Marriage Law


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. In those early years it was not necessary to have the marriage certified 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. Some western nations, including the United States, have legalized same-sex marriages.

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 when you try to marry include:

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

  • Blood Tests - Before issuing a marriage license, some jurisdictions require proof that you have completed blood tests for common sexually transmitted disease;
  • 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. In most states, the marriage of a minor has the same effect as legal emancipation, meaning that it removes the child from the legal control of his or her parent.

  • 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.

  • 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 a spouse was trusted to conclude the legal proceedings associated with divorce or annulment, and that 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. In some states, a secret marriage may 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. (Although legitimacy is not a significant legal concern in most jurisdictions, it may 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 in which they occurred.

Some nations provide for the expedited naturalization of the spouses of their nationals who marry abroad, although that is not universally true - if you intend to marry abroad to a foreign national, then return with your spouse to your country of origin, you should investigate 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. Although 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 read 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. Similarly, many jurisdictions now allow the husband to choose the wife's surname, or for the married couple to choose an entirely new or combined surname.

When a spouse desires to effect a legal name change, that spouse 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 (for example, 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

Traditionally, common law marraige 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. Common law marriage has been eliminated in many jurisdictions.

For more information on common law marriage, please read this article.

Civil Unions

The civil union is a contractual relationship that offers many, but typically not all, of the benefits of marriage. In some senses, civil unions are a formal successor to common law marriage. Entry into a civil union does not require either a formal marriage certificate or state-sanctioned marriage ceremony.

Among the typical benefits of entry into a civil union, 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. Even when a civil union vests a partner with inheritance rights, those rights are often governed by the law where property is situated or where the deceased was domiciled at the time of death - and those jurisdictions may have different laws for civil unions than the state in which a couple entered into the union.

Whatever the circumstance, having a will, or another formal estate plan, is a good idea for everyone.

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

Divorce is the most common means used to end a marriage. In some jurisdictions, in order to obtain a divorce, a couple must demonstrate that one or both parties have fault for causing the divorce. In a no-fault jurisdiction, it is enough to simply establish that the marital relationship has broken down, and that there is no substantial likelihood of reconciliation. All U.S. states now provide for no-fault divorce, but some impose lengthy separation requirements for couples that want to pursue a no-fault divorce.

Annulment

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. The exact requirements to obtain an annulment vary by state, with typical grounds including incompetency at the time of marriage, fraudulent inducement of a party into the marriage, or the ineligibility of a partner to marry.

Some marriages are deemed void even without an order of annulment, such as where one spouse is already married at the time the couple enters into their marriage. It is generally still a good idea to proceed with an annulment in order to avoid any legal problems or confusion in relation to a later marriage, or problems that may arise during an eventual estate proceeding after a partner to the void marriage passes away.

For more information on annulments, please read this article.

Ending Civil Unions

Some traditional couples appreciate the creation of civil unions, through which they can have a contractual relationship and give their life partner certain rights without going through the process of marriage. Yet there is an important wrinkle that should be considered before choosing a civil union over a marriage. The laws governing the break-up of civil unions are sometimes far less clear than the laws governing divorce, and it may thus be more complicated to address division of property and retirement benefits, or addressing claims for spousal support, when ending a civil union.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on Dec 16, 2016.