Marriage/Marriage Age
| Author | Jeffrey Wilson |
| Pages | 809-815 |
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Marriage has generally been defined as a contract between a man and a woman who have consented to become husband and wife. More specifically, the U.S. Congress, in the Defense of Marriage Act (DOMA), Public Law 104-199, passed in 1996, defines marriage as "a legal union between one man and one woman as husband and wife." The status of DOMA has been challenged by proponents of same-sex marriage, who believe among other things that only legal marriage can guarantee full spousal rights such as inheritance, health care decisions, and parental rights. In 2004, Massachusetts passed legislation recognizing same-sex marriage; several states have varying degrees of spousal rights for same-sex couples.
Marriage requirements are defined by the laws of each state. Yet, there are certain aspects of a valid marriage that are required of any couple desiring to become husband and wife. These additional considerations include the capacity of the parties to enter into the marriage, the consent of the parties, and the age of each person. Regarding age, if individuals are minors, they must obtain the consent of either one or both of their parents, depending upon the laws of the state.
The fact that the states can regulate marriage has given rise to laws that control other aspects of the ability of a couple to wed including the race of the each party in the couple, the sex of each party, and whether either party is already married. Although the states have the authority to regulate the institution of marriage and establish the laws that do so, some laws, such as those forbidding people of different races to marry, have been struck down by the Supreme Court of the United States as unconstitutional. The Congress of the United States has also enacted limitations to the marital union, the most recent being the enactment of DOMA, which not only defines marriage but also gives individual states the right not to recognize "a relationship between persons of the same sex that is treated as a marriage under the laws of such other State." In other words, such laws from one state do not have to be recognized by another state.
Because the laws regarding marriage vary considerably from state to state, couples desiring more spe-
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cific information should contact their state government.
Before a marital union is recognized by a state, there must, foremost, be consent—or agreement—between the parties of the union to be married. For consent to exist, both parties must agree to the marriage and there must be no mistake as to the nature of the union. In addition, no force must be used upon either party to enter into the union. Once consent is determined to exist, the laws of the individual states determine the status of the couple as husband and wife.
Age is an additional aspect of consent to marry. All states prescribe the age which must be reached by both parties to the marriage for the couple to be able to legally agree to become husband and wife without parental permission. For all but two states this "age of consent" is eighteen (in Mississippi the age is twenty-one and in Nebraska the age is nineteen).
The states vary in determining the minimum age at which a couple can marry with parental consent. However, for the majority of states, this age is sixteen though in a very few states, this age is as low as fourteen.
Capacity generally refers to the mental ability of one or both of the parties to the marriage to agree to become husband and wife. Both parties must be of "sound" mind and capable of agreeing to the marriage. Not all forms of mental illness and insanity serve to render someone incapable of entering into a marriage. A common test of capacity is the ability of individuals to understand the nature of marriage and what their responsibilities are to their partners once they enter into the union. Physical incapacity, and in particular the physical inability to have sexual intercourse, does not in and of itself render one incapable of marrying and does not on its face void a marriage that has already occurred.
The laws of each state strictly regulate the marriage between relatives (also known as consanguinity). According to the "rules of consanguinity," no state allows marriage to a child, grandchild, parent, grandparent, uncle, aunt, niece, or nephew. However, for all other familial relationships, the states vary widely and the particular laws of the state of marriage must be consulted.
Though laws regarding marriage are well regulated by the states, at one point, most state laws allowed for the institution of common law marriage. Common law marriages were based not just on the desire of the couple to live together or by their actually living or having lived together. For a common law marriage to achieve validity as a marriage, the couple must have lived together for a certain amount of time, had sexual relations, and represented themselves as husband and wife in all affairs and to all people. Though no marriage ceremony had taken place, their children are viewed as legitimate and surviving families are entitled to state sanctioned inheritance.
Currently, the majority of states do not recognize common law marriage. Three states that do not recognize common law marriages (Georgia, Idaho, and Indiana) recognize unions that were entered into before certain dates (for Georgia and Idaho the year is 1997, for Indiana the year is 1958).
There are no prohibitions to interracial unions in the United States. At one time, many states had enacted statutes forbidding marriages between people of different races. Such a mixed-race union is also known as "miscegenation." These antimiscegenation statutes were found across the United States and particularly in Southern states. Though most states had repealed such laws by the time of the case of Loving v. Virginia, in 1967 the U.S. Supreme Court, in deciding that case, decreed all such laws to be unconstitutional because they violated the Equal Protection Clause of the U.S. Constitution.
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