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Further Readings

The legal status, condition, or relationship that results from a contract by which one man and one woman, who have the capacity to enter into such an agreement, mutually promise to live together in the relationship of HUSBAND AND WIFE in law for life, or until the legal termination of the relationship.

Marriage is a legally sanctioned contract between a man and a woman. Entering into a marriage contract changes the legal status of both parties, giving husband and wife new rights and obligations. Public policy is strongly in favor of marriage based on the belief that it preserves the family unit. Traditionally, marriage has been viewed as vital to the preservation of morals and civilization.

The traditional principle upon which the institution of marriage is founded is that a husband has the obligation to support a wife, and that a wife has the duty to serve. In the past, this has meant that the husband has the duty to provide a safe house, to pay for necessities such as food and clothing, and to live in the house. A wife's obligation has traditionally entailed maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children. Changes in society have modified these marital roles to a considerable degree as married women have joined the workforce in large numbers, and more married men have become more involved in child rearing.

Individuals who seek to alter marital rights and duties are permitted to do so only within legally prescribed limits. Antenuptial agreements are entered into before marriage, in contemplation of the marriage relationship. Typically these agreements involve property rights and the terms that will be in force if a couple's marriage ends in DIVORCE. Separation agreements are entered into during the marriage prior to the commencement of an action for a separation or divorce. These agreements are concerned with CHILD SUPPORT, visitation, and temporary maintenance of a spouse. The laws governing these agreements are generally concerned with protecting every marriage for social reasons, whether the parties desire it or not. Experts suggest that couples should try to resolve their own difficulties because that is more efficient and effective than placing their issues before the courts.

In the United States, marriage is regulated by the states. At one time, most states recognized COMMON-LAW MARRIAGE, which is entered into by agreement of the parties to be husband and wife. In such an arrangement, no marriage license is required nor is a wedding ceremony necessary. The parties are legally married when

A sample marriage license

they agree to marry and subsequently live together, publicly holding themselves out as husband and wife. The public policy behind the recognition of common-law marriage is to protect the parties' expectations, if they are living as husband and wife in every way except that they never participated in a formal ceremony. By upholding a common-law marriage as valid, children are legitimized, surviving spouses are entitled to receive SOCIAL SECURITY benefits, and families are entitled to inherit property in the absence of a will. These public policy reasons have declined in significance. Most states have abolished common-law marriage, in large part because of the legal complications that arose concerning property and inheritance.

The U.S. Supreme Court has held that states are permitted to reasonably regulate marriage by prescribing who can marry and the manner in which marriage can be dissolved. States may grant an ANNULMENT or divorce on terms that they conclude are proper, because no one has the constitutional right to remain married. There is a right to marry, however, that cannot be casually denied. States are proscribed from absolutely prohibiting marriage in the absence of a valid reason. The U.S. Supreme Court, for example, struck down laws in southern states that prohibited racially mixed marriages. These antimiscegenation statutes were held to be unconstitutional in the 1967 case of Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010, because they violated EQUAL PROTECTION of the laws.

On the other hand, the Court ruled in 1878 that polygamous marriages (i.e., having more than one spouse simultaneously) are illegal. The requirement that marriage involve one man and one woman was held to be essential to Western civilization and the United States in Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244. Chief Justice MORRISON R. WAITE, writing for a unanimous court, concluded that a state (in that case, Utah) may outlaw POLYGAMY for everyone, regardless of whether it is a religious duty, as the Mormons claimed it was.

All states limit people to one living husband or wife at a time and will not issue marriage licenses to anyone who has a living spouse. Once someone is married, the person must be legally released from his or her spouse by death, divorce, or annulment before he or she may legally remarry. Persons who enter into a second marriage without legally dissolving a first marriage may be charged with the crime of bigamy.

The idea that marriage is the union of one male and one female has been thought to be so basic that it is not ordinarily specifically expressed by statute. This traditional principle has been challenged by gays and lesbians who, until recently, have unsuccessfully sought to legalize their relationships. In Baker v. Nelson,, 191 N.W.2d 185 (Minn. 1971), the Minnesota Supreme Court sustained the clerk's denial of a marriage license to a homosexual couple.

The 1993 decision of the Hawaii Supreme Court in Baehr v. Lewin, 852 P.2d 44, 74 Haw. 530, revived the possibility of homosexual marriage. In Baehr, the court held that the state law restricting legal marriage to parties of the opposite sex establishes a sex-based classification, which is subject to strict constitutional scrutiny when challenged on equal protection grounds. Although the court did not recognize a constitutional right to same-sex marriage, it indicated that the state would have a difficult time proving that the gay and lesbian couples were not being denied equal protection of the laws. On remand, the Circuit Court of Hawaii found that the state had not met its burden, and it enjoined the state from denying marriage applications solely because the applicants were of the same sex (Baehr v. Miike, 1996 WL 694235 [Hawaii Cir. Ct., Dec. 3, 1996]). However, this decision was stayed pending another appeal to the Hawaii Supreme Court. In the wake of Baehr, a number of states prepared legislation to ban same-sex marriage and to prohibit recognition of such marriages performed in Hawaii. In 1996, Congress enacted the Defense of Marriage Act, Pub. L. No. 104–199, 110 Sat. 219, which defines marriage as a legal union between one man and one woman and permits states to refuse to recognize same-sex marriages performed in other states.

