The How and Why of Marriage in Family Law

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The Creation and Benefits of a Marriage

Marriage is more than just two people falling in love and deciding to spend their lives together – it is a formal, and binding contract. Marriage is a legal status that results from a contract between two people to mutually promise to live together in the relationship of spouse and spouse.[i] With the ruling from the Supreme Court of the United States, marriage can be legally entered into between a man and woman, or man and man, or woman and woman.[ii]  Regardless of the genders of the soon to be spouses, the requirements to become married remain the same – as well as the benefits of being married.

The Requirements of Creating a Marriage

Every statmarriage and wedding couplee has varying requirements for different aspects of the creation of a marriage, but the standard procedure is to obtain a marriage license prior to the marital ceremony.[iii]  Every state will require the couple intending to get married to go to the Clerk of the Court to begin the paperwork to obtain the license.[iv] Most, if not all states will require a fee to processing.[v] Once the couple receives the license, there will be a time frame for how long the license will be good for – typically a year.[vi] The marriage ceremony must take place within that time frame otherwise the couple will need to apply for the marriage license again.[vii]

One additional requirement that is still required in a handful of states is a blood test.[viii] While not many states no longer require a blood test, it was once a regularly administered test.[ix] The primary objective of the premarital blood test for to check for venereal diseases, and sometimes even genetic disorders.[x] If a partner has a venereal disease, the state may chose to not administer a marriage license unless both partners are aware of the disease.[xi] For the most part, this requirement has been abolished in the majority of states, but it still remains a requirement in some.

Now, not just anyone can go get a marriage license and get married. There are a number of other requirements that the intended couple must meet. To begin with, each party must be of a consenting age.[xii] This age will vary depending on the state, but the youngest a person can get married without the consent of their parents is 16 years old.[xiii]  The majority of states have 18 years of age as the age of consent for marriage, but some states fall in between with 17 years of age.[xiv] Also depending on the state, some parents may consent to their child getting married before the age of 16.[xv]

Next, in order to get married the intended couple cannot be too closely related.[xvi] The laws that protect against this are the incest laws.[xvii] Incest is defined as a relationship between family members, specifically blood relatives.[xviii]  This will include, parents, siblings, cousins, aunts, uncles, nephews, nieces, and cousins.[xix] Distant cousins however may be excluded from the laws because the blood relation is so far distant between the two – much further than first cousins.[xx] It is illegal in every state to marry blood relatives.[xxi]

Some states take these laws even further and state that marrying someone within the family is illegal.[xxii] This could mean marrying your stepsibling would be illegal, even though there is no blood relation. It will depend on the state and the relationship among the family to decide what will be considered incest and what will not be.

Some states allow first cousins to marry after a certain age, typically around 50 or older. This is because the chances of conceiving a child is much more slim for this couple as compared to a couple half their ages. Again, one of the primary objectives to outlawing closely related marriages is to fight against genetic abnormalities in offspring, but if the couple is not going to have children or not able to have children then the primary objective is not as relevant with that couple. For those couples that still wish to marry their first cousin there is still a lot of taboo about the relationship in the public eye.

Next, both parties to the marriage must have had the capacity to enter into the marriage.[xxiii] Keep in mind that entering into a marriage is a contract, and when anyone enters into a contract they must be aware they are doing so. Capacity to enter into a marriage simply means that both parties must have been of sound mind.[xxiv] Most states will recognize that a mentally disabled person may not have the proper capacity to enter into a marriage – but this will depend heavily on that person’s disability. The same goes for a person who is mentally insane. Even drinking too excessively before getting married could render the party unable to legally consent to the marriage.[xxv] That situation will depend heavily on the facts of the case to decide whether or not they knew what they were doing, while they were intoxicated.  A common test to determine capacity is to see if the parties understand the nature of the marriage, and what their responsibilities are to their partners once they enter that marriage.[xxvi]

Saying I Do 

Even though entering into a marriage is just a contact under the law, it still requires a ceremony.[xxvii] While there is a lot of flexibility as to how a marriage ceremony is performed, there are still requirements that must take place during each and every marriage ceremony. To begin with, it must be performed by an officiant – which cannot be just anyone.[xxviii] The officiant must be qualified to perform the ceremony by the county where the wedding is to take place.[xxix] There are two types of ceremonies that place, both of which have a different type of officiant. For a civil union, which are non-religious ceremonies, are performed by a judge, justice of the peace, or in some states even the court clerk.[xxx] A civil ceremony can also be performed by someone who was given temporary authority to perform the marriage. This is often times when you hear people say “ I’ll just go online and register so I can marry you” – that really happens and is completely fine, so long as all the requirements are completed online. When it comes to religious ceremonies, a member of the clergy will conduct the ceremony.[xxxi] This is usually a priest, minister, rabbi, or even the chief of a Native American tribe.[xxxii]

The marriage ceremony must also be witnessed.[xxxiii] The number of witnesses will depend on the state where the ceremony is going to take place.[xxxiv] This number is usually between one and two witnesses. In Hawaii, there is actually no requirement for a witness.[xxxv] In Hawaii, the entire ceremony could consist of just the two soon to be spouses and the officiant and nothing else. For a small wedding, Hawaii is pretty ideal.

