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Marriage Law

Contents

At common law, a marriage was created as the result of a voluntary agreement between a man and a woman to become husband and wife, without the necessity of certification by the church or the state.

Today, marriage is usually regulated by nations or states, with rights and duties imposed by statute.

At present, most jurisdictions will permit marriage only between a man and a woman, and will not permit either to have multiple spouses. A legal marriage can be ended by death, divorce, or annulment.

Before You Get Married

Before you set your wedding date, it is important to learn the requirements for getting married in your jurisdiction. Usually the requirements will be made clear to you when you apply for a marriage license. Possible issues that may arise include:

  • Blood Tests - some jurisdictions require blood tests for common sexually transmitted disease, before they will issue a marriage license;

  • Pre-Marital Counseling - some jurisdictions mandate attendance at a counseling session, or a video presentation, meant to introduce some of the issues that a newly married couple might face, or counsel on avoidance of sexually transmitted disease;

  • Age Requirements - if one or both would-be spouses are minors, it may be necessary to obtain parental permission before a marriage can proceed. If one or both would-be spouses are very young, typically below the age of 16, it may be necessary to also obtain approval from a judge. Typically, the marriage of a minor has the same effect as legal emancipation.

  • Prohibited Marriage - almost all jurisdictions restrict who can get married, so as to prevent unions between close relatives. Sometimes these laws also extend to in-laws and step-relatives. Similarly, western jurisdictions prohibit marriage where one spouse is already married - and will hold a marriage invalid even if that spouse mistakenly thought that a prior marriage had been ended by divorce or annulment.

  • Marriage License - for formal marriage, a marriage license is required. There is usually a modest license fee.

  • Certificate of Marriage - At the time of the wedding ceremony, the person who performs the ceremony will ordinarily complete a certificate of marriage, which is signed by witnesses to the marriage, and which is filed with the state to record the completion of the marriage. In some jurisdictions the certificate of marriage is incorporated into the marriage license.

"Secret Marriages"

Some jurisdictions permit "secret marriages" under special circumstances, such as where a marriage is held invalid as the result of one spouse's mistaken belief that a prior marriage had ended with divorce or annulment. This may happen as the result of a clerical error in the jurisdiction that processed the divorce, such that the judgment of divorce is never entered, but more typically happens where the "ex-spouse" is trusted to conclude the legal proceedings associated with divorce or annulment, and that "ex-spouse" intentionally or accidentally fails to follow through with the required paperwork or court hearing.

A "secret marriage" is held before a judge, in a closed session of court. Once the problem with the prior marriage is resolved, a "secret marriage" can sometimes even create a backdated order of marriage, so that the marriage is valid from its inception and any children born during the marriage remain "legitimate". (While legitimacy is not ordinarily a significant legal concern in most jurisdictions, it can still carry some legal consequences, and may also carry a social stigma.)

Marriage Abroad

As a general rule, most jurisdictions will recognize marriages that are valid in the state or nation where they occurred. This has yet to be fully tested with same sex marriages, but is certainly the case with traditional marriage. While some nations provide for the expedited naturalization of the spouses of their nationals who marry abroad, that is not universally the case - if you intend to marry abroad to a foreign nationalal, then return with your spouse to your country of origin, it makes sense to explore possible immigration problems that might arise before you set your wedding date. Also, if you plan to gain citizenship in a foreign nation following marriage, you should verify in advance whether doing so will terminate your citizenship in your nation of origin.

Premarital Agreements

Sometimes, when people get married, they consider creating prenuptial agreements to help determine the division of property and award of spousal support in the event of divorce. While prenuptial agreements had their origins in marriages where there was a wide disparity of wealth between the parties, they have become a very valuable tool particularly for couples engaging in second or subsequent marriages. For more information on prenuptial agreements, please follow the link to this article.

Changing Your Name

Most jurisdictions no longer automatically change the wife's name upon marriage, but leave the name change to the discretion of the woman. When the woman desires to effect a legal name change, she must ordinarily submit proof of the marriage (usually a certified copy of the marriage certificate) along with a name change form to appropriate government agencies (e.g., the Department of Motor Vehicles to obtain a new driver's license and to change title on motor vehicles, the Social Security Administration, as well as the state's voter registry, banks, and credit card companies.

Common Law Marriage

Common law marriage has been eliminated in many jurisdictions. Traditionally, it created a legally binding marriage when a man and a woman lived together for a period of time (usually one year) while holding themselves out to the world as man and wife. For more information on common law marriage, please follow the link to this article.

Civil Unions

The civil union is a contractual relationship that offers many, but typically not all, of the benefits of marriage, but does not require either a formal marriage certificate or state-sanctioned marriage ceremony. In some senses, this is a formal successor to common law marriage. Typically, partners in civil unions gain the ability to share their employment benefits (such as health care plans) with their partners, get the right to take parental leave for children they co-parent, and get to play a role in their partners' medical care in the event of incapacity. Absent a legal relationship, people who cohabitate are often surprised that upon the incapacity of a life-partner, their partner's family can freeze them out of medical decision-making, and may even be able to stop them from visiting their partner. It is important to consider that a civil union may not create any right to inheritance, and even if it does inheritance is often governed by the law where property is situated or where the deceased was domiciled at the time of death - and those jurisdictions may not recognize civil unions. Whatever the circumstance, having a will, or another formal estate plan, is a very good idea.

Same Sex Marriage

Same sex marriage, or "gay marriage", is a growing issue in the United States. Proponents assert that as tax-paying citizens, it is only fair that gay couples be afforded the full benefits of civil marriage. Some opponents suggest that gay marriage somehow delegitimizes the institution of marriage. Whether you are for or against it, as it is increasingly accepted in some western nations, it will become a reality for the rest of the world to contend with.

Divorce and Annulment

Just as common law marriage has been largely eliminated, so has any notion of "common law divorce". In most jurisdictions, the only ways to end a marriage between living spouses are divorce or annulment. Divorce is the most common resolution. In some jurisdictions, a divorcing couple must somehow demonstrate that one or both parties have "fault" for causing the divorce. In "no fault" states, it is enough to simply establish that the marital relationship has broken down, and that there is no substantial likelihood of reconciliation. While many people who end up getting divorced inquire about annulment, annulments are available only under very limited circumstances, and most people do not qualify. For more information on annulments, please follow the link to this article.

Ending Civil Unions and Same Sex Marriages

Some traditional couples appreciate the creation of "civil unions", where they can have a contractual relationship and give their life partner certain rights, but not go through the process of marriage. Similarly, some gay couples appreciate their growing ability to join in civil unions in certain U.S. states, or same sex marriage in nations such as Canada. Yet there is an important wrinkle that should be considered before travelling outside of your home state to join in such a union or marriage. At present, it may not be possible to end the union or to get divorced in your home state. That is, even if your state comes to recognize the legitimacy of the union, it may not be able to accommodate the termination of a non-traditional legal relationship under its divorce or contract laws. While nobody plans to divorce at the time of marriage, given the high divorce rate in the western world, this is a valid and important consideration for anybody who is considering a non-traditional marraige or civil union.