The Legal Definition of Marriage

Legally speaking, marriage is a contract made in conjunction with the law, where a free man and a free woman reciprocally engage to live with each other during their joint lives, in the union which ought to exist between husband and wife. By the terms, freeman and freewoman in this definition are meant, not only that they are free and not slaves, but also that they are clear of all bars to a lawful marriage.

Validating a Marriage

To make a valid marriage, the parties must be:

  • Able to contract, and have actually contracted.
  • They must be willing to contract.

A valid marriage is not seen as valid if the persons involved are not legally able to enter a contract. This includes:

  • Any person who has no legal capacity due to lack of mental capacity and therefore cannot enter into a contract. This includes persons with an unsound mind.
  • Mental capacity also applies to infants, minors including males under the age of fourteen, and females under the age of twelve. If a minor over those ages marries, they must have the consent of their parents or guardians.
  • There is no will when the person is mistaken in the party whom he intended to marry including the following examples:
    • If Peter is intending to marry Maria, through error or mistake of person, in fact, marries Eliza.
    • An error in the fortune, as if a man marries a woman whom he believes to be rich, and he finds her to be poor.
    • In the quality, as if he marries a woman whom he took to be chaste, and whom he finds of an opposite character.

These do not invalidate the marriage, because in these cases the error is only of some quality or accident, and not in the person. When the marriage is obtained by force or fraud, it is clear that there is no consent; it is, therefore, voided, and may be treated as null by the court in which its validity may incidentally be called in question.

Generally, all persons who are of sound mind, and have arrived at years of maturity, are able to contract marriage. There are many exceptions to this rule including:

  • The previous marriage of the party to another person who is still living.
  • Consanguinity, or affinity between the parties within the prohibited degree. It seems that persons in the descending or ascending line, however remote from each other, cannot lawfully marry; such marriages are against nature; but when we come to consider collateral, it is not so easy to fix the forbidden degrees, by clear and established principles. In several of the United States, marriages within the limited degrees are made void by statute.
  • Impotency, which must have existed at the time of the marriage, and be incurable.
  • Adultery. By a statutory provision in Pennsylvania, when a person is convicted of adultery with another person or is divorced from her husband, or his wife, he or she cannot afterward marry the partner of his or her guilt. This provision is copied from civil law. And the same provision exists in the French civil code. The parties must not only be willing and able but must have actually contracted in due form of law.

Common Law Marriage

Common law requires no particular ceremony to validate a celebration of marriage. The consent of the parties is all that is necessary because marriage is a contract and is all that is needful by natural or public law.

If the contract is made between two consenting parties and is followed by consummation, it is seen as a valid marriage and legal marriage. With common law marriages, the following is true:

  • It is not necessary that a clergyman be present to give validity to the marriage.
  • The consent of the parties may be declared before a magistrate, or simply before witnesses, or subsequently confessed or acknowledged,
  • The marriage may even be inferred from continual cohabitation and reputation as husband and wife. Exceptions to this rule include cases of:
    • Civil actions for adultery.
    • Public prosecutions for bigamy.

A promise to marry at a future time, cannot under the law, be converted into a marriage. However, the breach of a promise will be the foundation of an action for damages.

Statutory Regulations

In some of the states, statutory regulations have been made on this subject including:

  • In Maine and Massachusetts, the marriage must be made in the presence, and with the approval of a magistrate, or a stated or ordained minister of the gospel.
  • In Connecticut, the marriage must be celebrated by a clergyman or magistrate and requires the previous publication of the intention of marriage, and the consent of parents; it inflicts a penalty on those who disobey its regulations. The marriage, however, would probably be considered valid, although the regulations of the statutes had not been followed.
  • In Pennsylvania, marriage is valid, even when the directions of the statute have not been observed. The same rule applies in New Jersey, New Hampshire, and Kentucky.
  • In Louisiana, a license must be obtained from the parish judge of the parish in which at least one of the parties resides, and the marriage must be celebrated before a priest or minister of a religious sect or an authorized justice of the peace; it must be celebrated in the presence of three witnesses of full age, and an action must be made of the celebration, signed by the person who celebrated the marriage, by the parties, and the witnesses.

The 89th article of the Code declares, that such marriages only are recognized by law, as are contracted and solemnized according to the rules which it prescribes. The Code does not declare a marriage null that is not preceded by a license, and not evidenced by an act signed by a certain number of witnesses and the parties, nor does it make such an act exclusive evidence of the marriage. The laws relating to forms and ceremonies are guidelines for those who are authorized to celebrate marriage. A marriage made in a foreign country, if legally binding there, would, in general, be held good in this country. If there is any illegality to the marriage that is considered unjust or against the laws, it will not be valid.

Dissolution of a Marriage

Marriage is a contract intended to last until the death of one of the contracting parties or through a divorce. If dissolution is the result of bigamy, an actual marriage must be proved in order to convict the accused.

This can be proved specific circumstance including:

  • Cohabitation.
  • Acknowledgment by the parties themselves that they were married.
  • Their friends and relations know them to be married.
  • Their correspondence while temporary separation.
  • Addressing each other as man and wife.
  • Declaring that the marriage took place in a foreign country.
  • Describing their children during a baptism as their legitimate offspring.
  • If the parties pass for husband and wife by common reputation.

After their death, the marriage is presumed to be dissolved.

Civil Effects of Marriage

The civil effects of marriage are simple: all matrimonial agreements exist between the parties. This means:

  • It vests in the husband all the personal property of the wife, that which is in possession absolutely, and chooses in action, upon the condition that he shall reduce them to possession.
  • The husband has the right to manage the real estate of the wife, and enjoy the profits arising from it during their joint lives, and after her death, an estate by the courtesy when a child has been born.
  • It vests in the wife after the husband's death, an estate in dower in the husband's lands, and a right to a certain part of his personal estate, when he dies without a will.

In some states, the wife now retains her separate property by statute. It creates the civil relationship which each contracts towards the relations of the other. It gives the husband marital authority over the person of his wife. The wife takes the name of her husband, as they are considered as but one, of which he is the head. In general, the wife follows the condition of her husband. The wife, on her marriage, loses her domicile and gains that of her husband.

One of the effects of marriage is to give paternal power over an issue. The children acquire the home of their father. It gives to the children from the marriage, the rights of kindred not only with the father and mother but all their kin. It makes all the issue legitimate.