Marriage & Prenuptial Agreements

What is Marriage?

What is Marriage?

Marriage is a personal relationship arising from a legal contract between two individuals. In the United States, state law primarily governs marriage. In this regard, states impose various restrictions on marriage:

  • Age. Parties seeking to be married have to meet minimum age requirements. Some states permit minors to marry provided the couples obtain parental approval or court permission.
  • Marital Status. Parties seeking to be married must be unmarried. While polygamous societies do exist in the United States, no states recognize a marriage that involves more than two people.
  • Consent. Marriage is no different from other contracts in that it requires the consent of the contracting parties. As such, a court may void a marriage contract if a contracting party was under the age of consent, consent of a contracting party was obtained by fraud, or a contracting party could not consent because of an unsound mind.
  • Family Members. States also prohibit parties from marrying their relatives; e.g., Connecticut prohibits men from marrying their mothers, grandmothers, daughters, granddaughters, sisters, aunts, nieces, stepmothers or stepdaughters. The same rule applies for women and their corresponding male relatives.
  • Gender. In recent years, many states have passed laws requiring that marriages can only be conducted between a man and a woman; however, same-sex couples have increasingly challenged these laws.
State restriction on marriage must be constitutional. For instance, in Loving v. Virginia, 388 U.S. 1 (1967), the U.S. Supreme Court struck down a Virginia law that forbade interracial marriages. The Court stated that while states may regulate marriages, their power was not absolute under the Fourteenth Amendment to the U.S. Constitution. In this case, the Court declared that the freedom of marriage was a fundamental right. Accordingly, the state's denial of the right to marriage on the basis of race violated the Equal Protection Clause and the Due Process Clause under the Fourteenth Amendment.

Will Same-Sex Marriages Be Recognized in Other States?

While a state may recognize a same-sex marriage, such marriage will not necessarily be recognized by another state despite the constitutional requirement that each state provide full faith and credit to the laws of other states. The Defense Against Marriage Act (DOMA), signed into law by President Clinton in 1996 states that "No state, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship." (28 U.S.C. § 1738C).

What are Civil Unions?

Civil unions are legally-binding partnerships entered into by two people. Sometimes civil unions are referred to as civil partnerships or registered partnerships—the purpose of which is to grant the parties certain benefits found in marriage. The level of benefits granted varies by jurisdictions. Some states treat civil unions the same as marriage in everything but name.