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Marriage · complete doctrine guide

Validity, common-law marriage, and annulment

Whether a marriage is legally valid turns on four separate questions: the parties' own capacity to marry, their genuine consent, compliance with the required formal procedure, and consistency with the state's own public policy, and recognition of a marriage generally follows the law of the place where it was actually celebrated, subject to a handful of narrow exceptions. Capacity problems include being under the minimum marriage age, already being married to someone else, lacking the mental capacity to understand the nature of marriage, being related within a prohibited degree, or lacking genuine, voluntary consent to enter the marriage at all. A defect in obtaining the required marriage license or in the solemnization ceremony itself may render a marriage merely voidable, or simply irregular, rather than completely void, depending on exactly what the governing statute actually provides.

TESTED STATUSSupplied-law context through February 2028; foundational NextGen doctrine beginning July 2028
01 · COMPLETE FRAMEWORK

Black-letter propositions

  1. 01

    Capacity issues include age, existing marriage, mental capacity, prohibited relation, and genuine consent.

  2. 02

    A license or solemnization defect may make a marriage voidable or irregular rather than void, depending on statute.

  3. 03

    Common-law marriage requires present agreement plus cohabitation and public holding out where recognized; duration alone is insufficient.

  4. 04

    A void marriage is invalid from inception; a voidable marriage remains effective until annulled.

  5. 05

    Putative-spouse doctrines can protect a good-faith participant.

02 · ORDER OF ANALYSIS

Use this attack sequence under time

1

Frame the issue

Identify jurisdiction and formation date.

2

Resolve the next checkpoint

Test capacity, consent, and formalities.

3

Resolve the next checkpoint

Classify void, voidable, or valid.

4

Finish the conclusion

Analyze recognition, defenses, and economic consequences.

03 · DISTINCTIONS THAT CREATE POINTS

Common wrong turns

  • Cohabitation alone never creates common-law marriage.
  • A marriage invalid where celebrated is not usually cured by moving.
  • A technical defect does not always erase marital status.
04 · WORKED APPLICATION

Worked example

Two adults privately agree they are married and cohabit for years in a state that abolished common-law marriage.

Model analysis

Their agreement and cohabitation do not create marriage in that state, though a valid common-law marriage formed earlier elsewhere may be recognized.

05 · CLOSED-BOOK RETRIEVAL

Practice this topic

06 · FROM THE PRIMARY TEXT

What makes a marriage valid

Cornell lists three basic elements of a marriage: the parties' legal ability to marry each other, their mutual consent, and a marriage contract as required by law. Marriage is chiefly regulated by the states, and the Supreme Court has held that states may reasonably regulate who may marry and how a marriage can be dissolved. States cannot prohibit marriage without a valid reason. Loving v. Virginia held that prohibiting interracial marriage violates the Equal Protection Clause, and Obergefell v. Hodges held that denying same-sex couples the freedom to marry violates the Constitution.

The majority of states limit people to one living spouse at a time, so a person with a living spouse cannot marry again until released by death, divorce or annulment. Other limitations Cornell names include age and close relationship.

07 · FROM THE PRIMARY TEXT

Common-law marriage

Cornell describes a common-law marriage as a marriage without formal solemnization or formalities such as a license or ceremony. Mere cohabitation is not enough to establish one, although cohabitation is generally an element. Most states have abolished common-law marriage, and some grandfather in those formed before a certain date. All states recognize common-law marriages from other states under the Full Faith and Credit Clause.

NCBE's NextGen outline lists common-law marriage together with the putative-spouse doctrine, which it also calls marriage by estoppel.

08 · FROM THE PRIMARY TEXT

Void, voidable and annulment

Cornell says an annulment voids a marriage and declares it null from its inception, unlike a divorce, which acknowledges the marriage and terminates it. A void marriage was never valid and cannot be made valid, with incest and polygamy given as common reasons. A voidable marriage is treated as valid until it is declared invalid.

Grounds Cornell lists for annulment include fraud or coercion, an undisclosed prior marriage, incest, a party under the legal age to consent, and incapacity to understand the duties of marriage at the time. Grounds for voidable marriages vary by state.

09 · QUICK ANSWERS

Frequently asked questions

What is the controlling rule for validity, common-law marriage, and annulment?+

Marriage validity turns on capacity, consent, formal law, and recognition, not relationship duration or personal labels alone.

How should I analyze validity, common-law marriage, and annulment on the bar exam?+

Identify jurisdiction and formation date. Test capacity, consent, and formalities. Classify void, voidable, or valid. Analyze recognition, defenses, and economic consequences.

What are the basic elements of a marriage?+

The parties' legal ability to marry each other, their mutual consent, and a marriage contract as required by law, according to Cornell.

Does living together create a common-law marriage?+

No. Cornell says mere cohabitation is insufficient, although cohabitation is generally required as one element of a valid common-law marriage.

Do states recognize common-law marriages from other states?+

Yes. Cornell says all states recognize common-law marriages formed in other states under the Full Faith and Credit Clause.

What is the difference between a void and a voidable marriage?+

A void marriage was never valid and cannot be made valid, while a voidable marriage is valid until a court declares it invalid.

How does annulment differ from divorce?+

Divorce recognizes that the marriage existed and terminates it, while annulment declares the marriage void from the beginning, as if it never happened.

SOURCE DESK

Primary sources

Cornell LII Wex: marriage↗Cornell LII Wex: common law marriage↗Cornell LII Wex: annulment↗Cornell LII Wex: void marriage↗Cornell LII Wex: voidable marriage↗NCBE: NextGen Foundational Concepts and Principles, Family Law (first administration July 2028)↗

Governing text for validity, common-law marriage, and annulment

Uniform family-law acts (Uniform Law Commission) ↗