2 N.W.2d 426 | Minn. | 1942
1. During all of the determinative period both parties have been residents of Minnesota. It is familiar and well-nigh universal law that the quality of a marriage as a civil contract (Mason St. 1941 Supp. § 8562), as to its being void or voidable, is to be tested by the law of the place where the ceremony was performed. Lando v. Lando,
2. In Boehm v. Rohlfs, supra, is this statement: "At present, by the great weight of authority, the rule is that a marriage where one of the parties is under the age of consent but who is competent by the common law is not void, but merely voidable." Numerous cases are cited in support, but none from Iowa. But if the law of Iowa had been otherwise there doubtless would have been an appropriate comment to that effect. Anyway, we have been shown no statute or decision of Iowa holding that a marriage is not voidable for nonage. Boehm v. Rohlfs seems to recognize the common-law rule.
True, Iowa has a characteristic statute2 declaring that marriages, even between minors, shall be "valid" if certain prerequisites are present and a license has been procured. That does not mean that in a proper case such a marriage, valid if nothing is done about it, is not voidable in an action for annulment. We have been shown no Iowa statute authorizing annulment of a marriage upon the ground of fraud or duress. See Code of Iowa, 1939, § 10486. Yet, in Wier v. Still,
3. Our own statute, Mason St. 1927, § 8581, provides that "when either party to a marriage is incapable of assenting thereto for want of age or understanding * * * the marriage may be annulled at the suit of the injured party, and shall be voidfrom the time its nullity is adjudged." (Italics supplied.) Accordingly, the decree to be entered in this case should be effective as of its date and should not relate back to the date of the marriage.
The judgment must be reversed with directions to enter one for annulment of the marriage upon the ground of plaintiff's nonage.
So ordered.