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Family Law
University of Dayton School of Law
Howarth, Cooley R.

Validity of Marriage

Introduction to Marriage

Marriage defined!!!= marriage is a legal status that arises out of a contract, which is evidenced by some action on the account of the parties…i.e. a ceremony
State requirements: every state sets out certain substantive requirements which a couple must meet in order to have a valid marriage
Classification of marriages

i. Valid marriage: any marriage that meets all 3 substantive requirements (consent, capacity and formalities of celebration)
1. Presumption of validity → all states
a. If there is any evidence of marriage, there is a presumption that the marriage is valid unless shown otherwise
b. Person attacking the marriage’s validity has the burden of meeting that presumption
ii. Invalid marriage: 2 types
1. Voidable marriage:
a. Marriage that exists factually and legally
b. Voidable marriage is terminable by a court declaration that it suffers from a particular impediment to its validity
c. Can ONLY be attacked by one of the parties to the marriage (direct action for annulment)
i. Usually must be done during the lifetime of both parties
2. Void marriage:
a. Marriage that never existed in the eyes of the law
b. Can be attacked by:
i. Parties to the marriage
ii. Interested parties (heirs, children, the state)
c. Can be attacked at any time, including after parties are dead

A marriage is presumed to continue until terminated by EITHER

i. Death, OR
ii. Legal action

3 requirements for a valid marriage

i. Formalities of celebration, AND
ii. Capacity to marry, AND
iii. Consent to marry

Formalities of Celebration:

2 general requirements:

i. Licensure: must obtain state’s permission to marry
ii. Solemnization: rules that govern the public declaration of the legal right to marry
1. Usually states require some kind of ceremony
2. Often states require witnesses
3. Consummation of marriage is NOT a requirement (except in OH)

Compelling state interests for enforcing formalities of celebration

i. Make individuals realize importance and consequences of getting married
ii. Record keeping; provides objective evidence
iii. Help government enforce validity of marriage

Failing to comply w/ formalities of celebration: 3-way split

i. Makes marriage invalid
ii. Majority view (33-34 states) → marriage is not invalidà validity is NOT dependent on compliance w/ formalities of celebration
1. Many state statutes LOOK like they will render the marriage invalid, but you must read the case law to be sure
a. ex. Denton case
2. Public policy: courts will try to uphold the expectations of the parties; if the parties believed they were getting married, courts will often allow the marriage to be valid
iii. Common law marriage (recognized in 11 states?- OHIO)
1. Alternate way of getting married
2. Perfectly valid marriage; has all the rights and duties of a ceremonial marriage
3. Present Elements:
a. Present agreement to marry by competent parties, AND
i. traditionally this was the only requirement for a common law marriage
ii. still this is all that is necessary to form the CLM- the other 2 other elements merely go towards disproving the existence of the marriage
iii. What type of an agreement is necessary?
1. depends on the state- some states require direct evidence of an express agreement
2. Other states will allow the use of circumstantial evidence to Infer that there was an agreement – TF either an express or implied agreement will do
3. Some states even venture to say that any evidence of cohabitation or holding themselves out as spouses this will raise a presumption that there has been an agreement
a. The burden is then shifted to the attacker of the validity of the marriage that there isn’t an agreement- he is forced to prove a negative
b. This is the most lenient of all ways to enforce a CLM
b. Continual Cohabitation as husband and wife, AND
i. No time requirement; i.e. couple does not have to cohabitation for any length of time, time is never specified
ii. No inference, presumption here
c. Public reputation in the community as husband and wife
i. Community must treat and recognize it as a marriage
ii. No inference, presumption here
4. Reason for requirements is to prevent fraud; if one spouse dies there must be objective evidence to show there actually was an agreement to marry
5. Proving a common law marriage
a. Burden of proof
i. Person claiming the common law marriage has the burden of proving it exists
ii. High burden → must be by clear and convincing evidence
b. 3-way split:
i. Inference: if party can put on enough evidence to show 1) cohabitation and 2) public reputation as husband and wife, court will INFER the existence of an agreement
ii. Presumption:
1. Any evidence of cohabitation and reputation in the community leads to a PRESUMPTION that there was an agreement
2. Burden then shifts to the other party to rebut the presumption
iii. No presumption or inference: ALL elements must be shown by clear and convincing evidence
iv. Putative spouse doctrine/ (curative remedy)
1. Marriage is invalid b/c it suffers from some impediment of the formalities, but an innocent spouse believes in good faith that the marriage is valid
a. Putative marriage is ALWAYS an invalid marriage (either void or voidable- depending on what the impediment was)
b. Not necessarily connected to bigamy- the latter marriage is void or voidable for an impediment of any of the formalities
2. If the party has a good faith belief that the marriage is valid, the court will treat the marriage as if it was valid
a. Putative spouse remedy DOES NOT validate the m

1. Every state prohibits these marriages and finds them void, attackable by anyone at anytime
2. There is a strong public policy favoring monogamy BUT it’s riddled w/ holes:
a. Successive marriages and divorces are very common
b. Putative spouse doctrine undermines it
3. Evidentiary rebuttable presumption…Where there is evidence of two or more successive marriages, the LAST marriage is presumed to be VALID and all PRIOR marriages are presumed to have been TERMINATED by death or legal action (contradicts with prior presumption that all marriages are presumed valid- the former trumps the latter- based on the assumption that it is vindicating the intent of the parties)
a. Elements of presumption- triggers
i. Evidence of 2 successive marriages
ii. The last marriage is presumed valid- all previous ones are presumed invalid by death or legal action
iii. This presumption applies to all marriage types
1. ceremonial marriage
2. CLM
3. not putative marriage
b. In the battle of the 2 presumptions, every court in every state has chosen the presumption that favors the 2nd marriage
i. This is still just a presumption and wife #1 has a chance to REBUT the presumption
ii. 2 views:
1. Majority:
a. Wife #1 could do this by showing that the 1st marriage was NOT terminated…prove a negative
i. Have clerk sign an affidavit showing an ABSENCE of an annulment or divorce
ii. This would have to be done in every state where their marriage was valid and recognized in some states- in other states this would only have to be done in the states where the parties lived
iii. If parties are still both alive put both parties on the stand and have them testify that they never sought divorce/ annulment
2. Minority: (OH)
a. The way you rebut the presumption is that if wife #1 can show ANY evidence of the validity of her marriage, at that point the presumption is rebutted and the burden now shifts to the wife #2 to show that the 1st marriage was terminated.
i. Now W2 must show that marriage between W1 and H was terminated- through evidence of divorce or annulment
v. Proper mental and physical health:
1. Some states require spouses to take STD tests
a. Not always the same for both sexes

Consent: (is raised usually if ever- as grounds for annulment)

Must be 4 things: