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 assumed 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
assimilated 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marriage at fourteen for males and twelve for females is not repealed in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 constitute a valid
marriage, any mutual agreement between the parties to assume 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 assumed 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 constitute 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 constitute such fraud on the opposite party
as to avoid a marriage induced thereby.