Legal Requirements for Marriage

Question 1

Types of Marriage

Answer 1

Include:

• Formal marriage (required in most states)
• Informal marriage

Question 2

Formal Marriage

Answer 2

Requires both a marriage license + solemnization of the marriage by a state-authorized official.

Question 3

Formal Marriage: Mistakes

Answer 3

Most states will forgive the mistake, and the marriage will be presumptively valid as long as the parties were eligible to marry and were in good faith intending to enter a marriage.

Question 4

Informal/CL Marriage

Answer 4

Most states do not recognize common law marriages. However, most states will recognize a common law marriage performed validly in another state, unless the circumstances violate an important state public policy.

Question 5

4 Req. for CL Marriages

Answer 5

• Capacity to marry
• Present intent to be married
• Cohabitation
• Holding out as a married couple

Question 6

Capacity to Marry

Answer 6

None of the restrictions to the validity of a marriage may exist, including: consanguinity (biological relations), prior-marriage, or age. If the impediment is removed after formation, the CL marriage may be recognized if all req. are met.

Question 7

Cohabitation

Answer 7

Parties must live together on an ongoing basis and consummate the relationship.

Question 8

Holding Out as a Married Couple

Answer 8

The parties must represent themselves to others as married spouses and not merely as partners

Question 9

BOP for CL Marriage

Answer 9

Is clear and convincing evidence (placed on party asserting the CL marriage).

Question 10

Age Req. for Marriage

Answer 10

• Majority rule- if either party is a minor under the age of 14, the marriage is prohibited. If either party is a minor between the ages of 14 and 18, a marriage license will not be issued without the consent of a parent or guardian
• Minority rule- some states will allow a minor between ages of 14 and 16 to obtain court approval. Some states also make allowances for a minor that is pregnant.

Question 11

Consanguinity (Majority Rule)

Answer 11

A marriage license will not be issued for marriages between blood relatives (whole or half-blood) who are

• ancestor and descendant
• brother and sister; or
• uncle and niece, or aunt and nephew

Question 12

Affinity (Minority Rule)

Answer 12

Along with consanguinity, parties that are relatives by marriage are also prohibited.

Question 13

Marriages Between First Cousins

Answer 13

There is a split among the jurisdictions regarding marriage between first cousins

Question 14

Lack of Consent Due to Mental Incapacity or Fraud

Answer 14

The inability of a party to consent to a marriage due to mental incapacity or infirmity will render the marriage invalid

Question 15

What is Fraud?

Answer 15

• The majority of states use the tort definition of fraud –> misrepresentation or failure to disclose + intended to induce the other party to enter the marriage + that is material.
• A minority of states hold that the fraud must go the essence of the marriage (sexual relations and the ability and desire to have children).
• False representation’s about one’s character, social standing, or fortune do not constitute fraud sufficient to annul a marriage.

Question 16

Physical Incapability of Consummation

Answer 16

The ability to consummate the marriage is a common law requirement for marriage.

Question 17

Prior Marriage Still in Force

Answer 17

A person who has already been married is incapable of entering into another valid marriage unless the former spouse has died, or the prior marriage has been judicially terminated. There is a presumption that the party’s latest marriage is valid, and any earlier marriage was dissolved.

Question 18

Later Ratification of a Subsequent Marriage

Answer 18

A subsequent marriage that is initially invalid because one of the parties had a prior marriage in force will become valid upon removal of the impediment of the prior marriage by death or dissolution if:

• the applying couple continued to live together as a married couple after the impediment had been removed; and
• the parties entered the subsequent marriage in good faith

Question 19

Rights of Unmarried Partners

Answer 19

Unmarried cohabitants generally have no legally recognized status unless they meet the req. for CL marriage or putative spouses.