Monday, November 30, 2020

Is marriage a legal contract with the state? Penny Cooper, Legal Clerk

River queried whether "a wedding involves entering a legal contract with the state", as I'd written yesterday.
"Really?" she asked.

You know how you say things you're sure about, but when questioned aren't so sure about the details, or the language?
I wanted to be clear, so I looked it up--with the Capable Assistance of Penny Cooper, Legal Clerk, who aims to be correct.

I think "contract" is not the correct legal terminology to describe this, but, yes, upon marrying, you enter into a binding legal . . . relationship? status? with the state that confers benefits and entails obligations.

As an article in the Yale Journal of Law and Feminism puts it, "the naiveté of couples notwithstanding, the fact is that marriage imposes a number of important legal duties."*

I like the clear language of the Legal Information Institute from the Cornell Law School:
"We are a small team who believe that everyone should be able to read and understand the laws that govern them. "www.law.cornell.edu/wex/marriage:

"Marriage: Definition

The legal union of a couple as spouses. The basic elements of a marriage are:
(1) the parties' legal ability to marry each other,
(2) mutual consent of the parties,
and (3) a marriage contract as required by law.
______________________________

Back to the Yale article:

"Very few people have a clear understanding of what the actual legal obligations of marriage are. In addition to the fact that there is no formal document that explains these duties and obligations to those planning to marry, most engaged couples neither undergo detailed pre-marital counseling nor speak with an attorney prior to their wedding.

"Often
couples become aware of the legal obligations of marriage only in the event of a crisis such as a long-term illness of one of the spouses, the onset of financial problems, or the breakdown of the marriage itself.
"

*--"The Essentials of Marriage", Yale Journal of Law and Feminism, 2003

Back to the Cornell LII site:
TRADITIONALLY, the contract specified these legal duties of the partners:

"The husband had a duty to provide a safe house, pay for necessities such as food and clothing, and live in the house.
The wife's obligations were maintaining a home, living in the home, having sexual relations with her husband, and rearing the couple's children.

"Today, the underlying concept that marriage is a legal contract still remains, but due to changes in society the legal obligations are not the same."

"The Supreme Court has held that states are permitted to reasonably regulate the institution by prescribing who is allowed to marry and how the marriage can be dissolved. Entering into a marriage changes the legal status of both parties and gives both husband and wife new rights and obligations.

"One power that the states do not have, however, is that of prohibiting marriage in the absence of a valid reason.
For example, in Loving v. Virginia, the Supreme Court held that prohibiting interracial marriage is unconstitutional because it violates the Equal Protection Clause of the Constitution. Thus, establishing that marriage is a civil right."
Loving v. Virginia was decided in 1967.

 Newspaper article from March 8, 1966, The Danville Register (VA):
There is "an overriding state interest in the institution of marriage".


 

3 comments:

  1. See also Eugene Volokh for a discussion of "Is Marriage a Legal Contract?"

    http://volokh.com/2012/05/20/is-marriage-a-legal-contract/

    Like many questions asked in law, it depends and the "contract" may not be what is usually defined or how we (the royal we) think of as a contract.

    Kirsten

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  2. I knew that marriage is a "contract" between the two people marrying, just didn't know about State involvement, never really gave it any thought, never looked into it. I think it's a shame mixed race marriages were forbidden for so long. Love doesn't see colours.

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  3. Thanks, Kirsten & River!
    River you are far from alone from not thinking about the state's role in marriage! I just posted a comment from a lawyer saying they have gotten plenty of clients because of that. :)

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