Marriage — Family Law & Trusts and Estates Practice

Dana marries Sam in Olympia. Licensed ceremony, real officiant, everything done by the book. What Dana does not know is that Sam is still legally married to someone else and never divorced her. Is Dana married to Sam? No. Not now, and not ever. That marriage was a nullity from the moment it happened.

Now change one fact. Sam is single, but he lied. He had decided firmly never to have children, and he knew that was a dealbreaker for Dana. Is Dana married now? Yes. For the moment. And if she stays with him for years after she learns the truth, she is married for good. Same couple, one changed fact, two completely different legal worlds.

Here is the route. First what makes a marriage valid, and who is barred from marrying. Then the distinction the outline flags as memorize-level, void against voidable. Then marriage without a ceremony, and the doctrines that rescue someone who married in good faith. Then the one case name worth knowing, and when one state must honor another's marriage. Then prenups, and the rights the status creates.

Why does the law care so much? Marriage is a legal status, and it flips on an entire package of rights and duties at once. How property is owned, who inherits, who makes medical decisions, how support works if it ends. Because so much rides on that status, the law cares intensely whether a marriage is actually valid.

The ordinary path is a ceremonial marriage, and four things generally have to line up. Capacity, meaning each person is legally able to marry. Consent, meaning both knowingly and voluntarily agree. A license from the state. And solemnization, the marriage actually performed before someone the state authorized to officiate.

Now a nuance the exam likes. The license and solemnization steps are real requirements, but most states treat a good-faith ceremonial marriage as valid despite a technical glitch. Quick challenge. Rosa and Ben get a license, exchange vows before a person they reasonably believe is an ordained minister, and live as a married couple for years. It later emerges his ordination had lapsed. Is the marriage void?

No. Many states have curative statutes saying a marriage solemnized in apparent good faith is not void merely because the officiant lacked authority. So do not jump to no marriage because a paperwork detail was botched. Capacity and consent are different. Those go to the heart of the marriage, and a defect there is far more likely to make it void or voidable.

Which brings us to who may not marry. Three bars. Bigamy, marrying while already validly married to a living person you never divorced. Incest, marriage between close blood relatives, barred in every state, though first cousins are a split. And age, where the default is 18.

Age is the one the exam is most likely to hand you a statute for. The Franklin Family Code, § 4-101, is a fair sample. A person 18 or older may marry without consent. A person who is 16 or 17 may marry only with written parental consent and a judge's approval. A purported marriage by a person under 16 is void.

Notice what that statute is doing. Age and licensing rules are not the memorize-level part of this topic. Apply the numbers the exam supplies, not the default you carry in your head.

Consent defects come next, because entering a marriage is also a kind of contract. The same things that wreck an ordinary agreement can wreck consent to marry. A party who could not understand what marriage is, through mental illness or severe intoxication, did not truly consent. A party forced to marry under threat did not consent freely.

And consent obtained by fraud can be attacked, but only when the lie goes to the essentials of the marriage. Courts will annul for a secret inability or fixed refusal to have children, or a marriage entered only to obtain immigration status. They will not annul for ordinary disappointments, like lying about wealth, age, or character.

Now the starred heart of the topic. A void marriage was never valid. It is a nullity from the very start, void ab initio. No court order is needed to make it a nullity. Anyone with an interest can treat it as no marriage, including a third party, and even after a spouse dies. It cannot be fixed by the couple staying together.

A voidable marriage is the opposite in every respect. It is valid unless and until a court annuls it. Only one of the spouses can challenge it, only during their lifetimes, and it can be ratified. If the wronged party keeps living as married after the problem is discovered or removed, the right to annul is lost and the marriage becomes fully valid.

Memorize the sort by its grounds. The two status defects, bigamy and incest, are void. The consent and capacity defects are voidable. Nonage, mental incapacity or intoxication, fraud going to the essentials, duress, and an inability to consummate that the other spouse did not know about.

Which is Dana, both times. Sam already married means bigamy, so the marriage is void, and Dana, Sam, Sam's first spouse, or even Sam's estate could later show it never counted. Sam lying about children means fraud to the essence, so that marriage is voidable. It is valid unless Dana promptly seeks an annulment, and ratified if she stays after learning the truth.

One clarification. An annulment declares a marriage invalid. Divorce ends a marriage everyone agrees was valid. And modern statutes soften the old idea that an annulled marriage never happened. Its children are legitimate, and courts can still divide property and order support.

