Family Law What is Marriage?

What is Marriage? Legal union between a man and a woman as husband and wife Binding civil contract (agreement) Inception of contract is at engagement Engagement is an agreement Contains consideration, capacity, mutual consent

Elements of the Contract Consideration – the value given in return for a promise. Must be present for a contract to be valid. Example: The engagement ring Capacity – ability to understand and appreciate the consequences of the contract Example: You go to get the license while you are sober Mutual consent – two parties agree Example: My husband asks me to get married and I say yes

Engagement – marriage contract is in its executory stage Contract is fully executed when the wedding occurs

Types of Marriages Common-Law Ceremonial Informal, no ceremony, no witnesses Agreement is typically oral, not written Parties must co-habit (or live) together for a certain time period, usually 10 years or more Ceremonial Formal, serious rite (sanctify), witnesses Written, licensed Parties co-habit indefinitely unless divorce occurs

Licenses Certificate issued by a government office giving permission to marry ($40) Becomes effective after a waiting period (24 hours) Will expire if you do not marry within a particular amount of time (60 days) Gives man and woman time to reconsider their decision to wed May allow evidence of fraud to be uncovered Some states require a blood test

Who Can Marry? Age Gender Between relatives In New York, age 18 without parental consent Gender In New York, between any genders as of July 24, 2011 Between relatives Consanguinity – related by blood – typically prohibited Affinity – related by marriage

Marriages not recognized Bigamy – having two spouses at the same time Polygamy – more than two spouses at once Any marriage where the age of one of the parties is under what is legally allowed Any marriage where a license was not obtained

Premarital Agreements – “Prenup” Written and signed by both parties Concern real and personal property owned before, during, and potentially after marriage Becomes effective when marriage contracted is executed

Rights and Duties of the Parties Marital Consortium – mutual duties of husband and wife Procreation Raising children Economic Companionship If either partner suffers and injury that prevents fulfillment of the marital duties, the other can sue for damages through “loss of consortium”

Additional Rights and Duties Financial support Inheritance from deceased spouse Filing a joint tax return