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COMMON LAW MARRIAGE

COMMON LAW MARRIAGE
Ceremony Five Reasons to not get a Marriage License Wikipedia: Common Law Marriage History of Marriage Loving v. Commonwealth of Virginia, 388 U.S. 1 Martin Luther: Estate of Marriage Meister v. Moore, 96 U.S. 76 Original Intent, Common Law Marriage

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MARRIAGE Marriage, a word from the 14th century French (marier) to marry. Common-law marriage (or common law marriage), sometimes called informal marriage or marriage by habit and reputation is, historically, a form of interpersonal status in which a man and a woman are legally married. The term is often mistakenly understood to indicate an interpersonal relationship that is not recognized in law. In fact, a common law marriage is just as legally binding as a statutory or ceremonial marriage in most jurisdictions — it is just formed differently. The idea of common law marriage emerged in medieval England, because clerics and justices who officiated at marriages were not always able to travel to rural locations where some couples lived. In that case, the couple could establish a marriage "by common law." Many U.S. states that do not have common law marriage, and some that do, have a concept of a "putative spouse". Unlike someone in a common law marriage, a putative spouse is not actually married. Instead a putative spouse believes he or she is married in good faith and is given legal rights as a result of this person's reliance upon this good faith belief. Putative spouse concepts, called "deemed marriages" are also recognized under the Social Security program in the United States. One nearly universal tradition is that of the engagement ring. This custom can be dated back to the ancient Romans. It is believed that the roundness of the ring represents eternity. Therefore, the wearing of wedding rings symbolizes a union that is to last forever. It was once thought that a vein or nerve ran directly from the "ring" finger of the left hand to the heart. HISTORY Throughout human history, people married to arrange child rearing, pass on property and organize life. Until relatively recently, most of these alliances were not legally sanctioned but rather informal arrangements accepted by society at large. The choice of partner was rarely left to the couple; parents and other respected community elders made the match. Marriage was a way of turning strangers into relatives, of making peace, of making permanent trading connections. Marriage was a civil affair to which the Church could give its blessing. In many different languages wives are called the equivalent of the word "peace-weaver". 0000 The notion of marriage as a sacrament and not just a contract can be traced to St. Paul who compared the relationship of a husband and wife to that of Christ and his church (Eph. v, 23-32). 0400-1399 From the 5th to the 14th centuries, the Roman Catholic Church conducted special ceremonies to bless same-sex unions which were almost identical for those ceremonies to bless heterosexual unions. At the very least, these were spiritual, if not sexual, unions.

0866 Pope Nicholas I declared in 866, "If the consent be lacking in a marriage, all other celebrations, even should the union be consummated, are rendered void." That shows the importance of a couple's consent to marriage. That concept has remained an important part of church teaching through the years. 1076 In 1076, Pope Alexander II issued a decree prohibiting marriages between couples who were more closely related than 6th cousins. 1100 The Twelfth century troubadours were the first ones who thought of courtly love in the same way we do now. The whole notion of romance apparently didn't exist until medieval times, and the troubadours. 1500-1921 In the 16th century, servants and day laborers were not allowed to marry in Bavaria and Austria unless they had the permission of local political authorities. This law was not finally abolished in Austria until 1921. 1520 Although Luther declared that marriage was not a sacrament but a "worldly thing", all the Protestant sects have continued to regard it as religious in the sense that it ought normally to be contracted in the presence of a clergyman. Owing to the influence of the Lutheran view and of the French Revolution, civil marriage has been instituted in almost all the countries of Europe and North America, as well as in some of the states of South America. 1563 There appeared to be many marriages taking place without witness or ceremony in the 1500's. The Council of Trent was so disturbed by this, that they decreed in 1563 that marriages should be celebrated in the presence of a priest and at least two witnesses. Marriage took on a new role of saving men and women from being sinful, and of procreation. Thereafter, accepted in Protestants Americas or a marriage was only legal in Roman Catholic countries. This was not the newly Protestant nations of Europe, of course; nor by who lived in Roman Catholic countries or their colonies in the elsewhere; nor by Eastern Orthodox Christians.

All Protestant and Eastern Orthodox countries in Europe eventually abolished "marriage by habit and repute", with Scotland being the last to do so, in 2006. Scotland had long been the sole exception in Europe. 1614 The first recorded interracial marriage in North American history took place between Robert Rolfe and Pocahontas in 1614. In colonial Jamestown, the first biracial Americans were the children of white-black, white-Indian, and blackIndian unions. By the time of the American Revolution, somewhere between 60,000 and 120,000 people of “mixed” heritage resided in the colonies. During his presidency, Thomas Jefferson begged Americans to consider “let[ting] our settlements and [Indians’] meet and blend together, to intermix, and become one people”

and in all American colonies and states until the middle of the 19th century. ????-1686 Marriage was strictly a civil and not an ecclesiastical ceremony for the Puritans in Massachusetts Bay until 1686. 1759 George Washington married without a marriage license. They could not own property. both of whom were exempt from that provision. guaranteeing the right of married women to own property. all southern colonies. married women had no legal standing. but also to forgive. the Puritans viewed marriage as a very blessed relationship that gave marital partners an opportunity to not only love. or legally control any wages they might earn. 1848 In 1848. That law did not apply to Britain's overseas colonies at that time. It was years later. 1750 By 1750. plus Massachusetts and Pennsylvania outlawed interracial marriages. New York became the first state to pass a Married Woman’s Property Act. so the practice continued in the future United States and Canada. ????-1850 Under English common law. ????-1930 . Love still wasn't a genuinely necessary ingredient for marriage during this era. 1800 In the Western world the idea of marrying for love emerged. 1690-1870 From the 1690s to the 1870s. In 1662. sign contracts. there was no penalty for interracial marriages in any of the British colonies in North America. The Pilgrims outlawed courtship of a daughter or a female servant unless consent was first obtained from parents or master. “wife sale” was common in rural and small-town England. Virginia doubled the fine for fornication between interracial couples. a husband could present her with a rope around her neck in a public sale to another man. 1800-1899 Throughout most of the 19th century. 1753 The British Parliament in 1753 said marriages were only valid in law if they were performed by a priest of the Church of England—unless the participants in the marriage were Jews or Quakers. To divorce his wife. In 1664. the minimum age of consent for sexual intercourse in most American states was 10 years. In Delaware it was only 7 years. Maryland became the first colony to ban interracial marriages.????-1662 Until 1662.

"not recognized" means that in the eyes of the State "the marriage is not known. and therefore it is beyond their purview to alter.. As a result of the decision. Or phrased another way. the statutes are held merely directory. the US Supreme Court cut straight to the heart of the issue in declaring that statutes controlling marriage can only be directory because marriage is a common right. such a right. "As before remarked. understood. or perceived to exist". No state can arbitrarily declare common law marriage invalid by legislation. or interfere with. married women were not allowed to make a legal contract in twelve states.S. Because common law marriage is lawful. which is a mere direction or instruction of no obligatory force. which is not subject to interference or regulation by government. There is no state law anywhere that claims to make common law marriage "unlawful". While the various state courts have prattled on for almost 200 years about what the laws of their states do and do not allow concerning marriage. What's Legally Valid and What's Not? The United States Supreme Court in Meister v. the God-given right to marry existed prior to the creation of the states or the national government. Virginia and fifteen other states had their anti-miscegenation laws declared unconstitutional. Such a law could not withstand the scrutiny of the US Supreme Court because the exercise of a fundamental right is always lawful! It is true that in many states common law marriage is not "recognized". Nothing could be further from the truth. rule of procedure. The State keeps records of all contracts to which it is a party and therefore such a marriage is "known to exist" to State authorities. ????-1940 As late as 1940.. A "statutory marriage" is registered with the State as a result of the man and woman applying for a State marriage license and thus entering into a three-party contract with the State. Virginia. To state the point most clearly . and involving no invalidating consequence for its disregard. or the like. because marriage is a thing of common right. abolish.As late as 1930. the U. and none have done so! .A provision in a statute. "invalid"."not recognized" does not mean. which must be followed. as opposed to an imperative or mandatory provision. modify. 1967 In 1967. 6th Ed." The statutes to which the Court was referring purported to render invalid any marriages not entered into under the term of written [statutory] state law. 76 (1877) said. twelve states allowed boys as young as 14 and girls as young as 12 to marry (with parental consent). 96 U. Black's Law Dictionary. Directory . Supreme Court struck down state anti-miscegenation laws in Loving v.S. Moore. "Recognized" versus "Unlawful" A lot of Americans hold the incorrect perception that common law marriage is unlawful.

validity is often determined based a composite picture drawn from the totality of the circumstances. The single most important element under common law is the mutual consent of the couple presently to be husband and wife. Memorialize the ceremony in photographs or on video. . there is no court in America that can declare your common law marriage invalid. Have a ceremony. and people in the community know you and your spouse are married. Cohabitate after the contract has been signed or the ceremony performed. The only time requirement necessary was time enough reasonably to establish these circumstances. All the rest is considered evidence of this consent or exchange of promises. Here are basic elements: Both parties sign a marriage contract and have it notarized. In summary. Let friends. By applying each of these elements.Validity of Marriage What constitutes a "valid" marriage at common law? Unless there is a controversy over the validity of a marriage. Have three witnesses sign a marriage certificate. co-workers. a marriage thought proper by the consenting parties is a valid marriage.

let not man put asunder. for richer for poorer. "Dearly beloved. "I do." "By the authority vested in me in accordance with the common laws in California. "I give you this ring as a token and pledge of our constant faith and abiding love. and forsaking all others?" (Bride answers. we are gathered here today to join this man and this woman in holy matrimony. to love and to cherish. Marilyn. I now pronounce you husband and wife. to have and to hold from this day forward. honor. to live together in holy matrimony. The LORD God said. "I give you this ring as a token and pledge of our constant faith and abiding love. [It is] not good that the man should be alone. What therefore God hath joined together. for better for worse." Minister: "Please join hands.") Minister asks the Bride. Robert Roe." To the Groom: "I. to live together in holy matrimony. let them now speak. Marilyn Roe." Minister states.CEREMONY Marilyn Roe Robert Roe Minister: "Who gives this woman to be married to this man?" Minister: "If any person or persons here present know of any lawful reason why this man and this woman should not be joined together in marriage. for better for worse. to be my wife. do you take this woman to be your wife. comfort him and keep him in sickness and in health. comfort her and keep her in sickness and in health." Minister to Groom: "Place the ring on Marilyn's finger and repeat after me"." Minister to Bride: "Place the ring on Robert's finger and repeat after me". take you. to love. in sickness and in health." . or else forever hold their peace. do you take this man to be your husband. honor. in sickness and in health. Robert Roe. for richer for poorer. "I do. to be my husband. "Marilyn Roe. to love and to cherish." Minister asks the man. and forsaking all others?" (Groom answers." To the Bride: "I. You may now kiss the bride. "Repeat after me. to have and to hold from this day forward. "Robert Roe. to love. take you.") Minister states.

John\5reasons2not-license-marriage. why should we need the State’s permission to participate in something which God instituted (Gen. Black’s Law Dictionary defines "license" as. you grant the State jurisdiction over your marriage. When you marry with a marriage license.why should we not get one? 1. They do it because their pastor has told them to go get one. your marriage is a creature of the State. "everybody else gets one.marriage license Page 1 of 6 5 Reasons Why Christians Should Not Obtain a State Marriage License by Pastor Matt Trewhella Every year thousands of Christians amble down to their local county courthouse and obtain a marriage license from the State in order to marry their future spouse. A license by definition "confers a right" to do something. What is the fruit of your marriage? Your children and every piece of file://G:\PROJECTS\Zehren. "The permission by competent authority to do an act which without such permission. 2.htm 10/9/2009 . When you marry with a marriage license." This pamphlet attempts to answer the question . 2:18-24)? We should not need the State’s permission to marry nor should we grovel before state officials to seek it. The definition of a "license" demands that we not obtain one to marry. What if you apply and the State says "no"? You must understand that the authority to license implies the power to prohibit. The State cannot grant the right to marry. It is a corporation of the State! Therefore." We need to ask ourselves. They do this unquestioningly. It is a God-given right. and besides. they have jurisdiction over your marriage including the fruit of your marriage.why should it be illegal to marry without the State’s permission? More importantly. would be illegal.

