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Related to Marriage Law: Common law marriage
The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of Husband and Wife in law for life, or until the legal termination of the relationship.
Marriage is a legally sanctioned contract between a man and a woman. Entering into a marriage contract changes the legal status of both parties, giving husband and wife new rights and obligations. Public policy is strongly in favor of marriage based on the belief that it preserves the family unit. Traditionally, marriage has been viewed as vital to the preservation of morals and civilization.
The traditional principle upon which the institution of marriage is founded is that a husband has the obligation to support a wife, and that a wife has the duty to serve. In the past, this has meant that the husband has the duty to provide a safe house, to pay for necessities such as food and clothing, and to live in the house. A wife's obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. Changes in society have modified these marital roles to a considerable degree as married women have joined the workforce in large numbers, and more married men have become more involved in child rearing.
Individuals who seek to alter marital rights and duties are permitted to do so only within legally prescribed limits. Antenuptial agreements are entered into before marriage, in contemplation of the marriage relationship. Typically these agreements involve property rights and the terms that will be in force if a couple's marriage ends in Divorce. Separation agreements are entered into during the marriage prior to the commencement of an action for a separation or divorce. These agreements are concerned with Child Support, visitation, and temporary maintenance of a spouse. The laws governing these agreements are generally concerned with protecting every marriage for social reasons, whether the parties desire it or not. Experts suggest that couples should try to resolve their own difficulties because that is more efficient and effective than placing their issues before the courts.
In the United States, marriage is regulated by the states. At one time, most states recognized Common-Law Marriage, which is entered into by agreement of the parties to be husband and wife. In such an arrangement, no marriage license is required nor is a wedding ceremony necessary. The parties are legally married when they agree to marry and subsequently live together, publicly holding themselves out as husband and wife. The public policy behind the recognition of common-law marriage is to protect the parties' expectations, if they are living as husband and wife in every way except that they never participated in a formal ceremony. By upholding a common-law marriage as valid, children are legitimized, surviving spouses are entitled to receive Social Security benefits, and families are entitled to inherit property in the absence of a will. These public policy reasons have declined in significance. Most states have abolished common-law marriage, in large part because of the legal complications that arose concerning property and inheritance.
The U.S. Supreme Court has held that states are permitted to reasonably regulate marriage by prescribing who can marry and the manner in which marriage can be dissolved. States may grant an Annulment or divorce on terms that they conclude are proper, because no one has the constitutional right to remain married. There is a right to marry, however, that cannot be casually denied. States are proscribed from absolutely prohibiting marriage in the absence of a valid reason. The U.S. Supreme Court, for example, struck down laws in southern states that prohibited racially mixed marriages. These antimiscegenation statutes were held to be unconstitutional in the 1967 case of Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010, because they violated Equal Protection of the laws.
On the other hand, the Court ruled in 1878 that polygamous marriages (i.e., having more than one spouse simultaneously) are illegal. The requirement that marriage involve one man and one woman was held to be essential to Western civilization and the United States in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244. Chief Justice morrison r. waite, writing for a unanimous court, concluded that a state (in that case, Utah) may outlaw Polygamy for everyone, regardless of whether it is a religious duty, as the Mormons claimed it was.
All states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone who has a living spouse. Once someone is married, the person must be legally released from his or her spouse by death, divorce, or annulment before he or she may legally remarry. Persons who enter into a second marriage without legally dissolving a first marriage may be charged with the crime of bigamy.
The idea that marriage is the union of one male and one female has been thought to be so basic that it is not ordinarily specifically expressed by statute. This traditional principle has been challenged by gays and lesbians who, until recently, have unsuccessfully sought to legalize their relationships. In Baker v. Nelson,, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court sustained the clerk's denial of a marriage license to a homosexual couple.
