To:
From:
Re:
Date:
Commissioners
Staff
Proposed project – Title 37 – Marriages and Married Persons
February 9, 2004
Title 37, Marriages and Married Persons, is divided into two chapters. Chapter 1.
Marriages, comprises five Articles.
Article 1. Prohibited Marriages, consists of only one section, enacted in 1912. Section
37:1-1. Certain marriages prohibited, states:
A man shall not marry any of his ancestors or descendants, or his sister, or
the daughter of his brother or sister, or the sister of his father or mother,
whether such collateral kindred be of the whole or half blood. A woman
shall not marry any of her ancestors or descendants, or her brother, or the
son of her brother or sister, or the brother of her father or mother, whether
such collateral kindred be of the whole or half blood. A marriage in
violation of any of the foregoing provisions shall be absolutely void.
These prohibitions are relied upon in the State nullity of marriage laws. N.J.S. 2A:34-1.
Causes for judgments of nullity, states that “Judgments of nullity of marriage may be rendered in
all cases when: b. The parties are within the degrees prohibited by law.”
The only fairly recently reported case concerning Section 37:1-1 deals with sex
reassignment surgery. M.T. v. J.T., 140 N.J. Super. 77, 84 (App. Div. 1976), cert. den. 71 N.J.
345 (1976). Although this section does not speak of marriage requiring one male and one
female, the court stated: “The pertinent statutes relating to marriages and married persons do not
contain any explicit references to a requirement that marriage must be between a man and a
woman. N.J.S.A. 37:1-1 et seq. Nevertheless that statutory condition must be extrapolated.”
Article 2. Marriage Licenses, comprises 14 sections, all but three dating back to 1912.
Some of the sections are poorly written. Several sections are substantially anachronistic and
offensive.
Section 37:1-5. Immediate marriage if arrested upon criminal charge, states:
If a person is arrested upon a criminal charge, involving an accusation of
bastardy, rape, fornication or of having had carnal knowledge of an
unmarried female, and the accused person consents to marry such female,
any licensing officer is authorized to immediately issue a marriage license
irrespective of the provisions of sections 37:1-3 and 37:1-4 of this Title.
The concluding paragraph of Section 37:1-6. Consent of parents or guardian of minor;
when required, states:
If any such male applicant for a license to marry shall be a minor under
the age of 18 years, and shall have been arrested on the charge of sexual
intercourse with a single, widowed or divorced female of good repute for
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chastity who has thereby become pregnant, a license to marry the female
may be immediately issued by any licensing officer to the minor upon his
application therefore, without the consent or approval required by this
section.
The statute does not define “good repute for chastity” nor does it specify who shall be the
arbiter. Neither of these provisions states what happens to the criminal charges. Decisions based
upon Section 37:1-6 emphasize the public policy of discouraging child marriage and note that
marriage emancipates a female minor.
Section 37:1-9. When issuance of license prohibited, is an archaic provision:
No marriage license shall be issued when, at the time of making an
application therefore, either applicant is infected with a venereal disease in
a communicable stage, or is a person currently adjudicated mentally
incompetent.
This provision, dating from 1912 and last amended in 1981, is no longer a realistic
approach to venereal diseases. The requirement for blood tests (former Article 4) was entirely
repealed in 1997. In the absence of a blood test, it is not clear who makes the determination at
the time of license application that an applicant is infected with a venereal disease in a
communicable stage.
Section 37:1-14. Certain marriages invalidated, is poorly written, probably unnecessary,
and enigmatic, as well:
All marriages performed prior to March twenty-seventh, one thousand
nine hundred and twelve, by a minister of any religion other than a stated
or ordained minister of the gospel, if otherwise valid, shall be as valid as if
the same had been performed by a stated and ordained minister of the
gospel.
Chapter 2. of the Title, Married Persons, deals with actions by and against married
women; separate property of married women; contracts, conveyances and other transactions by
married persons of or relating to their property; and premarital agreements. It comprises five
articles.
Article 1. General Provisions, consists of five sections, the majority dating from 1877.
