Family Law > I. Requirements for a Valid Marriage

Question 1

There are generally 8 requirements for a valid marriage:

Answer 1

1. Mental capacity
2. Not married to someone else
3. Age
4. Unrelated
5. Knowing and voluntary consent
6. Different sex
7. Procedural requirements
8. Solemnization

Question 2

What are 2 other potential ways states will recognize a marriage?

Answer 2

1. Common Law Marriages

2. Putative Spouse Doctrine

Question 3

2. Not married to someone else

Bigamous marriages are _________, even if both parties (or one of the parties) had a good faith belief that she was free to marry (e.g. she incorrectly believed she successfully ended a prior marriage).

Answer 3

Bigamous marriages are void.

NOTE: Under rare circumstances the court my find that using equitable principles a person is estopped from denying a bigamouts marriage.

Question 4

2. Not married to someone else

Bigamy can also subject an individual to criminal penalties although one may use the following defense:

Answer 4

good faith belief in the ability to legally marry.

Question 5

2. Not married to someone else

When a Q includes a prior marriage that was not successfully ended before the marriage in question, remember that the subsequent spouse has 2 possible arguments:

(i) the strong presumption that ________; and
(ii) if the prior marriage has been terminated by divorce or annulment or by the death of the prior spouse, _______ validates the second marriage under the Uniform Marriage and Divorce Act (UMDA) and similar statutes.

Answer 5

The subsequent spouse has 2 arguments

(i) the strong presumption that the latest marriage is valid (and so the person attacking the validity of the marriage has the burden of proof); and
(ii) if the prior marriage has been terminated by divorce or annulment or by the death of the prior spouse, continued cohabitation validates the second marriage under the Uniform Marriage and Divorce Act (UMDA) and similar statutes.

Question 6

3. Age

Most states require that a person be how old to be married without parental consent?

Answer 6

18 years old without parental consent.

Question 7

3. Age

What is the usual minimum age in which a minor must obtain judicial consent to marry?

Answer 7

Usually 14 or 15 requires judicial consent.

Question 8

3. Age

Does the failure to obtain parental consent to marry invalidate the marriage?

Answer 8

No.

Question 9

4. Unrelated

The parties must be unrelated. Close family members, including those related by adoption, are prohibited from marrying. Does this include first cousins?

Answer 9

Yes, in most states.

Question 10

5. Knowing and Voluntary Consent

Marriage is BOTH a status and a contract. Consent relates to which?

Answer 10

These requirements relate to the contractual nature of marriage.

Question 11

5. Knowing and Voluntary Consent

What is the definition of knowing consent?

Answer 11

Understanding the nature of the action

Question 12

5. Knowing and Voluntary Consent

What can invalidate a marriage if there was a misrepresentation involving the essentials of the marriage?

Answer 12

Fraud or fraudulent inducement to marry can invalidate a marriage if there was a misrepresentation

Question 13

5. Knowing and Voluntary Consent

What is a misrepresentation involving the essentials of the marriage about?

Answer 13

A misrepresentation involving the inability or unwillingness to engage in normal sexual relations.

Question 14

5. Knowing and Voluntary Consent

What kind of misrepresentations will not suffice to invalidate a marriage?

Answer 14

Definitely misrepresentations about one’s financial condition or past history will NOT invalidate a marriage.

Misrepresentations of paternity might constitute sufficient grounds for an annulment based on fraud.

NOTE: In that case, the party challenging the marriage must also establish that he would not have married the person “but for” the misrepresentation about paternity.

Question 15

5. Knowing and Voluntary Consent

What is the definition of voluntary consent?

Answer 15

Having the freedom to choose without intimidation.

Question 16

5. Knowing and Voluntary Consent

Is a marriage entered to under duress void or voidable?

Answer 16

Voidable. It can be avoided.

NOTE: Very rare: Duress has to be very significant

Question 17

5. Knowing and Voluntary Consent

Is a marriage valid if a man agrees to marry only to avoid prosecution for statutory rape?

Answer 17

Yes because there still was a choice.

Question 18

6. Different Sex

In order for a marriage to be valid, the parties must be of different sexes. Most states will not recognize marriages entered into by parties of the same sex. Most states have what 2 sources of law denying the recognition of any same-sex marriage?

Answer 18

explicit statutory prohibition (State DOMA laws); and
constitutional amendments

NOTE: These measures were adopted in part in anticipation that a state would be called upon to recognize same-sex marriages validly entered into int he states that currently permit same sex marriages.

Question 19

6. Different Sex

After Supreme Court decided Windsor, does a state have to recognize a marriage from another state?

Answer 19

No.

Question 20

7. Procedural requirements

2 examples

Answer 20

Obtaining a marriage license, short waiting period

Question 21

8. Solemnization

The marriage may be solemnized by a

Answer 21

1. member of clergy or

2. judicial officer

Question 22

Common law marriages are the legal status conferred in some states to those couples who ________.

Answer 22

clearly represent themselves as husband and wife, despite not having undergone a marriage ceremony.

Note: They must otherwise have the capacity to marry.

Question 23

Requirements for common law marriage:

Answer 23

1. cohabitation
2. reputation in community as married; and
3. a present intent to be married

Question 24

Common law marriages are recognized in only 9 states. Why are those marriages valid in other states?

Answer 24

Under the conflict of laws provisions, a state may recognize a common law marriage that was validly entered into in a jurisdiction that does not recognize common law marriage.

Question 25

What is the putative spouse doctrine? What is the typical scenario for this doctrine to apply?

Answer 25

A court provides equitable relief to a party who acted in good faith in entering into a marriage that was later declared invalid.

This would apply in a bigamy situation.

Note: Only a few states have this.

Note: A court may award that good faith party rights as a spouse, but generally not to supersede those of the legal spouse if there is one.

Question 26

Will one state generally recognize a marriage that has been entered into in another state?

Answer 26

Generally yes. Rule: The law of the state where the marriage contract was entered into will determine its validity

Question 27

When will a state not recognize a marriage validly entered into in another state?

Answer 27

1. Public policy and 2. statute
2. If the state being asked to recognize the marriage has a strong public policy against that type of marriage, then the marriage may not be recognized. (e.g. Marriages in which the parties went to another state to avoid the restrictions imposed by their domiciliary state).
3. Where there is a specific statutory prohibition in the state being asked to recognize the marriage. (e.g. same sex)

Question 28

Is the issue of recognizing another state’s valid marriage a Full Faith and Credit issue? Why/why not?

Answer 28

No, because marriage isn’t a decree or judgment