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L / 2>. i..' /57- ^0
The Legal Status of Women
in the
United States of America


as of January 1, 1957


Women’s Bureau Bulletin 157-40 (Revised)

James P. Mitchell, Secretary
Mrs. Alice K. Leopold, Director

The report for South Dakota was prepared by Laura H. Dale
with the assistance of Laura H. Harris, under the general
direction of Alice A. Morrison of the Division of Women’s
Labor Law and Civil and Political Status of the Women’s
Bureau, U. S. Department of Labor.


For sale by the Superintendent of Documents, U. S. Government Printing Office
Washington 25, D. C. - Price 15 cents


Civil rights
Contracts and property
1. Age of majority
2. Contractual powers of a minor
3. Property exemptions from seizure for debt__________________
A. Respective rights ofman and woman_________________
B. Homesteads
4. Ownership and control of property owned at marriage_________
5. Contractual powers of a married woman____________________
6. Earnings of a married woman
7. Liability for family support
8. Right of a married woman to engage in a separate business_____
9. Rights of a married woman with respect to separate property___
10. Property acquired by joint efforts of husband and wife________
11. Damages for injury to person, property, or character__________
12. Damages for injury by spouse to person or property__________
13. Competency of husband or wife to testify for or against each other,
14. Right to dispose of separate property by wrill________________
15. Inheritance rights in deceased spouse’s estate________________
16. Provision for survivors during administration of estate________
17. Right of husband or wife to disinherit the other by will________
Marriage and divorce
18. Age of consent to marriage
19. Common-law marriage
20. Premarital requirements
21. Interstate cooperation in marriage-law enforcement___________
22. Annulment
23. Divorce
Parents and children
24. Parents’ right to services and earnings of a minor child________
25. Guardianship of a minor child
26. Appointment of testamentary guardian for a minor child______
27. Inheritance—-child
28. Child born out of wedlock
29. Inheritance—child born out of wedlock
Political rights_________________
30. Domicile of a married woman
31. Public office—eligibility of women
32. Jury service—eligibility of women






The Legal Status of Women in the
United States of America

Any conclusion bearing on woman’s status under the laws of the
United States of America must take into account the common law, on
which the fabric of the Nation’s jurisprudence is woven.
The common-law rules of property sprang from various causes,
notably tradition, military or economic exigency, and “natural male
dominance.” Economic and social advances in the position of women
in the United States have brought about marked changes in the laws
governing property and family rights and political status.
In general, it has been the rule that where specific statutes abrogating
common-law principles have not been enacted, the common law applies.
In the century just past, many of the old common-law injustices to
women have been removed by statute.
The material considered centers largely around the woman in the
marriage relation, since the legal status of the unmarried woman is
practically identical with that of the unmarried man.
The United States Summary of the Legal Status of Women in the
United States of America, Bulletin 157, has been brought up to date
as of January 1,1953. Information in the Summary is compiled from
the reports for each of the 48 States and the District of Columbia.



Constitution of South Dakota
South Dakota Code of 1939
1952 Code Supplement
Session Laws, 1953,1955
South Dakota Reports
Northwestern Reporter
Explanatory Note

This pamphlet, Bulletin 157—40, presents a digest of the Constitution
and statutory provisions affecting the legal status of women in the
State of South Dakota. It includes pertinent statutory changes en­
acted in that State up to January 1,1957, and supersedes the previous
report and addendum for South Dakota.
References to the State Constitution are indicated by parenthetical
insertions of article and section numbers following the abbreviation
“Const.,” as “(Const., art. 21, sec. 4),” placed after the related subject
References to the code sections are likewise in parentheses, as “(sec
Session Laws are referred to by year of enactment and page number,
as “(1955, p.479).”
Case citations definitely construing statutes or declaring judicial
policy in the absence of express statutory provision are indicated by
footnote references. Cases showing historical development of a statute
or policy are followed by the abbreviation “hist.”
Numbered subject headings are the same as those used in the Sum­
mary. Cross references employ these numbers for brevity, as “See
number 6,” which refers to the subject heading “Earnings of a married


Contracts and Property
1. Age of majority

Males attain their legal majority at the age of 21 years; females,
at 18 years (sec. 43.0101).
2. Contractual powers of a minor