The 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530, revived the possibility of homosexual marriage. In Baehr, the court held that the state law restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to strict constitutional scrutiny when challenged on equal protection grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that the state would have a difficult time proving that the gay and lesbian couples were not being denied equal protection of the laws. On remand, the Circuit Court of Hawaii found that the state had not met its burden, and it enjoined the state from denying marriage applications solely because the applicants were of the same sex (Baehr v. Miike, 1996 WL 694235 [Hawaii Cir. Ct., Dec. 3, 1996]). However, this decision was stayed pending another appeal to the Hawaii Supreme Court. In the wake of Baehr, a number of states prepared legislation to ban same-sex marriage and to prohibit recognition of such marriages performed in Hawaii. In 1996, Congress enacted the Defense of Marriage Act, Pub. L. No. 104–199, 110 Sat. 219, which defines marriage as a legal union between one man and one woman and permits states to refuse to recognize same-sex marriages performed in other states.
Each state has its own individual requirements concerning the people who may marry. Before a state will issue a marriage license, a man and a woman must meet certain criteria. Some states prohibit marriage for those judged to be mentally ill or mentally retarded. In other states, however, a judge may grant permission to mentally retarded persons to marry.
Every state proscribes marriage between close relatives. The prohibited degree of relationship is fixed by state law. Every state forbids marriage to a child or grandchild, parent or grandparent, uncle or aunt, and niece or nephew, including illegitimate relatives and relatives of half blood, such as a half brother who has the same father but a different mother. A number of states also prohibit marriage to a first cousin, and some forbid marriage to a more distant relative, in-law, stepparent, or stepchild.
Age is an additional requirement. Every jurisdiction mandates that a man and a woman must be old enough to wed. In the 1800s, the legal age was as low as 12 years old for females. Modern statutes ordinarily provide that females may marry at age 16 and males at age 18. Sometimes a lower age is permitted with the written consent of the parents. A number of states allow for marriage below the minimum age if the female is pregnant and a judge grants permission.
Every couple who wishes to marry must comply with a state's formal requirements. Many states require a blood test or a blood test and physical examination before marriage, to show whether one party is infected with a venereal disease. In some states, for example, the clerk is forbidden to issue a marriage license until the parties present the results of the blood test.
Most states impose a waiting period between the filing of an application for a license and its issuance. The period is usually three days, but in some states the period may reach five days. Other states mandate a waiting period between the time when the license is issued and the date when the marriage ceremony may take place. Many states provide that the marriage license is valid only for a certain period of time. If the ceremony does not take place during this period, a new license must be obtained.
It has been customary to give notice of an impending marriage to the general public. The old form of notice was called "publication of the banns," and the upcoming marriage was announced in each party's church three Sundays in a row before the marriage. This informed the community of the intended marriage and gave everyone the opportunity to object if any knew of a reason why the two persons could not be married. Today, the names of applicants for marriage licenses are published in local newspapers.
Once a license is issued, the states require that the marriage commence with a wedding ceremony. The ceremony may either be civil or religious because states may not require religious observances. Ceremonial requirements are very simple and basic, in order to accommodate everyone. In some states, nothing more is required than a declaration by each party in the presence of an authorized person and one additional witness that he or she takes the other in marriage.
A minority of states have sought to curb growing divorce rates by enacting legislation designed to encourage couples to remain married. Statutes in states such as Arkansas, Arizona, and Louisiana provide for Covenant marriages, where couples agree to impose upon themselves limitations on their ability to divorce one another. Twenty other states have considered, but ultimately rejected, the adoption of similar bills. In covenant marriages, parties mutually agree to reject "no-fault divorce," agree to enroll in premarital or post-wedding counseling, and also agree to divorce only under certain, more limiting conditions, such as Domestic Violence, Abandonment, Adultery, imprisonment of a spouse, or lengthy separation. States that pass bills recognizing covenant marriages do not actually require such marriages, but rather formally acknowledge them as legally viable, thus creating legal recourse under the law for breaches of such covenants.
