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, 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;

  • Premarital 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"

A few jurisdictions permit secret or confidential marriages, allowing the parties to a marriage to obtain a marriage license that does not reflect the date of marriage, or is not a public document.

Michigan

Michigan permits secret marriage 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. Such a mistaken belief might 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.

In Michigan, a confidential marriage involves a hearing 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.)

California

The State of California offers confidential marriage licenses as an alternative to a traditional marriage licenses. While public marriage licenses are broadly available for public inspection, a secret marriage license is not open to inspection by the public without a court order.

As compared to a regular marriage license, the only additional requirement for obtaining a confidential marriage license is that the couple seeking the license must swear that they live together. There is no minimum cohabitation requirement, nor is any proof of cohabitation required. A marriage ceremony held under a confidential license does not have to occur in the presence of witnesses, and there is no requirement that witnesses sign the license before it is returned upon completion of the marriage ceremony.

Marriage Abroad

As a general rule, most jurisdictions will recognize marriages that are valid in the state or nation where they occurred.

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 national and 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.
  • 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

When people get married, some couples 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.

Changing Your Name

Most jurisdictions no longer automatically change a woman's surname upon marriage, but leave the name change to the discretion of the woman. Many jurisdictions now also permit a male partner or both partners to request a change of surname following marriage.

When a spouse desires to effect a legal name change following marriage, the 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 (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

With common law marriage, couples may come to be recognized as legally married despite never seeking a marriage license or holding a marriage ceremony. Traditionally, a legally binding marriage could be created under common law principles 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 most states.

Same Sex Marriage

Same sex marriage is now allowed in every U.S. State. Same sex couples have the same marriage rights as any other person, and gain the same rights and benefits from marriage as any other couple.

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.

Traditionally, divorce required one spouse to prove fault on the part of the other spouse, proof the other had committed wrongful conduct that provided legal grounds for divorce.

All U.S. states now offer a form of no-fault divorce. No proof of fault is required for a no-fault divorce. It is enough to simply establish that the marital relationship has broken down and that there is no substantial likelihood of reconciliation.

A few jurisdictions require longer waiting periods or periods of separation before a couple will become eligible for a no fault divorce, but may allow couples to proceed at an earlier date with a fault-based divorce. Some jurisdictions will allow a no fault divorce, but will consider evidence of fault when dividing the marital estate between the parties to a divorce.

Some people who want to end their marriages choose to seek an annulment, a court order that declares their marriage to be void. Annulments are available only under limited circumstances, such as where the marriage is prohibited by law, where one partner to the marriage was not legally competent at the time of marriage, or where the marriage resulted from fraud or duress. Most people will not qualify for annulment, and will instead have to proceed with a divorce.

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, a civil union isĀ  a formal successor to common law marriage, allowing many of the rights of marriage without the formalities of a traditional 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.

Limits of Civil Unions

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.

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 laws in your state of residence, having a will or another formal estate plan is a very good idea.

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 travelling outside of your home state to enter a civil union: it may not be possible to end the civil union 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. This problem is not insurmountable, but it can present an obstacle to a couple that enters a civil union in one state but later wants to end that union while living in another state.

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 May 7, 2018.