Marriage Formalities and Restrictions

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Chapter 25

• Marriage Formalities and Restrictions

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Objectives

• Students will be able to
• Explain the rights and duties involved in the
  marriage contract
• Highlight some typical issues, addressed in
  premarital agreements
• Compare the age requirements of marriage under
  todays laws and under common law
• Differentiate between a common law marriage and a
  ceremonial marriage
• Outline the law as it applies to prohibited
  marriages

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The Spirit of the Law

• Marriage contract creates a condition in which
  the parties rights and duties are governed by
  law rather than by agreement
• Marriage partners have the right to receive
  economic support from each other when necessary
• Responsible for each others debts in payment for
  the necessities of life
• Have a legal right to a portion of each others
  property in the event of death and sometimes
  divorce
• Their children are entitled to their custody and
  support and in some cases, a portion of their
  property upon death
• Marriage also brings the duty of faithfulness

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The Marriage Contract

• Marriage is a personal relationship between a man
  and a woman, arising out of a civil contract
• Comes into existence when couple becomes engaged
• At that time a Bilateral Contract takes place
• All the elements of a contract are present
• There is an agreement containing consideration
  (promising to give up ones legal right to remain
  single) between two parties who have capacity to
  contract, by mutual consent and for a legal
  purpose
• At common law, if one party failed to go through
  with marriage, other party could sue

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The Marriage Contract

• Most states no longer allow suits for breach of
  marriage contract
• In some states, man is entitled to engagement
  ring back
• Courts have allowed women to keep ring if man
  broke off marriage
• While the couple is engaged, the marriage
  contract is in its executory stage.
• The contract is executed when the wedding occurs

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The Marriage Contract

• Rights and Duties
• Different from other contracts because certain
  rights and duties are imposed on the parties by
  law
• Purpose to to provide protection to both parties
• People who live together but are not married do
  not have these protections

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The Marriage Contract

• Rights and Duties Some of the rights that are
  given by law to people when they marry are
• The right to support by ones spouse when
  necessary
• The right of inheritance from ones deceased
  spouse
• The right to property if marriage ends
• The right to compensations to continue ones
  standard of living if the marriage ends
• The right to file a joint tax return

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The Marriage Contract

• Employers give certain rights to their employees
  spouses
• Health insurance, and retirement benefits
• Primary duty Faithfulness to ones spouse
• This duty cannot be relinquished, even by
  agreement of both parties
• Both parents, whether married or not, have the
  duty to support their children

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The Marriage Contract

• Written Agreements
• Sometimes before people marry, they enter into
  written agreements concerning real and personal
  property they will own during their marriage
• They set forth in the agreement how their
  property interests will be disposed of in the
  event the marriage comes to and end, either by
  death or divorce
• Premarital agreement (Prenuptial)
• Agreement between prospective spouses made in
  contemplation of marriage, to be effective upon
  marriage
• Honest statements about assets before marriage
• Must be in writing and signed by both parties
• People with children from other relationships
  often enter into these so children dont get left
  out of inheritances.

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The Marriage Contract

• Although laws vary from state to state, in
  general, parties to a premarital agreement may
  contract with respect to
• The rights and obligations of each of the parties
  in any of the property of either or both of them,
  wherever acquired
• The right to buy, sell, manage, and control real
  and personal property
• The disposition of real and personal property
  upon separation, divorce, death, or some other
  event
• The change or elimination of support
• the making of a will
• ownership of and benefits from life insurance
  policies

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The Marriage Contract

• Using the sample on page 367 in your textbook,
  work in groups of 2, no more, no less, and create
  a premarital agreement
• Do not make information in your work exactly like
  information in example, be creative with your own
  agreement!!
• What would you want your premarital agreement to
  contain if you were getting married?
• Double space, print, and both group members sign
  at the bottom of the agreement
• DUE TODAY!!!!!

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Marriage Formalities

• Each State has its own laws regulating marriage
• Age Requirements
• Under common law, a male had the capacity (legal
  ability) to marry at age 14 and a female at age
  12 ages of consent
• The marriage of a person under 7 was void

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Marriage Formalities

• A marriage of a person over age 7 but under the
  age of consent was voidable
• It as valid unless a party to the marriage took
  some kind of court action to annul the marriage
• Modern statutes in the United States have
  established ages at which young people can marry
  if one of their parents gives permission

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Marriage Formalities

• Before 1971, laws of many states provided that
  persons could marry without consent at age 18 if
  female and 21 if male
• 1971 the 26th amendment 18 to vote
• The custom of treating males and females
  differently came to an end

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Marriage Formalities

• Common Law Marriage
• In England, no formal ceremony was necessary to
  bind the parties
• All that was required, parties agree to be
  married
• No witnesses and could be oral or written
• Some States do recognize
• Divorce is required to end marriage

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Marriage Formalities

• Ceremonial Marriages
• Early Colonial Times, a ceremony, officiated by a
  cleric or magistrate, was required
• Today, as long as the parties declare in the
  presence of a person who has authority by state
  law to solemnize marriages that they take each
  other as husband and wife

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Marriage Formalities

• Marriage License
• Certificate issued by a governmental office
  giving permission to two people to marry
• License become effective after the waiting period
  required by state law and expires at the end of a
  prescribed time period
• Waiting period 24 hours to 7 days

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Marriage Formalities

• Blood Test/Physical Examination
• Some states require a blood test or physical
  examination before a marriage license can be
  issued
• Proxy Marriage
• One or both of the parties are absent and are
  represented by an agent who acts on their behalf
• Must be in writing

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Marriage Formalities

• Use of Maiden Name
• People may use any name as long as they do not do
  so to commit fraud
• Wifes use of husband surname out of custom
• Some state allow wife to keep name or hyphenate
• Some state have a law that the wife take the man
  last name.

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Prohibited Marriages

• Marriage Between Relatives
• Prohibit marriage between certain persons who are
  related by Consanguinity (Blood) or Affinity
  (Marriage)
• Uniform Marriage and Divorce Act
• Marriage between an ancestor and descendant
  (parent or grandparent / child or grandchild)
• Marriage between uncle and niece or aunt and
  nephew

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Prohibited Marriages

• Marriage would be void and children would be
  illegitimate
• The marriage of first cousins is allowed under
  common law
• Many States prohibit marriages between first
  cousins
• Almost half the states have no prohibition
  against marriages of persons related by affinity

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Prohibited Marriages

• Bigamy and Polygamy
• A marriage that is contracted while either party
  is already married is void in all states unless
  the prior marriage is ended in annulment
• Bigamy
• Act of having two spouses at one time
• Polygamy
• Act of having more than two spouses at one time