§ 2.03 Establishing a Valid Marriage
| Jurisdiction | United States |
| Publication year | 2021 |
§ 2.03 Establishing a Valid Marriage
A valid marriage can be established ceremonially. Some states also permit proxy marriage or common law marriage. In addition, a putative spouse is frequently treated as if he or she were validly married.
[1]—Ceremonial Marriage
[a]—License
The procedural requirements of ceremonial marriage vary. Almost every state requires the parties to obtain a marriage license from the appropriate government office.45 In addition to basic information such as their respective names and addresses, the parties generally must provide additional information to confirm that they may establish a valid marriage.46 For example, parties frequently are asked their respective ages, whether they are currently married to anyone else, and whether they are related in any way.47 Many states also require evidence of a physical examination with some states requiring only a test for venereal diseases, while others require tests for additional illnesses.48 Neither party need be a resident or domiciliary of the state to obtain a marriage license.49
If both parties provide the required evidence of physical examination, pay the applicable fee, and the information on the marriage license application reveals no marriage impediment, a marriage license will be issued to the parties. There is a certain window period during which the parties may be married, and there is an initial waiting period in a majority of states during which the marriage cannot occur, the most common of which is three days.50 The license expires after a certain period if the parties have not married by then.
If parties marry ceremonially without obtaining a marriage license, the validity of the marriage is unclear. If the state statute expressly states that such a marriage is invalid, the marriage will be deemed invalid.51 If the statute contains no such statement, the courts seem inclined to uphold the marriage.52
[b]—Ceremony
Parties must participate in some form of marriage ceremony to be ceremonially married. Although a few states, such as West Virginia,53 set forth specific vows, most states do not regulate the content of the ceremony. Certain states merely require that the parties declare, in the presence of the officiating person and two witnesses, that they take each other as husband and wife.54 Some minimal ceremony may be required in all states; merely obtaining a priest's signature on the marriage license might not be sufficient.55
The ceremony may be conducted only by an authorized person. Such persons are described in the applicable state statute, and frequently include judges, ministers, priests and rabbis.56 The person who conducts the ceremony signs the license and returns it to the appropriate government office for recording.57 If it is later determined that the person who conducted the ceremony was not authorized to do so, the marriage is still considered valid, if at least one party believed in good faith the person was authorized.58
[c]—Consummation
A ceremonial marriage is valid without consummation.59
[d]—Choice of Law
The validity of a marriage is normally determined by the place of celebration.60 This is true even though the marriage violates the policy of the state in which the parties take up residence as long as they had no contact with the forum at the time of the marriage.61 If the marriage is invalid under the law of the place of celebration and valid under the law of the forum, however, sometimes courts will apply forum law to validate the marriage.62
An exception exists in some states when two residents go to another state to marry with the express purpose of avoiding a provision of the law of the home state that prohibited the marriage. In such instances, even if the marriage is valid under the law of the state of celebration, the home state might not recognize the marriage.63
[2]—Common Law Marriage
A common law marriage is established by two parties agreeing to be married, living together, and holding themselves out as husband and wife.64 In most states, no minimum period of cohabitation is required. A minority of states65 continues to recognize this form of marriage.66 A common law marriage, once established, is considered equivalent to a ceremonial marriage. The grounds for declaring a common law marriage void or voidable are identical to hose for a ceremonial marriage. There is, however, no "common law" divorce. A common law marriage can only be dissolved by death or judicial decree.67 In Utah, a claim to dissolve a common law marriage must be brought within one year after the relationship ends.68
[a]—Agreement to Be Married
Common law spouses must mutually agree to be presently married. An agreement to be married in the future will not suffice.69 Plans to marry ceremonially in the future are relevant, but not determinative.70 A South Dakota court concluded that under Oklahoma law, an "implicit agreement" to be married was insufficient proof of a specific agreement to be married.71
In some states, the existence of such an agreement may be inferred if the parties cohabit and hold themselves out as husband and wife.72
[b]—Living Together
Common law spouses must also cohabit. This raises two issues:
(1) what constitutes cohabitation?
(2) what length of cohabitation suffices?
[i]—Cohabitation
"Cohabitation" clearly exists if parties share a sexual relationship and have moved all of their property into one household. If parties maintain separate households, cohabitation may not exist, even if the parties spend a substantial amount of time together.73 A stay at a hotel clearly should not constitute cohabitation,74 unless the parties intended it to be their home.
[ii]—Duration of Cohabitation
There is no required minimum cohabitation period to establish a common law marriage.75 Still, the length of the cohabitation has some effect.76 For example, if the cohabitation period was long, a court will be more inclined to find an agreement to be married.
[c]—Holding Out as Husband and Wife
There is no such thing as a secret common law marriage.77 To establish a common law marriage, there must be frequent representations to the public that the parties believe they are married. Since the primary purposes of the "holding out" requirement is to confirm that both parties intended to be married, evidence is generally required that both parties held themselves out as spouses.
Evidence relating to the "holding out" issue is frequently cloudy. For example, parties who use different surnames and file tax returns as single individuals may introduce themselves in the community as husband and wife.78 Parties may also refer to themselves as married to avoid embarrassment. When evidence is unclear, courts tend to consider as determinative any formal declarations of marital status, such as declarations on deeds, tax returns or in judicial proceedings.79
[d]—Choice of Law
Choice of law issues can arise when parties residing in a state that does not recognize common law marriage visit another state that permits such marriages. Some courts have concluded that such visits have established a common law marriage,80 while others have concluded that no common law marriage is created.81 If the parties move from a state that does not recognize a common law marriage to a state that does, a common law marriage can be established in a new domicile.82 Conversely, if the couple lives in a state that recognizes common law marriage and then moves to another state that does not, the second state will recognize the marriage.83 A South Dakota court has concluded that a couple need not be domiciled in the state to establish a common law marriage.84
[e]—The Creation of a Common Law Marriage After the Removal of a Marriage Impediment
If one party is married to a third party, the party cannot establish a valid marriage with another until the prior marriage is dissolved. So, if the party participates in a ceremonial marriage while the prior marriage is still in effect, the ceremonial marriage is void. If the first marriage is dissolved while the parties are still cohabitating, however, a common law marriage could then be established.85
In most cases involving the removal of an impediment to marriage during a relationship, it is fairly easy to establish cohabitation and holding out. The more troublesome issue is whether it must be established that the parties made a new agreement to be married after the impediment was removed. It has been suggested that if one or both of the parties were unaware of the impediment when the ceremonial marriage occurred or when they began living together, courts will not require proof of such a new agreement.86 If the parties were both aware of the impediment when they attempted to marry or began cohabiting, some courts have required proof of an agreement to marry made after the impediment was removed.87
[f]—The Immediacy Requirement
The Montana Supreme Court has concluded that the agreement to be married, holding out as married, and cohabitation need not happen simultaneously. In a 2009 case the parties informally agreed to be married in 1994 while living in Washington. When they moved to Montana (which accepts common law marriage) in 1995, they created a common law marriage.88
[3]—Proxy Marriage
A proxy marriage is a marriage celebrated through agents acting on behalf of one or both parties.89 There is not much case law discussing the validity of such marriages.90 If a ceremonial proxy marriage is desired, the marriage license rules must be reviewed to determine whether each party must appear in person before the clerk.91 A common law marriage could result if the parties establish all the necessary requirements in a state that accepts such marriages.92
[4]—Putative Marriage
[a]—Description
A putative marriage is not really a marriage. If a party cohabits with another and believes in good faith that he or she is married to that person, some states treat such a spouse as a de facto spouse for many purposes.93...
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