Marriage law is the legal requirements, an aspect of family law, that determine the validity of a marriage, and which vary considerably among countries.
A Ketubah in Aramaic, a Jewish marriage-contract outlining the duties of each partner
...It (Marriage) does not mean that a man has unfettered right to demand and commit sexual intercourse with his wife without her consent or approval, nor it implies that the husband is in dominant position to impose himself upon the wife. The husband cannot indulge in sexual intimacy in such a manner that is discomforting to the wife to her body, mind and soul.—principal judge Dharmesh Sharma, Delhi court ruling, in lieu of marital rape law in India.[9]
A marriage, by definition, bestows rights and obligations on the married parties, and sometimes on relatives as well, being the sole mechanism for the creation of affinal ties (in-laws). Over 2.3 million weddings take place in the U.S. each year.[10] Historically, many societies have given sets of rights and obligations to husbands that have been very different from the sets of rights and obligations given to wives. In particular, the control of marital property, inheritance rights, and the right to dictate the activities of children of the marriage have typically been given to male marital partners (for more details see coverture and marital power). However, these practices were curtailed to a great deal in many countries, especially Western countries, in the twentieth century, and more modern statutes tend to define the rights and duties of a spouse without reference to gender. In various marriage laws around the world, however, the husband continues to have authority; for instance, the Civil Code of Iran states at Article 1105: "In relations between husband and wife; the position of the head of the family is the exclusive right of the husband".[11]
These rights and obligations vary considerably among legal systems, societies, and groups within a society,[12] and may include:
Giving a husband/wife or his/her family control over some portion of a spouse's labor or property.
Giving a husband/wife responsibility for some portion of a spouse's debts.
Giving a husband/wife visitation rights when his/her spouse is incarcerated or hospitalized.
Giving a husband/wife control over his/her spouse's affairs when the spouse is incapacitated.
Establishing the second legal guardian of a parent's child.
Common-law marriages were valid in England until Lord Hardwicke'sAct of 1753. The act did not apply to Scotland, however, and for many years thereafter couples went north across the border to thwart the ban. On the European continent, common-law marriages were frequent in the Middle Ages, but their legality was abolished in the Roman Catholic countries by the Council of Trent (1545–1563), which required that marriages be celebrated in the presence of a priest and two witnesses.[13]
The Catholic Church forbade clandestine marriage at the Fourth Lateran Council (1215), which required all marriages to be announced in a church by a priest. The Council of Trent (1545–1563) introduced more specific requirements, ruling that future marriages would be valid only if witnessed by the pastor of the parish or the local ordinary (the bishop of the diocese) or by the delegate of one of said witnesses, the marriage being invalid otherwise, even if witnessed by a Catholic priest.This ruling was not accepted in the newly Protestant nations of Europe, nor by Protestants who lived in Roman Catholic countries or their colonies, nor by Eastern Orthodox Christians.[citation needed]
It is sometimes mistakenly claimed[14] that before the Marriage Act 1753 cohabiting couples would enjoy the protection of a "common-law marriage". In fact, neither the name nor the concept of "common-law marriage" was known at this time.[15] Far from being treated as if they were married, couples known to be cohabiting risked prosecution by the church courts for fornication.[16]
The Marriage Act 1753 also did not apply to Britain's overseas colonies of the time, so common-law marriages continued to be recognized in what became the United States and Canada. Although it is claimed that common-law marriage in the US originated in English common-law, this institution in the United States appears to have originated in the primitive conditions of colonial America where the presence of relatively few clerics or civil officials necessitated a substitute for ceremonial marriage, and the need expanded as the settlers moved into the sparsely populated regions of the West.[17] In the United States, common-law marriages are still recognized in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah, and the District of Columbia[18] (see Common-law marriage in the United States).
All countries in Europe have now abolished "marriage by habit and repute", with Scotland being the last to do so in 2006.[19]
In the United States by the second half of the 20th century, common-law marriages were valid in about one-third of the states, absolutely or conditionally (if entered into before a certain statute-defined date).[20]
Marriage restrictions
Marriage is an institution that is historically filled with restrictions. From age, to gender, to social status, various restrictions are placed on marriage by communities, religious institutions, legal traditions and states.[citation needed]
The minimum age at which a person is able to lawfully marry, and whether parental or other consents are required, vary from country to country. In the U.S. the minimum age for marriage without parental and/or judicial approval is 18 except for Nebraska (19) and Mississippi (21); but most states allow exceptions to the general minimum age in some circumstances (see Marriage age in the United States).[21] In England and Wales the general age at which a person may marry is 18, but 16- or 17-year-olds may get married with their parents' or guardians' consent. If they are unable to obtain this, they can gain consent from the courts, which may be granted by the Magistrates' Courts, or the county or High Court family divisions.
