§10.03 Eligibility to Marry

• Jurisdiction: Washington

§ 10.03 ELIGIBILITY TO MARRY

One's eligibility to marry in Washington is strictly governed by statute. Chapter 26.04 RCW dictates both who may marry and who is prohibited from marrying. These statutory requirements have varied considerably over time, which is a reason to consult the current statute rather than relying solely on case law. In addition to defining eligibility, the statute also declares what attributes may render a party ineligible to marry.

[1] Who May Marry

Washington's statute declares any two persons 18 years of age and "otherwise capable" eligible to marry. RCW 26.04.010(1). The latter provision ("otherwise capable") presumably applies to restrictions found elsewhere in the statute, discussed in the next section.

License applicants must declare they are "the age of eighteen years or over." RCW 26.04.210(1). From our statute's language, it does not appear emancipation of a minor would, in and of itself, obviate the age requirement.

The statute allows parents or legal guardians to consent to the marriage of persons who are 17. RCW 26.04.210(1). Elsewhere in the chapter, the statute provides for a "judicial bypass" of the age limitation for persons under age 17, meaning a person under the age of 17 may be married if a showing of necessity is made to a superior court judge in a county of residence for one of the applicants. Specifically, RCW 26.04.010(2) provides: "Every marriage entered into in which either person has not attained the age of seventeen years is void except where this section has been waived by a superior court judge of the county in which one of the parties resides on a showing of necessity."

The statute offers no elaboration on what constitutes a "necessity." In some states with similar provisions, morality, dependency, and pregnancy justify judicial approval. See Erin K. Jackson, Addressing the Inconsistency Between Statutory Rape Laws and Underage Marriage: Abolishing Early Marriage and Removing the Spousal Exemption to Statutory Rape, 85 UMKC L. REV. 343, 354 (2017).

Read literally, the judicial bypass provision, RCW 26.04.010(2), appears to mean there is no minimum age for marriage in Washington. Cases interpreting criminal laws addressing sexual assault of minors appear to acknowledge this circumstance. See, e.g., State v. Stockwell, 159 Wn.2d 394, 399, 150 P.3d 82 (2007) (holding that "[n]onmarriage is an implied element of the crime of first degree statutory rape," in a case involving an eight-year-old). RCW...