In 1993.htm 10/9/2009 . "your marriage license and their birth certificates. they were shocked by the school bureaucrats who informed them that their children were required to take the test by law and that they would have to take the test because they (the government school) had jurisdiction over their children. I also cannot marry someone with a marriage license because to do so I have to act as an agent of the State! I would have to sign the marriage license. Under these laws. When you read the Bible. you can divorce for any reason. you see that God intended for children to have their father’s blessing file://G:\PROJECTS\Zehren. When parents asked the bureaucrats what gave them jurisdiction. and castigates the spouse who remains faithful by ordering him or her not to speak about the Bible or other matters of faith when present with the children. your state marriage license has far-reaching implications. practically. it would be an act of treason for me to do so. When parents complained. The marriage license invades and removes God-given parental authority.marriage license Page 2 of 6 property you own. Often. As a minister. and I would have to mail it into the State. By obtaining a marriage license. and in increasing fashion." Judicially. the courts side with the spouse who is in rebellion to God. Given the State’s demand to usurp the place of God and family regarding marriage. I cannot in good conscience perform a marriage which would place people under this immoral body of laws. John\5reasons2not-license-marriage. 4. immoral laws to govern marriage. 3. parents were upset here in Wisconsin because a test was being administered to their children in the government schools which was very invasive of the family’s privacy. When you marry with a marriage license. and given it’s unbiblical. you place yourself under the jurisdiction of Family Court which is governed by unbiblical and immoral laws. you place yourself under a body of law which is immoral. There is plenty of case law in American jurisprudence which declares this to be true. the bureaucrats answered.

First. the child can do an end run around the parents authority by obtaining the State’s permission. "Actually. you had to post public notice of the marriage 5-15 days before the ceremony. you had to obtain your parents permission to marry. and second. the all-encompassing ungodly State demands that their permission be obtained to marry. Back then you saw godly government displayed in that the State recognized the parents authority by demanding that the parents permission be obtained. Daughters were to be given in marriage by their fathers (Dt. you are like a polygamist. but you are also marrying the State. When you read the laws of the colonies and then the states. there was no requirement to obtain a marriage license in colonial America." If parents are opposed to their child’s marrying a certain person and refuse to give their permission. 22:17. 22:16. I Cor. you are not just marrying your spouse. John\5reasons2not-license-marriage. We have a vestige of this in our culture today in that the father takes his daughter to the front of the altar and the minister asks. you need our permission. when you marry with a marriage license.htm 10/9/2009 . you see only two requirements for marriage. when you repeat your marriage vows you enter into a legal contract." It is found in county courthouses across Ohio where people go to obtain their marriage licenses.marriage license Page 3 of 6 regarding whom they married. There are three file://G:\PROJECTS\Zehren. 7:38). The opening paragraph under the subtitle "Marriage Vows" states. This is an invasion and removal of God-given parental authority by the State. Today. It is published by the Ohio State Bar Association. 5. When you marry with a marriage license. "Who gives this woman to be married to this man?" Historically. Notice you had to obtain your parents permission. the State is saying. By issuing marriage licenses. and marry anyway. "You don’t need your parents permission. From the State’s point of view. Ex. The most blatant declaration of this fact that I have ever found is a brochure entitled "With This Ring I Thee Wed.

marriage license Page 4 of 6 parties to that contract. it is to be governed by the family. History of Marriage Licenses in America George Washington was married without a marriage license. In the mid-1800’s. and the State only has jurisdiction in the cases of divorce or crime. They should sign the marriage certificate in your family Bible. You are also giving undue jurisdiction to the State. certain states file://G:\PROJECTS\Zehren. therefore it is a God-given right.You. and 3. When Does the State Have Jurisdiction Over a Marriage? God intended the State to have jurisdiction over a marriage for two reasons . when crimes are committed i.1). In either case. a marriage license is not necessary for the courts to determine whether a marriage existed or not. in the case of divorce. etc. John\5reasons2not-license-marriage. and 2). According to Scripture. and the wedding day guest book should be kept. This is why you have a best man and a maid of honor. adultery. but you are making a vow to the State and your spouse. all the states in America had laws outlawing the marriage of blacks and whites. So.. the State and the lawyers know that when you marry with a marriage license. 1." See. and it does not prosecute for adultery.e. the State of Ohio. 2. how did we come to this place in America where marriage licenses are issued? Historically. you are marrying the State! You are like a polygamist! You are not just making a vow to your spouse. you are not just marrying your spouse. Your husband or wife. as the case may be. bigamy. Marriage was instituted by God.htm 10/9/2009 . the State now allows divorce for any reason. divorce or crime. Unfortunately. What is needed are witnesses.

we need to ask ourselves. What Should We Do? Christian couples should not be marrying with State marriage licenses. In other words they had to receive permission to do an act which without such permission would have been illegal. (As for homosexuals marrying. "A license or permission granted by public authority to persons who intend to intermarry.marriage license Page 5 of 6 began allowing interracial marriages or miscegenation as long as those marrying received a license from the state. "If someone is married without a marriage license. then they aren’t really married. every state in the Union had adopted marriage license laws.) You should not have to obtain a license from the State to marry file://G:\PROJECTS\Zehren.who’s really married? Is it the two men with a marriage license. some states began requiring all people who marry to obtain a marriage license. "If a man and a man marry with a State marriage license. John\5reasons2not-license-marriage. We need to think biblically. mixed or interracial marriages. or the man and woman without a marriage license? In reality. Blacks Law Dictionary points to this historical fact when it defines "marriage license" as. Some have said to me. By 1929." Give the State an inch and they will take a 100 miles (or as one elderly woman once said to me "10. the Federal Government established the Uniform Marriage and Marriage License Act (they later established the Uniform Marriage and Divorce Act)." Given the fact that states may soon legalize same-sex marriages.") Not long after these licenses were issued. "Miscegenation.000 miles." "Intermarry" is defined in Black’s Law Dictionary as. outlaw sodomy as God's law demands. nor should ministers be marrying people with State marriage licenses. and a man and woman marry without a State marriage license .htm 10/9/2009 . this contention that people are not really married unless they obtain a marriage license simply reveals how Statist we are in our thinking. In 1923. and there will be no threat of sodomites marrying.

Many other pastors also refuse to marry couples with State marriage licenses. the purpose of this pamphlet is to make you think and give you a starting point to do further study of your own. just send a gift of at least five dollars in cash to: Mercy Seat Christian Church 10240 W. We record the marriage in the Family Bible. They simply recorded their marriages in their Family Bibles. John\5reasons2not-license-marriage. I always buy them a Family Bible which contains birth and death records. www.mercyseat. National Ave. file://G:\PROJECTS\Zehren. PMB #129 Milwaukee. When I marry a couple. Rather. Early Americans were married without a marriage license. If you would like an audio sermon regarding this matter. What’s recorded in a Family Bible will stand up as legal evidence in any court of law in America.) This pamphlet is not comprehensive in scope. Click here to order. Wisconsin 53227. So should we.marriage license Page 6 of 6 someone anymore than you should have to obtain a license from the State to be a parent. which some in academic and legislative circles are currently pushing to be made law.htm 10/9/2009 . and a marriage certificate. (Pastor Trewhella has been marrying couples without marriage licenses for ten years.net) This pamphlet is available in print form.

the free encyclopedia. historically.Wikipedia.Wikipedia. a form of interpersonal status in which a man and a woman are legally married. In fact. the free encyclopedia Page 1 of 10 Common-law marriage From Wikipedia. the free encyclopedia (Redirected from Common law marriage) Family law Entering into marriage Prenuptial agreement · Marriage Common-law marriage Same-sex marriage Legal states similar to marriage Cohabitation · Civil union Domestic partnership Registered partnership Dissolution of marriage Annulment · Divorce · Alimony Issues affecting children Paternity · Legitimacy · Adoption Legal guardian · Ward Emancipation of minors Parental responsibility Contact (including Visitation) Residence in English law Custody · Child support Areas of possible legal concern Spousal abuse · Child abuse Child abduction Adultery · Bigamy · Incest Conflict of Laws Issues Marriage · Nullity · Divorce Common-law marriage (or common law marriage). sometimes called informal marriage or marriage by habit and repute is. John\Common-law marriage . The term is often mistakenly understood to indicate an interpersonal relationship that is not recognized in law. a common law marriage is just as legally binding as a statutory or ceremonial marriage in most jurisdictions — it is just formed differently. mhtml:file://G:\PROJECTS\Zehren.mht 10/9/2009 .Common-law marriage .

Common-law marriage . In some jurisdictions.7 New Hampshire ■ 7.e. John\Common-law marriage .4 Iowa ■ 7. be of legal age or have their parents' permission. the term "common-law marriage" has been used in parts of Europe and Canada to describe various types of domestic partnership between persons of the same sex as well as persons of the opposite sex. 5. 3. the free encyclopedia.9 Rhode Island ■ 7.. Although these interpersonal statuses are often.10 South Carolina ■ 7.11 Texas ■ 7. i.3 District of Columbia ■ 7. the free encyclopedia Page 2 of 10 Contents ■ ■ ■ ■ 1 Essential distinctions 2 History 3 Australia 4 Canada ■ 4.1 Alabama ■ 7.2 Québec ■ 4.Wikipedia. no marriage certificate). Common law marriages are not licensed by government authorities.mht 10/9/2009 . as in Hungary. Otherwise. Common law marriages are not necessarily solemnized. the parties must mutually consent to be married. Cohabitation alone does not amount to common law marriage. a couple must have cohabited and held themselves out to the world as husband and wife for a minimum length of time for the marriage to be recognised as valid. called "common-law marriage" they differ from mhtml:file://G:\PROJECTS\Zehren. There is no such thing as "common law divorce. 4. the couple in question must hold themselves out to the world to be husband and wife.3 Other Provinces 5 United Kingdom ■ 5. Since the mid-1990s. and so on.Wikipedia. the marriage can only be dissolved by a legal proceeding in the pertinent trial court (usually family court or probate court). 2. whether according to statute or according to common law.1 Ontario ■ 4.2 Colorado ■ 7." Once a marriage is validly contracted.. the requirements are the same for common law marriage as they are for statutory marriage.12 Utah 8 Putative spouses 9 See also 10 External links ■ ■ ■ ■ ■ ■ Essential distinctions The essential distinctions of a common law marriage are: 1.e.1 Scotland 6 Israel 7 United States ■ 7.8 Oklahoma ■ 7.6 Montana ■ 7.5 Kansas ■ 7. There is no public record of a common law marriage (i.