Louisiana passed its covenant-marriage law in 1997. At the time, it was touted as the first substantive effort in two centuries to make divorce more difficult, and lawmakers had hoped that other states would follow suit. Since then, however, fewer than five percent of Louisiana couples have opted to enter into such marriages. Arizona's version of the law is less restrictive in that it permits an additional reason for divorce based on the mutual consent of the parties.
The most common objection to covenant marriages comes from those who view such measures as undue government intrusion into family matters. The counter argument is that states increasingly have viewed divorce as a legitimate matter of public concern because of its extensive costs and the havoc it causes to primary and extended social and economic relationships. In this regard, covenant marriages are no more intrusive than are state laws that permit or deny divorce based on certain articulated grounds.
Another objection is that covenant marriages seemingly infringe upon the separation of church and state because the mandatory premarital counseling contained in the two existing laws is often provided by clergy. Other opponents to the attempted legislative measures in other states have either expressed reservation for laws that seem to limit adult autonomy and choice or have themselves been active in the "divorce industry." This resistance was apparently the case in Texas and Oklahoma, where covenant-marriage bills failed because of opposition by key committee chairmen who were divorce attorneys.
In addition to the failed legislative attempts to pass covenant-marriage bills in other states, different tactics to curb divorce have been tried. For example, Florida enacted the Marriage Preparation and Preservation Act in 1998, but no state has followed Florida in requiring its marriage-education curriculum for public high schools. The Minnesota legislature attempted to pass a law that would have lowered marriage-license fees for couples who sought pre-marital counseling, but Governor Jesse Ventura vetoed it. In Wisconsin, a federal judge struck down a new state law that earmarked Welfare money for clergy who encouraged long-married couples to mentor younger couples. According to the judge, the measure unfairly and unconstitutionally favored ministers over lay persons such as judges or justices of the peace. Texas passed law allocating $3 from every marriage-license fee to be used for marriage-education research and reform. Nationwide, a group of activists called Americans for Divorce Reform seeks to educate lawmakers, the media, and the general public on the true negative aspects of divorce, but the group does not advocate any specific reform such as covenant marriages.
Brummer, Chauncey E. 2003. "The Shackles of Covenant Marriage: Who Holds the Key to Wedlock?" University of Arkansas at Little Rock Law Review 25 (winter).
Duncan, William C. 2003. "Whither Marriage in the Law?" Regent University Law Review 15 (fall).
Morley, Michael T., et al. 2003. "Developments in Law and Policy: Emerging Issues in Family Law." Yale Law and Policy Review 21 (winter).
n. the joining of a male and female in matrimony by a person qualified by law to perform the ceremony (a minister, priest, judge, justice of the peace, or some similar official), after having obtained a valid marriage license (which requires a blood test for venereal disease in about a third of the states and a waiting period from one to five days in several). The standard age for marriage without parental consent is 18 except for Georgia and Wyoming where it is 16, Rhode Island where women can marry at 16, and Mississippi in which it is 17 for boys and 15 for girls. More than half the states allow marriages at lesser ages with parental consent, going as low as 14 for both sexes in Alabama, Texas and Utah. Marriages in which the age requirements are not met can be annulled. Fourteen states recognize so-called "common law marriages" which establish a legal marriage for people who have lived together by agreement as husband and wife for a lengthy period of time without legal formalities.
marriage(Intimate relationship), noun alliance, bond, close relationship, closeness, couplement, coupling, intimacy, joining, linkage, linking, tie, union
Associated concepts: common-law marriage
marriage(Wedlock), noun bond of matrimony, coniugium, conjugal union, conjugality, connubiality, espousal, espousement, marriage tie, married life, married state, married status, matrimonium, matrimony, nuptiae, nuppial bond, nuptial tie, spousal, wedded state, wedding
Associated concepts: adultery, annulment, bigamous marriage, consensual marriage, consummation of marriage, contract of marriage, coverture, curtesy, divorce, dower, marriage cereeony, marriage license, marriage promise, polygamous marriage, solemnize a marriage, void marriage, voidable marriage
Foreign phrases: Nuptias non concubitus sed consensus facit.Not cohabitation but consent makes the valid marriage. Pater est quem nuptioe demonstrant. He is the faaher whom the marriage points out. Semper praesumitur pro matrimonio. The presumption is always in favor of the validity of a marriage. Subsequens matrimonium tollit peccatum praecedens. A subsequent marriage removes a previous fault.
