Marriage is the most basic family-forming event. Each state regulates:
- who may marry
- who may marry whom
- the way in which parties marry
Who May Marry
Each state has an incest law prohibiting the marriage of individuals who are closely related to each other.
- Parents are universally prohibited from marrying their children
- Uncles and aunts from marrying their nieces and nephews
- Brothers and sisters from marrying each other
In addition to these universal prohibitions, most states also prohibit some other relatives from marrying each other, but the relationships included in this restriction vary from state to state. For example, some states may prohibit marriage between first cousins, but others do not. Occasionally the question arises as to whether these prohibitions apply to relationships created by adoption as well as to blood relationships. This question has been handled differently by the courts in each state.
Other restrictions on marriage include:
- Prohibition against marrying a second husband or wife while still married to a first.
- Restrictions on the age at which children may marry. The age at which marriage is permitted to children, both with and without parental consent, varies from state to state. The age limitation can often be waived by a judge for good cause.
At present, all states require the parties to a marriage to be respectively male and female. Transsexuals, individuals who have undergone surgery to change their gender, have usually been regarded to be of their postoperative gender, rather than their gender of birth. In other words, a male who undergoes sex change surgery will be regarded as a female under the marriage laws.
Most states require that a couple to be married obtain a marriage license. Often, the license must be obtained a certain number of days prior to the marriage ceremony. States also insist on various medical tests being performed on the couple before the license is issued.
Most states require that parties be married by an authorized individual. The individuals who are authorized vary from state to state, but the list of officials usually includes judges, ministers, priests, or other religious representatives. Despite popular opinion to the contrary, captains of ships are not authorized to perform marriage ceremonies. No particular ceremony is required for a marriage to be effective.
Common Law Marriages
A few states (12 plus the District of Columbia) recognize common law marriages. A common law marriage takes place by the exchange of promises to marry between two persons who are eligible to marry. People are “eligible to marry” if they are not currently married to someone else and are not related so closely that the incest law would prohibit their marriage. The promises must be intended to create, or possibly recognize, the existence of a marriage at the time they are exchanged.
Once a common law marriage is formed, it has all of the effects of a ceremonial marriage and can only be dissolved by divorce or by the death of one of the parties. Because of the difficulty of proving that promises were exchanged, especially after the death of one of the spouses, showing that the parties let others believe that they were married usually proves the existence of a common law marriage.
Addition of Children to the Family
After marriage, the second major family forming event is the addition of children to the family unit. Family law generally governs issues surrounding the incorporation of children into the family, such as issues of legitimacy and parentage of children. In addition to the birth of a child to a family, a child may come into the family by adoption.
Generally, individuals and families have the right to make decisions about childbearing without the intervention of the state. Some examples include:,
- The decision to use contraceptives is within the zone of privacy with which the law surrounds the family. The state is not allowed to regulate the use of contraceptives except for health and safety concerns.
- An adult mother has the exclusive right to decide whether to abort a fetus, at least prior to the time when the fetus is considered “viable.”
- A mother who is a minor also has the right to decide whether to have an abortion, but the minor can be required to consult with a parent in making this decision, unless a waiver is granted by a court.