Number 4 July 26, 1973

Number 4 July 26, 1973 Honorable John F. X. Davoren Secretary of the Commonwealth State House Boston, Massachusetts 02133 Dear Mr. Secretary Mr. Edward C. Kloza, State Registrar of Vital Statistics within your office, has requested my opinion on the effect of the new legislation al- lowing males between the ages of 18 and 21 to marry in Massachusetts without parental consent, G. L. c. 207, §§ 7, 33 and 33A, as amended by St. 1971, c. 255. The questions presented are: "1. May a person between the ages of eighteen and twenty-one, whose parents reside in a state other than the Commonwealth, establish a residence within the Common- wealth for the purpose of obtaining a marriage license as per Chapter 207, Section 19 of the General Laws? "2. If the answer to the first question is in the negative, do the laws of the state in which the parents reside apply with respect to any requirements of parental consent?" The Massachusetts statutes in question here, G. L. c. 207, §§ 7, 33 and 33A, are applicable to Massachusetts domicilaries. A person must be a domiciliary to have the marriage laws of the state apply. See Re- statement — Conflict of Laws, § 132. A person, domiciled in another state, who comes to Massachusetts to marry is subject to the marriage laws of his domiciliary state. G. L. c. 207, §§ 11 and 12. In general, "domicil" means actual residence, coupled with an inten- tion to remain indefinitely. See Putnam v. Johnson, 10 Mass. 487, 500-501; Opinion of the Justices, 5 Met. 587, 590; Rummel v. Peters, P.D. 12 49 314 Mass. 504, 511. The intention to remain indefinitely does not mean an intention to stay forever, but merely that there is no present intention of leaving. Putnam v. Johnson, supra; Rummel v. Peters, supra. In Massachusetts the age of majority is 21. A legitimate minor child is ordinarily domiciled with his father or guardian. See Green v. Green, 351 Mass. 466, 467-468; Glass v. Glass, 260 Mass. 562, 564; Worcester V. Springfield, Ml Mass. 540, 541; Restatement-Conflict of Laws, § 31. An emancipated minor may establish his own domicil separate from that of his father or guardian. Restatement-Conflict of Laws, §31. An un- emancipated minor may only establish his own domicil with the assent, express or implied, of his parents or guardian. See Kirkland v. Whately, 4 Allen 462. Traditionally, without the consent of his parents, an un- emancipated minor may not establish his own domicil until he reaches the age of majority. See Green v. Green, supra: Glass v. Glass, supra; Worcester v. Springfield, supra; Restatement-Conflict of Laws, § 31. If these domicil principles were to apply to marriage, an unemancipated minor between the ages of 18 and 21 would be restricted to marrying in conformity with the laws of the state of his father's or guardian's domicil. See G. L. c. 207, § 12. However, the rules pertaining to domicil change for different pur- poses. They are, for instance, different for property tax liability, probate jurisdiction of wills, custody of children and voting.' Marriage is a status and, as such, for conflict of laws purposes, is governed by the laws of the domicil of the party or parties. Restatement-Conflict of Laws, § 121. In enacting legislation, Massachusetts can change the status of only its own domiciliaries; otherwise it must adhere to the laws of the domiciliary state, G. L. c. 207, § 12, or the marriage is void, G. L. c. 207, § 11. The purpose of the domicil requirement is to establish the superiority of one state's laws as against another's concerning the mar- riage. In my opinion, to restrict the ability of an unemancipated minor, over the age of 18, to choose his domicil for marriage purposes, but not re- strict him for voting purposes serves no useful purpose and is uncon- stitutional. See Op. Atty. Gen., 11/12-3. The new 18 to 21 year old resi- dent would be put in a separate category from the lifelong resident. The lifelong resident is permitted to establish a separate domicil from his father or guardian for marriage and voting purposes, whereas the new resident would be denied the right to establish a separate domicil for marriage purposes. Such a classification has no rational basis, cannot be justified by a compelling governmental interest and constitutes invidious discrimination in violation of the Fourteenth Amendment's Equal Pro- tection Clause. It could also act as a restriction on the freedom to travel and establish a new domicil. See U.S. v. Guest, 383 U.S. 745; Shapiro V. Thompson, 394 U.S. 618; Dunn v. Blumstein, 405 U.S. 330; Opinion of the Justices, 357 Mass. 827. In conclusion, a male between the ages of 18 and 21, whose parents reside in a state other than the Commonwealth, may establish a domicil 'See e.g.. Ti:\ii.\ v. FloiUla. 306 U.S. .«98. 413-428. Op. Ally. (icn.. 71^72-3. p. 3-6. 50 P.D. 12 within the Commonwealth for the purpose of contracting marriage. The determination whether a person between the ages of 18 and 21 has made his new Massachusetts residence his domicil for marriage purposes is a question of fact to be determined by all the circumstances of the case. Commonwealth v. Davis, 284 Mass. 41, 49; Tax Collector of Lowell v. Hanchett, 240 Mass. 557, 561. In view of my answer to the first question, no answer is required as to the second. Very truly yours, ROBERT H. QUINN Attorney General