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Family Law
University of Toledo School of Law
Knouse, Jessica

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

is broad judicial standing, meaning that the parents can attack the marriage
                                                                                                                                    ii.      Standing is only given to the underage and the parents of the underage
b.      There is an affirmative defense to violating the consent requirement, if no one attacks the marriage before the underage becomes of age, then NO ONE can ever attack it
                                                                                                                                      i.      This is called “curing the marriage”
3.      void or voidable
a.       most states say it is voidable- but be careful see point 2
                                                          iii.      No incestuous marriages:
1.      All states PROHIBIT marriage between blood or marriage relatives to a certain degree
2.      These marriages are void and attackable by anyone at anytime
3.      This is also a felony in every state
                                                          iv.      Bigamy/Polygamy:
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: