Module 1: Marriage, Premarital Agreements & Annulment

A valid ceremonial marriage generally requires three things: capacity (of legal age or with required consent, mentally competent, not already validly married to someone else), a valid marriage license, and solemnization — the formal ceremony performed by someone legally authorized to conduct it.

Obergefell v. Hodges, 576 U.S. 644 (2015), is the case that resolved a genuinely fundamental question about who has the constitutional right to satisfy these requirements at all. Same-sex couples in several states, denied marriage licenses or recognition of marriages validly performed elsewhere, argued that excluding them from marriage violated the Fourteenth Amendment. The Supreme Court held that the right to marry is a fundamental right protected by the Due Process and Equal Protection Clauses, and that states may not deny that right to same-sex couples — striking down every remaining state ban on same-sex marriage in one decision. The Court grounded the holding in marriage’s central role in individual autonomy, its importance to raising children and building a family, and its function as a keystone of the American social order that same-sex couples were being denied access to on no legitimate basis. The case is the reason the three requirements this section describes — capacity, license, solemnization — now apply on entirely equal terms regardless of the spouses’ sex, a genuinely recent and significant shift in who could satisfy them at all.

Example. Two adults, both mentally competent and unmarried, obtain a license and have their marriage solemnized by a judge. All three requirements are met — a valid marriage results.

A common law marriage forms without a formal license or ceremony, recognized in only some states, generally requiring cohabitation, capacity, and the couple holding themselves out publicly as married with genuine intent to be married.

Common law marriage was actually the ordinary, unremarkable norm across much of colonial and early frontier America, not a legal exception — clergy and courthouses capable of performing a formal ceremony or issuing a license were often simply too far away, or too infrequent a presence, for many rural couples to reach. Recognizing an informal marriage based on cohabitation and a genuine mutual intent to be married was a practical accommodation to real geographic and institutional limits, not a lesser or looser form of marriage. States began abolishing common law marriage in large numbers starting in the late nineteenth and early twentieth centuries, largely because it created real, recurring proof problems — after one partner died, courts increasingly had to resolve inheritance and property disputes based on years-old testimony about intent and reputation, with no documentary record at all, inviting exactly the kind of fraudulent claims (and genuine, good-faith disputes) a marriage license was designed to prevent. Only a small number of states still recognize new common law marriages today, which is exactly why this doctrine requires checking a specific state’s law rather than assuming it applies anywhere a couple has simply lived together a long time.

Example. A couple lives together for a decade in a state recognizing common law marriage, introduces each other as spouses, files joint tax returns, and intends to be married — despite never obtaining a license or having a ceremony, they may be validly married under that state’s common law marriage doctrine.

A premarital (antenuptial) agreement lets a couple define property and support rights in advance. Courts generally scrutinize three things before enforcing one: voluntary execution (no coercion or last-minute pressure), fair financial disclosure, and whether the terms are unconscionable.

Posner v. Posner, 233 So. 2d 381 (Fla. 1970), is the case that changed American courts’ basic willingness to enforce these agreements at all in the divorce context. For most of American legal history, courts routinely refused to enforce premarital agreements that addressed what would happen upon divorce, reasoning that any provision anticipating and planning for the marriage’s possible failure was against public policy, since it supposedly encouraged or facilitated divorce rather than a genuine commitment to the marriage — such agreements were typically enforced only for what happened at a spouse’s death. In Posner, the Florida Supreme Court broke from that older rule, holding that with divorce having become a genuine, common reality of American life rather than a rare social aberration, a fairly negotiated premarital agreement addressing divorce is not, by itself, against public policy — courts should evaluate its actual fairness and the circumstances of its execution, rather than refusing to enforce any such agreement automatically. The decision was highly influential nationally and helped pave the way for the modern enforceability framework this section describes, as well as the Uniform Premarital Agreement Act many states later adopted to standardize these same voluntariness, disclosure, and fairness principles.

Example. An agreement presented two weeks before the wedding, with no financial disclosure and an ultimatum to sign or call off the wedding, is a strong candidate to be found unenforceable on voluntariness and disclosure grounds alike.