Next, marriage without a license or ceremony. A common-law marriage is a real, full marriage a couple creates simply by how they live. It is not, we lived together a long time so we are automatically married. That is a myth, and there is no magic number of years. Only a minority of states still allow couples to form new ones.

Three elements must come together while both parties have capacity to marry. A present agreement to be married, meaning both presently intend to be married now, not a promise to marry in the future. Cohabitation, living together as spouses. And holding out publicly as married, using the same surname, calling each other spouse, telling the community.

Present intent is the element the exam tests hardest. Priya and Devi live together for six years in a recognizing state, share a bank account, and Devi introduces Priya as my wife. If they truly agreed they were married now, that is a full marriage, and splitting up requires a divorce. If they only agreed to marry someday, no marriage ever formed.

And here is why it matters everywhere. A common-law marriage validly formed in a recognizing state is a genuine marriage that other states must honor, even states that do not allow new ones themselves.

Now the doctrines that rescue the innocent party. Think of Dana in the bigamy version, who did everything right. It would be unfair to strip her of every marital right because Sam lied. A putative spouse is someone who cohabited with another in a good-faith belief that they were validly married. That person is treated as a lawful spouse for property and support.

The Uniform Marriage and Divorce Act, § 209, states it. Good faith is the linchpin, and the belief must be honest and in most states reasonable. The status ends the moment the party learns the marriage is not valid. It does not revive the void marriage. It is an equitable fix, not a fourth way to be married.

Marriage by estoppel is the close cousin. It stops a party who represented that a marriage was valid, and let the other rely on that, from later denying it to escape its obligations. Claim for a decade that your ceremony made you married, then call it defective when support is on the line, and a court may estop you.

Now the one case name worth knowing cold. The right to marry is a fundamental liberty, and since 2015 it belongs equally to same-sex couples. In Obergefell v. Hodges the Supreme Court held that the Fourteenth Amendment requires every state to do two things. Issue marriage licenses to same-sex couples, and recognize same-sex marriages lawfully performed elsewhere. The guarantees are due process and equal protection.

In plain terms, a state may not refuse a license because the couple is of the same sex, and may not treat an out-of-state same-sex marriage as second-class. Congress reinforced this in 2022 with the Respect for Marriage Act. It requires interstate recognition of valid marriages, and repealed the older federal law defining marriage as only between a man and a woman.

That leads straight into recognition generally. Couples move, and states set different rules, so which state's law decides? The place-of-celebration rule. A marriage valid in the state where it was entered is generally recognized as valid everywhere. That is why a common-law marriage properly formed in a recognizing state travels, and why a married couple stays married when they relocate.

There is one escape hatch, and it is narrow. A state may refuse to recognize a marriage that violates a strong public policy of that state, historically things like incestuous marriages. After Obergefell that exception cannot be used to deny recognition to a same-sex marriage, however longstanding the local policy.

Now agreements. A premarital agreement is a contract signed before marrying that rearranges the financial rules that would otherwise apply on divorce or death. Most states follow the Uniform Premarital Agreement Act, the UPAA, from 1983. A smaller group has adopted its successor, the UPMAA, from 2012, which extends the framework to agreements made during the marriage.

Formation is simple. Under UPAA § 2, the agreement must be in writing and signed by both parties, and it is enforceable without separate consideration, because the marriage itself supplies it. So there is no such thing as an oral prenup, and the agreement takes effect upon marriage.

What can it do? It can fix how property is divided on divorce or death, including a business brought into the marriage. It can set, limit, or waive spousal support. It can direct the making of wills and choose which state's law governs. What it cannot do is fix child support or custody. Those belong to the child, decided by the child's best interests.

Now unenforceability, and this is where candidates lose points. Under UPAA § 6 there are two independent attack routes. The first is involuntariness. The challenger did not sign freely. Think surprise on the eve of the wedding, coercion, or no chance to consult a lawyer. That alone defeats the agreement.

The second route is a conjunction, and the conjunction is the trap. Second quick challenge. A spouse proves the agreement was unconscionable when signed, but concedes she received full and fair disclosure of the other's assets beforehand. Under the classic UPAA, is the agreement unenforceable?

No. Unconscionability is not enough by itself. The challenger must show both halves. That it was unconscionable when signed, and that there was no fair disclosure, no written waiver, and no adequate independent knowledge of the other's finances. Full disclosure defeats the second half, so the deal stands. Note also that unconscionability is judged when the agreement was signed, never by hindsight.