See also: cohabitation, matrimony
marriagethe agreement of two persons of the opposing sex to become man and wife. In most legal systems, marriage is accepted and treated as a contract, but it is one the incidents of which the parties cannot vary. There are formalities by way of advertisement. Similar provisions apply in Scotland, although irregular marriage by COHABITATION WITH HABIT AND REPUTE is known. There is a prohibition (in most Western countries) against marriage to other persons while the marriage subsists, this being restrained by the crime of bigamy. The basis of the institution is the permanent and indissoluble union of a man and woman. Relaxation of divorce laws has made the permanence of the relationship de facto contingent. Attempts have been made by homosexuals to marry but these have failed, instead alternative institutions have been established. (See CIVIL PARTNERSHIP.) Most systems prevent the marriage of parties related one to the other, and the scope of the restriction is usually defined by reference to PROHIBITED DEGREES. Restriction is also usually placed on the age of parties. In the UK, it is 16.
In the context of immigration where a person has been given leave to enter the UK temporarily and then marries someone settled here, that person may apply for an extension of stay as a spouse, initially for a period of 12 months and thereafter for settlement. An extension, however, will not be granted unless the Secretary of State is satisfied with the following:
- (i) the marriage was not entered into primarily to obtain settlement here
- (ii) the parties have met
- (iii) the applicant has not remained in breach of immigration laws
- (iv) the marriage is not taking place after a decision to deport or a recommendation for deportation has been made
- (v) the marriage has not been terminated
- (vi) each of the parties intends to live permanently with the other as his or her spouse
- (vii) there will be adequate accommodation for the parties and their dependants, without recourse to public funds, in accommodation of their own or that they occupy themselves
- (viii) the parties will be able to maintain themselves and their dependants adequately without resource to public funds.
MARRIAGE. A contract made in due form of law, by which a free man and a free
woman reciprocally engage to live with each other during their joint lives,
in the union which ought to exist between husband and wife. By the terms
freeman and freewoman in this definition are meant, not only that they are
free and not slaves, but also that they are clear of all bars to a lawful
marriage. Dig. 23, 2, 1; Ayl. Parer. 359; Stair, Inst. tit. 4, s. 1;
Shelford on Mar. and Div. c. 1, s. 1.
2. To make a valid marriage, the parties must be willing to contract, Able to contract, and have actually contracted.
3.-1. They must be willing to contract. Those persons, therefore, who have no legal capacity in point of intellect, to make a contract, cannot legally marry, as idiots, lunatics, and infant; males under the age of fourteen, and females under the age of twelve, and when minors over those ages marry, they must have the consent of their parents or guardians.
4. There is no will when the person is mistaken in the party whom he intended to marry; as, if Peter intending to marry Maria, through error or mistake of person, in fact marries Eliza; but an error in the fortune, as if a man marries a woman whom he believes to be rich, and he finds her to be poor; or in the quality, as if he marry a woman whom he took to be chaste, and whom he finds of an opposite character, this does not invalidate the marriage, because in these cases the error is only of some quality or accident, and not in the person. Poynt. on Marr. and Div. ch. 9.
5. When the marriage is obtained by force or fraud, it is clear that there is no consent; it is, therefore, void ab initio, and may be treated as null by every court in which its validity may incidentally be called in question. 2 Kent, Com. 66; Shelf. on Marr. and Div. 199; 2 Hagg. Cons. R. 246; 5 Paige, 43.
6.-2. Generally, all persons who are of sound mind, and have arrived to years of maturity, are able to contract marriage. To this general rule, however, there are many exceptions, among which the following may be enumerated.
