Requirements of Getting Married
Q. Legally, what is marriage?
A. Most states define marriage as a civil contract between a man and woman to become
husband and wife.
The moment a man and woman marry, their relationship acquires a legal status. Married
couples have financial and personal duties during marriage and after separation or divorce. State
laws determine the extent of these duties. As the United States Supreme Court said about
marriage in 1888: “The relation once formed, the law steps in and holds the parties to various
obligations and liabilities.”
Of course, marriage is a private bond between two people, but it is also an important
Today, society also recognizes marriage as:
· a way to express commitment, strengthen intimate bonds, and provide mutual emotional
· a (comparatively) stable structure within which to raise children;
· a financial partnership in which spouses may choose from a variety of roles. Both spouses
may work to support the family, the husband may support the wife, or the wife may support
As our society becomes more complex, there is no longer a short answer to the question
“What is marriage?” Definitions and opinions of the proper functions of marriage continue to
change. The women’s rights movement and gay rights movement have changed some people’s
ideas of marriage and created new forms of relationships, including Adomestic partnerships@ and
Acivil unions@ for same-sex couples. Marriage will remain, but it will also continue to evolve.
Q. What are the legal requirements for getting married?
A. The requirements are simple, although they vary from state to state. In general, a man and
woman wishing to marry must obtain a license in the state in which they wish to be married,
usually from a county clerk or a clerk of court. The fee usually is low.
Some states require the man and woman to have blood tests for venereal disease–but
not for AIDS–before the license is issued. Some states do not require this test if the two have
already been living as husband and wife. If the test shows that a would-be spouse has a
venereal disease, certain states may not issue a license. Other states will allow the marriage if the
couple knows the disease is present.
In some states a couple must show proof of immunity or vaccination for certain diseases.
A few states demand a general physical examination.
If one or both of the parties have been married before, the earlier marriage must have
been ended by death, divorce, or annulment.
Parties who wish to marry must have the “capacity” to do so. That means the man and
woman must understand that they are being married and what it means to be married. If
because of drunkenness, mental illness, or some other problem, one of parties lacks “capacity,”
the marriage will not be valid.
Close blood relatives cannot marry, although in some states, first cousins can marry. Of
those states that allow first cousins to marry, a few states also require that one of the cousins no
longer be able to conceive children.
Most, but not all, states require a waiting period, generally one to five days, between the
time the license is issued and the time of the marriage ceremony.
Q. At what age may people marry?
A. In most states, a man or woman may marry at age eighteen without parental consent. Most
states also allow persons age sixteen and seventeen to marry with consent of their parents or a
Q. When does a couple truly become married?
A. Most states consider a couple to be married when the ceremony ends. In a few states, lack
of sexual relations may allow a spouse to have the marriage annulled (see below). In most
states, however, non-consummation does not affect the validity of the marriage. In all states, the
proper official must record the marriage license. Recording the marriage license acts as proof
that the marriage happened.
Q. Is a particular type of marriage ceremony required?
A. A marriage ceremony may be religious or civil. The person or persons conducting the
ceremony should indicate that the man and woman agree to be married. A religious ceremony
should be conducted under the customs of the religion, or, in the case of a Native American
group, of the tribe. Most states require one or two witnesses to sign the marriage certificate.
Q. Who may conduct a marriage ceremony?
A. Civil ceremonies usually are conducted by judges. In some states, county clerks or other
government officials may conduct civil ceremonies. Religious ceremonies normally are
conducted by religious officials, such as ministers, priests, or rabbis. Native American
ceremonies may be presided over by a tribal chief or other designated official. Contrary to some
popular legends, no state authorizes ship captains to perform marriages.
Q. Are common-law marriages allowed?
A. In most states, no. In times past, particularly the frontier days, it was common for states to
consider a woman and man to be married if they lived together for a certain length of time, had
sexual intercourse, and held themselves out as husband and wife, even though they never went
through a marriage ceremony. Today, only about one-fourth of the states recognize commonlaw
marriages. In order for there to be a legal common-law marriage, the couple must clearly
represent themselves to others as being husband and wife; merely living together is not enough
to create a marriage.
In states that recognize a common-law marriage, the partners have the same rights and
duties as if there had been a ceremonial marriage. Most other states will accept as valid a
common-law marriage that began in a state that recognizes common-law marriage.
A legal common-law marriage may end only with a formal divorce.