The Legal Benefits of Being Married

marriage couple documentsNow, once the couple has met all the requirements and been legally married – there are a lot of benefits for the newly wed couple. One of the most commonly discussed benefits for married couples are the tax benefits. There is an unlimited marital tax deduction for married couples.[xxxvi] What this means is that one spouse can transfer money to another spouse, free from tax – no matter that amount.[xxxvii] This has a profound affect on leaving money to your spouse after you pass away. If you leave money to your spouse in your will, the surviving spouse will not have to pay any gift taxes, and will get the money in full.[xxxviii] For same-sex couples, prior to the legalization of their marriage, couples who had been together for 50 years could not get around that gift tax and would lose so much money from their inheritance. This was a huge issue when it came to same-sex marriages, but thankfully today it is no longer a concern. There are also a lot of benefits to filing taxes together jointly with your spouse.[xxxix] This could mean more deductions and more money in your pocket.

Another area that is a huge benefit for married couples is the legal decision making benefit. This is especially crucial when a spouse is in the hospital. Depending on their status, if the person is injured badly enough a hospital may only allow relatives to visit the person. This means if you are just a girlfriend or even a fiancé, you may not have the ability to visit them – let alone help make decisions for them. If the person is in a vegetative state and you have spoken about end of life decisions, unless you are a spouse, the only person helping with those decisions will be a close relative, regardless of how long you have been in a relationship with that person.[xl]


The creation of a marriage is idealized as something that results from two people who truly love one another, and generally that is a huge part of two people deciding to get married. The law only recognizes a marriage as a legal contract between two people, and it does not really matter if love is involved. For this reason, the law is very stern it when it comes to each party following the requirements of entering into a marriage. If any of the requirements are not met, like the couple who got married are siblings – then the law will view this marriage as void. If all the proper steps are taken to enter into a marriage, there are a lot of benefits that stem from that legal contract. Tax benefits and legal decision making benefits are two of the most important benefits of a marriage – and of course spending your life with a loving partner.



Sources Consulted

[i] See Marriage The Free Dictionary (Accessed July 15, 2016)

[ii] See  Supreme Court Ruling Makes Same-Sex Marriage a National Right

[iii] See Marriage Requirements, Licenses, and Ceremonies FAQ NOLO Legal Encyclopedia (Accessed July 15, 2016)

[iv] Id.

[v] Id.

[vi] Id.

[vii] Id.

[viii] Id.

[ix] See Sandy Malone Pre-Wedding Blood Tests The Huffington Post (Accessed July 15, 2016)

[x] See Marriage Requirements, Licenses, and Ceremonies FAQ NOLO Legal Encyclopedia (Accessed July 15, 2016)

[xi] Id.

[xii] Id.

[xiii] See State-by-State Marriage “Age of Consent” Laws Find Law (Accessed July 15, 2016)

[xiv] Id.

[xv] Id.

[xvi] See Marriage Requirements, Licenses, and Ceremonies FAQ NOLO Legal Encyclopedia (Accessed July 15, 2016)

[xvii] See Incest Laws and Criminal Charges NOLO Legal Encyclopedia (July 15, 2016)

[xviii] Id.

[xix] Id.

[xx] Id.

[xxi] Id.

[xxii] Id.

[xxiii] See Marriage Requirement Basics:  Consent, Age, and Capacity Find Law (Accessed July 15, 2016)

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] See Legal Requirements for Marriage FAQ Find Law (Accessed July 15, 2016)

[xxviii] Id.

[xxix] Id.

[xxx] Id.

[xxxi] Id.

[xxxii] Id.

[xxxiii] Id.

[xxxiv] Id.

[xxxv] See State of Hawaii Application Process US Marriage Laws (Accessed July 15, 2016)

[xxxvi] See Ivy Jacobson 13 Legal Benefits of Marriage The Knot (Accessed July 15, 2016)

[xxxvii] Id.

[xxxviii] Id.

[xxxix] Id.

[xl] Id.[/fusion_text][/one_full]