Review: Who Can Marry?

1
Review Who Can Marry?

• I. Substantive Requirements
• 1. GENDER Almost uniform prohib. on
• same-sex marriages (civil unions e.g. Vt.,
  Ha
• same-sex marriage Mass Ct.)
• 2. INCEST Uniform proh. marr to relatives by
  blood
• (consanguinity) or by marriage (affinity)
• but variation in range of proh.
  relationships
• 3. BIGAMY/POLYGAMY Uniform proh.
• on multiple marriages (at the same
  time)

2
Today Substantive Requirements (contd)

• 4. AGE Uniform reg. of marr to minors but range
  of regs
• 5. STATE OF MIND RESTRICTIONS Fraud and duress
  (consent)
• more discretion in application
• Procedural/Formal Requirements
• 1. License
• 2. Ceremony

3

• Valid Dissolution/Divorce
• Voidable Must Have Judicial Declaration
  (Annulment) No 3rd party attack
• Void No Marriage (failure to meet certain
  substantive requirements such as bigamy, incest,
  gender)

4
Formal Requirements

• License
• Provide information on age, relationship to
  spouse, etc.
• Blood/other health tests
• Waiting period

5
Formal Requirements (contd)

• Ceremony/Solemnization
• Religious
• Clerk
• Judge
• Proxy
• Witnesses

6
Majority Rule (Carabetta)

• Principle of Validation (if statute silent)
• Failure to comply with formal requirements will
  not render marriage void or voidable as long as
• 1) At least one of the parties has good faith
  belief marriage is valid
• 2) Parties have capacity (meet substantive
  requirements)

7
Common Law Marriage

• Requirements
• Jurisdiction recognizes common law marriage
• Agreement/present intent to be married
• Public declaration holding out
• Cohabitation no minimum period
• Capacity (substantive requirements define
  capacity to marry)
• No multiple marriages/bigamy
• Gender
• Incest prohibition
• Age
• No fraud or duress going to essentials of
  marriage(sexual relations/childbearing)
• POLICY PROS CONS?

8
Maryland Bar Exam Question

• Facts
• 1965 Arnold Bea have a valid marriage
  ceremony in Maryland
• 1975 Arnold moves in with Caroline in D.C.
• 1980 Bea Darwin obtain license and have
  marriage ceremony before clerk in Maryland
• 1989 Bea wins lottery and dies

9
Md. Bar Exam Question (contd)

• Does Darwin have any right to receive the
  surviving spouse's share of Bea's estate?
• Yes
• No
• (T E If no surviving spouse, Arabella and
  Barton share estate equally. If surviving
  spouse, spouse receives 15,000 plus ½ remaining
  estate)

10

• Valid Ceremony?
• _____ Duly authorized clerk, judge or rel.
  official?
• _____ Does it matter if there were no blood
  tests or witnesses?

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• License
• Waiting Period? 48 hours but can be waived if
  Maryland resident or in armed services.
• Capacity
• 1) Gender

12

• No prohibited relationships
• 3) Bigamy
• (subsequent married void)
• 4) Age 16 or 17- preg or consent
• Age 15 preg and consent
• Under age 15 no marriage
• Fraud or Duress

13

• Note No presumption of death in MD after
  lengthy absence but party cannot be criminally
  charged with bigamy if at the time of second
  marriage
• 1) First spouse was absent for seven years,
  and
• 2) Do not know whether the first spouse is
  alive at the time of subsequent marriage

14

• In 1992, Arnold returned to Maryland he and
  Caroline established domicile in Laurel, Prince
  George's County, Maryland. While living in
  Laurel, Arnold purchased 75 acres of land, titled
  in his name only, in the vicinity of the Laurel
  Racetrack. Arnold died intestate in 1993. At
  the time of his death, the land was appraised at
  750,000.
• Does Caroline have any interest as surviving
  spouse in Arnold's estate?
• Yes
• No

15
Common Law Marriage

• 1. Rule Cannot be created in Maryland but
  Maryland will recognize common law marriage if
  valid where contracted.
• Requirements
• a. ____________________
  
• b. ____________________
  
• c. ____________________
  
• d. ____________________
• e._____________________

16
Putative Spouse Doctrine

• Elements
• Innocent party/good faith belief
• Ceremonial marriage
• Marriage -void or voidable
• All elements here?