The putative spouse doctrine protects someone who reasonably and in good faith believed their marriage was valid, even though it turns out to have a legal defect — extending some marital rights and protections despite the technical invalidity.

The putative spouse doctrine has real civil-law roots, tracing back to Louisiana’s own legal tradition (itself descended from French and Spanish civil law, distinct from the common law most other states inherited from England), which recognized the concept of a putative marriage to soften the otherwise harsh, all-or-nothing consequences of a technically invalid marriage on an innocent party. California later codified a version of the same doctrine by statute, extending the protection nationally as other states adopted similar rules, precisely because leaving a genuinely good-faith, long-term partner with absolutely nothing — no property division, no support, no recognition of the relationship at all — simply because of a legal defect they had no way of knowing about struck courts and legislatures as a genuinely unjust result. The doctrine is a real, deliberate exception to the general principle that a void or successfully annulled marriage has no legal effect at all, carved out specifically to protect the reasonable, good-faith reliance of a spouse who did nothing wrong.

Example. A person marries someone who secretly was never legally divorced from a prior spouse. The unknowing party, having reasonably and in good faith believed the marriage was valid, may still receive some of the protections marriage would have provided, under the putative spouse doctrine.

A void marriage never had legal effect at all — like bigamy or incest between close relatives. A voidable marriage remains valid and has legal effect unless and until a party successfully has it annulled — like one induced by fraud or duress.

Reynolds v. United States, 98 U.S. 145 (1878), is the case establishing that bigamy’s legal prohibition survives even a sincere religious justification for it, part of why bigamous marriages remain treated as void rather than merely voidable. A member of the Church of Jesus Christ of Latter-day Saints was convicted under a federal anti-bigamy statute after entering a plural marriage he argued was a genuine religious duty under his faith at the time, and he claimed the First Amendment’s free exercise protections shielded him from prosecution. The Supreme Court disagreed, holding that while the Constitution protects religious belief absolutely, it doesn’t protect every religiously motivated action — Congress may still prohibit conduct, like bigamy, that is subversive of good order, regardless of the actor’s sincere religious motivation. The case remains the foundational authority for treating bigamy as a matter the state may prohibit outright, independent of anyone’s personal or religious reasons for entering the marriage — which is exactly why a bigamous marriage is void from its inception rather than merely voidable at one party’s later election.

Example. A person who marries while still validly married to someone else has a void second marriage, with no legal effect from the start. Compare a marriage induced by a fraudulent lie about an essential fact — voidable, remaining valid unless and until annulled.

Annulment grounds focus on defects existing at the marriage’s inception: fraud, duress, lack of capacity, bigamy, or incest. This is distinct from divorce, which addresses circumstances arising during an otherwise validly formed marriage. An annulment declares the marriage never had legal validity; a divorce ends a marriage that validly existed until that point.

Courts have long applied a genuinely narrow test for what kind of fraud actually qualifies for annulment: the deception must go to the very essentials of the marriage relationship itself, not merely to some quality or fact the other spouse happened to care about. Historically, courts recognized only a short list of “essential” matters — a fraudulent concealment of an existing pregnancy by another man, an undisclosed inability or refusal to consummate the marriage, or a concealed intent never to actually live as spouses at all — while treating deception about most other things (a lie about wealth, social status, prior relationships, or personal history) as merely collateral, insufficient for annulment however genuinely upsetting the discovery was. The rationale is deliberately protective of marriage’s stability: if any disappointed expectation about a spouse’s character or background could support annulment, virtually every troubled marriage could be unwound as though it never existed, rather than through the ordinary divorce process the law otherwise requires. That’s why annulment for fraud remains a genuinely narrow doctrine, reserved for deceptions that strike at the marriage’s core purpose rather than ordinary premarital misrepresentation.

Example. A spouse who discovers, right after the wedding, that their partner lied about an essential fact central to the decision to marry may have grounds for annulment — a fundamentally different remedy from divorce, since it treats the marriage as though it never legally existed.