Chart I

Table of Consanguinity

Incest statutes have been attacked on the basis that they are too broad in defining prohibited relationships. For example, incest statutes do not distinguish between relationships of the full and half blood. Virtually all courts hold that the prohibited degrees of consanguinity include persons related by half blood. See, e.g., People v. Baker, 442 P.2d 675 (1968); Singh v. Singh, 213 Conn. 637, 569 A.2d 1112 (1990).

Example: Cedric and Cynthia are half brother and sister. Cynthia had been adopted and raised by another family. As adults, they decide they want to marry. They are indicted for entering into a prohibited marriage. The court held the adoption was irrelevant; the consanguinity statute still applies. The marriage is void. See, e.g., State v. Sharon H., 429 A.2d 1321 (Del. 1981).

An attempted incestuous marriage will be considered void. It is said to be invalid from its inception. However, even a void marriage can have legal consequences. Specifically, there are statutes for criminal prosecution of incest involving close blood relatives.

Statutes prohibiting adopted siblings from marrying have been challenged and held to be unconstitutional. Most courts, but not all, allow marriage by persons related only by adoption.

Example: An adopted brother and sister want to marry each other. Their parents had married when they were ages 18 and 13, respectively. They are denied a marriage license because of the prohibition against brother/sister marriage. In this case, the brother and sister argued that the statute prohibiting their marriage was unconstitutional because the statute did not have a rational relationship to a legitimate state interest. Therefore, it violated the Equal Protection Clause of the U.S. Constitution. Furthermore, since they were not related by blood, there was no problem with producing genetically defective children. The court agreed and they won the right to marry. See, e.g., Israel v. Allen, 195 Colo. 263, 577 P.2d 762 (1978).

A marriage between people related by affinity or by marriage used to be widely prohibited and still is today with respect to step-relationships. It is justified not on a genetic basis, but on social grounds—maintaining a harmonious family. Courts do not like to authorize and encourage the marriage of adopted brothers and sisters because it would undermine the fabric of family life and would go against the purposes which the adoption process was intended to serve. See, e.g., Marriage of Mew and MLB, 4 Pa. D & C.3d 51 (1977).

In the absence of a statute, when a marriage ends by death, divorce or annulment, most courts terminate all affinity relationships that were produced by the marriage.

Example: Douglas and Wendy, who has a daughter (Donna) by a prior marriage, wed. Subsequently, Douglas and Wendy divorce. Years later when Douglas wanted to marry Donna, the court held that he may marry her because Donna’s status as step-daughter ended with the divorce. See, e.g., Back v. Back, 148 Iowa 223, 125 N.W. 1009 (1910).

In addition, about one half of states forbid marriage between first cousins; some states even extend this prohibition to second cousins.

Example: Husband and wife are Jewish, first cousins, and marry in Rhode Island. Rhode Island allows marriage between first cousins only if the parties are Jewish. Two weeks after their marriage, they return to New York where they live for 32 years. New York does not allow marriage between first cousins. The wife dies, and the husband petitions to be named administrator of the wife’s estate. The court held that this was a valid marriage. The validity of the marriage was determined by the law of the place of celebration unless it was against public policy. The court found the Rhode Island law did not violate New York’s public policy. See, e.g., In Re May’s Estate, 305 N.Y. 486, 114 N.E.2d 4 (1953).

Controversies about the health of the parties entering marriage usually arise due to questions about capacity or fraud in concealing or misrepresenting a physical condition. Marriages are valid if the parties had sufficient capacity to understand the nature of the contract and the obligations and responsibilities it creates. Marriages are void when either party at the time of marriage is insane or mentally incompetent to enter into the marriage relationship. There has to be such a want of understanding as to render the party incapable of assenting to it. A mere weakness or imbecility of mind is not sufficient to void a marriage unless it is shown that it prevented the party from comprehending the nature of the contract and the obligations or responsibilities the contract creates. The burden of proof is on the party seeking the annulment. Moreover, whereas temporary intoxication leading to temporary incapacity can render a marriage void, subsequent ratification of the marriage after the hangover has abated will validate the marriage. See, e.g., Edmunds v. Edwards, 287 N.W.2d 420 (1980).

Other Formalities

Most states require compliance with other specific formalities in order to have a valid marriage:

Evaluating consent - mental capacity to contract and actual intent to be married - occurs at the time of marriage; the intended spouses need to be capable of understanding the nature of the act of marriage. A license is a means to certify consent and a ceremony solemnizes the wedding.

The marriage license is obtained from the town or city clerk, who requests documentary proof of age and parental consent forms, when appropriate. The city clerk’s duty is to see if the parties are mentally capable to marry. The clerk may ask questions, and even request proof. If the clerk does not find any clear incapacity to marry, the clerk must issue the license. Three fourths of states adopt a waiting period: one to ten days with three days commonly required; 15 states do not impose a waiting period after issuance of the license before the ceremony can take place.

Example: Joe and Mary wish to get married. Jane, a friend who got married two years ago, tells them how to obtain a license. Jane directs them to go to city hall and request a marriage license. Joe and Mary pick up a disposable camera, and are extremely excited as they enter the town clerk’s office in city hall. Once they reach the front of the line, they request a marriage license. The clerk then gives them a form to fill out which has basic questions about the parties’ names, addresses, parents’ names, and the parties’ past marital status. On the bottom of the form is a place for the marriage performer or officiant to sign once the marriage ceremony is complete. Joe and Mary decide to have a justice of the peace solemnize their wedding because both are from different religions. The justice of the peace has his office on Main Street, and the next day both present themselves in front of the justice of the peace, pay his fee and have their wedding ceremony completed.

