marriage,n.1. The legal union of a couple as husband and wife. • The essentials of a valid marriage are (1) parties legally capable of contracting to marry, (2) mutual consent or agreement, and (3) an actual contracting in the form prescribed by law. Marriage has important consequences in many areas of the law, such as torts, criminal law, evidence, debtor–creditor relations, property, and contracts. — Also termed matrimony; conjugal union. [Cases: Marriage 12.1. C.J.S. Marriage § 9.]

“It has frequently been said by courts, and even by Legislatures, that marriage is a ‘civil contract.’ But to conclude from these statements that marriage … has all, or even many, of the incidents of an ordinary private contract, would be a grave error. In fact, these statements to the effect that marriage is a ‘civil contract’ will be found, upon examination, to have been used only for the purpose of expressing the idea that marriage, in the American states, is a civil, and not a religious institution, or that … in some states mutual consent alone without formal celebration is sufficient to constitute a valid marriage known as a common law marriage, or that, as is true in all states, the mutual consent of the parties is essential, even in the case of a ceremonial marriage.” Joseph W. Madden, Handbook of the Law of Persons and Domestic Relations § 1-3, at 2–3 (1931). attempted marriage.See void marriage.

clandestine marriage (klan-des-tin).1. A marriage that rests merely on the agreement of the parties. 2. A marriage entered into in a secret way, as one solemnized by an unauthorized person or without all required formalities. See Fleet marriage. [Cases: Marriage 20(1). C.J.S. Marriage §§

21–22, 84.]

common-law marriage.A marriage that takes legal effect, without license or ceremony, when two people capable of marrying live together as husband and wife, intend to be married, and hold themselves out to others as a married couple. • The common-law marriage traces its roots to the English ecclesiastical courts, which until 1753 recognized a kind of informal marriage known as sponsalia per verba de praesenti, which was entered into without ceremony. Today a common-law marriage, which is the full equivalent of a ceremonial marriage, is authorized in 11 states and in the District of Columbia. If a common-law marriage is established in a state that recognizes such marriages, other states, even those that do not authorize common-law marriage, must give full faith and credit to the marriage. A common-law marriage can be dissolved only by annulment,

divorce, or death. — Also termed consensual marriage; informal marriage. See common-law husband under HUSBAND; common-law wife under WIFE. See SPONSALIA PER VERBA DE

PRAESENTI. [Cases: Marriage 13, 22. C.J.S. Marriage §§ 10, 19–20, 24–25.]

confidential marriage.In some jurisdictions (such as California), a marriage between a man and a woman in which only the two parties and the officiant are present at the ceremony. • Confidential marriages are neither witnessed nor recorded in public records. They are recorded in nonpublic records. Although rarely performed, they are generally legal. To obtain a confidential marriage, the parties must each be at least 18, must be of the opposite sex, and usu. must have lived together for an extended period. In ecclesiastical law, such a marriage is termed an occult marriage or, if performed in the strictest secrecy, a marriage of conscience.

“A few states provide for confidential marriages. This allows parties to go through all the formalities but have the records of the marriage, including the license, remain confidential…. A key practical effect of confidential marriage is to allow parties who have been living as husband and wife in a jurisdiction that does not recognize informal marriages to achieve marital status without publicity. However, it does not relate back to the time when the parties started holding themselves out as a married couple and thus it can have consequences in determining the extent of marital or community property or various other rights.” Walter Wadlington & Raymond C. O’Brien, Family Law in Perspective 26 (2001).

consensual marriage.Marriage by consent alone, without any formal process. See

common-law marriage. [Cases: Marriage 18. C.J.S. Marriage §§ 19–20, 36.]

consular marriage.A marriage solemnized in a foreign country by a consul or diplomatic official of the United States. • Consular marriages are recognized in some jurisdictions. [Cases:

Marriage 27. C.J.S. Marriage § 31.]

covenant marriage.A special type of marriage in which the parties agree to more stringent requirements for marriage and divorce than are otherwise imposed by state law for ordinary marriages. • In the late 1990s, several states (beginning with Louisiana: see Acts 1997, No. 1380, § 5) passed laws providing for covenant marriages. The requirements vary, but most of these laws require couples who opt for covenant marriage to undergo premarital counseling. A divorce will be granted only after the couple has undergone marital counseling and has been separated for a specified period (usu. at least 18 months). The divorce prerequisites typically can be waived with proof that a spouse has committed adultery, been convicted of a felony, abandoned the family for at least one year, or physically or sexually abused the other spouse or a child. — Also termed (in slang) high-test marriage.

cross-marriage. A marriage by a brother and sister to two people who are also brother and sister.

dead marriage.A marriage whose substance has disintegrated; a marriage that has

irretrievably broken down.

de facto marriage (di fak-toh). A marriage that, despite the parties’ living as husband and wife,

is defective for some reason. [Cases: Marriage 12. C.J.S. Marriage § 9.]

defunct marriage.A marriage in which both parties, by their conduct, indicate their intent to

no longer be married. [Cases: Husband and Wife 272(1).]