Two modern wrinkles. The UPMAA tightens the screws, making unconscionability a stand-alone ground and asking whether each party had access to independent counsel. And marital agreements, the same deal signed during the marriage, are valid in most states but scrutinized harder, because married spouses owe each other a fiduciary-like duty.

Last, the rights the status creates. Spouses owe each other a mutual duty of support, and the most tested piece is the doctrine of necessaries. A third party who supplies necessaries to one spouse, food, shelter, clothing, medical care, can seek payment from the other spouse even though that spouse never agreed to the debt. Historically a one-way rule, the modern version is gender-neutral and mutual.

The rest of the status package. Property and inheritance rights, including an intestate share and a statutory elective share against disinheritance. Standing to sue for a spouse's wrongful death and often loss of consortium. Default authority as next of kin for medical decisions. And a right, not a requirement, to change one's surname.

Finally, two evidentiary privileges that live mainly in Evidence. The spousal testimonial privilege lets a witness refuse to testify against a current spouse in a criminal case, and it ends at divorce. The confidential marital communications privilege protects private things said during the marriage, and it survives divorce. Testimonial is who takes the stand. Communications is what words are protected.

A word on authorities. This episode named exactly one case, and that was deliberate, because the source itself calls Obergefell v. Hodges the one case name worth knowing cold here. Everywhere else you apply the doctrines as rules, and the exam will hand you the statute when it wants a specific number, on age or licensing above all.

If you keep only three things, keep these. The void list is short and closed, bigamy and incest, and everything else in the consent and capacity family is voidable. Present agreement is what makes a common-law marriage, not years. And under the classic UPAA, unconscionability needs a disclosure failure beside it.

Now the traps. One. Treating bigamy or incest as merely voidable. They make a marriage void, attackable by anyone with an interest, even after a spouse dies, and never curable. Two. Forgetting that voidable marriages can be ratified by continuing to live as married after the defect is known. If a fact pattern stresses that the couple kept living as spouses after the problem surfaced, that is your ratification signal.

Three. Thinking long cohabitation alone creates a common-law marriage. You still need present agreement, cohabitation and holding out. Four. Missing that a common-law marriage validly formed in a recognizing state must be honored by states that do not recognize new ones. Five. Assuming an unconscionable prenup is automatically void under the UPAA. It is not, unless the challenger also lacked fair disclosure.

Six. Believing parents can lock in child support or custody by contract. They cannot. Seven. Confusing the two spousal privileges. And eight. Overlooking the putative-spouse doctrine when an innocent party married in good faith into a void marriage.

Time for the quick check, and this one comes straight from the BARGO question bank. A man married a woman who, unknown to everyone, was still legally married to a living husband she had never divorced. They lived together for many years until the man died without a will.

In probate, his two adult children from an earlier relationship sought to establish that the marriage had never been valid. That would keep the woman from taking a surviving spouse's share. She objected that nobody may question a marriage after a spouse has died. May the children challenge it?

Option one. No, because only a spouse may ever challenge the validity of a marriage. Option two. No, because the death of a spouse ends any challenge to the marriage. Option three. Yes, because a bigamous marriage is void and may be attacked even after death. Pause here if you want a moment.

The answer is option three. The woman had a living, undivorced husband, so the marriage was bigamous and void from the start. A void marriage is a nullity that anyone with an interest may attack, including heirs, and the death of a spouse changes nothing.

And notice what the wrong answers are. Options one and two are both correct statements, just about the other category. Only a spouse, only in their lifetime, is the rule for voidable marriages. Reading it onto a void marriage is the most common error here. Though the woman might still claim putative-spouse protection. There are more than thirty more questions on this topic, each explained like that.

Five things to take away. One. Four building blocks, capacity, consent, license and solemnization, and a good-faith glitch in the last two is usually curable. Two. Sort by ground. Bigamy and incest are void. Nonage, incapacity, fraud to the essentials, duress and impotence are voidable.

Three. Void means anyone with an interest may attack it, even after death, and it can never be ratified. Voidable means only a spouse, only while alive, and ratification cures it. Four. A common-law marriage needs present agreement, cohabitation and holding out, and it travels to every state.

Five. A prenup must be written and signed, and under the classic UPAA it falls for involuntariness, or for unconscionability plus a disclosure failure. Which brings us back to Dana, married to Sam in one version and never married at all in the other, on facts differing by a single lie. Next time, Dissolution, Property and Support.

Practice this topic with more than 2,900 exam-style questions, free to start, at nextgenbargo.com. This episode is for education and exam preparation only, not legal advice, and we are not affiliated with or endorsed by the NCBE or any bar examining authority.