FOR LAWYERS

Legal Requirements of a Valid Marriage

By
Lia Kopin-Green
/
May 31, 2022
Last reviewed by
Boruch Burnham, Esq.
/
February 16, 2023

Marriage is more than just a romantic relationship; it is also a legally binding contract between two people. In other words, marriage, like any other contract, must meet certain conditions in order to be valid. These requirements vary depending on state laws, but the marriage must typically meet the following:

1. Neither of the parties may be legally married to another person

Because every state has laws outlawing polygamy, if you have already been married before, the process is more complicated and requires additional documentation. In order to prove that the divorce from your previous marriage is finalized, you will need to provide the court with all necessary divorce documentation, which of course varies by state, You may also be required to disclose the grounds for the divorce (whether it was no-fault or at-fault), the exact date of your divorce, and the state where you filed for the divorce. If you are unable to locate your certificate of dissolution or divorce decree or are having trouble complying with any of the other laws in this regard, your divorce attorney can assist you with this. (It should be noted that a few states require a waiting period before remarrying (between 30 and 90 days after the date of your divorce, depending on the state and your individual circumstances).

If you are widowed or widower, the process of verifying that you are no longer married is naturally a bit different. The death certificate of your former partner will serve as proof that they are no longer alive and that you are no longer married.

2. Of marriageable age

Every state has a general minimum age at which one may get married without parental consent or other preconditions (note that the age for a legal marriage should be distinguished from the age of consent, which refers to the age at which one is deemed to have legally capacity to having sexual relations with another).

However, other than a small number of states where underage marriages are completely outlawed, underage marriages are allowed as long as certain conditions are met, and over a half-dozen states currently have no minimum age. For instance, Mississippi has the highest general minimum age of 21, but with parental permission, males may marry at 17 and females at 15; and in California, a couple can get married at any age with parental consent, provided that the parents and minors meet with court officials who must rule out abuse or coercion.

3. A valid marriage license

A marriage license is required in all 50 states, but each state has its own licensing conditions. It is typically required to present a valid form of ID when applying for a marriage license. Depending on your state’s laws, both you and your partner will likely need to show a state-issued identification card or driver’s license, your social security card and number, a passport, or a certified copy of a birth certificate.

A witness may also need to be present while applying for a marriage license for it to be valid in some states. In all but a handful of states, a marriage license will expire after a certain number of days from when it was issued. How long a marriage license will remain valid depends on the state, with the shortest period being 30 days, and the longest being a full year.

4. Of Mental capacity

When it comes to marriage, capacity refers to the mental ability of one or both parties to agree to become spouses. State laws regarding the mental capacity required for a valid marriage differ, but they generally take one or more of the following approaches: 1) The parties must be of "sound mind," such that they have the ability to understand the nature and consequences of getting married; 2) the parties must have the same level of capacity as is required to enter any other civil contract under applicable state law; and 3) there must be no mental illness or impairment.

Note that a party’s mental illness or impairment does not automatically mean that they do not have the capacity to marry. Furthermore, a marriage with an incapacitated partner will not be void (which means there was never a marriage to begin with) but rather voidable (which means there was a valid marriage, unless and until a court rules otherwise).

5. Solemnized by an officiant

While a very small number of states allow "self-uniting" marriages, the vast majority require that you have an officiant solemnize your marriage (i.e., perform the act that makes you legally married). At the time of the marriage, officiants must ensure that the parties have a valid marriage license and that the parties presenting themselves are the parties named on it. Officiants are typically:

  • Ordained members of the clergy, such as rabbis, ministers, and priests (although in some states, they may also need to be licensed/certified in order to officiate),
  • Members of the government, quasi-governmental or local authorities, and persons in occupations that hold positions of public trust, such as judges, mayors, lawyers, and public notaries.
  • A friend, family member, or other third party can become a temporary or "one-time" officiant, although state laws vary significantly in this regard.

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