Legal Requirements for Marriage Flashcards
Types of Marriage
Include:
- Formal marriage (required in most states)
- Informal marriage
Formal Marriage
Requires both a marriage license + solemnization of the marriage by a state-authorized official.
Formal Marriage: Mistakes
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.
Informal/CL Marriage
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.
4 Req. for CL Marriages
- Capacity to marry
- Present intent to be married
- Cohabitation
- Holding out as a married couple
Capacity to Marry
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.
Cohabitation
Parties must live together on an ongoing basis and consummate the relationship.
Holding Out as a Married Couple
The parties must represent themselves to others as married spouses and not merely as partners
BOP for CL Marriage
Is clear and convincing evidence (placed on party asserting the CL marriage).
Age Req. for Marriage
- 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.
Consanguinity (Majority Rule)
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
Affinity (Minority Rule)
Along with consanguinity, parties that are relatives by marriage are also prohibited.
Marriages Between First Cousins
There is a split among the jurisdictions regarding marriage between first cousins
Lack of Consent Due to Mental Incapacity or Fraud
The inability of a party to consent to a marriage due to mental incapacity or infirmity will render the marriage invalid
What is Fraud?
- 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.
Physical Incapability of Consummation
The ability to consummate the marriage is a common law requirement for marriage.
Prior Marriage Still in Force
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.
Later Ratification of a Subsequent Marriage
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
Rights of Unmarried Partners
Unmarried cohabitants generally have no legally recognized status unless they meet the req. for CL marriage or putative spouses.
