husband and wife

The Marriage Contract

Marriage is a contractual relationship between a man and a woman that vests the parties with a new legal status. Most of the requisites for other binding contracts must also be present in the marriage contract. Thus, the parties must have been competent to act, must have acted free from duress, and must not have made fraudulent representations; otherwise the contract may be dissolved by a judicial decree of nullity of marriage. However, marriage is unlike other contractual relationships in that it creates a status that may not be terminated at will by the parties, but only by a court, as by a divorce. It is thus often said that the state is a third party to any marriage. (Some European nations legally recognize partnerships that, though having some of the legal rights of marriage, are much easier to dissolve.)

With few exceptions, a marriage validly contracted in one place is recognized in others. Thus a common-law marriage—a marriage solely by the consent and behavior of the parties, without ceremony or registration—entered into in a state where such unions are valid will be deemed binding in states where a license to marry and a civil or religious solemnization are required. At an early period, common-law marriages were frequent in Europe; the difficulties arising from them—e.g., the doubtful legitimacy of children—led to their complete prohibition in Roman Catholic countries by the Council of Trent. Although common-law marriage was abolished in England in 1753, it remained lawful in Scotland and in the American colonies. Today, only 11 U.S. states permit the creation of common-law marriages within their borders. A few states have enacted laws permitting covenant marriages, in which premarital counseling is required and extra restrictions make divorce more difficult, but while such marriages are recognized by other states, the limits they place on divorce may not be, because the U.S. Supreme Court has established that the rules governing divorce are determined by the laws of the state of residence at the time of divorce and not of marriage.

Same-sex marriages, with all but a few of the legal aspects of traditional marriages, have recently been recognized in a few European nations. In the United States, local officials have from time to time registered same-sex couples or solemnized their marriages. At present, however, Vermont is the only state that grants any official recognition to a homosexual union. In some places local authorities have established "domestic partner" laws, granted "certificates of cohabitation," or undertaken similar steps in order to afford homosexual (and some other) couples various rights society reserves for marital partners.

The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2012, Columbia University Press. All rights reserved.