A party, in the excitement of the wedding ceremony may forget to obtain a license. Failure to obtain the license does not automatically make the marriage void. However, when dealing with a minor who may have needed parental consent to marry, the minor is free to elect to declare the marriage void; therefore, this type of marriage to a minor is voidable. When an officiating person fails to obtain a license for the parties, the officiating person can be fined. Furthermore, without express language in the statute that the marriage would be void without a license, the marriage is dissolvable rather than void.

Example: Susan and Johnny exchange wedding vows before a priest according to the rite of the Roman Catholic Church, but inadvertently forget to obtain a marriage license. Despite this oversight, they continue to live together in marital bliss, raising four children, each birth certificate listing Johnny as the father. In their state of residence there are two requirements for a valid marriage: a marriage license, and solemnization. When Susan brings an action for dissolution of the marriage, the court held that the marriage was not void simply because of this non-statutory compliance. Rather, the marriage was dissolvable rather than void in the absence of express language in the governing statute declaring the marriage void for failure to observe a statutory requirement. Johnny would be estopped from asserting that there was no marriage when Susan filed for divorce because their marriage was duly solemnized by a religious service. “A marital relationship is in its origins contractual, depending as it does upon consent of the parties. A contract of marriage is unique in that it is simply introductory to creation of a status, and what that status is the law determines.” See, e.g., Carabetta v. Carabetta, 438 A.2d 109 (1980).

Public policy is strongly opposed to regarding an attempted marriage entered into with good faith, believed by one or both of the parties to be legal and followed by cohabitation, to be void. If it becomes ascertainable that a marriage was duly solemnized, without any other defect than the lack of a marriage license, it is not invalid. Although it is not advisable to get married without a license, at least there is remedy to compensate for a couple’s oversight.

Furthermore, a marriage’s validity is determined based on where it was celebrated. For example, a marriage that is valid in a state or country where it was celebrated will always be valid in a sister state or the United States, unless it is repugnant to public policy. The converse is also true. A marriage that is invalid where celebrated is invalid everywhere.

Example: Benoit and Emma get married in the gardens of Cambridge University, England. Emma is not present, and has arranged marriage by proxy. British law prohibits marriage by proxy. When Benoit and Emma move to Virginia, Virginia law will not accept their marriage as a valid marriage because it was invalid where it was celebrated (England).

Legal Effects of Invalid Marriage

A void marriage is non-existent, has never existed and should require no formality to come to an end. A voidable marriage is effective until it is formally voided, usually by means of a court order. Once a voidable marriage is voided, however, the effect usually is retroactive; and, as in the case of a void marriage, the law deems that the marriage has never existed.

Some void marriages automatically, though not retroactively, become valid when the impediment is removed. See, e.g., UMDA § 207(b). For example: (1) death of a prior, undivorced spouse validates a bigamous marriage to another partner and (2) an under-age marriage, void when contracted, may be validated by continued cohabitation after the proper age for marriage is reached.

Putative Spouse Doctrine

A putative marriage is a marriage contracted in good faith and in ignorance of some existing impediment facing at least one of the contracting parties. See, e.g., U.S. Fidelity & Guaranty Co. v. Henderson, 53 S.W.2d 811 (Tex. Cir. Ct. App. 1932); Succession of Marinoni, 164 So. 797 (La. 1935). A few states now extend marriage-like benefits to persons who mistakenly considered themselves to be in a valid marriage. The purpose is to protect the rights of innocent parties. Unlike in common law marriages, where both parties are usually aware that the ceremonial requirements have not been met; in putative marriages the good faith commitment of at least one participant is required.

The party asserting a claim for a putative marriage must prove lack of knowledge of the impediment to a valid marriage. See, e.g., Smith v. Smith, 1 Tex. 621 (1846). Additional requirements include:

In this situation the rights vary. For example, the putative spouse can recover an equitable share of property that was accumulated while the relationship continued in good faith. In addition, the spouse may share an inheritance, may be entitled to workmen’s compensation benefits, sue for wrongful death, or be eligible for other benefits related to the partner. For the duration of the relationship, there is a close approximation between the rights of the putative spouse and those of a legal spouse. Yet, the putative spouse’s protection extends only so long as the good faith (what a reasonable person would have concluded under similar circumstances) lasts.

Conflict of Laws

As previously stated, the law of the place of celebration of the marriage ordinarily governs the validity of a marriage. Since different states have different rules, some attempt at uniformity has been established. The Uniform Marriage Evasion Act states:

. . . if any person residing and intending to continue to reside in this state and who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null.

A “validation” statute enacted by many states is a way to codify the general rule: if the marriage is valid in the state where performed, a couple who later moves to another state still has a valid marriage. There are exceptions to the general rule of universal recognition: despite the basic rule that a marriage valid where contracted is valid everywhere, the courts and validation statutes have universally recognized a number of exceptions:

A marriage valid where contracted will nevertheless not be recognized as valid in the forum state if such recognition would be contrary to a strong public policy of the forum state. See, e.g., Restatement (Second) of Conflict of Laws 283(2) comment f (1971) (marriage valid where contracted will be recognized as valid everywhere unless it violates the strong public policy of another state which has the most significant relationship to the spouses of the marriage); see also Fattibene v. Fattibene, 183 Conn. 433, 441 A.2d 3 (1981) (Connecticut need not recognize marriage that violates strong public policy of state), In re Estate of Loughmiller 229 Kan. 584, 629 P.2d 156 (1981) (listing exceptions to validation statute, including marriage that is polygamous, incestuous, or prohibited by the state for public policy reasons).

There are three commonly recognized categories of marriages contracted in another state that will not be recognized in the forum state.

Rather than conform to the formal requirements to get married, some couples choose to follow a more informal path to “wedded bliss” via common law marriage.