A minor cannot give a delegation of power nor—under 18 years of
age—make a contract relating to real property or to personal prop­
erty not in his immediate possession or control (sec. 43.0103). He can,
however, make any other contract in the same manner as an adult,
subject to his disaffirmance in general and to the statutory marriage
provisions (sec. 43.0104). He cannot disaffirm (a) a valid contract
for the reasonable value of necessaries purchased by him when not
under the care of a parent or guardian able to provide for him (sec.
43.0106), or (5) a valid obligation incurred by him under an express
provision of statute (sec. 43.0107).
In all cases other than those specified, a minor’s contracts made
before he is 18 years of age may be disaffirmed by him either before
his majority or within 1 year afterward, or—if the contracts are
made while he is over the age of 18—they may be disaffirmed upon
his restoring the consideration to the party from whom it was received
or paying its equivalent with interest (sec. 43.0105).
A bank deposit in the name of a minor shall be held for the ex­
clusive right and benefit of the minor, and interest due shall be paid
to the person in whose name the deposit is made. The receipt of the
minor is sufficient release or discharge of such deposit (sec. 6.0413).
Shares in building and loan associations may be subscribed for, held,
transferred, and payments made therein by any minor and with the
same effect as though he were of full age, except that such minor or
his estate shall be bound on his subscription for stock only to the
extent of payments actually made thereon (sec. 7.0205).
The disability of minority of any person eligible for guaranty or
insurance of a loan pursuant to the Serviceman’s Readjustment Act,




and of the minor spouse of any eligible veteran, is removed for all
purposes in connection with such transaction (sec. 43.0103-1).
A minor is liable in a civil suit for a wrong done by him (sec.
Minors are incompetent to act as executors (sec. 35.0402) or ad­
ministrators (sec. 35.0503).
(See number 14 as to capacity to make a will.)
3. Property exemptions from seizure for debt

Respective Rights





Exemption of a reasonable amount of personal property is author­
ized by the Constitution (Const., art. 21, sec. 4).
Three classes of exemptions—(a) absolute, (5) additional, and (o)
alternative—are established by statute:
(а) Absolute exemptions include all family pictures; a church pew;
a burial plot; the family Bible and all schoolbooks used by the family,
and all other books used as a part of the family library, not exceeding
$200 in value; all wearing apparel and clothing of the debtor and
his family; 1 year’s supply of family provisions; necessary fuel for
1 year; and the homestead, as defined by statute (secs. 51.1801,
(б) In addition to absolute exemptions, the debtor, if head of a
family, may select from his other personal property an exemption
aggregating not more than $750 in value. This class covers “goods,
chattels, merchandise, money or other personal property.” If the
debtor is a single person, not the head of a family, this exemption is
allowed but limited to $300 in value (sec. 51.1803).
(c) Instead of additional exemptions the debtor, if the head of a
family, may select alternative exemptions consisting of specific family
and household possessions, livestock with necessary food for them,
farm implements, or mechanical or professional equipment for earn­
ing a livelihood. Statutory limits of maximum total value are set
for each class of property (sec. 51.1804).
None of the enumerated exemptions avails against debts for pur­
chase money, laborers’ or mechanics’ wages, or material furnished, as
prescribed by statute (secs. 51.1707, 51.1807).
No exemptions except those classed “absolute” may be allowed to
(a) a nonresident, (&) a debtor in the act of removing his family from
the State, or (<?) one who has absconded, taking his family with him
(sec. 51.1808); nor against a debt for property obtained under false
pretenses (sec. 51.1809); nor against penalties, forfeitures, and costs in
criminal cases (sec. 51.1810).



When garnishment or levy under judicial process has been used to
reach earnings to secure or satisfy a claim and such earnings have been
determined to be exempt, further earnings of the debtor may not be
garnisheed for a period of 6 months, unless the debtor s financial status
has changed to the extent that the property is in excess of all his
exemptions (sec. 37.5001).
From the proceeds of insurance on the life of any person resident in
the State at the time of his death who leaves a surviving widow, hus­
band, or minor child or children, any amount not exceeding $5,000 is
exempt to the use of such surviving spouse, child, or children, though
the policy is payable to the order of the insured or his assigns, estate,
executor, or administrator, provided it has not been assigned to another
person. The $5,000 so exempted is not subject to the payment of any
debt of the insured, or of the surviving widow, husband, or minor child
or children (sec. 51.1805).
The provisions of the statute which set apart insurance proceeds to
the extent of $5,000 for the surviving husband, widow, or children
apply whether or not such beneficiaries are residents of the State, since
the statute affects distribution of property as well as exemption.1
B. Homesteads