Legal, social, and religious restrictions apply in all countries on the genders of the couple.
In response to changing social and political attitudes, some jurisdictions and religious denominations now recognize marriages between people of the same sex. Other jurisdictions have instead "civil unions" or "domestic partnerships", while additional others explicitly prohibit same-sex marriages.
These developments have created a political and religious reaction in some countries, including in England, where the Church of England, after long debate, officially banned blessings of gay couples by Church of England clergy,[28] and in the United States, which continues to experience conflicts, based upon religious grounds.
Kinship restrictions
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Kinship is two people that are related by blood or adoption, such as brother, sister, mother, father, aunt, uncle etc. No European country prohibits marriage between first cousins.[citation needed] The U.S. is the only western country with cousin marriage restrictions.[citation needed] Societies have often placed restrictions on marriage to relatives, though the degree of prohibited relationship varies widely. In most societies, marriage between brothers and sisters has been forbidden, with ancient Egyptian, Hawaiian, and Inca royalty being prominent exceptions. In many societies, marriage between first cousins is preferred, while at the other extreme, the medievalCatholic Church prohibited marriage even between distant cousins.
In the United Kingdom, the Deceased Wife's Sister's Marriage Act 1907 removed the previous prohibition for a man to marry the sister of his deceased wife. In Australia, marriage with an ancestor or descendant is prohibited, as is a marriage between a brother and a sister, whether of whole blood or half-blood and even if the brother or sister has been adopted.
All mainstream religions prohibit some marriages on the basis of the consanguinity (lineal descent) and affinity (kinship by marriage) of the prospective marriage partners, though the standards vary.[citation needed]
In the Indian Hindu community,[29] especially in the Brahmin caste, marrying a person of the same gotra was prohibited, since persons belonging to the same gotra are said to have identical patrilineal descent. In ancient India, when gurukuls existed, the shishyas (pupils) were advised against marrying any of guru's children, as shishyas were also considered the guru's children and it would be considered marriage among siblings. However, there were exceptions, including Arjuna's son Abhimanyu's marriage to Uttra, the dance student of Arjuna in Mahabharata. The Hindu Marriage Act, 1955 brought reforms in the area of same-gotra marriages, which were banned prior to the act's passage. Now the Indian constitution allows any consenting adult heterosexual couple (women 18 or older and men 21 or older) from any race, religion, caste, or creed to marry.
Many societies have also adopted other restrictions on whom one can marry, such as prohibitions of marrying persons with the same surname, or persons with the same sacred animal. Anthropologists refer to these sorts of restrictions as exogamy. In South Korea, marriage between people having the same surname and belonging to the same clan was prohibited by the Article 809 of the Korean Civil Code, until the act was determined "non-conforming to the Constitution" in 1997. [30]
Societies have also at times required marriage from within a certain group. Anthropologists refer to these restrictions as endogamy. An example of such restrictions would be a requirement to marry someone from the same tribe. Racist laws adopted by some societies in the past—such as Nazi-era Germany, apartheid-eraSouth Africa, and most of the United States in the nineteenth and the first half of the 20th century—and which prohibited marriage between persons of different races could also be considered examples of endogamy.
In modern Israel, the status of marriage is the same as it was historically under the Ottoman Empire and the British mandate, where civil marriage does not exist and authority for marriage is given by the state solely to the recognized religious denominations (Orthodox Judaism, Islam, Druze, and ten Christian denominations (primarily Orthodox Christianity and Catholicism, but also including the Episcopal Church).[31] Israeli couples who wish to contract a marriage that are not allowed under the auspices of any of these religious denominations (including same-sex marriages, marriages involving Israelis of Jewish descent who are not recognized by the state as Jewish and marriages between non-Jewish Arab citizens of Israel and Israeli Jews) or simply wish to get legally married outside the auspices of one of these institutions cannot do so in Israel itself. However, Israel does recognize civil marriages between Israeli citizens that are contracted abroad, including same-sex marriage, so couples in these situations will often hold a non-binding ceremony in Israel and fly abroad (often to nearby Cyprus) to contract a legal marriage that is then recognized in Israel.[32]
Polygamy is illegal, but practice is not criminalised
Polygamy is illegal and practice criminalised
Legal status unknown
In India, Malaysia, Philippines and Singapore polygamy is only legal for Muslims.
In Nigeria and South Africa, polygamous marriages under customary law and for Muslims are legally recognized.
