Getting Married

What you need to know before you tie the knot.

The word "marriage" describes the contract entered into between husband and wife and the relationship created by that contract. Like any contract, the marriage contract can be broken. But because of society's interest in promoting marriage, the government must give its approval to the end of one.

Although many of us view the concept of marriage differently from the way our grandparents did, most of the elements of a legal marriage remain the same. For example, if you're already married to someone, you cannot legally marry another person until your first marriage ends, either through annulment, by divorce, or by the death of your spouse.

Similarly, at present the law in most states only recognizes marriages between an unmarried male and an unmarried female. (Vermont, for example, recognizes homosexual marriages) If you want to "marry" a person of the same sex, the law does not recognize that relationship as a marriage. Almost all of us know or have heard of gay or lesbian couples living in a "family" relationship. But the law doesn't extend the rights of a married couple to these arrangements. So, for example, a gay man's right to inherit from his companion isn't protected by law, and he can't receive his partner's government or pension benefits.

In at least one state, however, this has recently been challenged. In 1993, the Hawaii Supreme Court ruled that under the state constitution, which prohibits discrimination based on sexual orientation, the government was required to show a compelling reason for continuing the ban on same-sex marriages. This test is extremely difficult to meet, since it requires the state to show that the prohibition on these marriages is essential to protect the public safety, health, and welfare, and that the government has no less intrusive method of doing so than an outright ban.

In response, the Hawaiian state legislature passed a law banning gay marriages, and in 1998 voters approved an amendment to the state constitution that also prohibited gay marriages. In late 1999, the Hawaii Supreme Court upheld the validity of the amendment, effectively ending the move to legalize gay marriage in that state.

It's conceivable, however, that same-sex marriages may someday be permitted in another state. If they are, the federal Constitution's requirement that states give "full faith and credit" to the public acts of another state may make it possible for homosexuals to marry in that state and then have those marriages treated as valid in every other state. More than half the state legislatures have acted to limit this possibility by restating that marriages may only be made between a man and a woman, and the federal government has enacted the Defense of Marriage Act to deny federal recognition to these unions, the constitutionality of these laws will undoubtedly be challenged if some state eventually legalizes same-sex marriages.

Our society still claims to place a great deal of importance on marriage as an institution that promotes and upholds society's values, and so many laws still exist with the purpose of promoting and encouraging marriage as an institution. For example, every state has laws prohibiting marriages between men and women who are closely related. Marriages between parent and child, grandparent and grandchild, brother and sister, uncle or aunt and niece or nephew are forbidden everywhere, and many states prohibit marriages between first cousins.

Each state sets a minimum age at which a person may marry. In most states, men may marry at eighteen, and women at age sixteen. A number of states will let a couple marry earlier if they obtain parental consent for the marriage.

There are only two legally recognized ways to marry. The first is through a wedding ceremony performed by a person authorized by the state to perform weddings, and witnessed by at least one or two other people.

While every state recognizes the validity of such ceremonial marriages, only fourteen states and the District of Columbia recognize what are known as common?law marriages. To enter into a valid common?law marriage, the couple must enter into a mutual promise to be married, and present themselves to the community as husband and wife from the time the promise is made. As with a ceremonial marriage, a common?law marriage can only be ended by annulment, a divorce, or the death of a spouse.