Q. Does the law recognize same -sex marriages?
A. No. As of the year 2000, no state has passed a law recognizing homosexual
Amarriages@ per se. If two members of the same sex were to go through a marriage ceremony,
the courts would not consider the marriage to be valid, and, in the event the parties split up, they
could not seek a legal divorce. The Vermont legislature has enacted a statute that allows samesex
couples to form Acivil unions@ to give same-sex couples the same benefits and protections as
opposite-sex couples who enter into marriages. The law is being challenged in the courts by
persons opposed to same-sex unions. The Vermont Supreme Court has already ruled, however
that same-sex couples should have the same rights as opposite-sex couples.
A decision by the Hawaii Supreme Court in the 1990s made it appear that Hawaii would
become the first state to authorize same-sex marriages. The state, however, amended its
constitution to preclude such marriages.
Q. What is a domestic partnership?
A. Some cities have passed laws providing for “domestic partnerships” which can be used by
homosexual couples and by heterosexual couples who are living together without being married.
To become domestic partners, the couple usually must register their relationship at a government
office and declare that they are in a “committed” relationship. Domestic partnerships provide
some–but not all–of the legal benefits of marriage. Some of the common benefits are the right
to coverage on a family health insurance policy, the right to family leave to take care of a sick
partner (to the same extent a person would be able to use family leave to care for a sick
spouse), bereavement leave, visiting rights to hospitals and jails, and rent control benefits (to the
same extent a spouse would retain reduced rent if his or her partner died).
Q. Does a woman’s last name change when she gets married?
A. Only if she wants to change it. In the past, some people assumed that a woman would
change her last name to her husband’s name when she married. Now society recognizes a
woman’s right to take her husband’s name, keep her original name, or use both names. The
general rule is that if a woman uses a certain name consistently and honestly, then that is her true
Q. What if someone thinks he or she has a genuine marriage but it turns out to be
A. Sometimes people who live as a married couple learn that their marriage is not legal. For
example, one supposed spouse may have kept a prior marriage secret, or both may have
thought incorrectly that an earlier marriage had ended in divorce or the death of a spouse. Or a
marriage may be invalid because it is between close relatives, underage persons, or people
incapable of entering into the marriage contract because of mental incompetence.
In some states the putative (supposed) spouse doctrine offers some protection if the
parties went through a ceremonial marriage. A putative spouse may be entitled to the benefits
and rights of a legal spouse for as long as she or he reasonably believes the marriage to be valid.
In states that do not accept the putative-spouse doctrine, people who mistakenly believe they
are married usually have the same status as unmarried couples who live together.
Sometimes people discover that their marriage is invalid only when filing for divorce. After
a long union that a couple believed was a valid marriage, a court may refuse to declare the
marriage invalid and require a divorce to end the marriage.
Q. What other legal rules affect invalid marriages?
A. Sometimes the law treats an invalid marriage as valid if one person tricked the other into
thinking they are married. If so, a court might not allow the deceiver to declare the marriage
invalid. In legal terms, the court “estops” the deceiver from denying that the marriage exists. In
addition, a court may find that the doctrine of laches (long delay) prevents even the innocent
party, who originally did not know about the invalid marriage, from having the marriage declared
invalid if he or she did nothing for a long time after learning that the marriage was not valid.
Q. What is a premarital agreement?
A. A premarital or antenuptial agreement is a contract entered into by a man and woman before
they marry. The agreement usually describes what each party’s rights will be if they divorce or
when one of them dies. Premarital agreements most commonly deal with issues of property and
support–who is entitled to what property and how much support, if any, will be paid in the
event of divorce.
Q. Why do people enter into premarital agreements?
A. Sometimes persons intending to marry use premarital agreements as a way of clarifying their
expectations and rights for the future. Another reason for making such agreements is to try to
avoid uncertainties about how a divorce court might divide property and decide spousal support
if the marriage fails. A man or woman who wants a future spouse to enter into a premarital
agreement often has something he or she wants to protect, usually money. One or both partners
may want to avoid the risk of a major loss of assets, income, or a family business in the event of
a divorce. For people marrying for a second or third time, there might be a desire to make sure
that a majority of assets or personal belongings are passed on to the children or grandchildren of
prior marriages rather than a current spouse.
