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Review: Who Can Marry?. I. Substantive Requirements 1. GENDER – Almost uniform prohib. on same-sex marriages (civil unions – e.g. Vt., Ha; same-sex marriage – Mass Ct.) 2. INCEST Uniform proh. marr to relatives by blood (consanguinity) or by marriage (affinity)

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review who can marry
Review: Who Can Marry?

I. Substantive Requirements

1. GENDER – Almost uniform prohib. on

same-sex marriages (civil unions – e.g. Vt., Ha;

same-sex marriage – Mass Ct.)

2. INCEST Uniform proh. marr to relatives by blood

(consanguinity) or by marriage (affinity)

but variation in range of proh. relationships

3. BIGAMY/POLYGAMY – Uniform proh.

on multiple marriages (at the same time)

today substantive requirements cont d
Today: Substantive Requirements (cont’d)

4. AGE – Uniform reg. of marr to minors but range of regs

5. STATE OF MIND RESTRICTIONS: Fraud and duress (consent)–

more discretion in application

  • Procedural/Formal Requirements

1. License

2. Ceremony

Valid – Dissolution/Divorce

Voidable – Must Have Judicial Declaration (Annulment) No 3rd party attack

Void – No Marriage (failure to meet certain substantive requirements such as bigamy, incest, gender)

formal requirements
Formal Requirements
  • License
    • Provide information on age, relationship to spouse, etc.
    • Blood/other health tests
    • Waiting period
formal requirements cont d
Formal Requirements (cont’d)
  • Ceremony/Solemnization
    • Religious
    • Clerk
    • Judge
    • Proxy
    • Witnesses
majority rule carabetta
Majority Rule (Carabetta)

Principle of Validation (if statute silent)

Failure to comply with formal requirements will not render marriage void or voidable as long as:

1) At least one of the parties has good faith belief marriage is valid

2) Parties have capacity (meet substantive requirements)

common law marriage
Common Law Marriage


  • Jurisdiction recognizes common law marriage
  • Agreement/present intent to be married
  • Public declaration “holding out”
  • Cohabitation – no minimum period
  • Capacity (substantive requirements define capacity to marry)
    • No multiple marriages/bigamy
    • Gender
    • Incest prohibition
    • Age
    • No fraud or duress going to “essentials” of marriage(sexual relations/childbearing)


maryland bar exam question
Maryland Bar Exam Question


1965 – Arnold & Bea have a valid marriage ceremony in Maryland

1975 – Arnold moves in with Caroline in D.C.

1980 – Bea & Darwin obtain license and have marriage ceremony before clerk in Maryland

1989 – Bea wins lottery and dies

md bar exam question cont d
Md. Bar Exam Question (cont’d)

Does Darwin have any right to receive the surviving spouse's share of Bea's estate?



(T & E: If no surviving spouse, Arabella and Barton share estate equally. If surviving spouse, spouse receives $15,000 plus ½ remaining estate)

Valid Ceremony?

_____ Duly authorized clerk, judge or rel. official?

_____ Does it matter if there were no blood tests or witnesses?

License –

Waiting Period? 48 hours but can be waived if Maryland resident or in armed services.


1) Gender

No prohibited relationships

3) Bigamy

(subsequent married void)

4) Age 16 or 17- preg or consent

Age 15 – preg and consent

Under age 15 – no marriage

  • Fraud or Duress
Note: No presumption of death in MD after lengthy absence but party cannot be criminally charged with bigamy if at the time of second marriage:

1) First spouse was absent for seven years, and

2) Do not know whether the first spouse is alive at the time of subsequent marriage

In 1992, Arnold returned to Maryland; he and Caroline established domicile in Laurel, Prince George's County, Maryland. While living in Laurel, Arnold purchased 75 acres of land, titled in his name only, in the vicinity of the Laurel Racetrack. Arnold died intestate in 1993. At the time of his death, the land was appraised at $750,000.

Does Caroline have any interest as surviving spouse in Arnold's estate?



common law marriage1
Common Law Marriage

1. Rule: Cannot be created in Maryland but Maryland will recognize common law marriage if valid where contracted.


a. ____________________

b. ____________________

c. ____________________

d. ____________________


putative spouse doctrine
Putative Spouse Doctrine


  • Innocent party/good faith belief
  • Ceremonial marriage
  • Marriage -void or voidable

All elements here?