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SECTION 6. PARTIES TO THE CONTRACT.

Contracts of marriage like other contracts, require competent parties. The law as to the competency of the parties to a marriage contract differs in many respects from the law as to the competency of parties in ordinary contracts. Certain people who are able to make other contracts are prohibited from making a contract of marriage, while on the other hand, some persons may make a valid contract of marriage who would be unable to enter into a valid agreement on any other subject. The restrictions upon the capacity of persons to marry fall into two general classes: 1st, prohibitions against contracting marriage at all, and 2nd, prohibitions against contracting marriage with certain persons. The various classes of people who are prohibited from contracting marriage will be discussed in the following sections.

SECTION 7. THE AGE OF CONSENT.

The age of consent is the age at which a person can make a valid contract of marriage. At the common law, this was fourteen years in the case of males, and twelve years in the case of females. At the present time, the age of consent is regulated by statutes in every state, the age being almost invariably older tha the age

of consent at common law.4 The marriage of any infant under the age of consent is voidable. Such marriage may be disaffirmed at any time before the party reaches the age of consent or upon reaching such age; it can only be ratified after the party has reached the age of consent. Such disaffirment or ratification may consist either of an express declaration to this effect, or of a course of conduct

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• See Statutes of Several states.

inconsistent with a contrary intention. Thus a marriage may be disaffirmed by the party under the age of consent abandoning the marriage relation before reaching, or upon reaching the age of consent, while the act of such party in continuing in the marriage relation after reaching the age of consent will be a sufficient ratification of the contract.

The right to disaffirm such marriage is personal to the party who was under the age of consent at the time the marriage was contracted. The other party to the marriage, if over the age of consent, will be bound thereby

After an infant has reached the age of consent, he is capable of making a valid contract of marriage. By statutory provisions, in the several states, the consent of the parents of a minor, even although over the age of consent, to his or her marriage is generally required.

The disregarding of such statutory requirement will not invalidate the marriage, but the minister or public official celebrating the marriage renders himself criminally liable.

An infant over the age of consent is not liable on a promise to marry.

SECTION 8. MENTAL INCAPACITY.

“Marriage is a civil contract and may be avoided, like any other contract, for want of sufficient mental capacity in the parties. If the mind is unsound at the time, it is incapable of consent, and that is an essential element in all contracts.

"In early times, when there was thought to be

• Koonce vs. Wallace, 7 Jones Law (N. C.), 194; Fisher vs. Bernard, 65

Vt., 664.

something sacred and mysterious in the matrimonial relation, and its civil was almost obliterated by its spiritual character, the marriage of persons of unsound mind was held valid. Blackstone, in 2nd volume of his Commentaries, 438, 439, says this was 'a strange determination, since the consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. The test question in all such cases is whether the party is capable of making any binding contract. The identity of the doctrine that unsoundness of mind vitiates this as well as all other contracts is well established. But every consideration of policy and humanity admonishes us that a contract so essentially connected with the peace and happiness of individuals and families, and the well-being of society, should not be annulled on this or any other ground, not clearly made out. The consequences, in many cases, would be most deplorable. The rights of property would be unsettled, and the peace of families destroyed, to say nothing about the effects upon the innocent offspring. The annullment of other contracts would only affect property; but this would do that and more; it would tell upon the happiness, character and peace of the parties. The appalling character of these consequences is well calculated to impress the courts with the solemn duty of requiring a clear case for the application of the general principle to this delicate and important contract. It is, however, only a civil contract, and must stand or fall by the usual tests applicable to contracts.

"It is not every unsoundness that will avoid a contract. The degree necessary to produce this effect is fixed by the law and must be made out by proof. All persons of lawful age are presumed to be capable

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of contracting, until the contrary is made to appear. So sanity is presumed, and if the contrary is alleged, it must be proved by the party imputing it. If a state of permanent insanity is once shown, the burden of proof shifts, and a lucid interval must be proved by the other side. But the rule is different in a case of temporary insanity, depending on some exciting cause not in perpetual action.

“The general rule is that those who have not the regular use of their understanding, sufficient to deal with discretion in the common affairs of life, or the weakness being so considerable as to amount to derangement, are incapable of contracting a valid marriage, or making any other binding contract.'

“Sir John Nicholl, in Browning vs. Reane,' says: 'If the incapacity be such that the party is incapable of understanding the nature of the contract itself, and incapable from mental imbecility, to take charge of his or her own person and property, by the matrimonial contract any more than by any other contract.'"

It is difficult to describe any exact, palpable line between legal capacity and incapacity. Perhaps this is impracticable, as an abstract thing, in reference to the ability to make a valid contract, as insanity subsists in various degrees, and the line of separation between it and mere imbecility is often faint and imperceptible. The general test is the fitness of the person to be trusted with the management of himself and his own concerns. Such a person has a disposing, contracting mind, although it may be in a degree impaired.

In the case of Pyott vs. Pyott, it was held that a marriage is void ab initio where the mental faculties • Bishop on Marriage and Divorce, Cole vs. Cole, 5 Sneed (Tenn.), 57.

* 191 III., 280, 61 (N. E.), 88. ? 2 Phillin, 69.

Sec. 177.

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of the husband were so impaired that he was unable to understand the nature and effect of the act of marriage, and where he was subjected to improper influences exerted to the end that the conspirators might profit thereby.

"Defendant who was 73 years old, married plaintiff in 1898—about one year and one-half after the death of his first wife, with whom he had lived happily. He had acquired property of the value of $200,000. In 1894 he began to neglect his business, and finally lost all interest therein. During former years he had been a member of the church, advocated religious and moral principles, read only the best literature, abstained from vulgar or profane language, and was modest in deportment and dress. He now refused to attend church services, abandoned the books he had formerly read, and began reading French novels, indulged in profane and vulgar language, and neglected his clothing until he appeared dirty and indecent. During the illness of his wife he became disregardful of her, and while she was lying at the point of death left her presence to make social calls. While her corpse was still in the house, he insisted that a relative play dance music on the violin. After her death, in 1897 his mental faculties weakened rapidly. He developed a morbid propensity for matrimony, and courted a servant girl in the family, begging her to marry him. On one occasion he was found standing in her bedroom entirely without clothing, except an undershirt. He asked one W, who knew his financial and mental condition, to recommend a housekeeper, and the latter recommended plaintiff, his niece. It appeared that plaintiff was the mother of an illegitimate child and that her character for chastity was not good. W. knew that she

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