Marriage is an institution that carries both personal and legal consequences. Because of the responsibilities that come along with entering into a marriage, the law places restrictions on who can get married that reflect concern for those entering into the marriage contract as well as the moral concerns of the constituency. In order to obtain a marriage license, the parties to the marriage must meet certain requirements including (but not limited to):
- Minimum age
– Most states require that any person seeking to enter a marriage without parental consent be at least 18 years of age.
- State of mind
– In order to enter into a marriage, a person must be of sound mind (the people must understand the ramifications of their decision). Being of sound mind also means that a person is not making the decision to be married under duress (“shotgun weddings” can be annulled)
- Disease testing
– Some states require that people seeking to get married be tested for communicable diseases (at least one state requires being tested for Rabies prior to obtaining a marriage license).
- Opposite sex
– While this is an issue of significant controversy, states require that only people of the opposite sex enter into a marriage contract by and large.
- No prior marriage
– Being married to more than one person at a time is called Bigamy and is illegal in every state. All prior marriages, if any, must be dissolved (either by death or divorce) before entering into a marriage.
- Consanguinity Restrictions
– The amount of relation that people can have to one another and still have the ability to be married varies by state (DISTANT cousins can marry in most states). Just remember that one cannot marry his/her cousin/aunt/uncle/mother/father/brother/sister.
- Common Law Marriage
– When a couple exchanges consent, lives together or a period of time, and hold each other out publicly as husband and wife, the result is what is called a common law marriage. This type of marriage does not involve the other legally required steps for marriage and no solemnization is required. The concept of common law marriage has been eliminated in almost every state, but it is important to remember that most states will recognize common law marriages from other states, even if they don’t allow them by statute provide that the marriage meets other requirements. For example, a state that does not recognize same sex marriage will probably not recognize a same sex common law marriage that occurred in another state.
- Pre-Nuptial agreements
– We have heard about Pre Nuptial Agreements on television and movies, and they are a reality (albeit a less dramatic version of these exist in the real world). Parties that enter into a marriage can enter into contracts prior to the marriage ceremony and these contracts can include any provision that is not against public policy or illegal. Some of the more common inclusions in Pre Nuptial Agreements include (but not limited to):
- Property division
- Control of property
- Spousal support provisions
- Estate issuesPre nuptial agreements are by and large enforceable, however, the agreement must be entered into voluntarily, be in writing and signed by both parties, include a fair accounting of financial worth on the part of both the parties, and be fair. Courts will not enforce a pre nuptial agreement that is unconscionable (i.e. an agreement that will leave one party to the marriage a pauper that will be reliant on public assistance – that would be against public policy). It is highly recommended that both parties consult with separate attorneys before entering into a pre nuptial agreement as this will make the agreement much easier to enforce (and to avoid the appearance of duress).