Q. What does the less wealthy spouse give up by signing a premarital agreement?
A. The less wealthy spouse is agreeing to have his or her property rights determined by the
agreement rather than by the usual rules of law that a court would apply on divorce or the death
of the wealthier spouse. As will be discussed later, courts have certain rules for dividing
property when a couple divorce. In some states (such as California), courts automatically divide
equally the property acquired by the husband and wife during the marriage. In more states,
courts divide property as the court considers fair, and the result is less predictable; the split
could be fifty-fifty or something else. If one spouse dies, courts normally follow the instructions
of that person’s will, but the surviving spouse usually is entitled to one-third to one-half of the
estate regardless of what the deceased spouse’s will says. If the husband and wife have signed a
valid premarital agreement, that agreement will supersede the usual laws for dividing property
and income upon divorce or death. In many cases, the less wealthy spouse will receive less
under the premarital agreement than he or she would receive under the usual laws of divorce or
Q. Why would the less wealthy spouse sign a premarital agreement if he or she would
receive less under the agreement than under other laws?
A. The answer to that question depends on the individual. Some people prefer to control their
fiscal relationship rather than to leave it to state regulation. They may want to avoid uncertainty
about what a court might decide if the marriage ends in divorce. For some, the answer may be
“love conquers all”–the less wealthy person may just want to marry the other party and not care
much about the financial details. For others, the agreement may provide ample security, even if it
is not as generous as a judge might be. Still others may not like the agreement, but they are
willing to take their chances and hope the relationship and the financial arrangements work out
for the best.
Q. What is necessary to make a valid premarital agreement?
A. Laws vary from state to state. In general, the agreements must be in writing and signed by
the parties. In most states, the parties (particularly the wealthier one) must disclose their income
and assets to each other. This way the parties will know more about what they might be giving
up. In some states, it may be possible to waive a full disclosure of income and assets, but the
waiver should be done knowingly and it is best if each party has a general idea of the other’s net
The agreements also must not be the result of fraud or duress. An agreement is likely to
be invalid on the basis of fraud if one person (particularly the wealthier one) deliberately
misstates his or her financial condition. For example, if a man hides assets from his future wife so
that she will agree to a low level of support in case of divorce, a court probably would declare
the agreement invalid. Similarly, if one person exerts excessive emotional pressure on the other
to sign the agreement, a court also might declare the agreement to be invalid because of duress.
Q. When should the agreement be signed?
A. Most states do not set a specific time at which premarital agreements must be signed.
Generally, it is better to negotiate and sign the agreement well before the wedding, to show that
each person has considered it thoroughly and signed it voluntarily. If the wealthier person shows
the agreement to the prospective spouse only one day before the wedding, a court may later
find that agreement invalid because of duress. While a last-minute premarital agreement is not
automatically invalid, timing may be a significant factor in determining whether the agreement is
Q. Must the parties to a premarital agreement be represented by lawyers?
A. No, but lawyers can help make sure that the agreement is drafted properly and that both
parties are making informed decisions. The lawyer for the wealthier party usually prepares the
initial draft of the agreement. The less wealthy party does not need to have a lawyer in order to
have a valid agreement, but the agreement is more likely to be enforceable if that person’s
interests are represented and some back-and-forth negotiations take place.
Q. Do premarital agreements need to provide for a certain amount of support?
A. No, the law does not set a specific amount. In some cases, a court may decide that an
agreement is enforceable even if it leaves one spouse with no property and no support from the
other party. If, when the marriage ends, the less wealthy party does not have marketable job
skills or is not able to work, a court would be likely to refuse to enforce an agreement denying
support. Some states will enforce an agreement to provide no spousal support, so long as
waiver of support does not leave the less wealthy party so poor that she or he is eligible for
Many courts will apply broader notions of fairness and require support at a level higher
than subsistence. Some states provide that the support cannot be “unconscionably” low. That is
a vague term that means different things to different courts.
Many lawyers think it is a good idea for premarital agreements to contain an “escalator
clause” or a “phase-in provision” that will increase the amount of assets or support given to the
less wealthy spouse based on the length of the marriage or an increase in the wealthier party’s
assets or income after the agreement is made.
Q. May premarital agreements decide future issues of custody and child support?
A. No. A court may consider a premarital agreement the parties have reached regarding child
custody or support, but the court is not bound by it. Broadly speaking, courts do not want
parties to bargain away rights of children, particularly before children are even born. (A later
section of this chapter on child support will discuss child support guidelines.)
Q. Are one or both spouses required to work outside the home?
A. No. While the husband and wife are married and living together, a court is not going to get
involved in private family decisions of who works and who does not. That’s left to the husband
and wife to sort out. Today, more than half of married women–including women with
preschool-age children–work outside the home. A husband or wife cannot, as a matter of law,
force his or her partner to work.
Q. If the wife and husband separate or divorce, can a court require them to work
outside the home?
