The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage

47 Pages Posted: 7 Jun 2012 Last revised: 3 Jan 2013

Vivian E. Hamilton

William & Mary Law School

Date Written: 2012

Abstract

Age at marriage has for decades been the strongest and most unequivocal predictor of marital failure. The likelihood of divorce nears 80 percent for those who marry in mid-adolescence, then drops steadily. Delaying marriage until the mid-twenties reduces one’s likelihood of divorce to 30 percent. Women who marry at age twenty-one or younger, moreover — and one in ten U.S. women do — experience worse mental and physical health, attain less education, and earn lower wages than those who marry later. Post-divorce, they and their children tend to endure even greater economic deprivation and instability than do never-married mothers, who will tend to invest more in market work and education.

While the social cost of early marriage is significant, U.S. policy disregards the hundreds of thousands of young people currently married or divorced, as well as those who may be contemplating early marriage. A comprehensive analysis of early marriage and its regulation is overdue, and I undertake it here.

I argue that an historic confluence of cultural and structural changes has simultaneously transformed the social function and meaning of modern marriage and prolonged the course of development to adulthood. I advance a new conception of “marital capacity” to redress the inadequacy of the current legal concept of consent. It recognizes adolescents’ and emerging adults’ cognitive abilities to understand and voluntarily consent to marriage, but also their psychosocial immaturity and incomplete acquisition of other abilities required to sustain modern marriage.

The median age at first marriage is rising, reflecting gradual social adaptation to these cultural and structural changes. Legal adaptation, however, has lagged. Even though law is only one of the structural influences on family formation, legal change bringing the marital age in line with the modern social institution will go far to alleviate the strain on individuals and cost to society imposed by early marriage.

Keywords: Teen Marriage, Age at Marriage, Adolescent Development, Emerging Adulthood

Suggested Citation

Hamilton, Vivian E., The Age of Marital Capacity: Reconsidering Civil Recognition of Adolescent Marriage (2012). Boston University Law Review, Vol. 92, p. 1773, 2012. Available at SSRN: https://ssrn.com/abstract=2079045

Vivian E. Hamilton (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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