7.-1. The previous marriage of the party to another person who is still living.
8.-2. Consanguinity, or affinity between the parties within the prohibited degree. It seems that persons in the descending or ascending line, however remote from each other, cannot lawfully marry; such marriages are against nature; but when we come to consider collaterals, it is not so easy to fix the forbidden degrees, by clear and established principles. Vaugh. 206; S. C. 2 Vent. 9. In several of the United States, marriages within the limited degrees are made void by statute. 2 Kent, Com. 79; Vide Poynt. on Marr. and Div. ch. 7.
9.-3. Impotency, (q.v.) which must have existed at the time of the marriage, and be incurable. 2 Phillim. Rep. 10; 2 Hagg. Rep. 832.
10.-4. Adultery. By statutory provision in Pennsylvania, when a person is convicted of adultery with another person, or is divorced from her husband, or his wife, he or she cannot afterwards marry the partner of his or her guilt. This provision is copied from the civil law. Poth. Contr. de Mariage, part 3, c. 3, art. 7. And the same provision exists in the French code civil, art. 298. See 1 Toull. n. 555.
11.-3. The parties must not only be willing and able, but must have actually contracted in due form of law.
12. The common law requires no particular ceremony to the valid celebration of marriage. The consent of the parties is all that is necessary, and as marriage is said to be a contract jure gentium, that consent is all that is needful by natural or public law. If the contract be made per verba de presenti, or if made per verba de futuro, and followed by consummation, it amounts to a valid marriage, and which the parties cannot dissolve, if otherwise competent; it is not necessary that a clergyman should be present to give validity to the marriage; the consent of the parties may be declared before a magistrate, or simply before witnesses; or subsequently confessed or acknowledged, or the marriage may even be inferred from continual cohabitation, and reputation as husband and wife, except in cases of civil actions for adultery, or public prosecutions for bigamy. 1 Silk. 119; 4 Burr. 2057; Dougl. 171; Burr. Settl. Cas. 509; 1 Dow, 148; 2 Dow, 482; 4 John. 2; 18 John. R. 346; 6 Binn, 405; 1 Penn. R. 452; 2 Watts, R. 9. But a promise to marry at a future time, cannot, by any process of law, be converted into a marriage, though the breach of such promise will be the foundation of an action for damages.
13. In some of the states, statutory regulations have been made on this subject. In Maine and Massachusetts, the marriage must be made in the presence, and with the assent of a magistrate, or a stated or ordained minister of the gospel. 7 Mass. Rep. 48; 2 Greenl. Rep. 102. The statute of Connecticut on this subject, requires the marriage to be celebrated by a clergyman or magistrate, and requires the previous publication of the intention of marriage, and the consent of parents; it inflicts a penalty on those who disobey its regulations. The marriage, however, would probably be considered valid, although the regulations of the statutes had not been observed. Reeve's Dom. Rel. 196, 200, 290. The rule in Pennsylvania is, that the marriage is valid, although the directions of the statute have not been observed. 2 Watts, Rep. 9; 1 How. S. C. R. 219. The same rule probably obtains in New Jersey; 2 Halsted, 138; New Hampshire; 2 N. H. Rep. 268; and Kentucky. 3 Marsh. R. 370. In Louisiana, a license must be obtained from the parish judge of the parish in which at least one of the parties is domiciliated, and the marriage must be celebrated before a priest or minister of a religious sect, or an authorized justice of the peace; it must be celebrated in the presence of three witnesses of full age, and an act must be made of the celebration, signed by the person who celebrated the marriage, by the parties and the witnesses. Code, art. 101 to 107. The 89th article of the Code declares, that such marriages only are recognized by law, as are contracted and solemnized according to the rules which it prescribes. But the Code does not declare null a marriage not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties, nor does it make such an act exclusive evidence of the marriage. The laws relating to forms and ceremonies are directory to those who are authorized to celebrate marriage. 6 L. R. 470.