Homestead exemption to “all heads of families” is authorized by the
Constitution (Const., art. 21, sec. 4).
The homestead “of every family, resident in this State” is declared
exempt so long as it continues to possess the character of a homestead
(sec. 51.1701). A “family” may be a widow or widower, though
without children, continuing to occupy the homestead used as such at
the death of the deceased spouse; or any family consisting of one or
more persons in actual occupancy of a statutory homestead (sec.
The owner or the husband or wife may select the homestead, causing
boundaries to be marked and a description of them recorded, as pro­
vided by statute (secs. 51.1711,51.1712).
The homestead must embrace the house used as a home by the owner
(sec. 51.1708). If it is within a town plot, the area is limited to 1
acre; if rural property, the aggregate area may not exceed 160 acres.
Special provisions are made for homestead limits in mineral lands
acquired under laws of the United States (secs. 42.0101, 51.1710).
In general, a homestead is exempt against the claims of creditors to the
extent of $5,000, above any encumbrances (secs. 37.4909, 51.1802) .2
i;n re Babcock’s Estate (1936), 64. S. D. 283, 290; 2.66 N. W. 420.
a Peck v. Peck (1927), 51 S. D. 157, 165; 212 N. W. 872.



Neither husband nor wife can convey or encumber, by his or her
sole deed, the homestead owned by either of them, when both spouses
are residents of the State (sec. 51.1703). Statutory provision is made,
however, for conveyance or encumbrance by the separate deed or mort­
gage of one spouse of his or her title in any real estate, including the
homestead, when the other spouse is insane or mentally incompetent
(sec. 51.1704).
Upon the death of the owner of a homestead, the legal title to the
property passes to the heirs under the statute or to the person or per­
sons designated by will (sec. 51.1717). (See number 14 as to limits
of will.) But the right of possession and occupancy of the whole
homestead remains in the owner’s surviving husband or wife “until it
is otherwise disposed of according to law, and upon the death of both
husband and wife the children may continue to possess and occupy the
whole homestead until the youngest child becomes of age” (sec.
51.1716). The homestead cannot be partitioned among the heirs so
long as it is occupied as a homestead by the surviving husband, wife,
or any minor child.3
4. Ownership and control of property owned at marriage

The real and personal property of any woman in this State, acquired
before marriage, and all property to which she may after marriage
become in any manner rightfully entitled, is her separate property and
is not liable for the debts of her husband (Const., art. 21, sec. 5). (See
also number 9.)
5. Contractual powers of a married woman

All persons are capable of contracting except minors, persons of
unsound mind, and persons deprived of civil rights (sec. 10.0201).
The wife retains after marriage all the civil and property rights of
a single woman. She may buy and sell, receive and convey, will, or
otherwise dispose of any real or personal property belonging to her, or
in which she may have an interest, without joining the name of her
husband, except as provided in the case of a homestead (secs. 14.0204,
14.0207). (See number 3.)
Either husband or wife may enter into any contract or transaction
with the other or with any other person, respecting property, which
either might if unmarried (sec. 14.0202).
A husband and wife may hold real or personal property together
as joint tenants or tenants in common (sec. 14.0204). A conveyance
or other instrument executed by a married woman has the same effect
as if she were unmarried, and may be acknowledged in the same man­
ner (sec. 51.1624).
3 Wells v. Swenney (1903), 16 S. D. 489. 495 ; 94 N. W. 394; 102 A. S. E. 713.



Husband and wife cannot alter their legal relations by any contract
with each other, except as to property, and except that they may agree
in writing to an immediate separation and may make provision for the
support of either of them and of their children during such separation
(sec. 14.0202).
Marriage does not disqualify a woman from serving as administra­
trix (sec. 35.0504) or as executrix (sec. 35.0404). The surviving hus­
band or wife, or some competent person he or she selects, is given pref­
erence for appointment as administrator of the estate of a person
dying intestate (sec. 35.0501). But among several persons claiming
and equally entitled to administer upon an estate, males must be pre­
ferred to females, and relatives of whole blood to those of the half
blood (sec. 35.0501 (10)).
After enumeration of the various civil actions in which a defendant
may be arrested, the statute provides: “No female shall be arrested
in any action, except for willful injury to person, character, or prop­
erty” (sec. 37.2502 (10)).
When real property of an estate cannot be divided without prejudice
or inconvenience to the owners, the court may assign the whole to one
or more of the parties entitled to shares therein who will accept such
assignment, always preferring the males to the females. The parties
accepting the whole estate must pay to the other parties their just pro­
portion of the true value thereof (sec. 35.1717).
6. Earnings of a married woman

The wife retains after marriage all the civil and property rights of
a single woman (sec. 14.0207). The earnings of the wife are not
liable for the debts of the husband; and the earnings and accumula­
tions of the wife and of her minor children living with her or in her
custody while she is living separate from her husband are her separate
property (sec. 14.0206).
7. Liability for family support

