Marriage Flashcards
What is Marriage?
A Legal Union of two persons as spouses with designated rights and obligations.
It is both a Contract and a Status.
- A Contract between the parties.
- A Status that is regulated by the States.
Is Marriage a Fundamental Right?
Yes. Equal Protection and Due Process are the foundation of a plaintiff’s challenge of the regulation of marriage.
What are the two types of marriages?
Ceremonial and Common Law
What are the elements of a Ceremonial Marriage?
- Formal/Statutory
- Entered into compliance with statutory requirements:
- Obtaining a Marriage License
- Marriage ceremony performed by an authorized person before witnesses
Definition of a Common Law Marriage
A marriage entered into without a license or traditional ceremony.
Elements of a Common Law Marriage
- Live together as husband and wife (spouse and spouse)
- Both have the legal right or “capacity to marry”:
Statutory age
Sound Mind
No Bigamy
- Intent to marry (Very Important) - Mutual Assent
- Hold themselves out as married.
Stone v. Thompson (2019)
South Carolina Supreme Court Decision
South Carolina abolishes common law marriage on July 24th, 2019.
Parties may no longer enter into a valid marriage in South Carolina without a license.
Are Common Law Marriages recognized in North Carolina?
No. Common-law marriages by consent that arise in NC are not recognized by the State as valid legal marriages (NCGS § 51-1).
However, common-law marriages arising in other states that recognize such marriages will also be recognized in North Carolina - this is known as Full Faith & Credit.
What are the legal requisites of a valid, legal marriage in North Carolina?
NCGS § 51-1: Requisites of Marriage; solemnization
NCGS § 51-2: Capacity to Marry
NCGS § 51-2.1: Marriage of certain underage parties
What is NCGS § 51-1?
NCGS § 51-1: Requisites of Marriage; solemnization
A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:
(1)
a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
b. With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
(2) In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.
What is NCGS § 51-2?
NCGS § 51-2: Lawful Age to Marry
(a) All unmarried persons of 18 years, or older, may lawfully marry.
(a1) Persons over 16 years of age and under 18 years of age may marry a person no more than four years older, and the register of deeds may issue a license for the marriage, only after there has been filed with the register of deeds a certified copy of an order issued by a district court authorizing the marriage as provided in G.S. 51-2.1, or written consent to the marriage, said consent having been signed by the appropriate person as follows:
(1) By a parent having full or joint legal custody of the underage party; or
(2) By a person, agency, or institution having legal custody or serving as a guardian of the underage party. Such written consent shall not be required for an emancipated minor if a certificate of emancipation is issued pursuant to Article 35 of Chapter 7B of the General Statutes or a certified copy of a final decree or certificate of emancipation from this or any other jurisdiction is filed with the register of deeds.
(b) Repealed by Session Laws 2021-119, s. 1, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.
(b1) It shall be unlawful for any person under 16 years of age to marry.
(c) When a license to marry is procured by any person under 18 years of age by fraud or misrepresentation, a parent of the underage party, a person, agency, or institution having legal custody or serving as a guardian of the underage party, or a guardian ad litem appointed to represent the underage party pursuant to G.S. 51-2.1(b) is a proper party to bring an action to annul the marriage.
What is NCGS § 51-2.1?
§ 51-2.1. Marriage of certain underage parties
(a) A district court judge may issue an order authorizing a marriage between a person over 16 years of age and under 18 years of age, to a person no more than four years older under this section only upon finding as fact and concluding as a matter of law that the underage party is capable of assuming the responsibilities of marriage and the marriage will serve the best interest of the underage party. In determining whether the marriage will serve the best interest of an underage party, the district court shall consider the following:
(1) The opinion of the parents of the underage party as to whether the marriage serves the best interest of the underage party.
(2) The opinion of any person, agency, or institution having legal custody or serving as a guardian of the underage party as to whether the marriage serves the best interest of the underage party.
(3) The opinion of the guardian ad litem appointed to represent the best interest of the underage party pursuant to G.S. 51-2.1(b) as to whether the marriage serves the best interest of the underage party.
(4) The relationship between the underage party and the parents of the underage party, as well as the relationship between the underage party and any person having legal custody or serving as a guardian of the underage party.
(5) Any evidence that it would find useful in making its determination.
There shall be a rebuttable presumption that the marriage will not serve the best interest of the underage party when all living parents of the underage party oppose the marriage. The fact that the female is pregnant, or has given birth to a child, alone does not establish that the best interest of the underage party will be served by the marriage.
What is NCGS § 51-3?
§ 51-3. Want of capacity; void and voidable marriages
All marriages -
- between any two persons nearer of kin than first cousins, or
- between double first cousins, or
- between a male person under 16 years of age and any female, or
- between a female person under 16 years of age and any male, or
- between persons either of whom has a husband or wife living at the time of such marriage, or
- between persons either of whom is at the time physically impotent, or
- between persons, either of whom is at the time incapable of contracting from want of will or understanding,
shall be void.
No marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section except for bigamy.
A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage which separation has been continuous for a period of one year, shall be voidable unless a child shall have been born to the parties within 10 lunar months of the date of separation.
What are the two standards courts apply to marriage issues?
Strict Scrutiny
Rational Basis
What is Strict Scrutiny?
If the law is prohibiting marriage, the courts apply the standard of Strict Scrutiny.
Marriage is a fundamental right, therefore:
The state must show that said statutory prohibition is necessary to meet a compelling state interest and the statute is narrowly tailored to achieve that interest.
Strict Scrutiny is the highest bar the state must overcome.