in 2006. Lord Hardwicke's Act did not apply to Britain's overseas colonies at that time. However. social welfare. The Federal parliament has no power over de-facto marriages. The Federal parliament has power to legislate for marriages. Various federal laws include "common law status. of course. did not apply to Scotland. pensions. etc. passed by the British Parliament in 1753. Canada Under Canadian law. where marriages were only valid in law if they were performed by a priest of the Church of England—unless the participants in the marriage were Jews or Quakers. Common law marriages may still be contracted in eleven US states and the District of Columbia. The practice persevered in Scotland because the Acts of Union 1707 provided it retained its own legal system separately from the rest of the Kingdom of Great Britain." History Most marriages in Europe were common law marriages until the Council of Trent convened 1545–1563. with Scotland being the last to do so.) and in 1961 with the Marriage Act. and in several Canadian provinces. As family law varies between provinces. A couple must meet the requirements of their province's Marriage Act for their common law marriage to be legally recognized." which automatically takes effect once two people (of any gender) have lived together in a conjugal relationship for one full year. if a relationship ends. This was not accepted in the newly Protestant nations of Europe. Lord Hardwicke's Act. the legal definition and regulation of common law marriage fall under provincial jurisdiction. there are differences between the provinces regarding the recognition of common law marriage. Nevertheless. the free encyclopedia Page 3 of 10 true common-law marriage in that they are not legally recognized as "marriages" but are a parallel interpersonal status. etc. all Protestant and Eastern Orthodox countries in Europe eventually abolished "marriage by habit and repute".Common-law marriage . etc. Australia See also: Australian family law In Australia the term de facto marriage is often used to refer to relationships between men and women who are not married but are effectively living as husband and wife for a period of time. mhtml:file://G:\PROJECTS\Zehren. both of whom were exempt from that provision. after the Act of Union 1800). a marriage was only legal in Roman Catholic countries if it were witnessed by a priest of the Roman Catholic Church. the free encyclopedia. both of which are now replaced by the 1975 Family Law Act. Scotland had long been the sole exception in Europe.Wikipedia. in many cases common law couples have the same rights as married couples under federal law. known in most jurisdictions as "domestic partnership" or "registered partnership. which it first did in 1959 with the Matrimonial Causes Act (covering divorces. It did apply to England and Wales.mht 10/9/2009 . John\Common-law marriage . Thereafter. nor by Eastern Orthodox Christians. Common law partners may be eligible for various federal government spousal benefits. Thus. and thus all Australian states and territories have legislation covering aspects of de-facto marriages. treat de-facto marriages in the same manner as solemnized marriages. however (and apparently to Ireland. such as property distribution. Most laws dealing with taxation.Wikipedia. however common-law marriage is sometimes heard. nor by Protestants who lived in Roman Catholic countries or their colonies in the Americas or elsewhere. custody of children. so the practice continued in the future United States and Canada.

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In 1999, after the court case M. v. H., the Supreme Court of Canada decided that same-sex partners would also be included in common law relationships.

Ontario
In Ontario, the Ontario Family Law Act specifically recognizes common law spouses in sec. 29 dealing with spousal support issues; the requirements are living together for three years or having a child in common and having "cohabitated in a relationship of some permanence." The one-year must be continuous; however a breakup of a few days during the one-year period will not affect a person's status as common law [1]. However, the part that deals with marital property excludes common law spouses as sec. 2 defines spouses as those who are married together or who entered into a void or voidable marriage in good faith. Thus common law partners do not always evenly divide property in a breakup, and the courts have to look to concepts such as the constructive or resulting trust to divide property in an equitable manner between partners. Another difference that distinguishes common law spouses from married partners is that a common law partner can be compelled to testify against his or her partner in a court of law.

Québec
Québec, which unlike the other provinces has a Civil Code, has never recognized common-law partnership as a kind of marriage. See about De Facto Marriage in Québec. However, many laws in Québec explicitly apply to common-law partners (called "de facto unions" or conjoints de fait) as they do to spouses. See a List of These Rights and Freedoms. Same-sex partners can also have recognized "de facto unions" in Québec. A recent amendment to the Civil Code of Québec recognizes a type of domestic partnership called civil union that is similar to common-law marriage and is likewise available to same-sex partners.

Other Provinces
The requirements in some other provinces are as follows: In British Columbia and Nova Scotia you must cohabit for two years in a marriage-like relationship [2]. In New Brunswick, you must live together continuously in a family relationship for three years.

United Kingdom
The term "common law marriage" is frequently used in England and Wales, however such a "marriage" is not recognised in law, and it does not confer any rights or obligations on the parties. See also English law. Genuine (that is, legal) common-law marriage was for practical purposes abolished under the Marriage Act, 1753. Prior to that point, marriage was by consent under Roman Law, and by consummation under canon law. [3] "Common law marriage" survives in England and Wales only in a few highly exceptional circumstances, where people who want to marry but are unable to do so any other way can simply declare that they are taking each other as husband and wife in front of witnesses. British civilians interned by the Japanese during World War II who did so were held to be legally married. Unmarried partners are recognised for certain purposes in legislation, e.g., for means-tested benefits. For example, in the Jobseekers Act 1995, '"unmarried couple" means a man and woman who are not married to each other but are living together as husband and wife otherwise than in prescribed circumstances. [4]

Scotland
Under Scots law, there have been several forms of "irregular marriage". These were:

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1. Irregular Marriage by declaration de presenti - Declaring in the presence of two witnesses that you take someone as your wife or husband. 2. Irregular Marriage conditional on consummation. 3. Irregular Marriage with co-habitation and repute. The Marriage (Scotland) Act 1939 provided that the 1st and 2nd forms of Irregular marriage could not be formed on or after 1st January 1940. However, any Irregular Marriages contracted prior to 1940 can still be upheld. This act also allowed the creation of Regular Civil Marriages in Scotland for the first time. (The civil registration system started in Scotland on 1st January 1855.) Until this act the only Regular Marriage available in Scotland was a religious marriage. Irregular Marriages were not socially accepted and many people who decided to contract them did so where they were relatively unknown. In some years up to 60% of the marriages in the Blythswood Registration District of Glasgow were "Irregular". In 2006 "marriage by cohabitation with habit and repute" was also abolished in the Family Law (Scotland) Act 2006. Until that act had come into force, Scotland remained the only European jurisdiction never to have totally abolished the old style common-law marriage. For this law to apply the minimum time the couple have lived together continuously had to have exceeded 20 days. As in the American jurisdictions that have preserved it, this type of marriage can be difficult to prove. It is not enough for the couple to have lived together for several years, but they must have been generally regarded as husband and wife, e.g., their friends and neighbours must have known them as "Mr. and Mrs. So-and-so" (or at least they must have held themselves out to their neighbours and friends as Mr. and Mrs. So-and-so). And, as with American common-law marriages, it is a form of lawful marriage, so that nobody can say they are common-law spouses, or husband and wife by cohabitation with habit and repute, if one of them was legally married to somebody else when the relationship began. It is a testament to the influence of English and American legal thought that, for a study conducted by the Scottish Executive in 2000, 57% of Scots surveyed believed that couples who merely live together have a "common-law marriage." In fact, that term is unknown in Scots Law, which uses "marriage by cohabitation with habit and repute." "Common-law marriage" is an Anglo-American term. Otherwise, men and women who otherwise behave as husband and wife do NOT have a common-law marriage or a marriage by habit and repute merely because they set up housekeeping together, but they MUST hold themselves out to the world as husband and wife. (In many jurisdictions, they must do so for a certain length of time for the marriage to be valid.) The Scottish Survey is not clear on these points. It notes that "common law marriage" is not part of Scots Law, but fails to note that "marriage by cohabitation with habit and repute" - which is the same thing - is part of Scots Law. Upon entering into or establishing an irregular marriage a Declarator's Warrant is obtained from the Sheriff Court. This is then taken to the Registry Office and the marriage is entered into the Register of Marriages. This step does not create the marriage, but merely enables the existence of the marriage to be authenticated in written form.

Israel
Israeli law recognizes common-law marriage (‫ )ידוע בציבור‬particularly since an apparatus for civil marriage is absent, and many couples choose to avoid a religious marriage or are barred from it. Israeli law makes provisions for common-law spouses, but is murky as to the period of time that needs to pass before a relationship can be recognized as common-law marriage. Unlike marriage, the spouses need to provide proof of their relationship in order to gain access to the various benefits and rights which accompany a common-law marriage.

United States
In Meister v. Moore, 96 U.S. 76 (1877), the United States Supreme Court, relying on Hutchins v. Kimmell, 31 Mich. 126 (1875) ruled that Michigan had not abolished common law marriage merely by producing a statute

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Common-law marriage - Wikipedia, the free encyclopedia

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which established rules for the solemnization of marriages, because it did not require marriages to be solemnized — it only required that, if a marriage were solemnized, it could only be solemnized as provided by law. Otherwise, the court found that, as the right to marry existed at common law, the right to marriage according to the tradition of that common law remained valid until such time as state law affirmatively changed it. The Court did not find it necessary to pass special legislation specifically outlawing the common law contract of a marriage, but it was sufficient for a state's general marriage statutes to clearly indicate no marriage would be valid unless the statutory requirements enumerated were followed. Common-law marriage can still be contracted in the following jurisdictions: Alabama, Colorado, the District of Columbia, Iowa, Kansas, Montana, New Hampshire (posthumously), Oklahoma, Rhode Island, South Carolina, Texas, and Utah. Note there is no such thing as "common-law divorce" — that is, you can't get out of a commonlaw marriage as easily as you can get into one. Only the contract of the marriage is irregular; everything else about the marriage is perfectly regular. People who marry per the old common law tradition must petition the appropriate court in their state for a dissolution of marriage. The situation in Pennsylvania became unclear in 2003 when an intermediate appellate court purported to abolish common-law marriage (PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003)) even though the state Supreme Court had recognized (albeit somewhat reluctantly) the validity of common-law marriages only five years before. (Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998).) The Pennsylvania legislature resolved most of the uncertainty by abolishing common-law marriages entered into after January 1, 2005. (Act 144 of 2004, amending 23 Pa.C.S. Section 1103.) However, it is still not certain whether Pennsylvania courts will recognize common-law marriages entered into after the date of the Stamos decision and before the effective date of the statute (i.e., after September 17, 2003, and on or before January 1, 2005), because the other intermediate appellate court has suggested that it might not follow the Stamos decision. (Compare Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), with Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).) Common-law marriage can no longer be contracted in the following states, as of the dates given: Alaska (1917), Arizona (1913), California (1895), Florida (1968), Georgia (1997), Hawaii (1920), Idaho (1996), Illinois (1905), Indiana (1958), Kentucky (1852), Maine (1652, when it became part of Massachusetts; then a state, 1820), Massachusetts (1646), Michigan (1957), Minnesota (1941), Mississippi (1956), Missouri (1921), Nebraska (1923), Nevada (1943), New Mexico (1860), New York (1933, also 1902-1908), New Jersey (1939), North Dakota (1890), Ohio (1991), Pennsylvania (2005), South Dakota (1959), and Wisconsin (1917). The following states never permitted common-law marriage: Arkansas, Connecticut, Delaware, Louisiana, Maryland, North Carolina, Oregon, Tennessee, Vermont, Virginia, Washington, West Virginia, and Wyoming. Note that Louisiana is a French civil or code law jurisdiction, not an English common law jurisdiction. As such, it is a former Council of Trent jurisdiction and common-law marriage was never known there.
Nevertheless, all states — including those that have abolished common-law marriage — continue to recognise common-law marriages lawfully contracted in those U.S. jurisdictions that still permit this irregular contract of a marriage. Contrary to popular belief, this is not the result of the Full Faith and Credit Clause of the U.S. Constitution — which has never been held to require one state to recognize marriages created under the law of another, and is completely irrelevant to common-law marriages to start with because there is no sister-state public act, public record or judicial proceeding to recognise pursuant to the clause. Rather, states recognise each other's marriages, and those from foreign countries, under their own conflict and choice-of-law rules. In general, a marriage that is validly contracted in the foreign state will be recognized as valid in the forum state, unless the marriage is odious to the public policy of the forum state.