In Mauritius, polygamous unions have no legal recognition. Muslim men may, however, "marry" up to four women, but they do not have the legal status ofwives.
Polygamy—being married to more than one spouse—is illegal in most countries. Where polygamous marriages are allowed, it is typically polygyny that is permitted. While accepted by some societies, it is far less common than monogamy.[34]
Polygamy is normally not permitted in most western countries, although some recognize bona fide polygamous marriages that were performed in other countries. Polygamy is practiced illegally by some groups in the United States and Canada, primarily by certain Mormon fundamentalistsects that separated from the mainstream Latter Day Saints movement after the practice was renounced in 1890.[35]
Many societies, even some with a cultural tradition of polygamy, recognize monogamy as the only valid form of marriage. For example, People's Republic of China shifted from allowing polygamy to supporting only monogamy in the Marriage Act of 1950 after the Communist revolution.[citation needed]
In Islam, polygamy is permitted by the Quran (4:3) which states "If you fear you might fail to give orphan women their ˹due˺ rights ˹if you were to marry them˺, then marry other women of your choice—two, three, or four. But if you are afraid you will fail to maintain justice (between your wives) then ˹content yourselves with˺ one or those ˹bondwomen˺(slaves) in your possession. This way you are less likely to commit injustice (to the orphan girls in your care)." [This verse is from a para which is setting out rules for adoption of orphans.] [36]
Africa has the highest rate of polygamy in the world.[37] In India, only Muslims are allowed to practice polygamy.[38]
Polygamy, taking the form of polygyny, is most common in a region known as the "polygamy belt" in West Africa and Central Africa, with the countries estimated to have the highest polygamy prevalence in the world being Burkina Faso, Mali, Gambia, Niger and Nigeria.[39] In the region of sub-Saharan Africa, polygyny is common and deeply rooted in the culture, with 11% of the population of sub-Saharan Africa living in such marriages (25% of the Muslim population and 3% of the Christian population, as of 2019).[39] Polygyny is especially widespread in West Africa, with the countries estimated to have the highest polygyny prevalence in the world as of 2019 being Burkina Faso (36%), Mali (34%) and Gambia (30%).[39] Outside of Africa, the highest prevalence is in Afghanistan, Yemen and Iraq. [39]
Beginning in the early 20th century, a number of jurisdictions have mandated premarital medical testing or examinations for one or both parties. One of the most commonly mandated was a blood test for syphilis. Between the 1930s and 1950s, most US states passed laws requiring both parties to a marriage to undergo a Wassermann test (or equivalent) for syphilis. If one of the parties was found to have communicable syphilis, they would generally be prevented from marrying until they underwent treatment to resolve the infection. Before the availability of penicillin after World War II, the treatment of syphilis entailed a course of arsenic-based drugs for up to a year or more. These statutes were eventually repealed between the 1970s and 2000s, because they were considered to no longer be a cost-effective public health measure.[40]
In the 1980s and 1990s, many US state legislatures considered laws requiring premarital HIV testing, though only a small number were adopted, and were only briefly active before being repealed.[41] As of 2010, premarital HIV testing is legally mandated in Bahrain, certain provinces of China, Libya, Saudi Arabia, the United Arab Emirates, and Uzbekistan.[42]
In many jurisdictions, a civil marriage may take place as part of the religious marriage ceremony, although they are theoretically distinct. In most American states, a wedding must be officiated by the justice of the peace in order for it to be recognized. However, priests, ministers, rabbis, and many other religious authorities can act as viable agents of the state. In some countries, such as France, Spain, Germany, Turkey, Argentina, Japan and Russia, it is necessary to be married by government authority separately from any religious ceremony, with the state ceremony being the legally binding one. In those cases, the marriage is usually legalized before the ceremony. Some jurisdictions allow civil marriages in circumstances which are notably not allowed by particular religions, such as same-sex marriages or civil unions.
In a few jurisdictions, a marriage relationship may also be created by the operation of the law alone, as in common-law marriage, sometimes called "marriage by habit and repute." However, the term "common-law marriage" has wider informal use, and is commonly used to refer to cohabiting couples, regardless of any rights they may have. The institution of common-law marriage, in its original legal meaning, has been abolished in almost all jurisdictions that used to have it, and only survives in a few US states. In several jurisdictions, such as parts of Canada, while the law recognizes unmarried couples for various purposes, such relations are not common-law marriages within the original meaning of this legal concept. (see common-law marriage vs. cohabitation). The informal use of the term "common-law marriage" has given rise to many public misconceptions regarding this legal institution.[43]
The status in the eyes of one authority may not be the same as for another. For example, a marriage may be recognised civilly, but not by a church, and vice versa.[citation needed] Normally a marriage entered into in one country will be recognised in other countries.[citation needed] Sometimes, however, a religious ceremony or a marriage entered into in one country is not recognized by another, such as a same-sex marriage.[44]
International recognition
Some countries give legal recognition to marriages performed in another country under the Hague Convention on Marriages (1978).[45] For this to apply, both the country of marriage and the country where recognition is sought need to be members of this convention.