Each state has its own individual requirements concerning the people who may marry. Before a state will issue a marriage license, a man and a woman must meet certain criteria. Some states prohibit marriage for those judged to be mentally ill or mentally retarded. In other states, however, a judge may grant permission to mentally retarded persons to marry.

Every state proscribes marriage between close relatives. The prohibited degree of relationship is fixed by state law. Every state forbids marriage to a child or grandchild, parent or grandparent, uncle or aunt, and niece or nephew, including illegitimate relatives and relatives of half blood, such as a half brother who has the same father but a different mother. A number of states also prohibit marriage to a first cousin, and some forbid marriage to a more distant relative, in-law, stepparent, or stepchild.

Age is an additional requirement. Every jurisdiction mandates that a man and a woman must be old enough to wed. In the 1800s, the legal age was as low as 12 years old for females. Modern statutes ordinarily provide that females may marry at age 16 and males at age 18. Sometimes a lower age is permitted with the written consent of the parents. A number of states allow for marriage below the minimum age if the female is pregnant and a judge grants permission.

Every couple who wishes to marry must comply with a state's formal requirements. Many states require a blood test or a blood test and physical examination before marriage, to show whether one party is infected with a venereal disease. In some states, for example, the clerk is forbidden to issue a marriage license until the parties present the results of the blood test.

Most states impose a waiting period between the filing of an application for a license and its issuance. The period is usually three days, but in some states the period may reach five days. Other states mandate a waiting period between the time when the license is issued and the date when the marriage ceremony may take place. Many states provide that the marriage license is valid only for a certain period of time. If the ceremony does not take place during this period, a new license must be obtained.

It has been customary to give notice of an impending marriage to the general public. The old form of notice was called "publication of the banns," and the upcoming marriage was announced in each party's church three Sundays in a row before the marriage. This informed the community of the intended marriage and gave everyone the opportunity to object if any knew of a reason why the two persons could not be married. Today, the names of applicants for marriage licenses are published in local newspapers.

Once a license is issued, the states require that the marriage commence with a wedding ceremony. The ceremony may either be civil or religious because states may not require religious observances. Ceremonial requirements are very simple and basic, in order to accommodate everyone. In some states, nothing more is required than a declaration by each party in the presence of an authorized person and one additional witness that he or she takes the other in marriage.

A minority of states have sought to curb growing divorce rates by enacting legislation designed to encourage couples to remain married. Statutes in states such as Arkansas, Arizona, and Louisiana provide for COVENANT marriages, where couples agree to impose upon themselves limitations on their ability to divorce one another. Twenty other states have considered, but ultimately rejected, the adoption of similar bills. In covenant marriages, parties mutually agree to reject "no-fault divorce," agree to enroll in premarital or post-wedding counseling, and also agree to divorce only under certain, more limiting conditions, such as DOMESTIC VIOLENCE, ABANDONMENT, ADULTERY, imprisonment of a spouse, or lengthy separation. States that pass bills recognizing covenant marriages do not actually require such marriages, but rather formally acknowledge them as legally viable, thus creating legal recourse under the law for breaches of such covenants.

Louisiana passed its covenant-marriage law in 1997. At the time, it was touted as the first substantive effort in two centuries to make divorce more difficult, and lawmakers had hoped that other states would follow suit. Since then, however, fewer than five percent of Louisiana couples have opted to enter into such marriages. Arizona's version of the law is less restrictive in that it permits an additional reason for divorce based on the mutual consent of the parties.

The most common objection to covenant marriages comes from those who view such measures as undue government intrusion into family matters. The counter argument is that states increasingly have viewed divorce as a legitimate matter of public concern because of its extensive costs and the havoc it causes to primary and extended social and economic relationships. In this regard, covenant marriages are no more intrusive than are state laws that permit or deny divorce based on certain articulated grounds.

Another objection is that covenant marriages seemingly infringe upon the separation of church and state because the mandatory premarital counseling contained in the two existing laws is often provided by clergy. Other opponents to the attempted legislative measures in other states have either expressed reservation for laws that seem to limit adult autonomy and choice or have themselves been active in the "divorce industry." This resistance was apparently the case in Texas and Oklahoma, where covenant-marriage bills failed because of opposition by key committee chairmen who were divorce attorneys.

In addition to the failed legislative attempts to pass covenant-marriage bills in other states, different tactics to curb divorce have been tried. For example, Florida enacted the Marriage Preparation and Preservation Act in 1998, but no state has followed Florida in requiring its marriage-education curriculum for public high schools. The Minnesota legislature attempted to pass a law that would have lowered marriage-license fees for couples who sought pre-marital counseling, but Governor Jesse Ventura vetoed it. In Wisconsin, a federal judge struck down a new state law that earmarked WELFARE money for clergy who encouraged long-married couples to mentor younger couples. According to the judge, the measure unfairly and unconstitutionally favored ministers over lay persons such as judges or justices of the peace. Texas passed law allocating $3 from every marriage-license fee to be used for marriage-education research and reform. Nationwide, a group of activists called Americans for Divorce Reform seeks to educate lawmakers, the media, and the general public on the true negative aspects of divorce, but the group does not advocate any specific reform such as covenant marriages.

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