This may have changed in California, however, as an unintended consequence of Proposition 22. This was a voter initiative statute intended to deny California recognition to sister-state same-sex marriages (which already could not be performed in California), but the language of the initiative was sufficiently broad that it could be construed

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2005). 2d 1084. John\Common-law marriage . 546 A. Iowa "The three elements of a common-law marriage are: (1) the present intent and agreement to be married. 148. and (4) cohabitation or mutual assumption openly of marital duties and obligations. quoting In re Ober.Wikipedia." See Jackson v. mutual. 2006. Sections 14-2-104 and 14-2-109. The public declaration or holding out to the public is considered to be the acid test of a common-law marriage. App. See good overview at Dickey v. quoting Johnson v. See In the Matter of the Petition of Lola Pace (Kan. 419 F. Colorado Revised Statutes.3d 1114. "followed by" (2) "cohabitation in good faith. 314 Mont. and (3) cohabits and is reputed in the community to be husband and wife.2d 609.3d 1336 (Fed. 616 (Iowa 1977)." See Creel v. 1086 (Ala. Young.W. 325 Mont. Martin. 559 So. The requirements for a common-law marriage to be valid differ from state to state: Alabama The requirements for a common-law marriage are: "(1) capacity. the free encyclopedia.. if both spouses: (1) are legally free to contract a valid ceremonial marriage. (2) hold themselves out as husband and wife. 20. 763 So. Young. 681 N. The three requirements that must coexist to establish a common-law marriage in Kansas are: (1) capacity to marry.mht 10/9/2009 .2d 992. as well as sister-state samesex marriages.FAQ: Common-Law Marriage).C. 62 P. In re Marriage of Winegard. Creel. 2000)." See Snetsinger v. Colorado The elements of a common-law marriage are." See Snyder-Murphy v. 1999) Montana A common-law marriage is established when a couple: "(1) is competent to enter into a marriage. quoting Adams v. 1977). present intent and agreement to be husband and wife".5. 1988). where the parties are not both eighteen years of age or older. Boan. Montana University System. (3) public recognition of the existence of the marriage.W. District of Columbia The elements of a common-law marriage are: (1) "an express. 104 P. (3) consent to the marriage.. App.3d 445. (4) cohabitate. The question has not yet been litigated. regardless of where the marriage was entered into. 1990). (2) continuous cohabitation. 372 A. Colorado no longer recognizes common law marriages.. (2) present agreement or mutual consent to enter into the marriage relationship .2d 1009 (D. the free encyclopedia Page 7 of 10 to outlaw recognition of sister-state common law marriages between men and women. mhtml:file://G:\PROJECTS\Zehren.Cir. and (3) a holding out of each other as husband and wife to the public. See also: Colorado Common Law Marriage Article Effective September 1. Office of Personnel Management. both parties to a common-law marriage must be 18 years old.2d at 617.Common-law marriage . (2) mutually consents and agrees to a common law marriage. (2) a present marriage agreement.Wikipedia.C. and (5) have the reputation in the community as being married (Colorado Attorney General .. 994 (D. 2d 943 (Ala. 257 N. City of Cedar Rapids (Iowa 2004) Kansas Under Kansas Statute 23-101 (2002). and (3) public declaration that the parties are husband and wife.

See: NH RSA 457:39 Cohabitation." which can be established either by declaration (registering at the county courthouse without having a ceremony). While in the actual wording of the law there is no specification on the length of time that a couple must cohabitate to meet the second requirement of the 3-prong test. Oklahoma The criteria for a common-law marriage are: (1) "an actual and mutual agreement between the spouses to be husband and wife. by law the marriage never existed in the first place. Rhode Island The criteria for a common-law marriage are: (1) the parties seriously intended to enter into the husband-wife relationship. but not necessarily.C. for the period of 3 years. (2) cohabitation in Texas. "a court or administrative order must establish that it arises out of a contract between a man and a woman" who: (1) "are of legal age and capable of giving consent". proved by cohabitation as man and wife.Wikipedia. 2002). Lieberman (S." (2) "a permanent relationship. (4) "mutually assume marital rights. and no agreement to be married was ever present. but in certain cases where the situation is more complicated and other factors are involved. three years can be the requisite time period. usually two years. Chap. 1 of the Utah Code. For this law to apply the minimum time the couple have lived together continuously had to have exceeded 30 days. and generally reputed to be such. Stinchcomb. Ct. the state posthumously recognises common-law marriages ensuring that a surviving spouse inherits without any difficulty. and obligations". and (5) "who hold themselves out mhtml:file://G:\PROJECTS\Zehren." and (4) "the parties to the marriage must hold themselves out publicly as husband and wife. See DeMelo v. App.2d 174. and (3) representation to others that the parties are married.401." are recognized by the state as being legally married after one spouse dies. (2) "are legally capable of entering a solemnized marriage under the provisions of Title 30. The minimum age for such a marriage is fourteen years old as established by South Carolina Code of Laws 20-1-100 (2004). 2004) (pdf). 177 (R.Common-law marriage . the law is vague and interpretable. Zompa." (3) "an exclusive relationship. Thus. South Carolina The criteria for a common law marriage are: (1) when two parties have a present intent (usually. duties. 2. evidenced by a public and unequivocal declaration) to enter into a marriage contract. 674 P. However. (3) "have cohabited".I. if a couple does not commence a proceeding to prove their relationship was a marriage within two years of the end of their cohabitation and relationship. Utah For a common-law marriage to be legal and valid. 844 A.mht 10/9/2009 . etc. or by meeting a 3-prong test showing evidence of (1) an agreement to be married.2d 26. 28-29 (Okla. it is understood within Texas law that cohabitation must occur for an extended period of time. (Obviously the wording can cause complications because cessation of relationship and cessation of cohabitation are not mutually inclusive — thus. the free encyclopedia. John\Common-law marriage . 1983). and (2) "a mutual agreement between the parties to assume toward each other the relation of husband and wife." See Tarnowski v. Texas Common-law marriage is known as an "informal marriage.Wikipedia. (2) the parties’ conduct is of such a character as to lead to a belief in the community that they were married.) See Texas Family Code Sec. the free encyclopedia Page 8 of 10 New Hampshire "Persons cohabiting and acknowledging each other as husband and wife." See Estate of Stinchcomb v.

g. Louisiana. See. 30-1-4. states to have both common law marriage and to formally recognize putative spouse status. called "deemed marriages" are also recognized under the Social Security program in the United States. Putative spouses Many U. 670 P. Resley. Fireman's Fund Ins. putative spouse status can be unilateral. have a concept of a "putative spouse". the free encyclopedia Page 9 of 10 as and have acquired a uniform and general reputation as husband and wife" (See Utah Code Ann.2d 272 (Colo. which is possible only when both spouses are legally eligible to marry. 804 P." Section 14-2111. A number of states followed the example of the Uniform Marriage and Divorce Act (also sometimes called the Model Marriage and Divorce Act) to establish the concept of a "Putative Spouse" by statute. In the example above. which is typical.Common-law marriage .2d 453 (Colo. states that do not have common law marriage. because he knew that they weren't married.Wikipedia. [6] Colorado and Montana are the only U. 1990) and Williams v. if a husband is married. e. See also ■ Family ■ Family law ■ Child ■ Illegitimacy ■ Interpersonal relationship and Intimate relationship ■ Cohabitation mhtml:file://G:\PROJECTS\Zehren.5 (2004)). the putative wife who believed she was married could seek the property division and alimony awards that a legal spouse could have. Putative spouse concepts. [5] Case law provides for putative spouse rights in Nebraska. The wife however is a putative spouse because she in good faith believes that she is married. a putative spouse is not actually married. courts are directed to do what seems appropriate in the circumstances. but the man she believed she was married to could not seek a property division of property in the putative wife's name or alimony from her. Minnesota and Montana. Colorado Revised Statutes. 1983). Washington state and Nevada. because he knows that he has no right to marry. Putative spouse status is a remedial doctrine designed to protect the reasonable expectations of someone who acts on the belief that they are married. It is possible that a person could have both a legal spouse and someone is a putative spouse. John\Common-law marriage .S. when the putative spouse discovers that she is not legally married.S. Colorado. Unlike a common law marriage. the husband is not a putative spouse. but goes through a marriage ceremony without informing the woman with whom he goes through with the ceremony of that fact. App. and has no knowledge that she is not legally married. and some that do. Instead a putative spouse believes himself or herself to be married in good faith and is given legal rights as a result of this person's reliance upon this good faith belief. For example. Unlike someone in a common law marriage. [7] The putative spouse concept is likewise recognized in Australia. Co. the free encyclopedia. Carndell v. [8] In Colorado. The concept has been codified in California.. Illinois. App.Wikipedia. "Any person who has cohabited with another person to whom he is not legally marriaged in the good faith belief that he was married to that person is a putative spouse until knowledge of the fact that he is not legally married terminates his status and prevents acquisition of further rights. and generally entitled a putative spouse to the rights a legal spouse would have for the period from the putative marriage until discovery that the marriage was not legal. in which case.mht 10/9/2009 .

Common-law marriage .mht 10/9/2009 .) Wikipedia® is a registered trademark of the Wikimedia Foundation. Common Law Marriage Fact Sheet ■ Demystifying Common Law Marriage ■ The National Marriage Project at Rutgers University ■ Treatise on Common Law Marriage Retrieved from "http://en.Wikipedia. the free encyclopedia Page 10 of 10 ■ Divorce ■ Domestic partnership ■ Marriage ■ POSSLQ External links ■ The Alternatives to Marriage Project is a national US organization for unmarried people ■ Dorian Solot and Marshall Miller. John\Common-law marriage . ■ Privacy policy ■ About Wikipedia ■ Disclaimers mhtml:file://G:\PROJECTS\Zehren. ■ All text is available under the terms of the GNU Free Documentation License. Inc. the free encyclopedia.wikipedia.org/wiki/Common-law_marriage" Categories: Marriage | Family law ■ This page was last modified 20:42. (See Copyrights for details. 19 October 2006.Wikipedia.

To divorce his wife.com/ The History of Marriage as an Institution by Larry R.Marriage History . 1. The Pilgrims outlawed courtship of a daughter or a female servant unless consent was first obtained from parents or master. Peterson Virtually all scholars agree that we have witnessed a major transition in the meaning of marriage in the years from 1600 to 1995. In 1662. In the 16th century. file://E:\INET\1215\public_html\lawnotes\misc\marriage\history-of-marriage-chronology. This law was not finally abolished in Austria until 1921. WA 98109-0685 206-935-1206 || demian@buddybuddy. 10/31/2010 . Virginia doubled the fine for fornication between interracial couples. Larry R. unions. Peterson. there was no penalty for interracial marriages in any of the British colonies in North America. At the very least. Here are hisorical notations about some of the dramatic changes in the legal structure of marriage in Western Europe and the United States. By 1750. director. 5. and prosperity were the most important considerations in selecting a potential spouse. Until 1662. these were spiritual.D. In 1600.. From the 1690s to the 1870s. © 1997. By 1995..Peterson Page 1 of 3 Partners Task Force for Gay & Lesbian Couples Demian. future economic stability. In 1076. Box 9685. 7. all southern colonies. 3. From the 5th to the 14th centuries. Ph. 4.. Partners Task Force.com || http://www.Partners Task Force . Pope Alexander II issued a decree prohibiting marriages between couples who were more closely related than 6th cousins. 2. most Americans consider the primary purpose of marriage to be a commitment to emotional and psychological support between two individuals. the Roman Catholic Church conducted special ceremonies to bless same-sex unions which were almost identical for those to bless heterosexual unions. if not sexual. Maryland became the first colony to ban interracial marriages. “wife sale” was common in rural and small-town England.buddybuddy. plus Massachusetts and Pennsylvania outlawed interracial marriages. 6. In 1664. Marriage was strictly a civil and not an ecclesiastical ceremony for the Puritans in Massachusetts Bay until 1686. Seattle. marriage for almost all Europeans and Europeans in America was primarily an economic arrangement negotiated between families in which family considerations of status. servants and day laborers were not allowed to marry in Bavaria and Austria unless they had the permission of local political authorities. a husband could present her with a rope around her neck in a public sale to another man.

