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AGO 1950 No. 367 - October 11, 1950
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Smith Troy | 1941-1952 | Attorney General of Washington

MARRIAGE ‑- FEMALE UNDER EIGHTEEN YEARS OF AGE

The County Auditor should not issue a marriage license where the application shows that the male is over twenty-one, but the application further either shows that the female is under eighteen or the County Auditor has knowledge that such female is under eighteen, and where the parents of the female do not consent to such marriage, nor is there any affidavit that the female is over eighteen years of age.

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                                                                October 11, 1950

Honorable N. W. Kimball
Prosecuting Attorney, Douglas County
Waterville, Washington                                                                                                              Cite as:  AGO 49-51 No. 367

Dear Sir:

            We have your letters of September 29, 1950, and October 6, 1950, in which you ask the following question:

            Is the County Auditor required to issue a license to marry where the application shows that the male is of full age and such application either further shows the female to be under eighteen years of age, or the County Auditor has knowledge that such female is under the age of eighteen years and the female's parents have not given their consent to the marriage, nor is there any affidavit to the effect that the female is over eighteen years of age?

            The conclusions reached may be summarized as follows:

            The County Auditor should not issue such license to marry, and the applicants, if dissatisfied, should appeal to the superior court of the county, as provided by law.

             [[Orig. Op. Page 2]]

                                                                     ANALYSIS

            You advise us that an application for a marriage license has been filed with the Auditor of your county in which the male is of legal age and the female is under the age of eighteen years, and that no attempt has been made to furnish an affidavit to the effect that the female is over eighteen years of age, and also, that the female's parents will not give their consent to the marriage.  We presume that the female is over the age of twelve years.  You do not specifically advise us as to whether the application specifically shows that the female's age is under eighteen years, or whether the County Auditor has direct and personal knowledge that such female is below such age.  In the view we take of the matter, we regard such difference as immaterial.

            If the application shows that the female is below the age of eighteen years, then, for the reasons hereafter given, we believe that the Auditor would have no right whatever to issue the marriage license.  If the application does not affirmatively show that such female is below the age of eighteen years, but the Auditor has personal and direct knowledge that such female is below such age, then the Auditor would unquestionably have the right to refuse to issue such license.  Whether he would be, as a matter of law, required to make such refusal is a matter which we are not passing upon at this time.  You state that you have advised the Auditor that he should not issue the license knowing that the female is under eighteen years of age.  We believe this advice is proper.

            Section 2, chapter 204, Laws of 1939 (8450-1 Rem. Rev. Stat. Supp.) provides:

            "Before any persons can be joined in marriage, they shall procure a license from a County Auditor, as hereinafter provided, authorizing any person or religious organization or congregation to join together the persons therein named as husband and wife."

            Sections 3, 4 and 5, chapter 204, Laws of 1939 (8450-3, 4, and 5 Rem. Rev. Stat. Supp.) contain numerous provisions relating to the three full days waiting period before the license is issued.  Section 7, chapter 204, Laws of 1939 (8450-6 Rem. Rev. Stat. Supp.) provides:

             [[Orig. Op. Page 3]]

            "Any County Auditor is hereby authorized to refuse to issue a license to marry if, in his discretion, the applications executed by the parties or information coming to his knowledge as a result of the execution of said applications, justifies said refusal:  PROVIDED, HOWEVER, The denied parties may appeal to the Superior Court of said county for an order to show cause, directed to said County Auditor to appear before said court to show why said court should not grant an order to issue a license to said denied parties and, after due hearing, or if the Auditor fails to appear, said court may in its discretion, issue an order to said Auditor directing him to issue said license; any hearings held by a Superior Court under this act may, in the discretion of said court, be held in chambers."

            Laws of 1866, page 81, section 1 (8437 Rem. Rev. Stat.) provides:

            "Marriage is a civil contract which may be entered into by males of the age of twenty-one years, and females of the age of eighteen years, who are otherwise capable."

            It would, therefore, seem that if the application shows that the female is under eighteen years of age, that the County Auditor has no right or authority to issue the license.  If the application does not affirmatively show such fact, but the Auditor personally knows that the female is below eighteen years of age, then, under section 8450-6,supra, he would have in his discretion the right to refuse to issue such license.  The parties desiring the marriage would have the right of appeal to the superior court of the county if they desired to avail themselves of such privilege, all as in said section provided.

            We cannot regard the case of Cushman v. Cushman, 80 Wash. 615, 142 Pac. 26, as decisive of any point involved in the matter under consideration.  In that case:  "Respondent (the husband), at the time of the issuance of the license,  [[Orig. Op. Page 4]] produced a witness who made the required affidavit that both of the parties were of full age."  Having obtained the license, the parties were married and the marriage fully consummated.  Some three weeks after the license was issued and the marriage took place, the parents of both parties learned of the marriage.  The action was by the husband for an annulment.  The lower court having annulled the marriage, an appeal was taken and the judgment reversed.

            Here, the question is presented before the marriage license is actually issued.

            To give a direct answer to your question, it is our opinion that the County Auditor should not issue such license, and if the parties desire to contest such decision they should appeal therefrom as provided in section 8450-6 Rem. Rev. Stat. Supp.

Very truly yours,

SMITH TROY
Attorney General

GEORGE DOWNER
Assistant Attorney General

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