OST states define marriage as a civil contract between a man and woman to become husband and wife. The moment a man and woman marry, their relationship acquires a legal status. Married couples have financial and personal duties during marriage and after separation or divorce. State laws determine the extent of these duties. As the United States Supreme Court said about marriage in 1888: “The relation once formed, the law steps in and holds the parties to various obligations and liabilities.”
Of course, marriage is a private bond between two people, but it is also an important social institution. Today, society also recognizes marriage as a way to express commitment, strengthen intimate bonds, and provide mutual emotional support; a (comparatively) stable structure within a financial partnership in which spouses may choose from a variety of roles. Both spouses may work to support the family, the husband may support the wife, or the wife may support the husband.
As our society becomes more complex, there is no longer a short answer to the question “What is marriage?” Definitions and opinions of the proper functions of marriage continue to change. The women’s rights movement and gay rights movement have changed some people’s ideas of marriage and created new forms of relationships, including domestic partnerships and civil unions for same-sex couples. Marriage will remain, but it will also continue to evolve.
LEGAL REQUIREMENTS FOR GETTING MARRIED
The requirements are simple, although they vary from state to state. In general, a man and woman wishing to marry must obtain a license in the state in which they wish to be married, usually from a county clerk or a clerk of court. The fee usually is low. Some states require the man and woman to have blood tests for venereal disease but not for AIDS before the license is issued. Some states do not require this test if the two have already been living as husband and wife. If the test shows that a would-be spouse has a venereal disease, certain states may not issue a license. Other states will allow the marriage if the couple knows the disease is present.
In some states, a couple must show proof of immunity or vaccination for certain diseases. A few states demand a general physical examination. If one or both of the parties have been married before, the earlier marriage must have been ended by death, divorce, or annulment. Parties who wish to marry must have the “capacity” to do so. That means the man and woman must understand that they are being married and what it means to be married. If because of drunkenness, mental illness, or some other problem, one of parties lacks “capacity,” the marriage will not be valid.
Close blood relatives cannot marry, although in some states, first cousins can marry. Of those states that allow first cousins to marry, a few states also require that one of the cousins no longer be able to conceive children.
Most, but not all, states require a waiting period, generally one to five days, between the time the license is issued and the time of the marriage ceremony.
Age for people to marry
In most states, a man or woman may marry at age eighteen without parental consent. Most states also allow persons age sixteen and seventeen to marry with consent of their parents or a judge.
When does a couple truly become married?
Most states consider a couple to be married when the ceremony ends. In a few states, lack of sexual relations may allow a spouse to have the marriage annulled (see below). In most states, however, non-consummation does not affect the validity of the marriage. In all states, the proper official must record the marriage license. Recording the marriage license acts as proof that the marriage happened.
Is a marriage ceremony required?
A marriage ceremony may be religious or civil. The person or persons conducting the ceremony should indicate that the man and woman agree to be married. A religious ceremony should be conducted under the customs of the religion, or, in the case of a Native American group, of the tribe, Most states require one or two witnesses to sign the marriage certificate.
Who conducts a marriage ceremony?
Civil ceremonies usually are conducted by judges. In some states, county clerks or other government officials may conduct civil ceremonies. Religious ceremonies normally are conducted by religious officials, such as ministers, priests, or rabbis. Native American ceremonies may be presided over by a tribal chief or other designated official. Contrary to some popular legends, no state authorizes ship captains to perform marriages.
Are common-law marriages allowed?
In most states, no. In times past particularly the frontier days, it was common for states to consider a woman and man to be married if they lived together for a certain length of time, had sexual intercourse, and held themselves out as husband and wife, even though they never went through a marriage ceremony. Today, only about one-fourth of the states recognize common-law marriages. In order for there to be a legal common-law marriage, the couple must clearly represent themselves to others as being husband and wife; merely living together is not enough to create a marriage. In states that recognize a Common-law marriage, the partners have the same rights and duties as if there had been a ceremonial marriage. Most other states will accept as valid a common-law marriage that began in a state that recognizes common-law marriage. A legal common-law marriage may end only with a formal divorce.
Does the law recognize same-sex marriages?
No. As of the year 2000, no state had passed a law recognizing homosexual marriages per se. If two members of the same sex were to go through a marriage ceremony, the courts would not consider the marriage to be valid, and, in the event the parties split, they could not seek a legal divorce. The Vermont legislature has enacted a statute that allows same-sex couples to form civil unions to give same-sex couples the same benefits and protections as opposite-sex couples who enter into marriages. The law is being challenged in the courts by persons opposed to same-sex unions. The Vermont Supreme Court has already ruled, however, that same-sex couples should have the same rights as opposite-sex couples. A decision by the Hawaii Supreme Court in the 1990s made it appear that Hawaii would become the first state to authorize same-sex marriages. The state, however, amended its constitution to preclude such marriages.
What is a domestic partnership?
