Adultery

Husband and Wife - the legal aspects of the married state (for the sociological aspects, see marriage).

The Marriage Contract

Marriage is a contractual relationship between a man and a woman that vests the parties with a new legal status. Most of the requisites for other binding contracts must also be present in the marriage contract. Thus, the parties must have been competent to act, must have acted free from duress, and must not have made fraudulent representations; otherwise the contract may be dissolved by a judicial decree of nullity of marriage. However, marriage is unlike other contractual relationships in that it creates a status that may not be terminated at will by the parties, but only by a court, as by a divorce. It is thus often said that the state is a third party to any marriage.

With few exceptions, a marriage validly contracted in one place is recognized in others. Thus a common-law marriage—a marriage solely by the consent and behavior of the parties, without ceremony or registration—entered into in a state where such unions are valid will be deemed binding in states where a license to marry and a civil or religious solemnization are required. At an early period, common-law marriages were frequent in Europe; the difficulties arising from them—e.g., the doubtful legitimacy of children—led to their complete prohibition in Roman Catholic countries by the Council of Trent. Although common-law marriage was abolished in England in 1753, it remained lawful in Scotland and in the American colonies. Today, only a dozen U.S. states recognize the creation of common-law marriages within their borders. A few states have enacted laws permitting covenant marriages, in which premarital counseling is required and extra restrictions make divorce more difficult, but while such marriages are recognized by other states, the limits they place on divorce may not be, because the U.S. Supreme Court has established that the rules governing divorce are determined by the laws of the state of residence at the time of divorce and not of marriage.

Same-sex marriages, with all but a few of the legal aspects of traditional marriages, have recently been recognized in a few European nations. In the United States, local officials have from time to time registered same-sex couples or solemnized their marriages. At present, however, Vermont is the only state that grants any official recognition to a homosexual union. In some places local authorities have established "domestic partner" laws, granted "certificates of cohabitation," or undertaken similar steps in order to afford homosexual (and some other) couples various rights society reserves for marital partners.

Evolution of Marriage Law

The former Anglo-American law of marriage was chiefly characterized by the view that husband and wife are one legal personality, for whom the husband acts. Accordingly, the husband determined the marital domicile and was the dominant figure in the relation of parent and child. Nearly all the property of the wife passed to his absolute control for the duration of the marriage. The wife ordinarily could not make separate contracts, but if her husband refused support to her or to the children, she might pledge his credit to supply needs. After the death of a spouse, the survivor usually enjoyed a partial interest in the deceased's property. The wife's dower entitled her to one third of the husband's property on his death; curtesy, a similar right of the husband in the wife's property, accrued only if children had been born of the marriage.

In time, the equity courts recognized the wife's right during her husband's lifetime to a separate property in trust established for her benefit. By the late 19th cent., the need for a separate trust property disappeared, for Great Britain and all the American states adopted "married women's property" statutes, giving wives complete control over their property and their contracts. Most states provided that, in place of dower and curtesy, a surviving spouse was entitled to a certain share in the estate of the deceased spouse. A few states, following the Spanish law, recognized community property, whereby all property acquired during the marriage is owned by both husband and wife and is divided equally on the dissolution of the marriage.

Other features of the older laws on marriage have persisted, but many have been modified or eliminated. Certain old civil actions for injury to the marital relation that were once available only to the husband, such as actions for criminal conversation (adultery), actions for loss of consortium (marital services) because of physical injury to the wife, and for alienation of the wife's affections, are now either extended to the wife or denied to both parties.

Bibliography

See J. Henslin, Marriage and Family in a Changing Society (2d ed. 1985).

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