Marriage
There is a tendency to think of the marital relationship as a private relationship between two individuals. In reality, the state (society) has considerable interest in the marital relationship. Marriage is an essential social unit. It is the primary means of transmitting social values and culture. Perhaps most important from a historical perspective, marriage is a means of transferring wealth.
Because of these strong interests in the marital relationship, society has always regulated the rights, obligations, and entitlement to benefits of those involved in the marital relationship. These regulations govern the entrance into the marital relationship and the exit from that relationship. In the United States, there are two main legal traditions that affect our view of the marital relationship: the common-law tradition and the community property tradition.
The Common-law Tradition
Our concept of marriage stems from the historical development of the Anglo-Saxon common-law tradition. That tradition followed the doctrine of marital unity, which developed to deal with the question of control over property. While single women had certain property rights, the marital relationship subsumed those rights:
A married woman had no right to own personal property. The husband had absolute right to control any property owned or acquired by the wife at any time in the marital relationship.
A married woman could not dispose of real property without the consent of the husband.
A married woman could not enter into a contract.
A married woman lost testamentary capacity (the ability to make a will), and any wills that preexisted the marriage were automatically revoked at the time of the marriage.
A married woman was entitled to support from her husband.
A married woman could not incur debt; any debts were the responsibility of the husband, including debts incurred before the marriage.
The common-law tradition views marriage in economic terms. Marriage was viewed as a contract — the woman exchanged her property and promise of service to the husband in return for the husband's obligation of support.
The Community-property
Tradition The community-property tradition comes to us from Spain and France. It does not include a merger of identity. Instead, the community property states treated the marriage as a partnership. Unfortunately, the partnership was not one of equals:
The community-property tradition allowed a woman who possessed property before the marriage to retain title to that property. The husband exercised the right of control over the property, but could not dispose of the property without the consent of the wife.
Property acquired during the marriage was communal property — both the husband and wife acquired ownership interest in the property. As with other property, the husband retained the right of control over the property.
The community-property tradition also addressed the marital relationship in economic terms. Although the married woman possessed more rights in these states, the balance of the economic power in the marital relationship tilted heavily toward the husband.
Changes in the Economic View of Marriage
In the 1830s, the idea that marriage had a firm economic foundation began to show some cracks. Several states enacted statutes known as Married Woman's Property Acts. Popular in common-law states, these acts allowed married women to hold title to personal property. The right of management and control remained in the hands of the husband.
The most significant changes in our attitudes toward marriage occurred in the 1960s. States began to enact legislation that recognized the rights of married women:
Women were no longer required to assume the husband's surname after marriage.
Married women were not required to follow the husband to his choice of domicile.
Married women gained the right to dispose of their own property without the consent of the husband.
In 1967, the United States Supreme Court held that marriage is a right guaranteed by the U.S. Constitution, stating that marriage is “fundamental to our very existence and survival.”
The shifting attitude toward marriage eroded the idea that contractual obligations were the primary purpose of marriage. Parties to a marriage began to define their own rights and obligations because of their own needs and desires. As the relative economic positions of married couples equalized, the pressure to ease the restrictions on entry and exit from the marital relationship increased. This pressure resulted in no-fault divorce, increased use of antenuptial agreements, an expansion of child support obligations, and a rethinking of custody rights.
Types of Marriage Relationships
Most states divide the marriage relationship into three categories: valid, void (prohibited), and voidable. Other types of marital relationships include common-law marriage and cohabitation relationships.
Valid Marriages
A valid marriage is one that is formed in accordance with the requirements of the statutes that create the marital relationship. Most states impose age and competency requirements.
ssential
The consequences of which relationship constitutes a valid marriage extends far beyond the mere marital relationship. Whether a marriage is valid can have specific consequences for the availability of employment benefits, tax deductions, property ownership, child custody, rights of inheritance, and the right to make health decisions for a loved one. Many legal practitioners in this field specialize in the preparation of legal documents to assure alternative couples of the “rights” marital couples take for granted.
A majority of states and the federal government state that a marriage must be between a man and a woman. If the parties to the marriage relationship meet these “entrance” requirements, the state allows them to form the marriage contract. Every state has ceremonial requirements for marriage. These include specifications as to who can perform the marriage ceremony and the number of witnesses.
Void Marriages
When the law says that a marriage is void, it means that the marriage never existed. Sometimes legal writers refer to these marriages as void
Void marriages do not require any decree to dissolve the relationship. If the parties have been living as if they were married, however, a legal proceeding may be necessary to divide property. For example, the parties may need to resolve disputes over title to real property or personal assets.
Voidable Marriages
Voidable marriages are those that have some defect in the essential elements of a valid marriage. Unlike void marriages, however, the defect can be remedied. Voidable marriages include marriages between persons who lack capacity, marriages where the consent to marry is obtained by force or fraud.
Common-law Marriage
Common-law marriage is also called “informal” marriage. This refers to the manner of the creation of the marriage, not the rights conferred on the parties. A common-law marriage can only be created in a state that recognizes it as a valid marriage. In states that recognize common-law marriage, certain conditions must be satisfied. The parties (not of the same sex) must agree to be married, the parties must live together as husband and wife after the agreement, and the parties must represent to others that they are married.
The significant problem created by common-law marriages is how they are treated when the parties move to a state that does not recognize them. Some states refuse enforcement of a common-law marriage from another state. This difference in policy may have a significant effect on the rights of the parties in the event of death or divorce.
Fact
The institution of marriage is regulated by the individual states. Marriages in one state, however, might violate the public policy of another state. The U.S. Supreme Court has not decided whether the Full Faith and Credit Clause of the Constitution allows individual states to refuse to recognize valid marriages from another state. This uncertainty affects gay marriages, common law marriages, or any marriage where there is a difference in the public policy of the individual states.
Cohabitation Relationships
A cohabitation relationship is not a marriage at all. It is a relationship where one person lives with another in the good faith belief that they are married. Such a person is called a
