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The rest of the marriage story

Tomorrow marks the 98th anniversary of the day when a pair of 18-year-olds stood before a Texas judge and exchanged their wedding vows.

And a year ago, The Legal Genealogist told the tale of that 1916 marriage — the bride and groom were my mother’s parents Clay and Opal (Robertson) Cottrell — and asked one question.

“Was the marriage legal?”1

Marr.appHere’s why that was an issue.

Clay Rex Cottrell had turned 18 on the 20th of April 1916;2 Opal Robertson had turned 18 on the 21st of August.3 Each of them had lost a parent at the age of 14: Clay’s mother died in July 1912;4 Opal’s father died in March of the same year.5

They were both living in Tillman County, Oklahoma, when they met; they married just across the state line in Wichita County, Texas. And in both states, it was perfectly legal for Opal to say “I do” at age 18.6

But Clay needed parental consent under the laws of either state: boys had to be 21 to marry without a parent’s okay.7

And there was no way Clay could have gotten his father’s consent — his parents had separated even before his mother’s death and I don’t think at the time he would even have known where his father was living.

So how did these kids get married when they did?

We know now what we didn’t know last year: Clay lied to the county clerk. The application he filled out for the marriage license required him to sign an affidavit under oath:

I, Clay Rex Cottrell, do solemnly swear that I am twenty-one years of age, and that Miss Opal Robertson is eighteen years of age, and that there are no legal objections to our marriage. 8

So… was the marriage legal?

Yes, it was.

There’s a difference in the law between a marriage that’s considered void and a marriage that’s considered voidable. A marriage that’s considered void is one the law says wasn’t a marriage at all; it’s so defective that nothing can cure the problem.9 If it’s just voidable, then what the parties themselves do can make it legal.10

And most things that people do when they’re not of age — like get married without parental consent — fall into that voidable category.11

So it was with that marriage: as long as Clay didn’t repudiate it before he turned 21, no-one could ever challenge it.

And considering that the marriage lasted a mere 53 years and 11 months — until his death in September 1970 — it’s a safe bet that marriage was legal.


SOURCES

  1. Judy G. Russell, “Was the marriage legal?,” The Legal Genealogist, posted 19 Oct 2013 (http://www.legalgenealogist.com/blog : accessed 17 Oct 2014).
  2. Virginia Department of Health, Certificate of Death, state file no. 70-026729, Clay Rex Cottrell (1970); Division of Vital Records, Richmond.
  3. Virginia Department of Health, Certificate of Death, state file no. 95-011808, Opal Robertson Cottrell (1995); Division of Vital Records, Richmond.
  4. Oklahoma State Department of Health, Tillman County, death certificate no. 6119, Tillman County, Mrs. M.G. Cottrell, filed 1 Aug 1912.
  5. Oklahoma State Department of Health, Tillman County, death certificate no. 3065, Tillman County, Jasper C. Robertson, filed 15 Mar 1912.
  6. See Compiled Statutes of Oklahoma (1921) Sec. 7490; digital images, Google Books (http://books.google.com : accessed 15 Oct 2013). And see Vernon’s Sayles’ Annotated Civil Statutes of Texas, Art. 4611 (1914); digital images, Google Books (http://books.google.com : accessed 15 Oct 2013).
  7. Ibid.
  8. Wichita County, Texas, Marriage License No. 4605, Cottrell-Robertson, 1916; County Clerk’s Office, Wichita Falls; FHL microfilm 1420837.
  9. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1226, “void.”
  10. Ibid.
  11. Ibid., 1227, “voidable.”
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