Review: Who Can Marry?

I. Substantive Requirements

1. GENDER – Almost uniform prohib. on

same-sex marriages (civil unions – e.g. Vt., Ha;

same-sex marriage – Mass Ct.)

2. INCEST Uniform proh. marr to relatives by blood

(consanguinity) or by marriage (affinity)

but variation in range of proh. relationships

3. BIGAMY/POLYGAMY – Uniform proh.

on multiple marriages (at the same time)

Today: Substantive Requirements (cont’d)

4. AGE – Uniform reg. of marr to minors but range of regs

5. STATE OF MIND RESTRICTIONS: Fraud and duress (consent)–

more discretion in application

II. Procedural/Formal Requirements

1. License

2. Ceremony

Valid – Dissolution/Divorce

Voidable – Must Have Judicial Declaration (Annulment) No 3rd party attack

Void – No Marriage (failure to meet certain substantive requirements such as bigamy, incest, gender)

Formal Requirements1) License

• Provide information on age, relationship to spouse, etc.

• Blood/other health tests• Waiting period

Formal Requirements (cont’d)

2) Ceremony/Solemnization• Religious• Clerk• Judge• Proxy• Witnesses

Majority Rule (Carabetta)

Principle of Validation (if statute silent)

Failure to comply with formal requirements will not render marriage void or voidable as long as:

1) At least one of the parties has good faith belief marriage is valid

2) Parties have capacity (meet substantive requirements)

Common Law MarriageRequirements:• Jurisdiction recognizes common law marriage• Agreement/present intent to be married• Public declaration “holding out”• Cohabitation – no minimum period• Capacity (substantive requirements define

capacity to marry) No multiple marriages/bigamy Gender Incest prohibition Age No fraud or duress going to “essentials” of marriage(sexual

relations/childbearing)

POLICY PROS & CONS?

Maryland Bar Exam Question

Facts:1965 – Arnold & Bea have a valid marriage

ceremony in Maryland

1975 – Arnold moves in with Caroline in D.C.

1980 – Bea & Darwin obtain license and have marriage ceremony before clerk in

Maryland

1989 – Bea wins lottery and dies

Md. Bar Exam Question (cont’d)

Does Darwin have any right to receive the surviving spouse's share of Bea's estate?

Yes

No

(T & E: If no surviving spouse, Arabella and Barton share estate equally. If surviving spouse, spouse receives $15,000 plus ½ remaining estate)

1. Valid Ceremony?

_____ Duly authorized clerk, judge or rel. official?

_____ Does it matter if there were no blood tests or witnesses?

2. License –

Waiting Period? 48 hours but can be waived if Maryland resident or in armed services.

Capacity:

1) Gender

2) No prohibited relationships

3) Bigamy (subsequent married void)

4) Age 16 or 17- preg or consent Age 15 – preg and consent Under age 15 – no marriage

5) Fraud or Duress

Note: No presumption of death in MD after lengthy absence but party cannot be criminally charged with bigamy if at the time of second marriage:

1) First spouse was absent for seven years, and

2) Do not know whether the first spouse is alive at the time of

subsequent marriage

In 1992, Arnold returned to Maryland; he and Caroline established domicile in Laurel, Prince George's County, Maryland. While living in Laurel, Arnold purchased 75 acres of land, titled in his name only, in the vicinity of the Laurel Racetrack. Arnold died intestate in 1993. At the time of his death, the land was appraised at $750,000.

Does Caroline have any interest as surviving spouse in Arnold's estate?

Yes No

Common Law Marriage1. Rule: Cannot be created in Maryland but Maryland will

recognize common law marriage if valid where contracted.

Requirements:

a. ____________________

b. ____________________

c. ____________________

d. ____________________

e._____________________

Putative Spouse Doctrine

Elements:

• Innocent party/good faith belief

• Ceremonial marriage

• Marriage -void or voidable

All elements here?