Section 37:2-1. states:
A married woman may be an executrix, administratrix, guardian or
trustee, as if she were a feme sole. If she marries after her appointment,
the marriage shall not affect her authority as a fiduciary. A married
woman having power to sell, or having title to real estate as a fiduciary,
may sign all deeds and conveyances of the real estate, without a court
order and without joining her husband in the matter, as if she were a feme
sole.
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While this statute may have been important to give women property rights 125 years ago,
it is now outdated and should be removed. Title 3B, Administration of Estates – Decedents and
Others, enacted in 1981, speaks of “surviving spouses” without specifying wife or husband:
3B:5-3. (intestate share of surviving spouse), 3B:5-4. (intestate share of heirs other than
surviving spouse), 3B:10-2. (if person dies intestate administration granted to surviving spouse),
3B:10-3. (when surviving spouse is entitled to assets without administration). Section 3B:14-23
enumerates 30 powers of fiduciaries without mentioning gender or marital status. (L. 1981,
amended by L. 1991, L. 1993, L. 1997)
Section 37:2-2. permits a will “made in due form of law by a married woman” older than
21 years, to dispose of real or personal property and to be considered as valid a will as if the
woman were unmarried. However the section does not authorize her to dispose of any interest or
estate in real property which the husband would be entitled to when she dies. New Jersey
statutes on wills speak of testamentary capacity of persons; the section is anachronistic.
Section 37:2-3. states that “The domicile of a married woman shall be established by the
same facts and rules of law as that of any other person for the purposes of voting, officeholding,
testasy, intestacy, jury service and taxation.” Married women are not a separate category in laws
establishing domicile for the categories listed in this section; this anachronistic wording should
be removed.
Section 37:2-4. states that “All contracts made between persons in contemplation of
marriage shall remain in full force after such marriage takes place.” This 1877 provision is
superseded by the Uniform Premarital Agreement Act which was adopted in New Jersey in
1988; it constitutes Article 5. of this Title.
Section 37:2-5. states that “Nothing in this chapter contained shall enable a husband or
wife to contract with or to sue each other, except as heretofore, and except as authorized by this
chapter.” Case law has done what the statute has not. The rule of interspousal immunity for
personal torts originating in the negligent operation of an automobile was abandoned in Immer v.
Risko, 56 N.J. 482 (1970). See also, Nationwide Mut. Ins. Co. v. Perlman, 187 N.J. Super. 499
(App. Div. 1983), cert. den. 93 N.J. 292. The Immer rule applies equally to property damage and
personal injury. Balonis v. General Motors Corp., 160 N.J. Super. 254 (Law Div. 1978).
Article 2., Actions by Against Married Women consists of six sections.
Section 37:2-6. states that “A married woman may sue or be sued without joining her
husband, in any case whatsoever in which he would not be a necessary party if he were not her
husband.” Section 37:2-7. states that “If a female party to an action in any court of this state
marries after action brought, the action shall not abate by reason thereof, but shall proceed to
final judgment in the name of the female….” Section 37:2-8. states that “For all torts committed
by a married woman, damages may be recovered from her alone, and her husband shall not be
responsible therefore….” Section 37:2-9. allows a married woman to maintain an action in her
own name without joining her husband in the action, for torts committed against her or her
separate property, in the same way she could maintain an action as a feme sole. The husband
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may join his claim for damages he sustained in connection with the injury for which his wife
brings her action.
Section 37:2-10. states that “A husband shall not be liable for the debts of his wife
contracted before their marriage, or contracted by her, in her own name, after their marriage” but
she can be sued separately in her own name and property belonging to her can be used to satisfy
the debts, as if she were a feme sole. Section 37:2-11. states that a judgment obtained against a
married woman pursuant to this chapter shall be valid, and all property sold under lawful
execution shall become vested in the purchaser as fully as if the judgment and execution were
against an unmarried person. But no judgment against a married woman shall affect any estate
or interest of her husband in her real property.
Again, these statutes were necessary in 1877 to give married women the right to sue and
be sued. No one would doubt that the principles of these sections would be enforced now
without the statutory provisions. The statutes are now offensive, suggesting that men inherently
have these rights, while women are given them as an act of legislative grace. All of these
sections can safely be repealed; If they are retained, they should refer to married persons instead
of to married women.