If the country of marriage is not a member of the Hague Convention on Marriages (1978), then the marriage documents will need to be certified following the Apostille convention. This certification is usually performed in the country of marriage by the embassy of the country whose recognition is sought.[citation needed]
License
A marriage license is a document issued, either by a church or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdictions and has changed over time.
Notice
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In many countries there is a requirement to give notice of an impending marriage to the community so that objections to the marriage can be raised. This custom was in place as a mechanism to necessitate the consent of parents as well as the wider community.
Formality
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While some countries, such as Australia, permit marriages to be held in private and at any location, others, including England, require that the civil ceremony be conducted in a place specially sanctioned by law (e.g., a church or register office), and be open to the public. An exception can be made in the case of marriage by special emergency license, which is normally granted only when one of the parties is terminally ill. Rules about where and when persons can marry vary from place to place. Some regulations require that one of the parties reside in the locality of the registry office.
↑ Divorce between 1976-1991 was allowed only for non-Catholics.
Related Research Articles
Marriage, also called matrimony or wedlock, is a culturally and often legally recognised union between people called spouses. It establishes rights and obligations between them, as well as between them and their children, and between them and their in-laws. It is nearly a cultural universal, but the definition of marriage varies between cultures and religions, and over time. Marriage becomes a social construct to adjudicate the conflicts of interest between consenting individuals and a transactional means to fulfill their needs. Typically, it is an institution in which interpersonal relationships, usually sexual, are acknowledged or sanctioned. In some cultures, marriage is recommended or considered to be compulsory before pursuing sexual activity. A marriage ceremony is called a wedding, while a private marriage is sometimes called an elopement.
Cohabitation is an arrangement where people who are not married, usually couples, live together. They are often involved in a romantic or sexually intimate relationship on a long-term or permanent basis. Such arrangements have become increasingly common in Western countries since the late 20th century, being led by changing social views, especially regarding marriage, gender roles and religion.
Divorce is the process of terminating a marriage or marital union. Divorce usually entails the canceling or reorganising of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. It can be said to be a legal dissolution of a marriage by a court or other competent body. It is the legal process of ending a marriage.
Common-law marriage, also known as non-ceremonial marriage, sui iuris marriage, informal marriage, de facto marriage, or marriage by habit and repute, is a legal marriage despite non-compliance with the requirements for a statutory marriage, at least in the jurisdictions where marriage can still be contracted this way.
A prenuptial agreement, antenuptial agreement, or premarital agreement is a written contract entered into by a couple before marriage or a civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens when their marriage eventually ends by death or divorce. Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property, retirement benefits, savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse's right to claim an elective share of the estate of the deceased spouse.
A civil marriage is a marriage performed, recorded, and recognized by a government official. Such a marriage may be performed by a religious body and recognized by the state, or it may be entirely secular.
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Matrimonial regimes are applied either by operation of law or by way of prenuptial agreement in civil-law countries, and depend on the lex domicilii of the spouses at the time of or immediately following the wedding..
In a culture where only monogamous relationships are legally recognized, bigamy is the act of entering into a marriage with one person while still legally married to another. A legal or de facto separation of the couple does not alter their marital status as married persons. In the case of a person in the process of divorcing their spouse, that person is taken to be legally married until such time as the divorce becomes final or absolute under the law of the relevant jurisdiction. Bigamy laws do not apply to couples in a de facto or cohabitation relationship, or that enter such relationships when one is legally married. If the prior marriage is for any reason void, the couple is not married, and hence each party is free to marry another without falling foul of the bigamy laws.
A marriage license is a document issued, either by a religious organization or state authority, authorizing a couple to marry. The procedure for obtaining a license varies between jurisdictions, and has changed over time. Marriage licenses began to be issued in the Middle Ages, to permit a marriage which would otherwise be illegal.
Many laws in the history of the United States have addressed marriage and the rights of married people. Common themes addressed by these laws include polygamy, interracial marriage, divorce, and same-sex marriage.
