Creation of Marriage

Question 1

What are the legal formalities of marriage?

Answer 1

• ceremonial marriage
• common law marriage

Question 2

What is a ceremonial marriage?

Answer 2

• license obtained from town or city clerk
• No blood test required
• Solemnized by authorized person
• Written K signed

Question 3

What are the requirements for the marriage license?

Answer 3

• must be delivered w/in 60 days to the officiant BUT before ceremony performed
• EXCEPTION
  
  • in cases of imminent or irreparrable harm CANNOT solmenized 24 hours after obtained
  • failure to obtain does not invalidate marriage (subject to criminal penalties) unless between minors or between a minor & an adult thus becoming voidable by the cts

Question 4

Who can solemnize a marriage?

Answer 4

• clergy
• minister
• leader of the Chapter of the Ethical Cultural Society of NY
• mayor
• magistratte
• count/city clerk
• judge/justice

Question 5

What is required of the written contract of marriage?

Answer 5

• signed by the marrying ptys
• signed by@ least 2 witnesses
• w/in NYS
• include state of residence of each pty & witnesses
• date of marriage
• place of marriage
• acknowledged before a judge of a ct of record of NY by the same manner required for the conveyance of real estate
• NY authorized contractual marriages w/o a ceremony when the contractual requirements are satisfied

Question 6

What is a common law marriage?

Answer 6

• Arises when 2 ptys live together as a married couple for a prescribed period of time w/o the legal formailities of a ceremonial marriage
• REQUIREMENTS:
  
  • CConsent
  • Cohabitation
  • Community Reputation

Question 7

Are common law marriages valid if contracted in NY?

Answer 7

• No, you cannot begin a common law marriage in the state of NY
• HOWEVER
  
  • NY recognizes if validly contracted in another state

Question 8

Who has the burden of proof to prove a common law marriage?

Answer 8

• on the party asserting it
• STANDARD
  
  • clear & convincing evidence
• Courts careful in certain cases such as below:

1) Example #1: The burden may be especially heavy when a party claims that he or she was the common law spouse of a deceased person, so as to be able to share in the estate of the deceased.
2) Example #2: If the parties cohabited with each other in a nonmarital relationship prior to the alleged common law marriage, the burden to show that the parties later agreed to be married will be a heavy one.

Question 9

What are non-marital relationships?

Answer 9

• NY will recognize express Ks between cohabiting persons by which they agree to support each other or share property as long as:
  
  • there is Consideration to support the contract other than giving sex
• NY held implied Ks will not be inforced b/c of high risk of fraud

Question 10

What are the limitations and impediments to marriage?

Answer 10

1. Age
2. Mental or Physical Incapacity
3. Consanguinity
4. Prior Marriage still in force (Bigany)

Question 11

What are the AGE limitations & impediments to marriage?

Answer 11

• Over 18
  
  • you are an adult, fine
• Between 16 - 18
  
  • get written parental consent
• Between 14 - 16
  
  • must be written parental consent
  • written consent of a justice of the Supreme Ct or a judge of the Family Ct
• Under 14
  
  • prohibitted

Question 12

What is the mental & physical incapacity limitations to marriage??

Answer 12

• Marriage is voidable when a party is incapable for consenting to the marriage for lack of understanding
  
  • EXAMPLES
    
    • drunk
    • too mentally ill or disabled & do not understand what is going on
• Absolute right to have the marriage annualled if one pty has been incurably mentally ill for 5 years or more where the mental illness commenced after the marriage was performed

Question 13

What are the consanguinity limitations & impediments to marriage?

Answer 13

• Kinship or relatedness
• Marriage VOID between
  
  • an ancestor & a descendant
  • brother & sister of either whole or half blood
  • an uncle/niece or aunt/nephew
• Marriage VALID between
  
  • first cousins
  • relatives by adoption
  • relatives by marriage

Question 14

What are the bigamy limitations & impediments to marriage?

Answer 14

• one spouse is married to someone who is living & that marriage has not been anulled or dissolved
• Makes the marriage VOID

Question 15

What is the validity of foreign marriages?

Answer 15

• General Rule
  
  • Marriage valid based on the laws in which it was contracted will be valid in every other jurisdiction
  • UNLESS marriage deemed to violated the public policy of that state
• Some cases, NY will not recognize the following validly celebrated marriages:
  
  • if the marriage violates a prohibitory rule of nY
    
    • Strongly disagree w/the public policy of NY
  • Polegamy or incentuous will not be valid in NY

Question 16

HYPO

Alfred and Bertha are first cousins who both reside in New York. They traveled to another state that does not allow first cousins to marry and in that other state they obtained a marriage license and got married. They then returned to New York, where they started telling people they are married and otherwise held themselves out as married. Do they have a valid marriage in New York?

Answer 16

• No, b/c there is no marriage for NY to recognize

Question 17

What is the NY Marriage Equality Act “MEA”?

Answer 17

• effective July 24, 2011
• Allows same sex couples to enter into civil marriages
• PROVIDES:
  
  • No application for marriage license can be denied b/c same sex
  • No gov’t treatment or legal status different from other couples
• MEA has 2 protections for religous organizations:
  
  • no religous entity, benevolent org, or not for profit any way involved with a religous entityt or employee of those orgs are not required to perform these types of marriages or allow their facilities for the ceremony
  • religious entities will not be