Black-letter propositions
- 01
Capacity issues include age, existing marriage, mental capacity, prohibited relation, and genuine consent.
- 02
A license or solemnization defect may make a marriage voidable or irregular rather than void, depending on statute.
- 03
Common-law marriage requires present agreement plus cohabitation and public holding out where recognized; duration alone is insufficient.
- 04
A void marriage is invalid from inception; a voidable marriage remains effective until annulled.
- 05
Putative-spouse doctrines can protect a good-faith participant.
Use this attack sequence under time
Frame the issue
Identify jurisdiction and formation date.
Resolve the next checkpoint
Test capacity, consent, and formalities.
Resolve the next checkpoint
Classify void, voidable, or valid.
Finish the conclusion
Analyze recognition, defenses, and economic consequences.
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.
Worked example
Two adults privately agree they are married and cohabit for years in a state that abolished common-law marriage.
Their agreement and cohabitation do not create marriage in that state, though a valid common-law marriage formed earlier elsewhere may be recognized.
Practice this topic
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.
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.
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.
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.