Marriage
– Entering Marriage
Formal Requirements
– Licensure & Solemnization
o Model Marriage & Divorce Act § 206
§ (a) A marriage may be solemnized by a judge of a court of record, by a public official whose powers include solemnization of marriages, or in accordance with any mode of solemnization recognized by any religious denomination, Indian Nation or Tribe, or Native Group.
§ (d) The solemnization of the marriage is not invalidated by the fact that the person solemnizing the marriage was not legally qualified to solemnize it, if either party to the marriage believed him to be so qualified.
o Regulations fall into two categories – licensure and solemnization.
§ All states have marriage license laws
· Most states require a physical examination as a prerequisite for a marriage license.
o Venereal disease, tuberculosis, rubella, sickle cell.
o Louisiana and Illinois experimented with requiring pre-marital AIDS testing requirements. Both statutes were quickly repealed.
§ It has been argued that mandatory pre-marital AIDS testing is unconstitutional.
o Many states impose a waiting period (of either 3 or 5 days), either between application and issuance of the license or between issuance and performance of the ceremony.
§ Can be waived under certain circumstances (i.e. the woman is pregnant, parties are already parents, military).
o Other requirement: registration of a marriage certificate – usually filed with a county or state official.
o Section 206(b) of the Model Act allows proxy marriages.
§ Necessary if one party cannot be present for the ceremony.
· Most prominent use has been in wartime with one party on duty overseas, but sometimes used by prisoners.
State v. Denton
– Man invoked spousal privilege to prevent his wife from testifying against him, but DA said that she could testify him since the marriage was invalid due to the fact that the parties had never obtained a marriage license.
– Issue: was the couple’s ceremonial marriage valid notwithstanding the lack of a license?
– Common Law Principle: A marriage without a license is universally held to be valid in the absence of an express declaration by the Legislature that such a marriage is void.
o Marriage treated like a contract – if the parties were willing to contract, able to contract, and did contract, then the marriage is good and valid.
– Policy Considerations: Policy favoring valid marriages is strong – justifies recognition of an unlicensed ceremony unless the licensing statute plainly makes an unlicensed marriage invalid.
– Court noted that Washington has a statutory requirement for a marriage license – “Before any persons can be joined in marriage, they shall procure a license from a county auditor”.
o But Washington does not have a statute plainly making an unlicensed marriage invalid.
– Holding: Court ruled that because husband and wife here were parties willing and able to contract for marriage, and did contract for it in the solemnities required by law, their marriage was valid.
Notes to Case
– Denton reflects the general rule that violations of formality requirements do not void the marriage.
o Such rules are normally found “purely regulatory”.
– However, in Nelson v. Marshall, the Court held that the license requirement was designed to eliminate common law marriage and failure to obtain a license rendered the attempted marriage void even though there was a ceremony.
o This is the minority approach.
– Denton reflects the majority rule’s rationale.
– However, those who knowingly perform a wedding ceremony in violation of the requirements may violate the criminal law.
o But, prosecutions under such laws are rare.
– Voidable marriages – a marriage that is neither valid nor void.
o It is not valid because a married regulation, either formal or substantive, has been violated.
§ On the other hand, it is valid until a Court decrees invalidity in an annulment action.
o The annulment, declaring the parties never were married, differs from a divorce, which terminates a marriage that once existed.
– Still theoretical reasons to inquire whether violation of particular regulation renders the marriage void or voidable.
o A void marriage should need no judicial declaration of invalidity and be attackable in any collateral proceeding (by contrast, a voidable marriage exists until annulment).
o A truly void marriage can be attacked (or ignored) by anybody, while voidable marriages usually can be attacked only by the parties, and sometimes only by one of them.
o A voidable marriage can be ratified, while a void marriage cannot.
o There could be financial consequences.
– Communication Privilege – designed to encourage marital communication and frankness.
o Several Exceptions: Criminal prosecutions for crimes committed on one spouse by the other, actions against third parties for injury to the marital relation, and interspousal litigation such as divorce.
Common Law Marriage: Exception to Formality Requirements
In Re Estate of Hall
– W and H recently separated from their spouses with divorce actions pending – began living together.
o After divorces were made final, two continued their relationship.
– At a family outing, H drowned and Burnworth named administrator of the estate. W petitioned to replace him with herself, considering herself to be the common-law spouse.
– Trial Court disagreed, said that at no time did H intend to marry W (never changed his life insurance polic
arties knew of the impediment at the inception of their relationship, many courts require proof of a new agreement after the impediment’s removal.
§ Some courts acknowledging the unlikelihood of a new post-removal agreement, do not require a new agreement, but find a marriage if the parties continue to cohabit and hold themselves out as married.
– General conflicts rule – a marriage valid where contracted is recognized elsewhere.
o “Circle” situation – two people agree to be married, cohabit, and hold themselves out as married in a non-recognizing jurisdiction.
§ Then, after spending time in a recognizing jurisdiction, they return home.
· At some later point (often the death of one “spouse”), the home state must decide if the couple was married.
o In this situation, many courts find a marriage, often despite merely ephemeral connection to the common law marriage state.
o Some cases refusing to recognize marriage here frankly ground their analysis in what is described as a strong forum policy against common law marriage.
o “Chain” situation – a couple, having contracted a common law marriage in a recognizing state, moves to a non-recognizing state where the marriage’s validity is litigated.
§ Almost all courts recognize the marriage here, particularly if there was a significant connection to the common law state.
o Travers v. Reinhardt
§ Couple live together in several non-common law marriage states, then moved to NJ, then, a recognizing state.
· There was no proof of any new agreement in NJ, but the Supreme Court found a marriage, based on an inferred continuing agreement.
Putative Spouse Doctrine
– Example Statute:
o (A) If a determination is made that a marriage is void or voidable and the court finds that either party or both parties believed in good faith that marriage was valid, the court shall:
§ (1) declare the party or parties to have the status of a putative spouse
§ (2) If the division of property is in issue, divide…that property acquired during the union that would have been community property or quasi-community property if the union had not been void or voidable…This property is known as “quasi-marital property”.
In Re Estate of Vargas