Some cities have passed laws providing for “domestic partnerships” which can be used by homosexual couples and by heterosexual couples who are living together without being married. To become domestic partners, the couple usually must register their relationship at a government office and declare that they are in a “committed relationship.” Domestic partnerships provide some but not all of the legal benefits of marriage. Some of the common benefits are the right to coverage on a family health insurance policy, the right to family leave to take care of a sick partner (to the same extent a person would be able to use family leave to care for a sick spouse), bereavement leave, visiting rights to hospitals and jails, and rent control benefits (to the same extent a spouse would retain reduced rent if his or her partner died).
Does a woman’s last name change when she gets married?
Only if she wants to change it. In the past, some people assumed that a woman would change her last name to her husband’s name when she married. Now society recognizes a woman’s right to take her husband’s name, keep her original name, or use both names. The general rule is that if a woman uses a certain name consistently and honestly, then that is her true name.
INVALID MARRIAGES
What if someone thinks he or she has a genuine marriage but it turns out to be invalid?
Sometimes people who live as a married couple learn that their marriage is not legal. For example, one supposed spouse may have kept a prior marriage secret, or both may have thought incorrectly that an earlier marriage had ended in divorce or the death of a spouse. Or a marriage may be invalid because it is between close relatives, underage persons, or people incapable of entering into the marriage contract because of mental incompetence.
In some states, the putative (supposed) spouse doctrine offers some protection if the parties went through a ceremonial marriage. A putative spouse may be entitled to the benefits and rights of a legal spouse for as long as she or he reasonably believes the marriage to be valid. In states that do not accept the putative-spouse doctrine, people who mistakenly believe they are married usually have the same status as unmarried couples who live together.
Sometimes people discover that their marriage is invalid only when filing for divorce. After a long union that a couple believed was a valid marriage, a court may refuse to declare the marriage invalid and require a divorce to end the marriage.
What other legal rules affect invalid marriages?
Sometimes the law treats an invalid marriage as valid if one person tricked the other into thinking they are married. If so, a court might not allow the deceiver to declare the marriage invalid. In legal terms, the court “estops” the deceiver from denying that the marriage exists. In addition, a court may find that the doctrine of laches (long delay) prevents even the innocent party, who originally did not know about the invalid marriage, from having the marriage declared invalid if he or she did nothing for a long time after learning that the marriage was not valid.
PREMARITAL AGREEMENTS
What is a premarital agreement?
A premarital or antenuptial agreement is a contract entered into by a man and woman before they marry. The agreement usually describes what each party’s rights will be if they divorce or when one of them dies. Premarital agreements most commonly deal with issues of property and support who is entitled to what property and how much support, if any, will be paid in the event of divorce.
Why do people enter into premarital agreements?
Sometimes persons intending premarital agreements as a way of clarifying their expectations and rights for the future. Another reason for making such agreements is to try to avoid uncertainties about how a divorce court might divide property and decide spousal support if the marriage fails. A man or woman who wants a future spouse to enter into a premarital marry agreement often has something he or she wants to protect, usually money. One or both partners may want to avoid the risk of a major loss of assets, income, or a family business in the event of a divorce. For people marrying for a second or third time, there might be a desire to make sure that a majority of assets or personal belongings are passed on to the children or grandchildren of prior marriages rather than a current spouse.
What does the less wealthy spouse give up by signing a premarital agreement?
The less wealthy spouse is agreeing to have his or her property rights determined by the agreement rather than by the usual rules of law that a court would apply on divorce or the death of the wealthier spouse. As will be discussed later, courts have certain rules for dividing property when a couple divorces. In some states (such as California), courts automatically divide equally the property acquired by the husband and wife during the marriage. In more states, courts divide property as the court considers fair, and the result is less predictable; the split could be fifty-fifty or something else. If one spouse dies, courts normally follow the instructions of that person’s will, but the surviving spouse usually is entitled to one-third to one-half of the estate regardless of what the deceased spouse will say. If the husband and wife have signed a valid premarital agreement, that agreement will supersede the usual laws for dividing property and income upon divorce or death. In many cases, the less wealthy spouse will receive less under the premarital agreement than he or she would receive under the usual laws of divorce or wills.
Why would the less wealthy spouse sign a premarital agreement if he or she would receive less under the agreement than under other laws?
The answer to that question depends on the individual. Some people prefer to control their fiscal relationship rather than to leave it to state regulation. They may want to avoid uncertainty about what a court might decide if the marriage ends in divorce. For some, the answer may be “love conquers all” the less wealthy person may just want to marry the other party and not care much about the financial details. For others, the agreement may provide ample security, even if it is not as generous as a judge might be. Still, others may not like the agreement, but they are willing to take their chances and hope the relationship and the financial arrangements work out for the best.
What is necessary to make a valid premarital agreement?
Laws vary from state to state. In general, the agreements must be in writing and signed by the parties. In most states, the parties (particularly the wealthier one) must disclose their income and assets to each other. This way the parties will know more about what they might be giving up. In some states, it may be possible to waive a full disclosure of income and assets.