A. No, not directly. If a wife and husband separate or divorce, a court still cannot directly order
one or both of them to work. The court can, however, declare that one or both parties owe a
duty of financial support to the other party or to the children. A duty of financial support means
that person who is supposed to pay support must come up with the money somehow — usually
from work or from savings. If the person who is supposed to pay support does not pay the
money and does not have a good excuse why the money has not been paid, that person could
be held in contempt of court. The possible penalties for being held in contempt of court include
payment of fines and incarceration. Payments of child support and alimony will be discussed
Q. Are there legal remedies if a husband or wife refuses to have sexual relations with
his or her spouse?
A. In some states, the refusal to have sexual relations with a spouse is a specific ground for
divorce or annulment of the marriage. In other states, refusal to have sexual relations could be
considered a ground for divorce because it is an “irreconcilable difference” or “mental cruelty.”
A court, of course, would not order a person to have sexual relations with his or her spouse. In
fact, in many states, a spouse who forces sexual relations with a partner can be charged with
rape under the state’s criminal laws.
Q. What is loss of consortium?
A. Loss of consortium refers to the loss of companionship and sexual relationship with one’s
spouse. (The concept also can apply more broadly to the loss of companionship and affection
from other family members such as a child or parent.) In personal injury actions, plaintiffs may
seek monetary damages for loss of consortium in addition to payment for other losses such as
medical expenses, lost wages, and physical pain and suffering. For example, if a man is injured
in an auto accident caused by a negligent driver and the man is unable to have sexual relations
with his wife for two years because of the accident, both the husband and wife may seek
damages for that loss.
Q. May wives and husbands sue each other?
A. Yes. They can sue each other, of course, in connection with a divorce. They also usually can
sue each other in connection with financial deals in which one may have cheated the other. A
growing number of states also will allow one spouse to sue the other for deliberate personal
injuries, such as those suffered in a beating. Some husbands and wives may try to sue each
other in connection with an auto accident in which one of them, as the driver, accidentally
causes injury to the other, who was a passenger. In effect, the person suing may be trying to
collect money from an insurance company rather from the person’s spouse. Many states do not
allow such lawsuits.
Q. Can a husband or wife testify against each other in court?
A. Yes. Husbands and wives routinely testify against each other in divorce cases. There is an
old rule of law in many states that husbands and wives cannot testify about communications
between themselves made during the marriage. Although the rule may be applied in some
circumstances, it generally does not apply if the husband and wife are involved in a lawsuit
against each other.
Q. Can two people live together without being married?
A. Of course. The Census Bureau reports that such arrangements are quite common. Some
zoning laws do prohibit more than three unrelated persons from living together in one house or
apartment, but two unrelated people generally can live together anywhere they want. A few
states still have laws on the books prohibiting “fornication”–sexual relations between a man and
woman who are not married–but such laws are virtually never enforced. Some states also have
laws against “sodomy” which, among other things, prohibit sexual relations between people of
the same sex. Those laws are rarely enforced if the conduct is private, consensual, and between
adults (although in 1986, the United States Supreme Court in a divided decision did uphold a
Georgia law criminalizing private sexual relations between two men.)
Q. May two people who are living together enter into agreements about sharing
expenses or acquiring property?
A. Yes. The law allows people to enter into many types of contracts. If two people want to
agree about who will pay what and how they will share in property that they might acquire, such
an agreement can be valid and enforceable by courts in most states. From a legal standpoint, it
is best to make the agreements specific and in writing. An oral agreement might be enforceable,
but it is more difficult to prove. Each party to the agreement should give some benefit to the
other party, such as agreeing to pay a certain portion of expenses. If an agreement looks as
though it is only creating a gift from one party to the other with the recipient giving nothing in
return, the agreement might not be enforceable.
Q. Will a court enforce an agreement by which one unmarried partner agrees to keep
house and the other promises financial support?
A. Probably not. To begin with, such agreements rarely are in writing, so they are hard to prove
in court. Second, to the extent that one person is promising financial support to the other, that
promise usually is contingent on a continuation of the relationship. If, for example, one partner
says, “I’ll take care of you,” the statement may be too vague to be enforceable; if it means
anything, it probably means something along the lines of “I’ll support you financially as long as
we are living together.” So, if the couple breaks up, a court probably would not find an
enforceable promise for continued support.
There is a potential third problem: if a court thinks an agreement amounts to providing
financial support in exchange for sexual relations, the court will not enforce it. Such an
agreement is uncomfortably close to a contract for prostitution.
Courts are more inclined to enforce agreements for tangible items, such as payments of
expenses or rights to property. A promise of housekeeping services or emotional support for a
partner may be sincere, but it is much more amorphous than a promise to pay half the phone bill
or share the proceeds of a condominium sale.