Covenant marriage is a legally distinct kind of marriage in three states of the United States, in which the marrying spouses agree to obtain pre-marital counseling and accept more limited grounds for later seeking divorce. Louisiana became the first state to pass a covenant marriage law in 1997; shortly afterwards, Arkansas and Arizona followed suit. Since its inception, very few couples in those states have married under covenant marriage law.
Conflict of marriage laws is the conflict of laws with respect to marriage in different jurisdictions. When marriage-related issues arise between couples with diverse backgrounds, questions as to which legal systems and norms should be applied to the relationship naturally follow with various potentially applicable systems frequently conflicting with one another.
A husband is a man involved in a marital relationship, commonly referred to as a spouse. The specific rights, responsibilities, and societal status attributed to a husband can vary significantly across different cultures and historical periods, reflecting a global perspective on this role.
The type, functions, and characteristics of marriage vary from culture to culture, and can change over time. In general there are two types: civil marriage and religious marriage, and typically marriages employ a combination of both. Marriages between people of differing religions are called interfaith marriages, while marital conversion, a more controversial concept than interfaith marriage, refers to the religious conversion of one partner to the other's religion for sake of satisfying a religious requirement.
This article summarizes the same-sex marriage laws of states in the United States. Via the case Obergefell v. Hodges on June 26, 2015, the Supreme Court of the United States legalized same-sex marriage in a decision that applies nationwide, with the exception of American Samoa and sovereign tribal nations.
In Israel, marriage can be performed only under the auspices of the religious community to which couples belong, and inter-faith marriages performed within the country are not legally recognized. However, marriages performed abroad or remotely from Israel must be registered by the government. Matrimonial law is based on the millet or confessional community system which had been employed in the Ottoman Empire, including what is now Israel, was not modified during the British Mandate of the region, and remains in force in the State of Israel.
Marriage in the United States is a legal, social, and religious institution. The marriage age in the United States is set by each state and territory, either by statute or the common law applies. An individual may marry in the United States as of right, without parental consent or other authorization, on reaching 18 years of age in all states except in Nebraska, where the general marriage age is 19, and Mississippi, where the general marriage age is 21. In Puerto Rico the general marriage age is also 21. In all these jurisdictions, these are also the ages of majority. In Alabama, however, the age of majority is 19, while the general marriage age is 18. Most states also set a lower age at which underage persons are able to marry with parental and/or judicial consent. Marriages where one partner is less than 18 years of age are commonly referred to as child or underage marriages.
Cohabitation in the United States is loosely defined as two or more people, in an intimate relationship, who live together and share a common domestic life but are neither joined by marriage nor a civil union.
In South Africa, marriage exists in a number of different forms, as a result of the diversity of religions and cultures in the country. A man in South Africa may have more than one spouse but a South African woman may only have one spouse. Historically the legal definition of marriage, derived from the Roman-Dutch law, was limited to monogamous marriages between opposite-sex couples. Since 1998 the law has recognised marriages, including polygynous marriages, conducted under African customary law, as well as religious laws such as Islamic law. In 2006 the South African constitutional court ruled in favour of recognizing same-sex marriage. It is currently the only country in the world to recognise both polygamy and same-sex marriages, albeit not in conjunction.
South African family law is concerned with those legal rules in South Africa which pertain to familial relationships. It may be defined as "that subdivision of material private law which researches, describes and regulates the origin, contents and dissolution of all legal relationships between: (i) husband and wife ; (ii) parents, guardians and children; and (iii) relatives related through blood and affinity."
"As far as family law is concerned, we in South Africa have it all. We have every kind of family; extended families, nuclear families, one-parent families, same-sex families, and in relation to each one of these there are controversy, difficulties and cases coming before the courts or due to come before the courts. This is the result of ancient history and recent history [...]. Our families are suffused with history, as family law is suffused with history, culture, belief and personality. For researchers it's a paradise, for judges a purgatory."
↑ Barlow, A., Duncan, S., James, G., and Park, A., (2005) Cohabitation, Marriage and the Law: Social Change and Legal Reform in the 21st Century (Oxford: Hart), p.53
↑ Probert, R., "Common-Law Marriage: Myths and Misunderstandings", Child & Family Law Quarterly vol.20 issue 1 p.1
↑ Probert, R. (2012) The Legal Regulation of Cohabitation, 1600–2012: From Fornicators to Family (Cambridge: Cambridge University Press), ch. 2.
↑ Doroshow, Deborah B (2019). "Wassermann Before Wedding Bells: Premarital Examination Laws in the United States, 1937–1950". Social History of Medicine. 34 (1): 141–169. doi:10.1093/shm/hkz057.
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