Legal Background:

Currently, Maryland Family Law Article §2-301 allows minors to marry under the following circumstances:

• A 16 or 17 year old, either:
  • With the parents’ or guardians’ consent and swearing that the person is aged 16 or older; or,
  • Without consent, but with a medical certificate that the bride is pregnant or has given birth.
• A 15 year old if s/he has the consent of a parent or guardian and provides the marriage licensing clerk a medical certificate that the bride is pregnant or has given birth.

A person under the age of 15 years may not marry.

Since 2016, there have been multiple failed attempts to pass legislation increasing the minimum age to marry in Maryland.

This did not pique my interest until I was assigned a case for facilitation/settlement, involving a married minor requesting a divorce. The case did not settle, perhaps because of my preoccupation with whether the minor had standing to sue for his/her own divorce.

Leading me to discover that… Marriage for minors is plagued with legal and public policy pitfalls. From the public policy perspective, marriage can be used to disguise human trafficking and to conceal abuse, domestic violence, neglect, and rape of the minor – either by the spouse or parents. Troubling in its own right…and a subject for another article.

From the legal perspective, the pitfalls are many:

Emancipation and Legal Capacity:

Marriage is not an emancipation event. Maryland lacks a formal emancipation procedure or statute for minors. A minor does not attain all the capacity, rights, powers, privileges, duties, liabilities, and responsibilities of an adult until reaching the age of majority, which is 18 years old in Maryland (General Provisions §1-401).

Until then, as it pertains to legal age and capacity, a minor is a person under the age of 18 (General Provisions §1-103). Age, not marriage, is the triggering event.

Marriage may confer certain rights on a minor if provided by statute. For example, a married minor can consent to medical treatment (Health General II §20-102(a)), and a married minor has expanded rights with respect to driver’s license applications (Transportation §16-107(a)) and ownership of real property (Estates and Trusts §13-503(a)). Marriage is an emancipating event for child support purposes if the child has reached the age of 18 but not yet graduated high school (General Provisions §1-401).

This means that a married minor lacks capacity to contract. Consider that for a moment.

Does a married minor have the right to

• Open a bank account?
• Apply for credit?
• Apply for a job?
• To establish an estate plan (including power of attorney and healthcare directive)?

Perhaps not insurmountable. But, if combined with an abusive spouse, an invitation for coercive control, isolation, and abuse.

Access to Justice and Due Process:

What if a married minor wishes to seek protection from domestic violence? Or, divorce? Can s/he file on his/her own behalf? No, because the Maryland Rules of Civil Procedure say so.

Maryland Rule 2-202 on “Capacity” requires an “individual under disability” to file or defend a suit through a guardian, other fiduciary, next friend, by a parent if in the parent’s custody, or by other interested person. Rule 1-202 defines, in part, an “individual under disability” as an individual under the age of 18 years.

There is no exception for married minors. Interestingly, “guardian” is defined as a natural or legal guardian (Rule 1-202) and pursuant to Family Law §5-203, the parents are the joint natural guardians of their minor child.

This begs the question of whether a married minor is in the custody of his/her parent(s) for purposes of Rule 2-202. If so, the custodial parent has one year to institute suit and if suit is not filed within one year, then any “person interested in the minor” has the right to sue. If not, through a next friend.

With some exceptions, Rule 2-202 requires the next friend to settle the case, which may require parent approval if the next friend is not the parent. Picarella v. Picarella, 20 Md. App. 499 (1974), is an example of a married minor seeking an annulment through a next friend.

Without legal capacity to contract, can a married minor retain an attorney? What if the parents do not support the divorce? Or will not file for protection from domestic violence?

Emancipation from Parental Control:

To further confuse the issue, certain sources speak of “emancipation from parental control” upon marriage.

Specifically: Pumphrey v. Pumphrey, 11 Md. App. 287 (1971), states: “While marriage may have emancipated him from parental control (see 8 Md. L. Rev. 71), it did not make him "self-supporting" within the ordinary sense of that term…Marriage, majority, and self-support may come at nearly the same time but each differs fundamentally from the others.”

Likewise, an informal opinion of the Attorney General dated July 3, 1997 states: “Emancipation by marriage frees the child from the control of the parents…Emancipation by marriage does not, however, free the child from legal disabilities imposed on minors, unless specifically provided by statute.”

But, saying that marriage is an emancipating event does not make it legally so. It is worth noting that at age 16, per Family Law §9-103, a child aged 16 or older and subject to a custody order may file a petition to change custody, proceeding in his/her own name without guardian or next friend.

Conclusion:

According to Maryland’s Department of Vital Statistics, over the last five years:

• In 2015: 31 minors married
• In 2014: 102 minors married
• In 2013: 102 minors married
• In 2012: 108 minors married
• In 2011: 145 minors married

Even if the numbers do not persuade, is marriage among minors legally tenable without the protections and benefits of emancipation? There is a simplicity to the logic of parental consent for underage marriage equals parental consent for underage divorce. But, when parental consent more closely resembles parental concealment - of abuse, neglect, and worse – this puts children at ongoing risk of harm until the age of majority. Additionally, there are legitimate reasons minor(s) wish to marry. Imagine a couple, one of whom enters the military, deploys, and wants to marry to provide benefits for a minor fiancé(e). Who may be expecting. It is time to consider:

• Increasing the minimum age to marry;
• Adopting an emancipation statute recognizing marriage as an emancipating event;
• Examine whether and at what age minors may file for divorce and protection from domestic violence (as well as other matters such as custody and child support) without a guardian or next friend; and,
• Whether there should be additional scrutiny of marrying minors, such as judicial review or court-appointed counsel for the minor.

Since 2002, Lindsay Parvis has represented clients in Maryland custody, divorce, and marital matters. She negotiates, litigates, and advocates for the best interests of her clients, whether in contested litigation, uncontested settlement, or premarital and other agreements. Her clients are not only spouses and parents, but also children whose interests she is appointed by the court to represent in contested custody litigation. She is a graduate of Mount Holyoke and University of Baltimore School of Law. Lindsay strives to improve Maryland law in the General Assembly, volunteering her time to monitor, advocate, and educate about legislative developments in family law. You can follow her on LinkedIn, Facebook, LindsayParvis.com, and subscribe to her Newsletter for discussion, news, and developments in Maryland family law.