§ 2.02 Marriage Restrictions

• Jurisdiction: United States
• Publication year: 2021

§ 2.02 Marriage Restrictions

[1]—Monogamy

A person may only have one spouse at any one time. A marriage is void if one of the parties was already married to another and the prior marriage was not dissolved before the subsequent marriage.¹

[2]—Kinship

States establish different kinship limits for valid marriages. A marriage between parent and child, brother and sister or grandparent and grandchild is almost always barred.² Some states also bar marriages between first cousins, an uncle and a niece or a nephew and an aunt, and marriages between in-laws.³ Also, step-children and adopted children are frequently treated as natural children for purposes of these statutes.⁴ A marriage that violates a state's kinship rules is void.⁵

[3]—Age

Only adults may marry.⁶ A person eighteen years of age or older is generally considered an "adult."⁷ Special procedures are sometimes established for younger persons, however. For example, many states validate a marriage of younger people if parental consent and/or judicial approval is obtained.⁸ Also, if a girl is pregnant, the age disability can be waived by a court.⁹

A marriage involving a party who is sixteen or seventeen generally is voidable, not void.¹⁰ Some states consider a marriage void if it involves a person younger than sixteen, and no parental consent or court approval was obtained.¹¹

[4]—Mental Incompetence

A marriage is generally voidable if a party was incapable of consenting to the marriage.¹² This can be present in a number of situations.

[a]—Mental Illness

If a person, as a result of a mental disease or disorder, cannot consent to a marriage, the marriage may be rendered voidable.¹³ The mental disease apparently must be substantial, however.¹⁴

[b]—Drugs and Alcohol

If a person was so under the influence of alcohol or drugs that he or she did not have the capacity to consent to the marriage, the marriage may be voidable.¹⁵ However, if the parties voluntarily cohabit after the drugs or alcohol have worn off, the annulment claim may be barred.¹⁶

[5]—Duress

In order to establish a valid marriage, spouses must make a rational choice to marry. If a party is forced to marry, and no rational choice to marry was made, the marriage can be annulled.¹⁷ The test generally applied is subjective; a marriage can be annulled if a party participated in the marriage due to fear of the consequences if he or she did not.¹⁸ An action for duress can be barred if the parties voluntarily cohabit when the threat is removed.¹⁹

[6]—Fraud

In addition to the requirements relating to a rational, free choice to marry, most states will only consider a marriage valid if there was an informed choice. If one party has made a misrepresentation regarding something "essential" to the marital relationship, an annulment may be obtained on the ground of fraud.²⁰

Courts have not consistently determined what matters are essential to marriage. If a woman is in fact pregnant by another, and she does not tell the prospective husband, or she tells him the child is his, it is almost always considered grounds for annulment.²¹ In contrast, if the woman, in order to induce a marriage, tells a prospective husband she is pregnant by him, when she knows she is not, most states will not permit an annulment.²²

Other types of misrepresentation or concealment of information can be grounds for annulment. For example, if a prospective spouse conceals that he or she is afflicted with venereal disease, it makes the marriage voidable.²³ An annulment may also be possible if a prospective spouse knew he or she was sterile and the fact was not disclosed.²⁴ However, if the parties voluntarily cohabit after the discovery of the misrepresentation, it can bar the annulment action.²⁵

Other types of misrepresentations generally are not considered grounds for annulment. For example, misrepresentations regarding a prospective spouse's wealth are not grounds for annulment.²⁶

[7]—Marriage in Jest

A valid marriage is created only when the parties intend to marry. For this reason, questions of validity can arise when two people marry as a joke or a dare, with no intent to become married. Most courts have considered such marriages voidable.²⁷ If the marriage was consummated, however, annulment has been more difficult to obtain.²⁸

[8]—Impotence

If a party to a marriage is permanently impotent, the marriage may be annulled.²⁹ "Impotence" means an inability to engage in sexual intercourse.³⁰ The cause of the impotence can be physical or psychogenic.³¹ A female can be impotent.³² Annulment may not be possible, however, if the other spouse was aware of the impotence when the marriage occurred, or continued to live within the marriage after the impotence was discovered.³³

[9]—The Distinction Between a Void and a Voidable Marriage

Certain improprieties are said to render a marriage "voidable," while others render a marriage "void." The distinction can be quite important.

If a marriage is void, it generally is considered invalid for all purposes.³⁴ Neither an action for equitable distribution nor one for alimony generally can be brought by a party to a void marriage. No judicial action is normally necessary to dissolve the marriage. Still, parties may wish to clarify their marital status...