Void and Voidable Marriages in Maryland and Their Annulment

Void and Voidable Marriages in Maryland and Their Annulment

Maryland Law Review
Volume 2, Issue 3 (1938)
Article 2
pages 211-259

John S. Strahorn Jr., Professor of Law
University of Maryland

The essential task of this article will be to classify invalid or defective marriages in Maryland into those which are totally void and hence subject to collateral attack and those which are only voidable by appropriate steps of direct attack taken during the joint lifetime of the spouses. But, as investigation of this question requires a survey of all the local law concerning the requirements of and impediments to a valid marriage, and, as well, an inquiry into the procedural aspects of annulment, the article will be, in effect, one on the broader questions of validity of marriage and annulment in Maryland.


Terminology presents the first problem. The phrase “totally void” will be used herein to express the idea of a marriage’s possessing some defect rendering it susceptible to collateral attack, even after the death of one or both of the spouses. For such marriages no direct step or proceeding to annul is necessary, although the latter may be desirable. “Voidable” will be used to express the idea that the defect, at most, permits the validity of the marriage to be directly attacked by appropriate steps during the joint lifetime of the spouses, although without that the invalidity may not be asserted collaterally in any other proceeding. “Valid” and “completely valid” will be used interchangeably in the sense that the marriage meets all the requirements and encounters none of the impediments so that it can withstand both direct and collateral attack.

In addition to the question of total voidness or mere voidability, there must be considered whether, if the marriage be only voidable, it may be avoided by simple private act, or a judicial proceeding is necessary. Related to this is the matter of ratification, which is possible for some, though not all, voidable marriages and which is considered by some writers to be possible for certain marriages which are otherwise totally void. Whether such a latter class exists in Maryland law will be one of the inquiries of this article.’ A certain confusion exists between a marriage’s being totally void although capable of ratification, and its being voidable by private act without judicial proceeding…

…C. Race (Miscegenation).

White persons and Malayans are forbidden to intermarry and both are forbidden to marry Negroes or persons of Negro descent to the third generation. The statutory mode of expression to cover persons of mixed white and Negro blood is an awkward one and makes doubtful just what proportion of Negro blood will disqualify one from marrying a pure white person or Malayan. It is suggested that if the person in question has some non-Negro blood and that if all of his parents and grand-parents also had some, he is eligible for purposes of the statute, even though he is predominantly Negro.

Is a marriage which is definitely under the statutory ban totally void or only voidable? While no Maryland case has ever dealt directly with either the prohibition generally or the specific problem, a strong dictum in Jackson v. Jackson has indicated that such a marriage, forbidden by our statute, is so totally void that it cannot be recognized even when performed in a state sanctioning such marriages. As has been suggested, this should also determine the issue of total voidness or voidability for the purpose of internal law. This is particularly so in view of the fact that the Jackson case dictum put this type of marriage under the part of the exception to the conflicts rule for those marriages which “the local law making power has declared shall not have
any validity.

Granting such marriages to be totally void, what procedures are available for directly declaring that quality. The statutory procedure does not apply. No doubt, a divorce on the ground of marriage void ab initio could be procured. It is doubtful that an annulment under the general equity practice could be secured. A successful criminal prosecution for entering into the unlawful marriage (if the ceremony occurred in Maryland) or for illicit cohabitation s in Maryland under such an invalid marriage might accomplish the result of a judicial declaration of nullity, even though this does not come under the statutory method, which makes specific mention of criminal prosecution as an annulment device…

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