Husband and wife contract toward each other obligations of mutual
respect, fidelity, and support (sec. 14.0201). The husband must sup­
port himself and his wife out of his property or by his labor. The
wife must support the husband out of her separate property when he
has not deserted her, has no separate property, and is unable from
infirmity to support himself (sec. 14.0209).
The husband is not bound to support his wife if she has abandoned
him without cause or lives separately from him by agreement without
provision for support (sec. 14.0211).
In general, every husband and wife is jointly and severally liable
for the purchase price of necessaries, consisting of food, clothing, and



fuel purchased by either of them for their family while they are living
together as husband and wife (sec. 14.0206).
If a parent neglects to provide articles necessary for a child under
his charge, according to his circumstances, a third person may in good
faith supply such necessaries and recover the reasonable value thereof
from the parent (sec. 14.0313).
A man who without good cause willfully abandons or neglects or
refuses to provide for his wife, leaving her in a destitute condition;
and any person who without good cause willfully abandons or neglects
or refuses to provide for his or her child by birth or adoption, under
16 years of age, leaving such child in a destitute condition, on con­
viction is subject to imprisonment (sec. 13.3202).
When a husband or wife abandons his or her spouse, removing from
the State and remaining away for 1 year or more, or is sentenced to
imprisonment for 1 year or more, or becomes insane and is committed
to a hospital for the insane, and such spouse is without means of
support, a judicial proceeding is available under which the court may
empower the applicant or some other suitable person to manage, con­
trol, sell, or encumber the property of such offending, imprisoned, or
insane person in order to provide suitably for the spouse and minor
children during the period of abandonment, imprisonment, or in­
sanity (sec. 14.0205).
8. Right of a married woman to engage in a separate business

There is no statute requiring decree of a court or formal consent of
the husband to enable a married woman to engage in a separate
(See numbers 5 and 9 as to contracts and separate property.)
9. Rights of a married woman with respect to separate property

Except for mutual obligations of support imposed by statute, neither
husband nor wife has any interest in the property of the other, but
neither can be excluded from the other’s dwelling (sec. 14.0203). The
wife may convey her separate property without her husband’s consent.
If she chooses she may prepare a formal inventory of her separate
personal property and record it in the office of the register of deeds in
the county of her residence. The filing of the inventory is notice, and
evidence in the wife’s favor, of her title in the property (sec. 14.0204).
(In a case in which the wife sued for the recovery of property claimed
by her which had been taken in mortgage foreclosure as that of her
husband, it was held that she could recover despite the fact that she
had not filed an inventory as provided in the statute. The court said
that while a married woman may file such an inventory, she is not
bound to do so, and by a failure to file it she only subjects herself to



the burden of proving her ownership in the same manner as other
The separate property of the wife, which includes her earnings and
accumulations, is not liable for the debts of her husband, and the hus­
band’s separate property is not liable for the debts of the wife con­
tracted before marriage (sec. 14.0206).
10. Property acquired by joint efforts of husband and wife

In general, the common-law rule governs, which provides that prop­
erty acquired during the marriage by the cooperative efforts of husband
and wife belongs to the husband as the head of the family and the
person charged primarily with its support. However, joint ownership
may be created by private arrangement, such as joint deeds or joint
bank accounts, which clearly show that a joint ownership is created
(sec. 14.0204).
Stock issued by a building and loan association to a husband and
wife shall be held by them as joint tenants and may be paid to either
of them or to the survivor (sec. 7.0206).
11. Damages for injury to person, property, or character

A married woman may sue in her own name, without joining her
husband as party plaintiff, for any injury to her reputation, person, or
property. In like manner, actions founded upon her separate con­
tracts or torts or relating to her individual property may be brought
against her without joining the husband as party defendant (sec
Neither husband nor wife, as such, is answerable for the acts of the
other (sec. 14.0206). (See number 5 as to liability on contracts.)
It is the established law of the State that the wife, independent of
any statute, has a cause of action against any person wrongfully inter­
fering with the marital relationship.®6 (Her status thus is recognized
as identical with that of the husband in protection of this right.)
A parent, brother, sister, or person in loco parentis may maintain
an action against a seducer for recovery of all medical attendance,
nursing and other expenses incident to the subsequent illness and
confinement of the person seduced, and in all such actions the plain­
tiff shall recover not only actual but exemplary damages (sec. 37.2001).
An unmarried woman may maintain an action for seduction for
actual as well as for exemplary damages (sec. 37.2002).
4 Anderson v. Medliery (1902), 16 S. D. 324, 328; 92 N. W 1089
(histTrg V' SC°U <1917>’ 38 S' D' 422’ 429’ 431: 161 N- W' "®:
« Holmstrom v. Wall (1936), 64 S. D. 467, 469 ; 268 N. W. 423.

