Putative marriage


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PUTATIVE MARRIAGE. This marriage is described by jurists as "matrimonium putativum, id est, quod bona fide et solemnitur saltem, opinions conjugis unius justa contractum inter personas vetitas jungi." Hertius, h.t. It is a marriage contracted in good faith, and in ignorance of the existence of those facts which constituted a legal impediment to the intermarriage.
     2. Three circumstances must concur to constitute this species of marriage. 1st. There must be a bona fides. One of the parties, at least, must have been ignorant of the impediment, not only at the time of the marriage, but must also have continued ignorant of it during his or her life, because, if he became aware of it, he was bound to separate himself from his wife. 2d. The marriage must be duly solemnized. 3d. The marriage must have been considered lawful in the estimation of the parties, or of that party who alleges the bona fides.
     3. A marriage in which these three circumstances concur, although null and void, will have the effect of entitling the wife, if she be in good faith, to enforce the rights of property, which would have been competent to her if the marriage had been valid, and of rendering the children of such marriage legitimate.
     4. This species of marriage was not recognized by the civil law; it was introduced by the canon law. It is unknown to the law of the United States, and in England and Ireland. In France it has been adopted by the Code Civil, art. 201, 202. In Scotland, the question has not been settled. Burge on the Confl. of Laws, 151, 2.

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Family law has one additional weapon in its arsenal to protect a subsequent spouse who learns that she was never in fact legally wed: the putative marriage doctrine.
249) The putative marriage doctrine goes one step further in protecting subsequent spouses, protecting those who entered into a "marriage" in good faith even where the court cannot create a valid divorce to salvage the subsequent marriage.
Essentially, the putative marriage doctrine provides the civil effects of marriage to one who in good faith entered into a marriage that is later revealed to be invalid.
Like the subsequent marriage presumption and the marriage by estoppel doctrine, the putative marriage doctrine is intended to protect innocent spouses--including mistaken bigamists, who innocently but erroneously believe that they obtained a valid divorce prior to remarrying--and promote equity.
They take a comparative approach that notes the similarities and differences between states and discuss basic community property law as well as conflict of laws approaches to solving multi-state marital property problems, the law concerning putative marriage and property rights arising out of unmarried cohabitation, and special rules of federal income tax law for community property.
Emancipation assumes the existence of a valid or putative marriage.
Emancipation is a "civil effect" of a putative marriage.
An annulment is a legal declaration that a putative marriage was null and void ab initio.
10) Even in the situation of a void marriage, however, the Tax Court has held that the taxability of periodic payments made under an annulment decree is determined under the rules regarding taxation of alimony, because the putative marriage can create a legal obligation of support.
The code says, "Illegitimate children are rendered legitimate through the subsequent valid or putative marriage of their parents or through a rescript of the Holy See.
A SOLUTION: EXPANDING THE HUMANITARIAN VISA AND APPLYING THE DOCTRINE OF PUTATIVE MARRIAGE
CODE [section] 2251 (West 2004) (recognizing a putative marriage in which "either party or both parties believed in good faith that the marriage was valid"): MINN.

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