Laws Of Domestic Relations
( Originally Published 1918 )
Marriage is the union of a man and woman for life in accordance with the law of the country or state in which they reside. In law, marriage is regarded simply as a civil contract, and is dissolved only by death or divorce.
The lack of uniformity of the marriage and divorce laws of the various states has given rise to some curious complications, a person being indictable in one state, for an action performed in another in which other the action was perfectly legal.
Common Law Marriage.—A man and woman who live together under the same surname, are married, under the common law.
Contracts to Marry.—Mutual promise by a man and a woman to marry at some future time, is a valid contract, and can be enforced by either of the parties to it.
Breach of Promise.—If either party refuses to carry out the contract, he or she is guilty of a breach of promise, and may sue to recover dam-ages from the other party. It is not often that the man sues the woman, though he has the right to do so if she refuses to carry out the agreement.
Time of Marriage.—If a man promises to marry a woman without a time being set, he must carry out the agreement within "a reasonable time," or become subject to a suit for breach. Five years has been held to be an unreasonable time.
Necessary Proof.—Generally in case of a suit for breach of promise there are no direct witnesses; but the engagement may be implied by the conduct of the party sued.
Excuses for Breaking Promise.—A refusal may be justified by the bad conduct of the other party. If a woman be a widow or divorced, and has concealed the fact from the man, he is justified in refusing to marry with her.
License and Certificate of Marriage: In all the states a marriage license is necessary, and the public official or clergyman who performs the ceremony is required to note the fact of the marriage on the license and return it to the county recorder's office for record. It is his duty also to furnish the newly married couple with a marriage certificate. Sometimes a clergyman finds that he has no blank certificate on hand, and he is at a loss what to do, as the absence of such a certificate might in some emergencies cause considerable embarrassment. To meet such emergencies a simple form of marriage certificate is here given.
Addition to License.—While marriage licenses are required in all states, Wisconsin has an eugenic law which requires all applying for a marriage license to file a physician's certificate of hygienic fitness for marriage.
Births are sometimes required to be legally established in order to give a person his proper civil or social standing. It is important therefore that every family should keep a record of births (usually in a "Family Bible") in such form as to make every member of the family familiar with the date and place of his or her birth.
Birth Certificates.—In most of the states the law makes it the duty of any physician or mid-wife attending at a birth, or if none attends, of the parent or custodian of the child, to file,, within thirty days, at the office of the county clerk, a certificate showing the name of the child, the date of birth and the names of the parents. This makes it possible for any person born in the state to legally establish his birth, inability to do which sometimes causes the nullification of an insurance policy on the ground that the insured gave an incorrect age.
In most of the states which have laws on the subject, twenty-one years is the marriageable age for males. For females see "Statutory Rights of Women," hereinafter.
Voidable.—Marriages are voidable in nearly all the states when contracted under the age of consent to cohabit, through fraud, or if one of the parties is suffering from insanity.
Prohibition of.—Marriage between whites and persons of negro descent are prohibited and punishable in Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kentucky, Louisiana, Maryland, Miss., Mo., Mont., Neb., Nev., N. C., N. D., Okla., Ore., S. C., S. D., Tenn., Tex., Utah, Va., W. Va.
Marriages between whites and Indians are void in Ariz., N. C., Ore. and S. C.
Marriages between whites and Chinese are void in Ariz., Calif., Miss., Ore. and Utah.
Marriage between first cousins is forbidden in Alaska, Arizona, Arkansas, Florida, Illinois, Indiana, Iowa, Louisiana, Kansas, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Utah, West Virginia, Washington and Wyoming, and in some of these states such marriages are declared incestuous and void. Marriage with step-relatives is forbidden except in Alaska, Arizona, Arkansas, Delaware, Florida, the Hawaiian Islands, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Nebraska, Nevada, New Mexico, New York, Ohio, Ore., Penn., Tenn., Utah and Wis.
Connecticut and Minnesota prohibt the marriage of an epileptic and of an imbecile or feeble-minded woman under forty-five years of age, and marriage of lunatics is void in the District of Columbia, Kentucky, Maine, Massachusetts, Nebraska. Persons having sexual diseases are forbidden to marry in Michigan and Wisconsin. Wisconsin also requires eugenic qualification in males.