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Opinion No. 5315

June 16, 1978


Marriageable age

Pursuant to 1887 PA 128, Sec. 3, when a female who has not attained the age of 18 years wishes to be married, it is necessary to produce the written consent of one of the parents or of her legal guardian; if the parents have been divorced, only the consent of the parent having custody of the female minor may give the required consent.

Pursuant to 1967 PA 175, Sec. 1, which authorizes a judge of probate to marry persons under marriageable age where the female is with child or has been living with a man as his wife, the written consent of both parents is required in cases where both of the parties to the proposed marriage are minors; if one of the parties to the proposed marriage is a minor, only the consent of the custodial parent of that minor is required.

Honorable John P. Milanowski

Kent County Hall of Justice

Grand Rapids, Michigan 49502

You have requested my opinion on the following questions:

1. Can either parent give the necessary consent for the marriage of their 17 year old daughter where the parents are divorced and the father has legal custody of the girl?

2. Would the answer to the first question be different under the provisions for a secret marriage license?

1887 PA 128, Sec. 3; MCLA 551.103; MSA 25.33, sets forth the procedure to be followed for obtaining a marriage license, and states in pertinent part:

'The county clerk on application being made to him shall fill out the blank spaces of the license according to the sworn answers of the applicant, taken before him or some person duly authorized by law to administer oaths. Whenever it appears from the affidavit that the applicant applies for a license for the marriage of a female who has not attained the age of 18 years, then the county clerk shall require that there first be produced the written consent of 1 of the parents of the female or of her legal guardian to the marriage, and to the issuing of the license for which application is made.' While this provision would seemingly allow either parent to consent under the factual situation which you have posed, an accurate analysis of this statute requires that it be interpreted in light of other existing statutes.

The Probate Code, 1939 PA 288, Chap III, Sec. 6; MCLA 703.6; MSA 27.3178(206), discusses a parent's right to custody of a minor, and the right to give or withhold consent to an action by a minor, and states:

'The father or mother of the minor, and if 1 of them be deceased, then the survivor thereof, being respectively competent to transact their own business, and otherwise suitable, shall be entitled to the custody of the person of the minor and to the care of his education, and whenever by law the consent of the parents of a minor is necessary to any action by the minor, and the parents are separated or divorced, the parent or parents having custody of the minor by court order shall be entitled to give or withhold the consent.' (Emphasis Added)

The legislative intent is manifest that 1939 PA 288, Chap III, Sec. 6, supra, should be read together with statutes such as 1887 PA 128, Sec. 3, supra, so that here, where the consent of one parent of a minor is required under the latter statute, the consent of the parent having custody of the female minor pursuant to court order in a divorce proceeding must be secured as set forth in the former statute. Remus v City of Grand Rapids, 274 Mich 577; 265 NW 755 (1936).

Since the custodial parent has the right to withhold consent, this provision will allow only the parent with legal custody of a minor to give valid consent to an action by the minor when the law requires such consent. The consent of the noncustodial parent, standing alone, will not be sufficient. Therefore, in answer to your first question, only the parent having lawful custody of a daughter who is under the age of 18 can give the consent required for the issuance of a marriage license.

The statutory provision which allows a probate judge to issue a secret marriage license is set forth in 1897 PA 180, as amended by 1967 PA 175, Sec. 1; MCLA 551.201; MSA 25.51, which provides in pertinent part as follows:

'The judge of probate shall have authority to marry persons under marriageable age, where the female is with child, or where she has been living with some man as his wife, in cases in which the application for such license is accompanied by the written request of all the natural or adopting living parents of both parties, and their guardian or guardians if either or both of the parents are dead, or by the written request of the parent or guardian of the one under marriageable age, where only one is under the marriageable age now fixed by the statute, when, according to his judgment, such marriage would be a benefit of public morals. Where the noncustodial parent has been given notice of the request for consent by personal service or registered mail at his last known address and the noncustodial parent fails to enter an objection within 5 days of notice then the consent shall be required only of a parent to whom custody of a child has been awarded by a court.'

The provisions for a secret marriage license draw a distinction between cases where both of the parties to a proposed marriage are minors, and cases where only one of the parties is a minor. In the former case, the consent is required of 'all of the natural or adopting living parents of both parties.' This language was added by 1967 PA 175, Sec. 1, which amended 1897 PA 180. The language concerning the consent of a noncustodial parent was also added at this time. Therefore, it is clear, that when two minors are to be married, pursuant to the provisions at the secret marriage license act, the consent of all parents will be required.

The language used, which requires parental consent when only one minor is involved, is unchanged from the original statutory enactment, 1897 PA 180. This language has previously been interpreted to require the consent of only one of the parents of the person who is under marriageable age. OAG, 1911, p 265 (April 7, 1911). However, the reasoning used in answering your first question will necessitate that this consent be from a custodial parent.

Frank J. Kelley

Attorney General