Fleet marriage.Hist. 1.A clandestine ceremonial marriage performed in the 17th or 18th century in the Fleet prison in London by a chaplain who had been imprisoned for debt. 2. A clandestine ceremonial marriage performed by unscrupulous itinerant clergymen in the area in London near the Fleet Prison. • Parliament attempted to stop the practice, but it was not until the statute of 26 Geo. 2, ch. 33, declaring marriages performed outside public chapels or churches to be void and punishable as a felony, that the practice ceased.

fraudulent marriage.A marriage based on a misrepresentation regarding some issue of fundamental importance to the innocent party, who relies on the misrepresentation in the decision to marry. • The misrepresentation must concern something of fundamental importance to a marriage, such as religious beliefs, the ability to have sexual relations, or the ability or desire to have children. Cf. sham marriage.

green-card marriage.Slang. A sham marriage in which a U.S. citizen marries a foreign citizen for the sole purpose of allowing the foreign citizen to become a permanent U.S. resident. • The Marriage Fraud Amendments were enacted to regulate marriages entered into for the purpose of circumventing U.S. immigration laws. 8 USCA §§ 1154 (h), 1255(e). See sham marriage.

Gretna Green marriage.A marriage entered into in a jurisdiction other than where the parties reside to avoid some legal impediment that exists where they live; a runaway marriage. • Gretna Green, a Scottish village close to the English border, served as a convenient place for eloping English couples to wed since in Scots law parties over 16 did not need parental consent.

“A ‘Gretna-Green marriage’ was a marriage solemnized in Scotland by parties who went there to avoid the delay and formalities required in England…. In the United States, the term describes marriages celebrated between residents of a State who go to a place beyond and yet near to the boundary line of an adjoining State, on account of some advantage afforded by the law of that State.” William C. Anderson, A Dictionary of Law 496 (1889).

handfast marriage. 1.Hist. A marriage, often lacking only solemnization by clergy, characterized by the couple’s joining of hands to conclude a marriage contract. 2.Hist. A betrothal with all the binding effects of a marriage, including conjugal rights and cohabitation, followed by a later formal marriage. 3. A trial or probationary marriage wherein the couple agrees to cohabit and behave as spouses for a definite period, usu. one year, at the end of which they will mutually decide to separate or go through a permanently binding ceremony. • The legal status of such a trial marriage is unsettled, as many are initiated with a ritual ceremony including an exchange of vows before a presiding officer legally empowered to perform marriages, yet the couple intends to remain free to end the relationship without legal proceedings. Cf. marriage in jest; common-law marriage. 4. A binding form of marriage practiced by some modern pagan religions. • Unlike in sense 3, such marriages are entered into with the expectation of permanent duration. — Also termed (in senses 3 & 4) handfasting.

high-test marriage.See covenant marriage.

homosexual marriage.See same-sex marriage. informal marriage.See common-law marriage.

in-marriage. Marriage between relatives; inbreeding. left-handed marriage.See morganatic marriage.

limited-purpose marriage.A marriage in which the parties agree to be married only for certain reasons. • An example is a marriage in which the parties agree to marry so that a child will not be born illegitimate but agree not to live together or to have any duties toward each other. Courts have usu. found these marriages to be binding for all purposes. Cf. sham marriage; green-card marriage.

marriage by habit and repute.Scots law. An irregular marriage created by cohabitation that implies a mutual agreement to be married. • This type of marriage is still recognized in Scotland.

See Scotch marriage.

marriage in jest.A voidable marriage in which the parties lack the requisite intent to marry.

[Cases: Marriage 13. C.J.S. Marriage §§ 10, 19–20.] marriage of conscience.Eccles. law. See confidential marriage.

marriage of convenience. 1. A marriage entered into for social or financial advantages rather than out of mutual love. — Also termed mariage de convenance. 2. Loosely, an ill-considered marriage that, at the time, is convenient for the parties involved.

marriage of the left hand.See morganatic marriage.

marriage per verba de futuro subsequente copula.Scots law. Hist. An irregular marriage created by a promise to marry in the future followed by an act of sexual intercourse. • Originally medieval canon law, this type of marriage was recognized in Scotland until 1940. See Scotch marriage.

marriage per verba de praesenti.Scots law. Hist. An irregular marriage created at the time of a mutual agreement to be married. • Originally medieval canon law, this type of marriage was recognized in Scotland until 1940. See Scotch marriage.

mixed marriage.See MISCEGENATION.

morganatic marriage (mor-g<<schwa>>-nat-ik).Hist. A marriage between a man of superior status to a woman of inferior status, with the stipulation that the wife and her children have no claims to the husband’s title or possessions. • By extension, the term later referred to the marriage of a woman of superior status to a man of inferior status. The concept is now limited to royal marriages. — Also termed left-handed marriage; marriage of the left hand; salic marriage.