By 1990. married women were not allowed to make a legal contract in twelve states. Florida. Virginia and fifteen other states had their antimiscegenation laws declared unconstitutional. Utah. In four states.Marriage History . Georgia. and Wyoming. Michael Mitterauer and Reinhard Sieder. Idaho. In 1848. North Carolina. The Making of the Modern Family. and there are more. Nebraska. The European Family: Patriarchy to Partnership from the Middle Ages to the Present (Chicago: file://E:\INET\1215\public_html\lawnotes\misc\marriage\history-of-marriage-chronology. Mississippi. (New York: Oxford University Press. Delaware. North Dakota. In 1978.Partners Task Force . New York became the first state to pass a Married Woman’s Property Act. 9. Indiana. Under English common law. Maryland. South Carolina. 10/31/2010 . and in all American colonies and states until the middle of the 19th century. New York became the first state to outlaw rape in marriage.. As a result of the decision. In Delaware it was only 7 years. Carl N. and West Virginia. Louisiana. Those fourteen states were: Arizona. Oregon. Degler. 13. Texas. They could not own property. clearly document that marriage has not been an unchanging institution with unchanging definitions of who can marry and under what circumstances. As late as 1940. fourteen states had repealed their antimiscegenation laws. In thirty-six states rape in marriage was a crime only in certain circumstances.. 1975). 1980). South Dakota. Those states were: Alabama. rape in marriage was never a crime. In the fifteen years prior to the decision. 11. guaranteeing the right of married women to own property. Those who claim otherwise distort the historical record. 14.S. Colorado. Montana. These examples. only a total of ten states outlawed rape in marriage. or legally control any wages they might earn. California. Nevada. Missouri. Arkansas. 12. As late as 1930. (New York: Basic Books. married women had no legal standing.Peterson Page 2 of 3 8. the U. Oklahoma. Throughout most of the 19th century. Tennessee. 10. the minimum age of consent for sexual intercourse in most American states was 10 years. Footnotes For the opening paragraphs: Edward Shorter. sign contracts. Supreme Court struck down state anti-miscegenation laws in Loving v. twelve states allowed boys as young as 14 and girls as young as 12 to marry (with parental consent). At Odds: Women and the Family in America from the Revolution to the Present. In 1967. Virginia. Kentucky..

John D’Emilio and Estelle B. 1. MA. 3. 5. John R. 11. Domestic Revolutions: A Social History of American Family Life. 211-217. 34-36.nodak. Steven Mintz and Susan Kellogg. 1966) p. Morton Keller. p. 123. 1994). 1988). (New York: Harper & Row. Freedman. Larry R. 9. Larry R. 12.Peterson Page 3 of 3 University of Chicago Press. 13.. 14.D. 2. Sara M. Same-Sex Unions in Premodern Europe. 94.” in Linda K. Ph. Jane Sherron De Hart and Linda K. 4th ed. Morgan. 1970) p. (New York: Villard Books. United States Supreme Court Reports. A Little Commonwealth: Family Life in Plymouth Colony. D’Emilio and Freedman. 10/31/2010 .. (New York: Cambridge University Press. 18 L ed 2d. 7. Degler. 388 US 1. p. 333. pp. North Dakota State University.: Belknap Press of Harvard University Press. Peterson. The Development of the Family and Marriage in Europe. 1966. Kerber and Jane Sherron De Hart. (New York: Oxford University Press. Evans. “Gender and The New Women’s History. For Worse: British Marriages. of History and may be reached at: Minard Hall 412J. 32. John Demos. p.Marriage History . Affairs of State: Public Life in Late Nineteenth Century America. 8. ed. 126. p. (New York: MacMillan. 1995) p.1014n.. 22. (New York: Harper & Row.: Lawyers Cooperative Publishing Company. Jack Goody. The Puritan Family: Religion and Domestic Relations in Seventeenth Century 6. Women’s America: Refocusing the Past. New England.Partners Task Force .edu Return to: Partners: Table of Contents file://E:\INET\1215\public_html\lawnotes\misc\marriage\history-of-marriage-chronology. 1968) p. p. (New York: Oxford University Press. 13. 154. (New York: Oxford University Press. Loving v. 1983) pp. fax 701-231-1047. Intimate Matters: A History of Sexuality in America. Article © 1997.Y. For Better. 1600 to the Present. rev. (Cambridge. Peterson is a full professor. Box 5075. 1977). 1982). lpeterso@plains. p. John Boswell. (New York: Free Press. Born for Liberty: A History of Women in America. Fargo. 136-138. 1985) pp. North Dakota 58105-5075 701-231-8824. eds. Lawyers’ Edition. 4. 10. Second Series. Kerber. 465. Virginia. N. Volume 18 (Rochester. 1989). Edmund S. Mitterauer and Sieder. chairs the Dept. October Term. Gillis. 1988). Evans. Mintz and Kellogg.

by special leave of Court. Va. 1. 1817.Ct. No. R. He stated in an opinion that: 'Almighty God created the races white. Page 2 Mr. v. 1 87 S.S. black. III. two residents of Virginia. COMMONWEALTH OF VIRGINIA.2d 1010 Richard Perry LOVING et ux. The fact that he separated the races shows that he did not intend for the races to mix. a white man. Appellants. 1967. 1958. Va. And but for the interference with his arrangement there would be no cause for such marriages.2d 1010 (1967) 388 U. Bernard S. Marutani. the Lovings pleaded guilty to the charge and were sentenced to one year in jail. Cohen. 1967. Alexandria.. we conclude that these statutes cannot stand consistently with the Fourteenth Amendment. In June 1958. On January 6. yellow. by special leave of Court. Commonwealth of Virginia. the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years. Chief Justice WARREN delivered the opinion of the Court.S. of the Circuit Court Page 3 of Caroline County. 1817 18 L. as amicus curiae. 388 U. At the October Term. 87 S. for appellee. and he placed them on separate continents. and Richard Loving. the Lovings returned to Virginia and established their marital abode in Caroline County. Hirschkop.' .Ed. malay and red. for appellants. Shortly after their marriage. 18 L. William M.1 For reasons which seem to us to reflect the central meaning of those constitutional commands. McIlwaine. for Japanese American Citizens League.. Philip J. Philadelphia.Loving v. however. D. a grand jury issued an indictment charging the Lovings with violating Virginia's ban on interracial marriages. Argued April 10. Pa.. This case presents a constitutional question never addressed by this Court: whether a statutory scheme adopted by the State of Virginia to prevent marriages between persons solely on the basis of racial classifications violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment.. Decided June 12. a Negro woman. were married in the District of Columbia pursuant to its laws. Richmond. Mildred Jeter. 1959. pro hac vice.Ct. 395.Ed.

the three-judge District Court continued the case to allow the Lovings to present their constitutional claims to the highest state court. and we noted probable jurisdiction on December 12.2 The Lovings appealed this decision. The Supreme Court of Appeals upheld the constitutionality of the antimiscegenation statutes and. Loving is a 'white person' within the meanings given those terms by the Virginia statutes. the Lovings instituted a class action in the United States District Court for the Eastern District of Virginia requesting that a three-judge court be convened to declare the Virginia antimiscegenation statutes unconstitutional and to enjoin state officials from enforcing their convictions. which automatically voids all marriages between 'a white person and a colored person' without any judicial proceeding. 986. On January 22. 385 U. The motion not having been decided by October 28. Loving is a 'colored person' or that Mr. 17 L. 1966.—If any white person and colored person shall go out of this State.Ct. On November 6. and the Lovings perfected an appeal to the Supreme Court of Appeals of Virginia. after Page 4 modifying the sentence. define 'white persons' and 'colored persons and Indians' for purposes of the statutory prohibitions.—If any white person intermarry with a colored person. cohabiting as man and wife. and with the intention of returning. 1965. 1964. the Lovings took up residence in the District of Columbia. or any colored person intermarry with a white person.2d 448. 1965. and afterwards return to and reside in it. he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years. and the marriage shall be governed by the same law as if it had been solemnized in this State. they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the Fourteenth Amendment.' Other central provisions in the Virginia statutory scheme are § 20—57. which defines the penalty for miscegenation. The Lovings were convicted of violating § 20—58 of the Virginia Code: 'Leaving State to evade law.' Section 20—59. The two statutes under which appellants were convicted and sentenced are part of a comprehensive statutory scheme aimed at prohibiting and punishing interracial marriages. Page 5 respectively. 595.4 The Lovings have never disputed in the course of this litigation that Mrs. affirmed the convictions. they shall be punished as provided in § 20—59. for the purpose of being married.Ed.S. 87 S. On February 11.3 and §§ 20—54 and 1—14 which. the state trial judge denied the motion to vacate the sentences. provides: 'Punishment for marriage.After their convictions. 1963. and be married out of it. Page 6 . The fact of their cohabitation here as man and wife shall be evidence of their marriage.

despite their reliance on racial classifications do not constitute an invidious discrimination based upon race. State of Nebraska. passed during the period of extreme nativism which followed the end of the First World War. Thus. 43 S. Instead. 87 S. 67 L. and Skinner v.2d. The court also reasoned that marriage has traditionally been subject to state regulation without federal intervention. 535. 1655 (1942). are the absolute prohibition of a 'white person' marrying other than another 'white person. While the state court is no doubt correct in asserting that marriage is a social relation subject to the State's police power. the State argues. 190.8 certificates of 'racial composition' to be kept by both local and state registrars. Naim. 390. as illuminated by the statements of the Framers.Ed.2d 749. Id. The second argument advanced by the State assumes the validity of its equal application theory.S.' and 'the obliteration of racial pride.Ed.Ct.Ed. The central features of this Act. the State does not contend in its argument before this Court that its powers to regulate marriage are unlimited notwithstanding the commands of the Fourteenth Amendment.Ct. consequently.E.Ct. 197 Va.E. 1042 (1923). the State argues that the meaning of the Equal Protection Clause.. Hill.5 Penalties for miscegenation arose as an incident to slavery and have been common in Virginia since the colonial period. the scientific evidence is substantially in doubt . Nor could it do so in light of Meyer v. In upholding the constitutionality of these provisions in the decision below. the state court concluded that the State's legitimate purposes were 'to preserve the racial integrity of its citizens. the State contends that. these statutes. the question of constitutionality would thus become whether there was any rational basis for a State to treat interracial marriages differently from other marriages.' 'a mongrel breed of citizens. 316 U. In Naim. On this question. the regulation of marriage should be left to exclusive state control by the Tenth Amendment. 1110. is only that state penal laws containing an interracial element Page 8 as part of the definition of the offense must apply equally to whites and Negroes in the sense that members of each race are punished to the same degree. 87 S. at 756.9 and the carrying forward of earlier prohibitions against racial intermarriage.S. the Supreme Court of Appeals of Virginia referred to its 1955 decision Naim v. 723. State of Oklahoma. because its miscegenation statutes punish equally both the white and the Negro participants in an interracial marriage. 86 L. 6 The present statutory scheme dates from the adoption of the Racial Integrity Act of 1924. Maynard v.Virginia is now one of 16 States which prohibit and punish marriages on the basis of racial classifications. and. as stating the reasons supporting the validity of these laws. 31 L. 8 S. 80.'7 a prohibition against issuing marriage licenses until the issuing official is satisfied that Page 7 the applicants' statements as to their race are correct. if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications.' obviously an endorsement of the doctrine of White Supremacy. and current Virginia law.' and to prevent 'the corruption of blood. 654 (1888). 125 U.10 I.S. 625. at 90. 262 U. The argument is that. 62 S.

