CHAPTER II.

MARRIAGE.

[Sidenote: Contract.]

Marriage is a civil contract requiring the consent of parties capable of entering into other contracts, except as herein otherwise declared.

[--3376.] While marriage is defined to be a contract, it is rather a status or relation a.s.sumed by the act of marriage. Society is recognized as a third party to the agreement and as having a well defined interest in the duties and obligations of such relation. It is because of this interest, that the law defines the qualifications of the parties, the terms, rights and obligations of the contract, and also for what causes and in what manner it may be terminated. "It stands alone and can be a.s.similated to no other contract."

[Sidenote: Between what ages valid.]

A marriage between a male person of sixteen and a female of fourteen years of age is valid, but if either party has not attained the age thus fixed, the marriage is a nullity or not at the option of such party made known at any time before he or she is six months older than the age thus fixed. [--3377.] The common law rule fixing the age of consent to marriage at fourteen for males and twelve for females is not repealed in Iowa. The time in which the parties may disaffirm the marriage is merely extended by the statute.

[Sidenote: License.]

Previous to any marriage within this state, a license for that purpose must be obtained from the clerk of the district court of the county wherein the marriage is to be solemnized. [--3378.] As under the common law, no express form or ceremony is necessary to const.i.tute a valid marriage, any mutual agreement between the parties to a.s.sume the relation of husband and wife, followed by cohabitation, being sufficient, provided there is no legal disability on the part of either existing at the time. It is immaterial how the intention to marry is expressed. It has been held in this state that a marriage was legal, where the woman intended present marriage, though the man did not, where they had a.s.sumed the relation of husband and wife, and his conduct had been such as to justify her in believing that he had intended present marriage. Marriages by consent only, are not rendered void by a provision punishing parties for solemnizing marriages in any other manner than that prescribed by law.

[Sidenote: Under age.]

[Sidenote: Consent of parent.]

Such license must not in any case be granted where either party is under the age necessary to render the marriage absolutely valid, nor shall it be granted where either party is a minor, without the previous consent of the parent or guardian of such minor, nor where the condition of either party is such as to disqualify him from making any other civil contract. [--3379.]

[Sidenote: Proof of age.]

Unless such clerk is acquainted with the age and condition of the parties for the marriage of whom the license is applied for, he must take the testimony of competent and disinterested witnesses on the subject. [--3380.]

[Sidenote: Record.]

He must cause due entry of the application for the issuing of the license to be made in a book to be procured and kept for that purpose, stating that he was acquainted with the parties and knew them to be of competent age and condition, or that the requisite proof of such fact was made known to him by one or more witnesses, stating their names, which book shall const.i.tute a part of the records of his office.

[--3381.]

[Sidenote: Proof of consent of parent.]

If either party is a minor, the consent of the parent or guardian must be filed in the clerk's office after being acknowledged by the said parent or guardian, or proved to be genuine, and a memorandum of such facts must also be entered in said book. [--3382.]

[Sidenote: Penalty.]

If the clerk of the district court grants a license contrary to the provisions of the preceding sections, he is guilty of a misdemeanor, and if a marriage is solemnized without such license being procured, the parties so married and all persons aiding in such marriage are likewise guilty of a misdemeanor. [--3883.]

The punishment provided for misdemeanors is imprisonment in the county jail not more than one year, or by fine not exceeding five hundred dollars, or by both fine and imprisonment.

[Sidenote: Who may solemnize.]

Marriages must be solemnized either:

1. By a justice of the peace or mayor of the city or incorporated town wherein the marriage takes place;

2. By some judge of the supreme or district court of this state;

3. By some officiating minister of the gospel ordained or licensed according to the usages of his denomination. [--3384.]

[Sidenote: Certificate]

After the marriage has been solemnized the officiating minister or magistrate shall, on request, give each of the parties a certificate thereof. [--3385.]

[Sidenote: Penalty.]

Marriages solemnized with the consent of parties in any other manner than is herein prescribed, are valid, but the parties themselves, and all other parties aiding or abetting, shall forfeit to the school fund the sum of fifty dollars each. [--3386.]

[Sidenote: Return.]

The person solemnizing marriage shall forfeit a like amount, unless within ninety days after the ceremony he shall make return thereof to the clerk of the district court. [--3387.]

[Sidenote: Register of marriages.]

The clerk of the district court shall keep a register containing the names of the parties, the date of the marriage, and the name of the person by whom the marriage was solemnized, which, or a certified transcript therefrom, is receivable in all courts and places as evidence of the marriage and the date thereof. [--3388] The register of marriages kept by the clerk is always sufficient to establish marriage, in the absence of evidence to the contrary, but record evidence is not indispensable. The fact of marriage may be shown in various ways. It may be proved by the admissions or uncontradicted testimony of either party, or a legal presumption may be raised by the testimony of either husband or wife with proof of continued cohabitation. The evidence of witnesses who were present and witnessed the marriage is always sufficient.

[Sidenote: Peculiar mode.]

These provisions so far as they relate to procuring licenses and to the solemnizing of marriages, are not applicable to members of any particular denomination having, as such, any peculiar mode of entering the marriage relation [--3389].

[Sidenote: Husband responsible for return.]

But when any mode is thus pursued which dispenses with the services of a clergyman or magistrate, the husband is responsible for the return directed to be made to the clerk and is liable to the above named penalty if the return is not made [--3390].

[Sidenote: When void.]

Marriages between persons whose marriage is prohibited by law, or who have a husband or wife living, are void; but if the parties live and cohabit together after the death of the former husband or wife, such marriage shall be deemed valid [--3392]. A judicial decree is not necessary to annul a marriage between parties one of whom has a wife or husband living at the time, as such marriages are absolutely void, nor does such marriage confer any right upon either in the property of the other. A marriage procured by fraud or force is void, because it lacks the essential element of consent. Such marriages may be annulled by a court of equity, but false representations as to character, social position or fortune do not const.i.tute such fraud on the opposite party as to avoid a marriage induced thereby.

CHAPTER III.

HUSBAND AND WIFE

[Sidenote: Property rights of married women.]

A married woman may own in her own right, real and personal property acquired by descent, gift or purchase, and manage, sell, convey, and devise the same by will, to the same extent and in the same manner that the husband can property belonging to him. [--3393.] The husband is the legal head of the family and household furniture, pictures and all similar property used in the house occupied by husband and wife, is considered as being in the possession of the husband and under his control. Such property may be sold or mortgaged by the husband without the consent of the wife. Property conveyed to both jointly is held by them as tenants-in-common. Each owns an undivided one-half interest in such property, and this interest may be sold on execution to satisfy claims against husband or wife as the case may be. Property purchased with funds belonging to both husband and wife is owned by them jointly, the interest of each being in proportion to the amount of the purchase price contributed by each.

[Sidenote: Real property, Conveyance, or contract.]

A married woman may convey or enc.u.mber any real estate or interest therein belonging to her, and may control the same, or contract with reference thereto, to the same extent, and in the same manner as other persons [--3106].

[Sidenote: Conveyance by husband and wife.]