No marriage between relatives within the prohibited degrees or between or with persons under the prohibited ages shall be declared void except by a decree of the district court upon proper proceedings. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of the minor or by the district attorney. In the case of minors, no party to the marriage who may be over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring the marriage void; but the minor may do so, and the court may, in its discretion, grant alimony until the minor becomes of age or remarries. If the parties should live together until they arrive at the age under which marriage is permitted by statute, then the marriage shall be deemed legal and binding.

History: Laws 1876, ch. 32, § 1; C.L. 1884, § 997; C.L. 1897, § 1430; Code 1915, § 3434; Laws 1927, ch. 110, § 1; C.S. 1929, § 87-110; 1941 Comp., § 65-109; 1953 Comp., § 57-1-9; Laws 1973, ch. 51, § 2; 2013, ch. 144, § 6.

The 2013 amendment, effective June 14, 2013, eliminated annulment; in the title, deleted "annulment"; after "or between or with", deleted "infants" and added "persons"; deleted the former fourth sentence, which provided that children of a void marriage are legitimate with the right of inheritance from both parents; and in the current fourth sentence, after "under which marriage is", deleted "prohibited" and added "permitted".

Penal provision not repealed by this section. — Penal provision of 40-1-8 NMSA 1978, directed against the uniting of persons under age in marriage, was not repealed by this section, enacted by same legislature, providing that such marriages should be declared void only by court decree. Territory v. Harwood, 1910-NMSC-029, 15 N.M. 424, 110 P. 556, 29 L.R.A. (n.s.) 504.

Prohibited marriages to be declared void by court. — When the legislature provided in this section (before its amendment) that the marriages prohibited by 40-1-6 NMSA 1978 (before its amendment) and 40-1-7 NMSA 1978 should be declared void by court decree, it left them none the less contrary to law and none the less among those "declared invalid" by the preceding act. The effect was to render less harsh the operation of the statute upon the participants in such illegal marriage and their possible and innocent offspring. Territory v. Harwood, 1910-NMSC-029, 15 N.M. 424, 110 P. 556, 29 L.R.A. (n.s.) 504.

Applicability to alimony where bigamous marriage admitted. — This act applies to no invalid or void marriages other than those enumerated, and cannot be grounds of alimony where a bigamous marriage is in effect admitted. Prince v. Freeman, 1941-NMSC-006, 45 N.M. 143, 112 P.2d 821.

Presumption as to validity of later marriage. — In dual marriage situations, where validity of second marriage is attacked on the basis of the first being a subsisting relationship at the time the second was contracted, the presumption of validity attaches to the second marriage. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.

To overcome presumption of validity which attaches to later marriage proof is required of the prior marriage plus the fact that it has not been terminated by death or divorce. Panzer v. Panzer, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.

Law reviews. — For article, "Annulment of Marriages in New Mexico," see 1 Nat. Resources J. 146 (1961).

For article, "Annulment of Marriages in New Mexico: Part II - Proposed Statute," see 2 Nat. Resources J. 270 (1962).

For symposium, "Equal Rights in Divorce and Separation," see 3 N.M.L. Rev. 118 (1973).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 4 Am. Jur. 2d Annulment of Marriage § 1; 52 Am. Jur. 2d Marriage §§ 6, 72 to 77, 148, 149.

Misrepresentation or mistake as to identity or condition in life of one of the parties as affecting validity of marriage, 50 A.L.R.3d 1295.

Mental capacity to marry, 57 A.L.R.2d 1250, 82 A.L.R.2d 1040.

Effect of intoxication on mental capacity to marry, 57 A.L.R.2d 1250, 82 A.L.R.2d 1040.

Effect of annulment of marriage and rights arising out of acts or transactions between parties prior thereto, 2 A.L.R.2d 637.

Avoidance of procreation of children as ground for annulment, 4 A.L.R.2d 227.

Cohabitation of persons ceremonially married after learning of facts negativing dissolution of previous marriage of one, as affecting right to annulment, 4 A.L.R.2d 542.

Validity of marriage as affected by intention of the parties that it should be only a matter of form or jest, 14 A.L.R.2d 624.

Antenuptial knowledge relating to alleged grounds as barring right to annulment, 15 A.L.R.2d 706.

What constitutes duress sufficient to warrant annulment of marriage, 16 A.L.R.2d 1430.

Racial, religious or political differences as ground for annulment, 25 A.L.R.2d 928.

Refusal of sexual intercourse as fraud sufficient for annulment, 28 A.L.R.2d 499.

Rights and remedies in respect of property accumulated by man and woman living together in illicit relations or under void marriage, 31 A.L.R.2d 1255.

Applicability, to annulment actions, of residence requirements of divorce statutes, 32 A.L.R.2d 734.

Soldiers' and Sailors' Civil Relief Act of 1940, as amended, as affecting matrimonial actions, 54 A.L.R.2d 390.

Right to allowance of permanent alimony in connection with decree of annulment, 54 A.L.R.2d 1410.

Court's power as to custody and support of children in annulment proceedings, 63 A.L.R.2d 1008.

Concealment of unchastity prior to marriage, as ground for annulment of marriage, 64 A.L.R.2d 742.

Determination of paternity, legitimacy or legitimation of children in action for annulment, 65 A.L.R.2d 1381.

Mental health of contesting parent as factor in award of child custody in annulment proceeding, 74 A.L.R.2d 1073.

Determination of property rights in wedding presents in action for annulment, 75 A.L.R.2d 1365.

Concealment of or misrepresentation as to previous marriage or divorce as ground for annulment of marriage, 15 A.L.R.3d 759.

Incapacity for sexual intercourse as ground for annulment, 52 A.L.R.3d 589.

Annulment as affecting will previously executed by husband or wife, 71 A.L.R.3d 1297.

Right to allowance of permanent alimony in connection with decree of annulment, 81 A.L.R.3d 281.

Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.

Homosexuality, transvestism, and similar sexual practices as grounds for annulment of marriage, 68 A.L.R.4th 1069.

Excessiveness of adequacy of attorneys' fees in domestic relations cases, 17 A.L.R.5th 366.

Sexual intercourse between persons related by half blood as incest, 34 A.L.R.5th 723.

Mental health of contesting parent as factor in award of child custody, 53 A.L.R.5th 375.

55 C.J.S. Marriage §§ 35, 36.