R- A‘ 19170 732



12. Damages for injury by spouse to person or property

No authority has been found expressly changing the rule of the
common law that no right of action can exist between husband and
wife for a tort committed upon the person of one by the other.
In cases of marriage between the parties to a seduction, if it appears
that the seducer has abandoned his wife or family or entered into
the marriage relation for the purpose of avoiding prosecution, the
wife may maintain an action against her husband for all damages
sustained by her as well as for exemplary damages (sec. 37.2003).
13. Competency of husband or wife to testify for or against each

The general rule of the statute is that neither husband nor wife
can testify for or against the other without the other s consent.
Husband and wife are competent witnesses to testify against each
other without the other’s consent in actions brought by either against
any person for damages for criminal conversation, for alienation of
affections, or for any cause involving the moral reputation of the
other (sec. 36.0101).
Laws attaching a privilege against the disclosure of communica­
tions between husband and wife are inapplicable to proceedings under
the Uniform Eeciprocal Enforcement of Support Act. Husband
and wife are competent witnesses to testify to any relevant matter,
including marriage and parentage (sec. 14.0819,1952 Supp.).
In all prosecutions pertaining to desertion of wife or child, the
husband and wife are competent witnesses for the State and may
testify to any relevant acts or communications between them. No
husband or wife shall be called as a witness against the other without
the consent of such witness (sec. 13.3203).
In actions for damages for seduction, if it appears that the defend­
ant married the person seduced, the wife is a competent witness against
her husband (sec. 37.2004).
14. Right to dispose of separate property by will

Subject to right of occupancy of a homestead, every person over
the age of 18 years and of sound mind may by last will dispose of all
his estate, real and personal (sec. 56.0202).
If a person, after having made a will, marries and has a child who
survives the testator, the will is revoked unless provision has been
made for the child by settlement, by the will, or by reference in the
will showing an intention not to make such provision. If a testator
» State v. Burt (1903), 17 S. D. 7; 94 N. W. 409 ; 106 A. S. R. 759.



marries and his or her spouse survives, the will is revoked unless
provision is made for the surviving spouse by marriage contract, by
provision in the will, or by reference therein showing an intention not
to make such provision (sec. 56.0223; 1955, p. 479).
15. Inheritance rights in deceased spouse’s estate

When any person having title to any estate not otherwise limited
by marriage contract dies without disposing of the property by will,
the portion subject to distribution after payment of debts is succeeded
to by a surviving spouse in the following manner:
When one child or its lawful issue survives, the decedent’s husband
or wife takes an equal share with such child or its issue.
When more than one child is living, or one child and the lawful
issue of one or more deceased children, or no child but only lineal
descendants, the spouse takes one-third.
When no issue survives and the estate does not exceed $50,000 in
value, all of it goes to a surviving husband or wife; but if the estate
exceeds $50,000, the living spouse takes the first $50,000 and one-half
the remainder when decedent is survived by parent, brother, sister,
or issue of deceased brother or sister.
When decedent leaves no issue and no parent, brother, or sister, the
whole estate goes to the surviving husband or wife (sec. 56 0104­
1953, p. 421).
(See number 27 as to share of decedent’s parents.)
Dower and curtesy are abolished (secs. 14.0206, 56.0103).
16. Provision for survivors during administration of estate

Upon the death of any husband or wife or head of a family, having
selected or being entitled to select a homestead as provided by law, the
survivor or survivors of such homestead claimant who are legally en­
titled to the right may continue to have exclusive possession of the
statutory homestead and of its rents and profits until it is otherwise
disposed of. In addition, specific personal property enumerated in the
statute, including all wearing apparel and clothing of the decedent
and family, 1 year’s supply of family provisions, and household fur­
nishings up to $150 in value, is to be delivered immediately to the sur­
viving spouse and children and is not liable for any prior debts or
claims whatever (sec. 35.1302).
An additional allowance of $750 in money or personal property is
to be made and set apart to the surviving spouse or minor child or
children, subject only to expenses of the decedent’s last illness, funeral
charges, and administration expenses if no other assets are available.
If the pei son died intestate and the estate consists only of personal
property, the county court must assign money or property up to $1,500



in value for the use and support of his widow, or widow and minor
children, after payment of expenses for decedent’s last illness and
funeral and administration costs (sec. 35.1303).
Besides these specific provisions the county court is authorized, in
its discretion, to order reasonable further allowance from the estate,
when necessary for maintenance of the family, under conditions pre­
scribed by the statute, subject only to prior payment of funeral and
administration expenses (sec. 35.1304).
When personal property is set apart for the use of the family, in
accordance with the statute, it becomes the property of the surviving
spouse if decedent left no minor children. If a minor child survives,
the spouse receives one-half the property; if more than one minor
child, the spouse receives one-third (sec. 35.1305).
Whenever money, personal property, or income is set apart for the
use of the family, and the decedent is survived by a spouse and a minor
child, the court may dispense with the appointment of a guardian to
control and manage the share of such minor child, and may direct that
such share be turned over to the surviving spouse for the use and benefit
of the surviving minor child (sec. 35.1312).
Exception under family allowances

