Greene v. Williams

Opinion

FLEMING, J.

Can a parent annul a minor child’s marriage after the child’s death because the child married without parental consent?

Mae Frances Greene, mother of Robert, a deceased minor, filed suit against Robert’s wife Delores to annul her son’s marriage. Her complaint averred that Robert was born 1 May 1949, married Delores without plaintiff’s consent on 20 August 1968, and was killed on active military duty 17 November 1968. Delores demurred to the complaint on the ground that the marriage had already been dissolved by Robert’s death and plaintiff had no legal standing to bring the action. Her demurrer was sustained without leave to amend, and the complaint was dismissed. Plaintiff appeals.

Plaintiff argues that a nonconsenting parent of a minor child has a property right to annul the child’s marriage, that this right survives the death of the child, that therefore her complaint states a good cause of action.

Plaintiff’s argument requires some consideration of the general nature of marriage and of annulment. A marriage by an under-age child without parental consent is voidable only and remains in full force until dissolved. (Cf. Civ. Code, §§ 59, 61 (recodified and rewritten as §§ 4400, 4401, incestuous, bigamous, and polygamous marriages are void) with Civ. Code, §§ 82, 85 (recodified and rewritten as §§ 4425, 4453, certain marriages are voidable and may be annulled).) (See

Estate of Karau,

26 Cal.App.2d 606, 609 [80 P.2d 108].) Dissolution of a voidable marriage for lack of consent is governed by section 82, subdivision One of the Civil Code (recodified and rewritten as § 4425, subd. (a) ), which authorizes annulment of a marriage when “the party

in whose behalf

it is sought to have

[562]

the marriage annulled was without the capability of consenting thereto. . . .’’(Italics ours.) The procedure is regulated by section 83, subdivision One of the Civil Code (recodified and rewritten as § 4426, subd. (a)), which permits an action for annulment for lack of consent to be brought by “the party . . . who was married under the age of legal consent, . . . or by a parent, guardian, or other person