Marriage Requirements Basics: Consent, Age, and Capacity

State law determines who may marry, what types of marriages are accepted by the state, and how marriages are documented. Knowing your state's requirements lets you get on with the marriage ceremony and planning. This article covers the basic requirements for marriage in most states.

Why Are There Marriage Requirements?

Although people think of marriage as a romantic event, marriage is a civil contract. A valid marriage must meet the same requirements as any other contract. If the marriage is disputed in family court, the judge will look at the same factors as any contract judge. Do the parties consent to the marriage contract? Do they meet the requirements for a civil marriage?

Consent

Before a state recognizes a marital union, the parties must consent or agree to the marriage. Consent means that both parties agree to the marriage and they understand the nature of the union. As long as the parties consent, they can receive a marriage license. Some things may invalidate consent, including:

• Force, coercion, or duress: The old-time “shotgun wedding" would be invalid today. Parties may not be pressured directly or indirectly into marriage. Consent given under threat is grounds for annulment of the marriage.

• Fraud or deception: Lying to get someone else to marry you is fraud. Fraud may be as simple as pretending to have more money than you do or promising to get your spouse or their family citizenship. Fraud invalidates a marriage and may also open the individual to criminal charges.

• Incapacity: Age, lack of mental capacity, intoxication, or mental disability may prevent consent.

Public policy will not allow state law to grant marriage licenses to individuals unable to consent to a marriage contract legally. The ability to consent is the most important marriage requirement.

Age

In the United States, child marriage is usually not accepted. All states have a legal age of marriage. This “age of consent" is the age when parties can legally agree to become spouses without parental permission. In most states, the marriage age is at least 18 years of age. In Mississippi and Puerto Rico, the age is 21. In Nebraska, parties must be 19.

Below the minimum age of consent, minors must have parental consent to marry. In most states, minors must be at least 16 years old, but in Mississippi, a 15-year-old can marry with parental permission.

In most states, minors who marry are automatically emancipated, but state laws vary. You should confirm what your state requires for minor emancipation. Minors do not have the same legal rights as adults. If the minor is not emancipated, their partner may become their legal guardian. This is not an ideal situation, and such marriages are not condoned.

Although some religious denominations (such as fundamental Mormonism and some sects of Islam) believe in child marriage, there are no specific religious exceptions for underage marriage in the United States.

Capacity

Capacity refers to the mental ability of the parties to the marriage to understand the quality and nature of the marriage contract. Mental illness or disability is not always a bar to civil marriage. It is essential that the parties understand their domestic relations and duty to one another and family members.

One capacity test is an individual's ability to understand the nature of marriage and responsibilities like financial obligations and spousal support.

Physical incapacity is not a bar to marriage. Inability to consummate a marriage, or “impotence," will not prevent parties from getting married, but it may be grounds for annulment later.

Other State Marriage Requirements

Other state laws about marriage involve prohibited marriages and obtaining a marriage license. Different types of unions do not fall under civil marriage, and states have other rules covering them.

Common Law Marriage

A common law marriage is one in which there is no solemnization of the wedding. The parties simply live together for a period of time and behave as if they are married. Most states no longer recognize common-law marriage, although all states acknowledge such marriages if they existed before the ban.

Civil Union

Before the U.S. Supreme Court ruled in Obergefell v. Hodges and guaranteed the right to same-sex marriage, some states offered civil union protections to same-sex couples. Civil unions grant most of the same legal rights to couples as civil marriage but do not guarantee federal benefits. Most states abolished civil unions in 2015.

Cohabitation

Cohabitation is a legal term for “living together." At one time, cohabitation was illegal for unmarried couples. Today, two states still have laws against cohabitation on their books, but these states are unlikely to enforce them.

Prohibited Marriages

State law prohibits some types of marriages. You should check with your state or a family law attorney if you are uncertain about your marital status.

• Incestuous marriage: Most states have laws forbidding marriage between blood relatives. Usually, the ban extends to third cousins. Some states may allow first cousins to wed if they meet certain age requirements.

• Bigamy: Parties must be legally single at the time of the marriage. If you were previously married and divorced, you need to confirm your divorce was finalized before obtaining a new marriage license.

Counseling and Waiting Periods

Public policy discourages divorce and encourages parties to discuss their plans before plunging into marriage. Premarital counseling and waiting periods are some of the ways that states encourage couples to think about the marriage act before issuing the marriage license.

• Counseling: Some states offer premarital counseling for couples at low or no costs. A few states will waive or reduce the marriage license fee for couples who agree to enter counseling. Counseling lets couples review their future plans and thoughts about children, finances, and other mundane matters with a trained professional.

• Waiting periods: Some states, such as New York, Wisconsin, and Texas, have a nominal waiting period of one to five days between issuing the marriage license and the marriage ceremony. This gives the couples one more chance to think things over before the wedding. The waiting period can be waived for good cause in most states.

After the Wedding

You're not quite through after the wedding ceremony. The officiant or member of the clergy needs to send the marriage certificate to the county clerk's office, and you should receive a certified copy within a few days. If either party needs the certificate for legal reasons (such as government benefits, name changes, or social security purposes), you will need the certified copy.

Questions About Marriage Requirements? A Family Lawyer Can Help

If you and your partner are considering getting married, it may help to speak with an experienced family law attorney. An attorney will ensure that all of the legal requirements of marriage are met before you walk down the aisle and can also address other legal questions and issues you may face.

Find an experienced family law attorney near you today.