85 S. 6 § . 79 S.Ed. and the Civil Rights Act of 1866. involving distinctions not drawn according to race. Bowers. Because we reject the notion that the mere 'equal application' of a statute containing racial classifications is enough to remove the classifications from the Fourteenth Amendment's proscription of all invidious racial discriminations. 358 U. 74 S. 664 (1880).Ed. As for the various statements directly concerning the Fourteenth Amendment. 483.' Brown v. 437. Inc. they are inconclusive. that although these historical sources 'cast some light' they are not sufficient to resolve the problem. we do not accept the State's contention that these statutes should be upheld if there is any possible basis for concluding that they serve a rational purpose. While these statements have some relevance to the intention of Congress in submitting the Fourteenth Amendment.S. 463. 347 U.S. '(a)t best. 25 L. 873 (1954).Ed. Railway Express Agency. were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race. 686. which President Johnson vetoed.S. 106. 27. Many of the statements alluded to by the State concern the debates over the Freedmen's Bureau Bill. 100 U.and. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among 'all persons born or naturalized in the United States. v. we have said in connection with a related problem. v.Ct. and has deferred to the wisdom of the state legislatures.2d 222 (1964). The State argues that statements in the Thirty-ninth Congress about the time of the passage of the Fourteenth Amendment indicate that the Framers did not intend the Amendment to make unconstitutional state miscegenation laws. 379 U. See also Strauder Page 10 v. 310. however. Page 9 Inc. organic purpose of a constitutional amendment. this Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.S. 336 U. 184. State of Florida. 522. 689. the Court has merely asked whether there is any rational foundation for the discriminations. We have rejected the proposition that the debates in the Thirty-ninth Congress or in the state legislatures which ratified the Fourteenth Amendment supported the theory advanced by the State. enacted over his veto. or an exemption in Ohio's ad valorem tax for merchandise owned by a non-resident in a storage warehouse. just as certainly.Ed. 93 L. People of State of New York. 283. that the requirement of equal protection of the laws is satisfied by penal laws defining offenses based on racial classifications so long as white and Negro participants in the offense were similarly punished. McLaughlin v. Board of Education of Topeka.Ct.' Their opponents. 489.Ct. Allied Stores of Ohio. 3 L. consequently. 533 (1949). State of West Virginia.S. 303. . In the case at bar.Ed. 98 L. it must be understood that the pertained to the passage of specific statutes and not to the broader. The mere fact of equal application does not mean that our analysis of these statutes should follow the approach we have taken in cases involving no racial discrimination where the Equal Protection Clause has been arrayed against a statute discriminating between the kinds of advertising which may be displayed on trucks New York City. In these cases. 13 L.2d 480 (1959).Ct. 14 Stat. we deal with statutes containing racial classifications.

715.' Korematsu v. the Equal Protection Clause demands that racial classifications.. 89 L. 36. In that case. 339. the Equal Protection Clause requires the consideration of whether the classifications drawn by any statute constitute an arbitrary and invidious discrimination. 323 U. 1385. 1.Ct.. 106 U. 27 L. we stated 'Pace represents a limited view of the Equal Protection Clause which has not withstood analysis in the subsequent decisions of this Court. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.11 We have consistently denied Page 12 the constitutionality of measures which restrict the rights of citizens on account of race. at 198. 637.Ed. 194 (1944).Ct. 194. the Court upheld a conviction under an Alabama statute forbidding adultery or fornication between a white person and a Negro which imposed a greater penalty than that of a statute proscribing similar conduct by members of the same race. . 26 L. 63 S. 6 L. 836. 856. Burton v.Ct.S. United States. 81 S. 379 U.S.S. J. 365 U.Ct. 65 S. as measures designed to maintain White Supremacy. they must be shown to be necessary to the accomplishment of some permissible state objective. at 292. 100. J. 676 (1880).S. 307—308 2 5 L. 344—345.S. 664 (1880). independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate. 21 L.2d 45 (1961). United States. 1 S. at 188. 68 S. 583. The fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification. Florida.S.' McLaughlin v. this Court has consistently repudiated '(d)istinctions between citizens solely because of their ancestry' as being 'odious to a free people whose institutions are founded upon the doctrine of equality. 303.Ed. 207 (1883). 81.S. in rejecting the reasoning of that case. However. supra. 193. Wilmington Parking Authority. 214. 71.S. As we there demonstrated. 85 S.Ct. 92 L. At the very least. Indeed. concurring). joined by Douglas. be subjected to the 'most rigid scrutiny. 394 (1873). Over the years. 100 U.Ed. 87 L.S.Ed.Ct. 85 S. The Court reasoned that the statute could not be said to discriminate against Negroes because the punishment for each participant in the offense was the same. The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States. Slaughter-House Cases. Strauder v. 1774 (1943). 216.Ed. State of Alabama. as recently as the 1964 Term. especially suspect in criminal statutes.The State finds support for its 'equal application' theory in the decision of the Court in Pace v. Page 11 There can be no question but that Virginia's miscegenation statutes rest solely upon distinctions drawn according to race.' McLaughlin v. at 286.Ed. 100 U. two members of this Court have already stated that they 'cannot conceive of a valid legislative purpose * * * which makes the color of a person's skin the test of whether his conduct is a criminal offense. 379 U. if they are ever to be upheld.' Hirabayashi v. 1375.Ct. supra. State of West Virginia. and. 1161 (1948). The statutes proscribe generally accepted conduct if engaged in by members of different races. 334 U. Kraemer. (Stewart. Florida.Ed. 320 U. There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.Ed. Shelley v. Ex parte Virginia. 16 Wall.

Page 13 Mr. I concur in the judgment of the Court. the freedom to marry or not marry.Ct. Skinner v.Vol. Justice STEWART. Section 1 of the Fourteenth Amendment provides: 'All persons born or naturalized in the United States and subject to the jurisdiction thereof. 190. 379 U. 723.2d 222 (concurring opinion). Sectin 20—54 of the Virginia Code provides: 'Intermarriage prohibited. a person of another race resides with the individual and cannot be infringed by the State. is surely to deprive all the State's citizens of liberty without due process of law.E.' 2.S. Reversed. For . 1655 (1942).' It shall hereafter be unlawful for any white person in this State to marry any save a white person. 654 (1888). No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. 13 L. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes.).II. 206 Va. 85 S. 535. without due process of law.' fundamental to our very existence and survival. 541. 4.S. It is so ordered.' McLaughlin v.—All marriages between a white person and a colored person shall be absolutely void without any decree of divorce or other legal process. 31 L.Ed.' Va. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. 1110. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men. These convictions must be reversed. or property.Ed. Hill. are citizens of the United States and of the State wherein they reside. 316 U. 292.Ct. 198. 147 S. 184. meaning of term 'white persons. Section 20—57 of the Virginia Code provides: 'Marriages void without decree. I have previously expressed the belief that 'it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. 924. State of Florida. nor shall any State deprive any person of life. 1113. nor deny to any person within its jurisdiction the equal protection of the laws. 8 S.Ed. 86 L. Marriage is one of the 'basic civil rights of man. or a person with no other admixture of blood than white and American Indian.Ct. 3. Maynard v. These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. State of Oklahoma. classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment. 125 U. § 20—57 (1960 Repl.S. 62 S. concurring.Code Ann. liberty. Because I adhere to that belief. 1. Under our Constitution.2d 78 (1966). 283.

I must proceed." abides and rules within you. For it is not a matter of free choice or decision but a natural and necessary thing. For the Word of God which created you and said. From this passage we may be assured that man and woman should and must come together in order to multiply. we do not have that power. In the third place. namely. 1:81]. Now this [ordinance] is just as inflexible as the first. so it is not my prerogative to be without a woman. Brandt). This was so pleasing to him that he himself called it a good creation [Gen. male and female. so he does not command them to multiply but creates them so that they have to multiply. I cannot make myself a woman. each one of us must have the kind of body God has created for us. and not despised. The shameful confusion wrought by the accursed papal law has occasioned so much distress. For this word which God speaks. And whoever does not fall within one of these three categories should not consider anything except the estate of marriage. for this is a matter of nature and not of choice." is not a command. And wherever men try to resist this. he wills to have his excellent handiwork honoured as his divine creation. it remains irresistible nonetheless and goes its way through fornication. In order to proceed aright let us direct our attention to Genesis 1 [:27]. as it is not within my power not to be a man. Again. But each should honour the other's image and body as a divine and good creation that is well-pleasing unto God himself. and no more to be despised and made fun of than the other. This sermon is divided into three parts. nor the woman the man. adultery.Luther: The Estate of Marriage. eating and drinking. and there are eunuchs who have made themselves eunuchs for the sake of the kingdom of heaven. let no man presume to be without a spouse. that I would much prefer neither to look into the matter nor to hear of it. Page 1 of 15 09. that whatever is a man must have a woman and whatever is a woman must have a man. mhtml:file://E:\PROJECTS\Zehren. just as God does not command anyone to be a man or a woman but creates them the way they have to be. The man is not to despise or scoff at the woman or her body. I must try to instruct poor bewildered consciences. as it is not in your power not to be a woman.13 Martin Luther." From this passage we may be assured that God divided mankind into two classes. "Be fruitful and multiply. Hence. Part One In the first part we shall consider which persons may enter into marriage with one another. In the second place. and there are eunuchs who have been made eunuchs by men. Therefore. 1522. It is a nature and disposition just as innate as the organs involved in it Therefore. "Be fruitful and multiply" [Gen. 1:28]. How I dread preaching on the estate of marriage! I am reluctant to do it because I am afraid if I once get really involved in the subject it will make a lot of work for me and for others. a divine ordinance [werck] which it is not our prerogative to hinder or ignore. and the lax authority of both the spiritual and the temporal swords has given rise to so many dreadful abuses and false situations. you can by no means ignore it. and secret sins. nor can you make yourself a man. or you will be bound to commit heinous sins without end. But timidity is no help in an emergency. since God gives it his blessing and does something over and above the act of creation. John\marriage\MartinLuther-Estate-of-Marriage. after God had made man and woman he blessed them and said to them. and more necessary than sleeping and waking. "So God created man… male and female he created them. "There are eunuchs who have been so from birth. it is just as necessary as the fact that I am a man. namely. and emptying the bowels and bladder. Rather. The Estate of Marriage. Moreover. "Be fruitful and multiply.mht 10/31/2010 . (Translated by Walther I. or a he and a she. saying in Matthew 19 [:12]. But we are exactly as he created us: I a man and you a woman." Apart from these three groups. from this ordinance of creation God has himself exempted three categories of men. and take up the matter boldly. It is more than a command. Otherwise it is simply impossible for you to remain righteous. so it is not your prerogative to be without a man.

