Request By:
Ms. Dora N. Henry
Estill County Clerk
Irvine, Kentucky 40336
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion concerning the following question:
"Does a divorced girl under eighteen (18) years of age have to have consent from her parent or legal guardian to obtain a marriage license? "
KRS 402.210 reads in part:
"If either of the parties is under eighteen (18) years of age and not before married, no license shall issue without the consent of a parent, or guardian, personally given or certified in writing . . . ." (Emphasis added).
Here the girl, under 18, has been married before, but is divorced and living with her parents. The question is whether the parental or guardian's consent provisions of KRS 402.210 [see also KRS 402.020] apply to her current application for a marriage license.
The rule as to the legal effect of an emancipation of an infant by marriage is stated in 43 C.J.S., Infants, Sec. 116, p. 382:
"While, generally, the marriage of a minor works an emancipation at least as to his person, the emancipation of a minor by marriage does not, in the absence of express statutory provision to that effect, remove the civil disabilities imposed on him as a minor. To what extent such disabilities are removed depends on the statutes and the construction thereof." (Emphasis added).
As was said in Bensinger's Coex'rs v. West, Ky., 255 S.W.2d 27 (1953) 28, "Although it [parental emancipation] may remove the infant from parental control or destroy the common-law right of the parent to the services of the child, it has never been held in this or any other jurisdiction that such emancipation will render an infant sui juris." Emancipation has been said to generally refer to the parent's surrender of the right to a minor's earnings. Turner v. Turner, Ky., 441 S.W.2d 105 (1969) 107. See also 42 Am.Jur.2d, Infants, Sec. 3, p. 10, of similar import.
Although emancipation by marriage of an infant in Kentucky does not remove disabilities of infancy, it is our opinion that under the literal language of KRS 402.210, i.e., "under 18 years of age and not before married, " and where the girl has been married before, no consent of her father, mother, or guardian is required in her marriage application. (Emphasis added). The statute, KRS 402.210, makes it clear, we think, that it is only where the applicant is under 18 and not before married that parental or a guardian's consent is required. Otherwise, the phrase "not before martied" would be meaningless. We believe that the courts, if faced with this issue, would hold that they are bound by the plain and precise words, "not before married" , in interpreting the statute. H.O. Hurley Co. v. Martin, 267 Ky. 182, 101 S.W.2d 657 (1937) 660. Moreover, as was said in Hampton v. Commonwealth, 257 Ky. 626, 78 S.W.2d 748 (1935) 750, "It is an elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute." We believe that is what we are doing here in placing the phrase "not before married" within the general contextual frame of KRS 402.210.
In summary, the divorced girl under 18 does not require the consent of her father, mother, or guardian in making her application for marriage.