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Family Law
University of Mississippi School of Law
Bell, Deborah H.

Family Law – Fall 2006
Professor Deborah Bell


· The power to regulate entry into marriage lies with individual states, but state requirements are affected by constitutional restraints, common law presumptions favoring marriage, and resolutions of conflicts between state laws.
· Constitutional Limits of State Regulation
o The right to marry is a fundamental right protected by the Constitution.
o State regulation that significantly interferes with that right to marry must advance significantly important state interests and be closely tailored to meet only those interests.
§ Strict scrutiny has been applied to strike down laws prohibiting interracial marriages and barring delinquent child support payors from marriage.
o Not all state regulations are subject to strict scrutiny. Regulations that do not significantly interfere with the right to marry are tested under the rational relationship test.
§ Parental consent requirements have been upheld under the rational relationship test.
· Common Presumptions Regarding Marriage
o A purported marriage is presumed to be valid.
o It is presumed that parties are eligible to marry.
o It is presumed that parties complied with formal marriage requirements.
o Presume that the person officiating was authorized to perform marriages.
o A person’s most recent marriage is presumed to be valid.
§ This is the most frequently cited presumption.
o The presumptions all place the burden of proof on one who attacks the validity of a marriage.
o MS – The law will indulge every reasonable presumption in favor of marriage.
· Conflicts of Law
o Generally, states will recognize a marriage that was valid in the state where the marriage occurred.
o Two exceptions to the general rule:
§ A state may refuse to recognize a marriage that violates a significant public policy of that state.
§ A state may deny full faith and credit to its own residents who marry in another state to evade home state laws.
o MS follows the general rule, extending full faith and credit to out-of-state marriages that do not violate significant public policy.
o MS has recognized CL marriages not valid under MS state law and marriages between parties not eligible to marry in MS.
o BUT full faith and credit will not be extended to persons of the same sex or to a marriage that is incestuous under MS law if residents attempted to evade the law by marrying somewhere else then returning to MS.

· A marriage is not valid unless the parties:
o Are eligible to marry under state law
o Comply with formal prerequisites for marriage
o Enter the marriage voluntarily
o Failure to comply with those requirements opens the marriage to annulment.
· MS regulates the right to marry based upon:
o Kinship
§ Marriage may be dissolved through annulment or divorce.
§ Children of incestuous marriages are labeled illegitimate even if the parties married in good faith (unlike children of other valid marriages.)
o Bigamous Marriage
§ Bigamous marriages may be set arise by annulment or divorce.
§ The last marriage contracted

of proof.
§ If an alleged CL spouse later entered into a ceremonial marriage, that is considered evidence that the spouse lacked intent to contract earlier CL marriage.
§ A CL marriage may ONLY be dissolved through formal divorce proceedings.
o Ceremonial Marriage
§ Parties must acquire a license
§ Applicants must file written, sworn application with the circuit clerk of any count
§ Must state names, ages, and addresses of the parties and the names and addresses of their parents
§ Application must remain on file for 3 days (unless waived by judge)
§ Must submit proof of age and proof tested negative for syphilis w/30 days
§ Solemnize the marriage through a ceremony
§ Ceremony must be preformed by an authorized person (spiritual leader , a judge, or a county supervisor)
o Mere irregularities or omissions in a license do not affect validity of marriage.
o Failure to comply with licensure provisions does not affect the validity of a marriage solemnized in a ceremony and followed by cohabitation.
o Complete failure to obtain a license is not cured by ceremony and cohabitation.
o No marriage results if a couple obtains a license and cohabits but does not solemnize the relationship through a ceremony.