If the surviving spouse has a maintenance from his or her own prop­
erty equal to the portion set apart by law, he or she is allowed only the
spouse’s right in the homestead (sec. 35.1306).
Sumary administration

Summary administration may be had when the decedent was a resi­
dent of the State, died in the State, or left property therein, and (a)
the total gross value of the estate at time of death does not exceed
$2,500, exclusive of any and all property situated elsewhere; or (b)
the total gross value of the estate, exclusive of the homestead, within
the State does not exceed $1,500, provided the value of the homestead
is under $5,000 and the decedent is survived by a spouse and one or
more minor children (sec. 35.0701,1952 Supp.).
17.Right of husband or wife to disinherit the other by will

There is no statute which gives either husband or wife the right of
election between provisions made for him or her by the will of a de­
ceased spouse and the share passing to the surviving spouse under the
statute governing intestate estate. It should be noted that life pos­
session and occupancy of the homestead and general allowances of
exempt property, including insurance, are preserved to a surviving
spouse and minor children, if any.



Marriage and Divorce
18. Age of consent to marriage

An unmarried male of the age of 18 years or older and an unmar­
ried female of the age of 15 years or older who are not otherwise dis­
qualified are capable of consenting to and consummating a marriage
(sec. 14.0109).
License to marry may not be issued in any case in which either
party is under the age necessary to render the marriage absolutely
valid, or is under the age of majority, unless his or her parent or
guardian consents in writing, duly acknowledged or proved (secs.
The statutory requirements as to the consent of the parents to the
issuance of a marriage license to minors are only directory and do not
affect the validity of the marriage.8
19. Common-law marriage

Common-law marriages can exist under the laws of this State.9
Certain requisites are necessary to constitute such marriages, how­
ever. There must be a current understanding that the parties are
husband and wife; they must at once, and in good faith, assume the
marriage relation with the intent to continue it during the remainder
of their lives. Both parties must in good faith believe and understand
that they are in fact and in law husband and wife. No mere illicit or
adulterous intercourse, even with the intent to become legally married
at some future time, is sufficient.10 The law presumes that relations
which were illicit in their beginning continue so.11 (It is significant
that in none of the three cases cited was the claim of a common-law
marriage established from the proof.)
20. Premarital requirements

All persons applying for license to marry must file a certificate of a
physician showing that within the 20 days prior to the application
thorough physical examination and standard laboratory tests have
been made for discovery of syphilis. A license may not be issued
unless the certificate indicates either the absence of the disease or, if
present, that it will not become communicable. Exception to this re­
quirement is allowed only on physician’s affidavit that pregnancy
exists (sec. 14.0123, 1952 Supp.).
s Lessert v. Lessen (1935), 64 S. D. 3, 5 ; 263 N. W. 559.
0 Svendsen v. Svendsen (1916), 37 S. D. 353, 368 ; 158 N. W. 410 (hist.).
w Bracken v. Bracken (1922), 45 S. D. 430, 433 ; 188 N. W. 46.
UAgncw v. Agnew (1931), 58 S. D. 164. 171 ; 235 N. W. 644.



21. Interstate cooperation in marriage-law enforcement

All marriages contracted outside the State which would be valid
by the laws of the jurisdiction where contracted are valid in this State
(sec. 14.0103).
22. Annulment

Annulment of marriage may be granted if at the time of the mar­
riage: (a) the party seeking annulment was under the age of legal
consent to marry, and married without consent of parent or guardian;
(b) either party had a living spouse of a former undissolved marriage;
(c) either party was of unsound mind; (d) consent of either was ob­
tained by fraud; (e) consent of either was obtained by force; or (/)
either party was physically incapable of entering into the marriage
state and this condition appears incurable. A decree of annulment
will not be granted under causes (a), (c), (d), or (e) when the parties
have freely cohabited as husband and wife after the disability, de­
lusion by fraud, or restraint by force has been removed (sec. 14.0601).
The following marriages are null and void from the inception:
(a) Marriage within prohibited degrees of kinship or parental re­
lationship; (b) marriage contracted during life of former spouse,
unless prior marriage has been dissolved, or unless former spouse was
absent and not known to be living for 5 successive years immediately
preceding subsequent marriage; (c) intermarriage of persons belong­
ing to certain specified races (sec. 14.0106).
Persons who intermarry within the degree of consanguinity within
which marriages are by law declared incestuous and void are punish­
able by imprisonment in the State penitentiary for a period not to
exceed 10 years (sec. 13.1715; 1953, p. 56).
The issue of all marriages null in law are legitimate (sec. 14.0301).
The court must award the custody of children of a marriage annulled
on the ground of force or fraud to the innocent parent and may also
provide for their education and maintenance out of the property of
the guilty party (sec. 14.0604).
23. Divorce

Divorce may be granted on any of the following grounds: Adultery,
extreme cruelty, willful desertion, willful neglect, habitual intemper­
ance, conviction of felony, or incurable insanity of at least 5 years’
duration (sec. 14.0703).
Willful desertion as a ground for divorce is defined as follows:
(a) Persistent refusal to have reasonable matrimonial intercourse,
or the refusal of either party to dwTell in the same house with the
other without reasonable cause for refusal, is desertion by either party;



(5) where one party is induced by stratagem or fraud to leave the
family dwelling or to be absent, and during such absence the offending
party departs with intent to desert, it is desertion by the party com­
mitting the stratagem or fraud; (e) departure or absence from the
family dwelling due to cruelty or threats of bodily harm is desertion
by the one who is cruel or who made the threats; (d) the wife’s re­
fusal to conform to the husband’s reasonable place and mode of living
is desertion by the wife; (e) the husband’s selection of an unreasonable
and grossly unfit place or mode of living is desertion by the husband
(sec. 14.0709).
On granting divorce the court may, in its discretion or on application
of either party, restore to the woman her maiden or other name she
bore prior to the marriage. If the custody of any minor child is
granted to the mother, this provision does not apply (sec. 14.0702).
When divorce is granted for adultery of the wife, the legitimacy
of children begotten before the commission of the adultery is not
affected, but legitimacy of other children of the wife may be deter­
mined by the court on evidence in the case (sec. 14.0706).
When a divorce is granted for adultery, the innocent party may
marry again; but the guilty party may not marry any person except
the innocent party until the death of the latter (sec. 14.0707).
In divorce actions the court may issue orders for custody, care,
and education of the children of the marriage (sec. 14.0724).
Alimony and maintenance

Although judgment of divorce is denied, the court may in a divorce
action provide for the maintenance of the wife and children. An
action for separate maintenance may be maintained without request
for divorce on any grounds which would be grounds for divorce. In
such cases the court has power to award temporary alimony, suit
money, and permanent support for the wife and children (sec. 14.0727).
During pendency of divorce action, the court may require the hus­
band to pay alimony for support of the wife and children, as well
as money to prosecute or defend the action (sec. 14.0725).
If a divorce is granted for otfense of the husband, the court may
compel him to provide for the maintenance of children of the marriage
and to make such suitable allowance to the wife for support as is
just, having regard to the circumstances of the parties. If the divorce
is granted for offense of either husband or wife, the court has full
power to make an equitable division of the property belonging to
either or both of them, having regard for equity and the circumstances
of the parties (sec. 14.0726). The court may assign the homestead
to the innocent party, either absolutely or for a limited period (sec
v '



Parents and Children
24. Parents’ right to services and earnings of a minor child

The father and mother of a legitimate unmarried minor child are
equally entitled to its services and earnings. If either the father or
the mother is dead, refuses to take the custody, or has abandoned his
or her family, the other is entitled to services and earnings of such
child (sec. 14.0303).
A parent, whether solvent or insolvent, may relinquish to his child
the right of controlling him and receiving his earnings. Abandon­
ment by a parent is presumptive evidence of such relinquishment
(sec. 14.0319).
25. Guardianship of a minor child

The father and mother of a legitimate unmarried minor child are
equally entitled to its custody. If either parent is dead, refuses to
take custody, or has abandoned his or her family, the other is entitled
to the child’s custody (sec. 14.0303). The parent entitled to the custody
of a child must give it support and education suitable to the parent’s
circumstances. If the support and education which the father of a
legitimate child is able to give are inadequate, the mother must assist
him to the extent of her ability (sec. 14.0310).
The authority of a parent ceases on the marriage or emancipation
of a child. No child can be emancipated unless he is in no manner
dependent on his parents for support. Emancipation is expressed
wThen it is by agreement of both parents, or the surviving parent,
and the child. Emancipation is implied when there has been complete
abandonment of parental responsibility and control and the child
is actually obtaining support by other means. If other means of
support fail, the parent of an emancipated child is under legal duty
to support him (sec. 14.0308).
In awarding custody or in appointing a guardian of the person or
property of a minor, the court is to consider the best interests of the
child in respect to its temporal, mental, and moral welfare, and if the
child is of sufficient age to form an intelligent preference, such prefer­
ence will be considered in the selection of the guardian. As between
parents adversely claiming the custody or guardianship, neither is
entitled to it as of right, but if the child is of tender years, it should
be given to the mother, other things being equal; if it is of an age to
require education and preparation for labor or business, then to the
father (sec. 14.0505). A parent has preference for appointment as
guardian of his or her minor child (sec. 14.0506).
Every guardian appointed for the person and estate of a minor shall
have the custody, care, and supervision of education of the minor un-



