is upon the ground that the forbidding to remarry was in the nature of a penalty which had no effect outside of this state.
My conclusions are that the marriage of the plaintiff to the defendant in the state of New Jersey, while she was under the age of legal consent, without the knowledge or consent of her parents, was repugnant ,to our public policy and legislation, and in view of the fact that the" parties were, and ever since have been, residents of this state, our courts have the power to relieve the plaintiff by annulling the marriage.
The judgment of the Appellate Division and that of the Special Term should be reversed and a new trial ordered, without costs.