Article 3, Separate Property of Married Women, comprises four sections, all but one
dating from 1877.
Section 37:2-12. states that the real and personal property a woman owns when she
marries, and the property (including profits) which she obtains after her marriage, “shall be her
separate property as if she were a feme sole.” Section 37:2-13. allows the wages a married
woman gained since July 4, 1852, or gained earlier in employment separate from her husband,
and all their investments, to be her separate property as if she were a feme sole. All work done
by a married woman for third persons since April 3, 1928, shall “be deemed to be performed on
her separate account.”
Section 37:2-14. states that “The paraphernalia of a married woman, being the suitable
ornaments and wearing apparel of a married woman, which have come to her through her
husband during coverture, shall be her separate property as if she were a feme sole.” Section
37:2-15. states that all property declared by this chapter “to be the separate property of a married
woman, shall not be subject to the disposal of her husband nor liable for his debts.”
Some of the substance of these sections seems inconsistent with the approach taken to
property on the dissolution of marriage. However, to the extent that the statutes still state the
law, they are unnecessary and the assumptions underlying them are offensive.
Article 4., Contracts, Conveyances and Other Transactions by Married Persons of or
Relating to Their Property, consists of 19 sections. Section 37:2-16. gives a married woman the
right to contract in the same way as if she were unmarried. The contract shall be legal and may
be enforced by and against her in her own name and apart from her husband. Any contract
affecting her estate or right in her real property or that of her husband shall be valid without the
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husband’s joinder or consent, but shall not affect any estate of the husband in the real estate. The
same considerations apply to this section as to earlier ones.
Section 37:2-16.1. allows a married woman to contract with her husband for the
formation of a partnership in the same way as if she were unmarried. Section 37:2-16.2. states
that a contract made by a married woman as a partner with her husband shall be as legal and
enforceable as if she were unmarried. These sections are unnecessary in light of current
partnership law.
Section 37:17. permits a married woman to execute in instrument relating to her estate,
real property or that of her husband as if she were unmarried. The instrument shall be valid
without the husband’s joinder or consent, but no conveyance of the married woman shall affect
the husband’s right in the property. Section 37:2-17.1., a particularly poorly written section,
states that a married woman of full age who joins with her husband in executing the deed of any
land after March 20, 1857, can lawfully enter into a covenant as to the title of the land, provided
that the covenant (except regarding land owned by her in her own right) has no greater effect
than to estop her than it would if she were a single woman.
Section 37:2-18. allows a married man to convey real estate directly to his wife, and a
married woman to convey real estate directly to her husband. Any conveyance shall convey the
entire estate of a married man or woman in lands held by the husband and wife as tenants by the
entirety, including the right of survivorship. “Any such conveyance shall also release the
inchoate or possible future estate by the curtesy or in dower of the husband or wife … in the
lands conveyed to the grantee, if so provided in such conveyance.” This section is atypical in the
mutual nature of the wife’s and husband’s rights. However, it has the same defect as others; it
was written to correct an old common-law principle that would no longer have any validity
without the statute.
Section 37:2-18.1., while sharing the mutuality of rights between wife and husband, is
quoted in its entirety to illustrate the dreadful wording characteristic of the entire Title:
A married man may relinquish or release to his wife his right of curtesy in
any real estate whereof his wife is seized of an estate of inheritance, and a
married woman may relinquish or release to her husband her right of
dower in any real estate whereof her husband is seized of an estate of
inheritance, by deed duly executed and acknowledged, in the manner
provided by law for deeds to be recorded, or by deed conveying such
estate of inheritance in said real estate by said husband to said wife or by
said wife to said husband wherein said husband’s right of curtesy or said
wife’s right of dower is specifically relinquished or released and thereafter
said real estate may be conveyed, encumbered, devised, or otherwise
disposed of, and shall descend, free and clear of any such right or estate of
curtesy or dower, but said real estate may descend to said husband or
widow, as the case may be, in case of the death of the wife or husband
intestate, in accordance with law, notwithstanding such relinquishment or
release.”