less such minor marries; and the care and management of the minor’s
estate until he is legally discharged (sec. 35.1805).
The parent, as such, has no control over the property of the child
(sec. 14.0318). No person, whether parent or otherwise, has any
power as guardian of property, except by appointment as provided by
statute (sec. 14.0504).
The husband and father has no rights superior to those of the wife
and mother in regard to the care, custody, education, and control of
children of the marriage, while such husband and wife live separate
and apart from each other (sec. 14.0305).
Neither parent nor child is answerable, as cuch, for the acts of the
other (sec. 14.0309).
26. Appointment of testamentary guardian for a minor child

A guardian of the person or estate, or both, of a minor child may
be appointed by will or by deed, to take effect upon the death of the
parent appointing. The father of a legitimate child may make such
an appointment, with the written consent of the mother; or either
parent may so appoint a guardian if the other is dead or incapable of
The mother of an illegitimate child may appoint a guardian for it
by deed or will (sec. 14.0502).
27. Inheritance—child

When a person dies intestate, his parents share in his distributable
estate in the following manner:
If the estate exceeds $50,000 and the decedent left no issue but a
husband or wife survives, one-half the excess above $50,000 goes to
the decedent’s father and mother in equal shares; and if either is dead,
the survivor takes the portions of both parents. If the decedent left
no issue nor husband nor wife, the estate goes to his father and mother
in equal shares, or the whole to the surviving parent (sec. 56.0104:
1953, p. 421). (See number 15 as to share of husband or wife.)
28. Child born out of wedlock

The mother of an illegitimate unmarried minor is entitled to its
custody, service, and earnings (sec. 14.0304).
The parents of a child born out of wedlock and legitimated owe the
child necessary maintenance, education, and support. They are also
liable for the child’s funeral expenses.
The obligation of the parent to support the child under the laws
for support of poor relatives applies to children born out of wedlock.
The father is also liable to pay the expenses of the mother’s preg­
nancy and confinement.



When the child’s paternity has been determined, the court will give
judgment so declaring and will order support from the father in an­
nual amounts—equal or varying—and at stated intervals, in its dis­
cretion, to be paid until the child is 16 years of age. The order may
provide also for necessary birth expenses incurred by or for the
mother. Security is required for performance of the court’s order,
with provision for enforcement on default.
When the father does not have custody of a child born out of wed­
lock but paternity has been established or acknowledged as provided
by statute, his failure—without lawful excuse—to support the child
will be deemed a misdemeanor, subject to fine or imprisonment, or
both. Failure of either parent to support such child when in his or
her custody is governed by the laws applicable to failure to support
a legitimate child (secs. 37.2101-37.2128).
A child born before wedlock becomes legitimate by the subsequent
marriage of his parents (sec. 14.0301).
29. Inheritance—child born out of wedlock

When an illegitimate child who is not acknowledged or adopted by
his father dies intestate and without lawful issue, his estate goes to his
mother or—if she is dead—to her heirs at law (sec. 56.0106).
Every child born out of wedlock is an heir of the person who, in
writing, signed in the presence of a competent witness, acknowledges
himself to be the father of such child. In all cases a child born out of
wedlock is an heir of his mother and represents his mother equally
with her legitimate children by inheriting any part of the estate of her
kindred, either lineal or collateral (sec. 56.0105).
30. Domicile of a married woman

In general, the domicile of the husband is the domicile of the wife,
by rule of common law. But this rule does not apply when the parties
have separated and an action for divorce is pending (sec. 14.0721).
The husband is the head of the family. He may choose any reason­
able place or mode of living, and the wife must conform thereto (sec.
31. Public office—eligibility of women

There is no constitutional or statutory provision which precludes
women from holding public office.
32. Jury service—eligibility of women

Women are eligible for service as members of grand or trial juries
on the same basis as men and are subject to the same exemptions
(sec. 32.1001, 1952 Supp.).