and salvation. These we need not take into account. goods. For as you cannot solemnly promise that you will not be a man or a woman (and if you should make such a promise it would be foolishness and of no avail since you cannot make yourself something other than what you are). you have cheated me out of my maidenhood and even imperilled my honour and my soul's salvation. honour. He has to be told to make it right. however. although this happens less frequently in the case of wives than of husbands. which Christ calls "eunuchs who have been so from birth. even if you should make ten oaths. command. "Be fruitful and multiply. "Look. I once wrote down some advice concerning such persons for those who hear confession. From this you can now see the extent of the validity of all cloister vows. Such cases occur among both men and women. law. covenants. for to produce seed and to multiply is a matter of God's ordinance [geschöpffe]. Therefore.mht 10/31/2010 . monks. unless you belong to one of the three categories mentioned above. so you cannot promise that you will not produce seed or multiply. I stated further that the husband is obligated to consent to such an arrangement and thus to provide for her the conjugal duty and children. except that of a person in one of the three categories which God alone has himself excepted. vows. It related to those cases where a husband or wife comes and wants to learn what he should do: his spouse is unable to fulfil the conjugal duty. as you have betrayed me without my consent". that person is not obligated to walk or see. What I said was this: if a woman who is fit for marriage has a husband who is not." does not apply to them. not your power. and take a firmer grip on the wool of a man who thus makes a fool of his wife. Consent to being betrayed voluntarily by me. she should say to her husband. should they not also turn my words topsy-turvy? To whose detriment it will be they shall surely find out. And should you make such a promise. I gave this advice at a time when I was still timid. and you retain the title of husband so that your property will not fall to strangers. too. For they are simply incapable of resisting the word and ordinance of God within them. Page 2 of 15 Don't let yourself be fooled on this score. in the sight of God there is no real marriage between us. Grant me the privilege of contracting a secret marriage with your brother or closest relative. to do anything dishonourable since the pope in such a case demands without cause abundant testimony and evidence. who are by nature not equipped to produce seed and multiply because they are physically frigid or weak or have some other bodily deficiency which makes them unfit for the estate of marriage." these are the ones whom men call impotent. and she is unable openly to take unto herself another and unwilling. it too would be foolishness and of no avail. and that if he refuses to do so she should secretly flee from him to some other country and there contract a marriage. you are unable to fulfil your conjugal duty toward me. and nuns are duty-bound to forsake their vows whenever they find that God's ordinance to produce seed and to multiply is powerful and strong within them. However. The words of Christ and his apostles were turned upside down. priests. because he cannot. It will not do to lead one's fellow-man around by the nose so wantonly in matters of such great import involving his body. They have no power by any authority. If they do hinder it. Here they have accused me of teaching that when a husband is unable to satisfy his wife's sexual desire she should run to somebody else. No vow of any youth or maiden is valid before God. The injunction. John\marriage\MartinLuther-Estate-of-Marriage. or vow to hinder this which God has created within them. Let the topsy-turvy liars spread their lies. mhtml:file://E:\PROJECTS\Zehren. you may be sure that they will not remain pure but inevitably besmirch themselves with secret sins or fornication. As to the first category. Matters will take their course as God has ordained. I should like now to give sounder advice in the matter. for God has himself exempted them and so formed them that the blessing of being able to multiply has not come to them. The same principle would apply if the circumstances were reversed. my dear husband. yet he cannot get along without it because he finds that God's ordinance to multiply is still in force within him. just as when God creates a person crippled or blind. and adamantine or ironclad pledges.Luther: The Estate of Marriage.

. my child's daughter or stepdaughter. I would rather work on the kingdom of heaven. or unless he finds God's grace to be so powerful within him that the divine injunction.e. then even though God freely permits it you must nevertheless not take in marriage your female relative within the third and fourth degrees. So that you can defend yourself against this tyranny. who are equipped for marriage by nature and physical capacity and nevertheless voluntarily remain celibate. it does not produce seed and multiply. they are nevertheless not free from evil desire'. It is the devil who thus perpetrates his monkey-tricks on the poor creature. I should hope that we would also set up iron bars so thick and massive that women would turn into men or people into sticks and stones. and that I may marry my stepmother's sister. nearly all of which I reject and condemn. and found more people whom he has withdrawn from the divine and natural ordinance. the devil working through men has been smarter than God. "He who cannot sing always insists upon singing". They seek the company of women more than before and are quite effeminate. contrary to God's implanted ordinance and disposition. just as Abraham married Sarah.Luther: The Estate of Marriage. No one should venture on such a life unless he be especially called by God. and beget spiritual children. as the jurists do. II Peter 2 [:14]. I would have to say either that I cannot marry my brother's daughter or that I may also marry my father's sister. Actually. mhtml:file://E:\PROJECTS\Zehren. or you must put her away if you have already married her. my father's sister. those who Christ says "'1ave been made eunuchs by men" [Matt.mht 10/31/2010 . These put it this way. Further. since my father's sister and my brother's daughter are related to me in the same degree. namely. Leviticus 18 [:6-13]. or my mother's stepsister. Here they have forbidden marriage up to the third and fourth degrees of consanguinity. I may marry the daughter of my brother or sister. i. as if it were within our power and discretion to posses virginity as we do shoes and clothing! If men are really able to resist God's word and creation with iron bars and bolts. like Jeremiah [16:2]. my mother. Indeed. not one in a thousand. From this it follows that first cousins may contract a godly and Christian marriage. namely. my sister. John\marriage\MartinLuther-Estate-of-Marriage. I am capable of it But it does not attract me. The first impediment is blood relationship. This is a fourth way of resisting nature so that. "I could marry if I wish. Now God has forbidden my father's sister. Those hucksters offer for sale women who never have been their own. But if you have the money. for though they are not equipped for marriage. they are plagued with a desire for women. Beyond these three categories. let us now consider which persons may enter into marriage with one another. I am forbidden to marry any of these persons. None of these persons is forbidden by God. It is with them as the proverb says. Page 3 of 15 The second category. In order to expose their folly we will take a look at all eighteen of them in turn. The third category consists of those spiritually rich and exalted persons. the gospel. "Be fruitful and multiply. however. If in this situation you have no money. In the fourth place. are an unhappy lot. and so gives vent to his wrath. they were only invented in order to be a net for gold and a noose for the soul. The pope in his canon law has thought up eighteen distinct reasons for preventing or dissolving a marriage. for they are a special miracle of God. 19:12]. my father's stepsister. Thus. Otherwise. but he has not forbidden my brother's daughter. the castrates. bridled by the grace of God. but enumerates directly specific persons. such a marriage is permitted. I will now list for you the persons whom God has forbidden. Let us pass them by also. the pope himself does not adhere to them so strictly or firmly but what one can rescind any of them with gold and silver." Such persons are rare. my stepsister. my stepmother. though only by an act of violence. my mother's sister." has no place in him. for they too are set apart from the natural ordinance to be fruitful and multiply. so that you may see it is not my pleasure or desire that a marriage be broken and husband and wife separated. but are unable to consummate their desire. those who are enmeshed in a spiderweb of human commands and vows and are then locked up behind a mass of iron bolts and bars. for God does not calculate according to degrees.

if a brother died without leaving an heir. a Jew. thought she could have married her step-brother Amnon. in I Peter 3 [:1]. or a heretic. my stepdaughter. Page 4 of 15 although both are related to me in the same degree. his widow was required to marry his closest relative in order to provide her deceased husband with an heir [Deut 25:5-9]. then do not let yourself be prevented by the fact that you baptised her. For Tamar. which is really a fanciful deception." According to this he could not have taken a wife in Corinth. sacrament. but I may marry any others. 4:4-6]. unless money comes to my rescue! But God has forbidden only these persons. Absalom's sister. take as your spouse whomsoever you please. If I sponsor a girl at baptism or confirmation. We also find in Scripture that with respect to various stepsisters there were not such strict prohibitions. John\marriage\MartinLuther-Estate-of-Marriage. money-seeking impediments. and that what the bishops claim for it is untrue. my son's wife. godchild. I may not marry any of these persons. or whoever it may be. She does work in the kitchen. when an unrelated child is adopted as son or daughter it may not later marry a child born of its adoptive parents. St. or the daughter or sister of a sponsor. Peter. so that after my wife's death I may not marry into her blood relationship. Therefore. for it is a purely human contrivance. In the Old Testament. then neither I nor my son may marry her. one who is by law its own brother or sister. The second impediment is affinity or relationship through marriage. where he says. my wife's sister while my wife is yet alive [Lev. and has said nothing about it. or acted as her sponsor. says that Christian wives should behave so well that they thereby convert their non-Christian husbands. however. Why does not the pope also forbid a man to retain his wife if he teaches her the gospel? For whoever teaches another becomes that person's spiritual father. that is. 18:14-18]. In the sight of God this adopted person is neither your mother nor your sister. God. This is another worthless human invention. confirmation. go ahead and marry anyway. In particular.Luther: The Estate of Marriage. unless an appropriate and substantial sum of money is forthcoming! This is nothing but pure farce and foolishness. This is no longer commanded. neither could any apostle in the whole world have taken a wife from among those whom he taught and baptised. since all baptised women are the spiritual sisters of all baptised men by virtue of their common baptism. faith. and eternal heritage [Eph. If you are not prevented from marrying a girl by the fact that she is a Christian. Here too they have set up four degrees. Paul boasts in I Corinthians 4 [:15] that he is the father of all of them. but neither is it forbidden. concocted for the sake of money and to befuddle consciences. I would permit confirmation as long as it is understood that God knows nothing of it. the child of my stepson or stepdaughter. or cousins. or her mother. The fourth impediment is legal kinship. that is. the daughter of my wife's cousin. my brother's wife. or her sister. whether it be godparent. if you so desire. where my marriage extends up to the third and fourth degrees. So away with this foolishness. II Samuel 13 [:13]. may marry the sister of my deceased wife or fiancée. and supplements the income. that is. I marvel that the blasphemous tyrants are not in their hearts ashamed to place themselves in such direct contradiction to the clear text of Paul in I Corinthians 7 [:12-13]. namely." And St. aunts. and any of my wife's nieces. The third impediment is spiritual relationship. avoid that monkey business. the daughter of my wife's brother. Just tell me this: isn't it a greater thing for me to be baptised myself than merely to act as sponsor to another? Then I must be forbidden to marry any Christian woman. For example. Lord. I may not marry a Turk. They mock our God when they say that it is one of God's sacraments.mht 10/31/2010 . since there is no blood relationship. this is why she has been placed on the forbidden list! The fifth impediment is unbelief. and disregard these artificial. taught her. the Christian should not get a divorce. my father's brother's wife. and without putting up any money for the privilege. Spirit. "If a heathen wife or husband consents to live with a Christian spouse. mhtml:file://E:\PROJECTS\Zehren. saying. "I became your father in Christ Jesus through the gospel.

unless I put up the money. Renew your natural companionships without delay and get married. Know therefore that marriage is an outward. she may not subsequently marry the loved one.Luther: The Estate of Marriage. however. mhtml:file://E:\PROJECTS\Zehren. You stick to this. For example. for the sake of the wife. not through marriage and fresh sins. speak to. then. and howl about unlawful authority! Away with the big fools. and don't be taken in by them. Turk. If you do not feel that you belong there. like any other worldly undertaking.mht 10/31/2010 . These wise guys posit the hypothetical case of a man who sins with his wife's mother or sister. "I have promised that which I do not have and which is not mine. how he would rage and storm. or cousin. Lucy. so I may also marry and continue in wedlock with him. Sins and crimes should be punished. if my fiancée should die before we consummate the marriage. Punish sins and crimes with other penalties. He was guilty of both crimes. however. then let the vows and the cloister go. then vow not to bite off your own nose. Nevertheless. Peter. "Be neither man nor woman. and then says." As well put fire and straw together and bid them not to burn. and deal with a heathen. and St. If you have already taken the monastic vow. See what the devil through his fools does with the estate of marriage! He puts husband and wife together. you can keep that vow. for example where someone has taken the vow of chastity. ride with. not by forbidding marriage. since the pope thinks and obviously dreams that it is decent and respectable for me to refrain from so doing. there are actually these three: if someone lies with a girl. I may not marry any relative of hers up to the fourth degree. niece. Had this happened before the marriage it would have been a crime which would prevent and break up the proposed marriage. Augustine. still he took her to wife and begot King Solomon by her [II Samuel 11]. Here I offer this advice: if you would like to take a wise vow. The seventh impediment they call public decorum. One may have such a marriage dissolved and take the other to wife. or heretic. They are not in agreement as to how many instances of this impediment they should devise. The eighth impediment is a solemn vow. and let the fools go their way. Turk. The sixth impediment is crime. buy from. You will find plenty of Christians. again. if a wife (or husband) should murder her spouse for love of another. whoever commits adultery with a woman may not marry her after her husband's death. the marriage may not be dissolved. and indeed the greater part of them. and had her husband killed besides. either in or out of the cloister. heathen. who is innocent in the matter. and say. he may not thereafter marry her sister or her aunt. Don't you believe them. no sin or crime is an impediment to marriage. A heathen is just as much a man or a woman-God's good creation-as St. If one were to impose upon the pope a command one-tenth as hard as this. Therefore. Since it happened subsequent to the marriage. Uriah's wife. as if I had been wed to Catherine but Barbara lay down with me. not to speak of a slack and spurious Christian. for your vow is contrary to God and has no validity. Jew. walk. they are under the devil's whip. as happened to Jacob with Leah and Rachel [Gen. St. respectability. drink. Pay no attention to the precepts of those fools who forbid it. as God instituted it. and without giving any money to the pope! I must pursue this subject a bit further. the mother of St. Paul. Just as I may eat. sleep. or heretic. John\marriage\MartinLuther-Estate-of-Marriage. Now you have heard a moment ago that after my wife's death I may marry her sister or any of her relatives except for her mother and her daughter. the husband's punishment is to be that he shall lie with his wife but have no power to demand of her the conjugal duty. as you have just heard. David committed adultery with Bathsheba. but with other penalties. in which case the impediment of public decorum vanishes. you should yourself consider whether you belong in those three categories which God has singled out. who are worse in their secret unbelief than any Jew." The ninth impediment is error. again. Here it rains fools upon fools. You just let marriage remain free. However. Page 5 of 15 as did Monica. bodily thing. 29:23-25].