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Note, also, the unparallel use of “husband or widow.” With the abolition of dower and
curtesy, this statute has less and less utility over time. It may now be able to be repealed. If not,
it could be translated.
Section 37:2-19. allows a deed or conveyance of real estate in New Jersey conveying an
estate or interest of a married woman which has stood on the books of record for five or more
years to be considered valid despite any defect in acknowledgment of proof or omission of
certificate of authority showing that the officer who took the acknowledgment was the correct
person to do so. The purpose of this section is now unclear. If there is a current justification for
it, the same allowance should be made to married men.
Section 37:2-20. concerns title to real estate vested partly in a husband and partly in a
husband and wife by the entirety. If records show a conveyance by the widow of the entire fee
of the land made after the husband’s death (and no record of the husband having granted or
devised any of it), and the widow’s conveyance has been followed by her grantee’s possession
(not adverse), then it is conclusively presumed that the widow was seized of an entire estate in
fee, and that the conveyance is valid. This applies only when the widow’s conveyance was
recorded at least 60 years before any action by anyone claiming under the husband. Again, if
this rule is justified, there is no reason for it not to apply to husband and wife equally, and the
section should be rewritten to show the mutual rights.
Section 37:2-21. gives a married woman whose interest in real estate acquired by gift,
descent or devise, has been or may be sold by a Superior Court judgment or order, with proceeds
placed in the Court’s custody, and who is living separate from her husband for three or more
years, the right to apply to the Court for an order directing that the proceeds be paid to her free of
any right of curtesy or of any right of her husband therein. Again, with abolition of curtesy, it is
not clear that there is any reason for the statute. If any modern purpose remains, the principle
should be applied equally to dower.
Section 37:2-22. is quoted in full:
Notwithstanding that a married woman is restrained from anticipation, the
Superior Court may, if it thinks fit and it appears to the court to be for her
benefit, by order or judgment and with her consent, bind her interest in
any property or authorize her or her trustees to assign or convey the same.
Our research has not yet made this section comprehensible.
Section 37:2-23. allows a married woman who is separated from her husband by a
judgment founded on her application, and while separated, to convey any real property except
that which came to her by gift from her husband, “as if she were sole and unmarried.” Section
37:2-24. is the identical provision for a married man, including the “sole and unmarried”
language. If these sections have continued effect, they should be combined.
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Section 37:2-25. concerns a married woman owning lands in New Jersey who wants to
convey them but cannot because “lunacy or other mental incapacity of her husband” prevents his
joining her in executing deeds of conveyance. The Superior Court can direct that she may
convey without concurrence of her husband; the deed will convey lands free from any claim of
the husband and shall be an absolute bar to any right of curtesy if he survives her. Section 37:226. contains the court’s procedure when the wife petitions for an order authorizing the
conveyance which the husband cannot join in. The court shall ascertain the dollar value of the
the husband’s estate or interest in the lands, and direct that the value be paid out of the purchase
money by the purchaser to a court appointed guardian of “said lunatic or incapacitated husband”
or if none, to the clerk of the court. Section 37:2-27. directs that the word “convey” found in the
two preceding sections is to be construed to include the right to mortgage, and any court order
after April 8, 1903 shall be construed to include the right to mortgage. Section 37:2-28. appears
almost identical to Section 37:2-25. except that it deals with a wife’s sale for reinvestment or
exchange of real estate. Section 37:2-29. allows the court, in a sale for reinvestment or exchange
of real estate, “to impose such terms or conditions it deems advisable” instead of ascertaining the
dollar value of the husband’s estate.
These five sections appear unnecessary given the availability of guardianship for
incompetents.
Section 37:2-30. became law in 1967. It provides that “Any deed of conveyance or
mortgage executed and acknowledged by an adult married person in conjunction with his or her
minor spouse, if 17 years of age or older, conveying or mortgaging his or her, or their real
estate,” shall be valid despite the minority of the minor spouse at the time of execution and
acknowledgment. This section probably should be retained though it would benefit from
redrafting.
Article 5., Premarital Agreements, is New Jersey’s adoption in 1988, of the Uniform
Premarital Agreement Act. NJSA 37:2-31 to 37:2-41. It’s not broken and it should not be fixed.
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