occult marriage.Eccles. law. See confidential marriage.

plural marriage.A marriage in which one spouse is already married to someone else; a

bigamous or polygamous union; POLYGAMY. [Cases: Marriage 11. C.J.S. Marriage § 18.]

putative marriage (pyoo-t<<schwa>>-tiv). A marriage in which either the husband or the wife believes in good faith that the two are married, but for some technical reason they are not formally married (as when the ceremonial official was not authorized to perform a marriage). • A putative marriage is typically treated as valid to protect the innocent spouse. The concept of a putative marriage was adopted from the Napoleonic Code in those states having a civil-law tradition, such as California, Louisiana, and Texas. This type of marriage is also recognized in the Uniform Marriage and Divorce Act. The legal rule by which putative marriages exist is sometimes referred to as the putative-spouse doctrine. — Also termed putative matrimony. [Cases: Marriage 12.

C.J.S. Marriage § 9.] salic marriage.See morganatic marriage.

same-sex marriage.The ceremonial union of two people of the same sex; a marriage or marriage-like relationship between two women or two men. • The United States government and most American states do not recognize same-sex marriages, even if legally contracted in another U.S. state or in a foreign country such as Canada, so couples usu. do not acquire the legal status of spouses. But same-sex couples have successfully challenged the laws against same-sex marriage. See Goodridge v. Dept. of Pub. Health, 798 N.E.2d 941 (Mass. 2003). Cf. Baehr v. Lewin, 852 P.2d 44 (Haw. 1993); Baehr v. Miike, 994 P.2d 566 (Haw. 1999); Baker v. State, 744 A.2d 864 (Vt. 1999). — Also termed gay marriage; homosexual marriage. Cf. CIVIL COMMITMENT(2); CIVIL UNION; DOMESTIC PARTNERSHIP.

Scotch marriage.Scots law. A marriage by consensual contract, without the necessity of a formal ceremony. • Until 1940, Scots law retained the medieval canon-law forms of marriage per verba de praesenti and per verba de futuro subsequente copula. These promises constituted irregular but valid marriages. Scots law still retains the irregular marriage by cohabitation with habit and repute. No ceremony needs to be proved but, after the death of one spouse, the surviving spouse or any child can obtain a court’s confirmation that a marriage existed, based on the general belief of neighbors, friends, and family. [Cases: Marriage 20(1). C.J.S. Marriage §§ 21–22, 84.]

sham marriage.A purported marriage in which all the formal requirements are met or seemingly met, but in which the parties go through the ceremony with no intent of living together as husband and wife. Cf. green-card marriage; fraudulent marriage; limited-purpose marriage.

[Cases: Aliens 53.4. C.J.S. Aliens §§ 78, 81, 114, 142–143, 145–148, 217.] valid marriage.See MARRIAGE(1).

voidable marriage.A marriage that is initially invalid but that remains in effect unless terminated by court order. • For example, a marriage is voidable if either party is underage or otherwise legally incompetent, or if one party used fraud, duress, or force to induce the other party to enter the marriage. The legal imperfection in such a marriage can be inquired into only during the lives of both spouses, in a proceeding to obtain a judgment declaring it void. A voidable marriage can be ratified once the impediment to a legal marriage has been removed. [Cases:

Marriage 53–54. C.J.S. Marriage §§ 43–45.] void marriage.A marriage that is invalid from its inception, that cannot be made valid, and

that can be terminated by either party without obtaining a divorce or annulment. • For example, a marriage is void if the parties are too closely related or if either party is already married. A void marriage does not exist, has never existed, and needs no formal act to be dissolved — although a judicial declaration may be obtained. — Also termed attempted marriage. See NULLITY OF MARRIAGE(1). [Cases: Marriage 53–54. C.J.S. Marriage §§ 43–45.]

2.Roman law. A consensual agreement between a man and a woman to be married. • The consent of both parties and of any paterfamilias was necessary. Other requirements were the attainment of puberty and legal capacity (conubium). If either or both withdrew consent to be married, the marriage ended in divorce; no specific grounds were necessary. In the Christian empire, divorce without adequate grounds was penalized. 3.MARRIAGE CEREMONY. — marital,adj.

ceremonial marriage.A wedding that follows all the statutory requirements and that has been solemnized before a religious or civil official. [Cases: Marriage 23–32. C.J.S. Marriage §§


civil marriage.A wedding ceremony conducted by an official, such as a judge, or by some other authorized person — as distinguished from one solemnized by a member of the clergy.

[Cases: Marriage 27. C.J.S. Marriage § 31.]

proxy marriage.A wedding in which someone stands in for an absent bride or groom, as when one party is stationed overseas in the military. • Proxy marriages are prohibited in most states. [Cases: Marriage 23. C.J.S. Marriage § 30.]

[Blacks Law 8th]