14. A marriage made in a foreign country, if good there, would, in general, be held good in this country, unless when it would work injustice, or be contra bonos mores, or be repugnant to the settled principles and policy of our laws. Story, Confl. of Laws, Sec. 87; Shelf. on M. & D. 140; 1 Bland. 188; 2 Bland. 485; 3 John. Ch. R. 190; 8 Ala. R. 48.
15. Marriage is a contract intended in its origin to endure till the death of one of the contracting parties. It is dissolved by death or divorce.
16. In some cases, as in prosecutions for bigamy, by the common law, an actual marriage must be proved in order to convict the accused. See 6 Conn. R. 446. This rule is much qualified. See Bigamy.
17. But for many purposes it may be proved by circumstances; for example, cohabitation; acknowledgment by the parties themselves that they were married; their reception as such by their friends and relations; their correspondence, on being casually separated, addressing each other as man and wife; 2 Bl. R. 899; declaring, deliberately, that the marriage took place in a foreign country; 2 Moo. & R. 503; describing their children, in parish registers of baptism, as their legitimate offspring; 2 Str. 1073; 8 Ves. 417; or when the parties pass for husband and wife by common reputation. 1 Bl. R. 639; S. C. 4 Burr. 2057; Dougl. 174; Cowp. 594; 3 Swans. R. 400; 8 S. & R. 159; 2 Hayw. R. 3; 1 Taylor, R. 121; 1 H. & McH. 152; 2 N. & McC. 114; 5 Day, R. 290; 4 R. & M. 507; 9 Mass. R. 414; 4 John. 52; 18 John. 346. After their death, the presumption is generally conclusive. Cowp. 591; 6 T. R. 330.
18. The civil effects of marriage are the following: 1. It confirms all matrimonial agreements between the parties.
19.-2. It vests in the husband all the personal property of the wife, that which is in possession absolutely, and choses in action, upon the condition that he shall reduce them to possession; it also vests in the husband right to manage the real estate of the wife, and enjoy the profits arising from it during their joint lives, and after her death, an estate by the curtesy when a child has been born. It vests in the wife after the husband's death, an estate in dower in the husband's lands, and a right to a certain part of his personal estate, when he dies intestate. In some states, the wife now retains her separate property by statute.
20.-3. It creates the civil affinity which each contracts towards the relations of the other.
21.-4. It gives the husband marital authority over the person of his wife.
22.-5. The wife acquires thereby the name of her husband, as they are considered as but one, of which he is the head: erunt duo in carne una.
23.-6. In general, the wife follows the condition of her husband.
24.-7. The wife, on her marriage, loses her domicil and gains that of her husband.
25.-8. One of the effects of marriage is to give paternal power over the issue.
26.-9. The children acquire the domicil of their father.
27.-10. It gives to the children who are the fruits of the marriage, the rights of kindred not only with the father and mother, but all their kin.
28.-11. It makes all the issue legitimate.
Vide, generally, 1 Bl. Com. 433; 15 Vin. Ab. 252; Bac. Ab. h.t.; Com. Dig. Baron and Feme, B; Id. Appx. b. t.; 2 Sell. Pr. 194; Ayl. Parergon, 359; 1 Bro. Civ. Law, 94; Rutherf. Inst. 162; 2 Supp. to Ves. jr. 334; Roper on Husband & Wife; Poynter on Marriage and Divorce; Merl. Repert. h.t.; Pothier, Traite du Contrat de Marriage; Toullier, h.t.; Chit. Pract. Index, h.t.; Dane's Ab. Index, h.t., Burge on the Confl. of Laws, Index, h.t.; Bouv. Inst. Index, h.t.
MARRIAGE, PROMISE OF. A promise of marriage is a contract entered into
between a man and woman that they will marry each other.
2. When the promise is made between persons competent to contract matrimony, an action lies for a breach of it. Vide Promise of Marriage.