This is a widespread and common practice in which many different solutions have also been attempted. He was therefore incapable of promising to the second girl something that already belonged to the first and was not his own. that is. For having given himself to her he no longer belongs to himself. would it therefore be right? Why do you yield to a coercion which compels you to violate God's commandment and harm your neighbour? I would freely absolve the girl however. how much help this impediment has been to those in holy orders is obvious to all.mht 10/31/2010 . Titus 1 [:6]. such as Episcopal prohibition. thus betraying the girl or making a fool of her. custom. for. is able to recover from the injury done her because she is yet without children. It is a dirty rotten business that a bishop should forbid me a wife or specify the times when I may marry. and defective eyesight and hearing. whether he was acting under coercion or not. for you are not excused by the fact that you were coerced into it You should not allow yourself to be coerced into injuring your neighbour but should yield your life rather than act contrary to love. He has therefore sinned against them both. However. The first girl. Page 6 of 15 The tenth impediment is condition of servitude. however. such cases never occur today. The eleventh impediment is holy orders. however. although St. The man himself though should be made to suffer punishment and make amends to the first girl. For she too has been betrayed. that there is no need to repeat it here. John\marriage\MartinLuther-Estate-of-Marriage. and a priest have to forego marriage. for what he gave away really belonged to her. that is. when a husband or wife is unfit for marriage. There are still four more impediments. If he does so nonetheless and carries on to the point where he begets children by her.Luther: The Estate of Marriage. I hold that if there were Christian love the husband could easily adjust both of these impediments so that no great distress would be occasioned. But I have elsewhere written so much about this. Paul commanded that they may and should be married. Yet it is hedged about by so many laws that it is difficult to accomplish with the ecclesiastical tyrants. She should therefore out of love yield to the second girl and marry someone else. as we will hear later. I am of the opinion that the man should stick to the first girl. The thirteenth impediment is betrothal. where this course is not followed. My dear fellow. if someone should compel you to rob me or kill me. It is needless to discuss them here. then let the (fiancée's) father decide which girl is to remain as the wife. or only rarely. or of the guardians. a deacon. You would not want anybody to injure you. restricted times. 3:2. For this reason a subdeacon. for she should know that a child is supposed to be subordinate and obedient to its father. If she is betrayed it is her own fault. then he should stick with her. However. In this way. this marriage too is null and void. II Timothy 3 [I Tim. and not become engaged without his knowledge. The twelfth impediment is coercion. and both might well be combined in one category: error. when I have to take Grete to be my wife and am coerced into it either by parents or by governmental authority. you would be leaving her through no fault of her own. if such an engagement occurs without the knowledge and consent of the father and mother. namely. that the tonsure and sacred oil are so potent that they devour marriage and unsex a man. such a person should not admit the coercion and leave the country on account of it. Among these eighteen impediments this one is the only sound reason for dissolving a marriage. Furthermore. When I marry one who is supposed to be free and it turns out later that she is a serf. For this reason I could not declare safe in the sight of God a man who leaves his wife for such a cause. In the first place. or that a blind and dumb person mhtml:file://E:\PROJECTS\Zehren. if I am engaged to one girl but then take another to wife. she is free from the man because he jilted her and gave himself to another. Their folly has been sufficiently exposed. obedience to parental authority will put a stop to all these secret engagements which occasion such great unhappiness. That is to be sure no marriage in the sight of God. The fourteenth impediment is the one touched on already. 12]. and would suffer even greater injury than the first girl were he to leave her.

' They said to him. and marries another." Christ is making it quite clear that he who divorces his wife on account of unchastity and then marries another does not commit adultery. he gave two types of commandments. if they could not endure their wives. does not apply to Christians. but was minded to divorce her quietly. That covers so much ground that they themselves thought it was going too far. Part Two In the second part. who are supposed to live in the spiritual government. Second. mhtml:file://E:\PROJECTS\Zehren. in order to place a limit upon their misbehaviour and prevent them from doing worse and acting wholly on the basis of their own maliciousness. however. but rather dismiss them with a certificate of divorce. commits adultery. By this we are told plainly enough that it is praiseworthy to divorce an adulterous wife. Page 7 of 15 should not be allowed to enter into wedlock. Others are worldly. 'For your hardness of heart Moses allowed you to divorce your wives. Matthew 19 [:3-9]. "except for unchastity. which has just been mentioned and was discussed above. just so they are no longer regarded as Christians. These two types of discipline are both Christian and laudable. and he who marries a divorced woman commits adultery. therefore. In Matthew 1 [:19] the gospel writer praises him as just because he did not put his wife to shame when he found that she was with child. and the two shall become one"? what therefore God has joined together. "'Have you not read that he who made them from the beginning made them male and female. when the Jews asked him whether a husband might divorce his wife for any reason. so that the innocent person may remarry. And I say to you: whoever divorces his wife. So much then for this foolishness at present in the first part. the husband has the right to follow either of two courses. he may divorce her. Thus it is that on the grounds of adultery one person may leave the other. which after all they really are not.mht 10/31/2010 . Some are spiritual. however.Luther: The Estate of Marriage. Of this enough has already been said. they were tempting him to see what he would say concerning the law of Moses.’" Here you see that in the case of adultery Christ permits the divorce of husband and wife. as Solomon also says in Proverbs 18. We have an example of this in Joseph too. drawn up for the sake of those who do not live up to the spiritual commandments. he may rebuke his wife privately and in a brotherly fashion. as Joseph wished to do. he commanded them. and said. except for unchastity. If the adultery is clandestine. For in saying that he commits adultery who marries another after divorcing his wife. let no man put asunder. The first. First. were divorcing their wives for all kinds of reasons whenever they saw fit. The same principle applies in the case of a wife with an adulterous husband. and keep her if she will mend her ways. The Jews. therefore we must hear Christ. it would still be a good thing to permit them to use this law. Accordingly. John\marriage\MartinLuther-Estate-of-Marriage. The popes have kept silent about this. people who obeyed these commandments did not thrust away their wives and never made use of certificates of divorce. Now in the law of Moses God established two types of governments. The second ground is adultery. but tolerated and endured their wives' conduct. that they should not put them to death or harm them too severely. This law. even though no unchastity was involved. In the case of some who live with their wives in an un-Christian fashion. he answered. I know of three grounds for divorce. and to put her away?' He said to them. ‘Why then did Moses command one to give a certificate of divorce. we shall consider which persons may be divorced. but from the beginning it was not so. "For this reason a man shall leave his father and mother and be joined to his wife. however. teaching righteousness in the sight of God. "He that keepeth an adulteress is a fool". of course. They therefore inquired of Christ whether it was right. such as love and obedience. is the situation in which the husband or wife is not equipped for marriage because of bodily or natural deficiencies of any sort.

and fails to inflict the death penalty. or put her to death. Here you should be guided by the words of St. refusing to fulfil the conjugal duty or to live with the other person. again in order that it may not be left to each one to allege anything he pleases as a ground for divorce. and who cares not a whit whether her husband falls into the sin of unchastity ten times over. If the government fails to act. if the civil authority refuses to act. We would certainly have to accept it if someone's life were taken from him. he must seek another. but the husband does. and that inflicted by the civil government. with the knowledge of the congregation. Matthew 18 [:15-17]. however. except by agreement. if it is his intention to insist on his rights and not show mercy to the guilty party. in this case allowing the adulterer to remarry in a distant land in order to avoid fornication. whereby one [the innocent party) is enabled to remarry. following this example desert their spouses. God and their own conscience will catch up to them in due time. or is stolen away by others? mhtml:file://E:\PROJECTS\Zehren. For this reason the civil government must compel the wife. Why do they not put adulterers to death? Then I would not need to give such advice. 22: 22-24] that adulterers be stoned. for by the marriage vow each submits his body to the other in conjugal duty. They have no excuse such as the adulterer has. and let the situation be known to others so that her stubbornness becomes a matter of common knowledge and is rebuked before the congregation. For example. the adulterer may betake himself to a far country and there remarry if he is unable to remain continent. I Corinthians 7 [:4-5]. If she still refuses. for whoever commits adultery has in fact himself already departed and is considered as one dead. likewise the wife does not rule over her own body. For there are no more than these three forms of discipline on earth among men: private and brotherly. Do not deprive each other. because he has been allowed to live and yet is unable to remain continent. Page 8 of 15 But a public divorce. Between two evils one is always the lesser. that they might not have to face this question." etc. must take place through the investigation and decision of the civil authority so that the adultery may be manifest to all . The third case for divorce is that in which one of the parties deprives and avoids the other. "If you will not. Notice that St. If others also. one finds many a stubborn wife like that who will not give in. the other [the innocent party] may remarry just as though his spouse had died. "The husband does not rule over his own body. the maid will come if the wife will not." Only first the husband should admonish and warn his wife two or three times. get rid of her. the husband must reason that his wife has been stolen away and slain by robbers. Here it is time for the husband to say. And I think he would be safer also in the sight of God. but the wife does. and dissolves the marriage. John\marriage\MartinLuther-Estate-of-Marriage. another will. You may ask: What is to become of the other [the guilty party] if he too is perhaps unable to lead a chaste life? Answer: It was for this reason that God commanded in the law [Deut. Answer: Can I help it? The blame rests with the government. This is really contrary to marriage. The temporal sword and government should therefore still put adulterers to death. Paul. the guilty one should still in Christian fashion be publicly rebuked and caused to make amends according to the gospel. But it would be better to put him to death.or. in public before the congregation according to the gospel. as King Ahasuerus did [Esther 1:1 :17]. take an Esther and let Vashti go.mht 10/31/2010 . Therefore. however. lest a bad example be set. Who can prevent all wickedness? Where the government fails to inflict the death penalty and the one spouse wishes to retain the other. let them go. Why then should we not also accept it if a wife steals herself away from her husband. after the manner provided for the rebuking of all other manifest sins. for they are neither driven nor compelled.Luther: The Estate of Marriage. Paul forbids either party to deprive the other. Some may find fault with this solution and contend that thereby license and opportunity is afforded all wicked husbands and wives to desert their spouses and remarry in a foreign country. Where the government is negligent and lax. When one resists the other and refuses the conjugal duty she is robbing the other of the body she had bestowed upon him.

"Not I but the Lord gives charge to the married that the wife should not separate from her husband. and therefore try to marry another. If he cannot. "He who wants a fire must endure the smoke. If you will earnestly serve your invalid wife. and each woman her own husband.2]. since the conjugal duty has not been denied him.mht 10/31/2010 . Among other things he said to them. Page 9 of 15 In addition to these three grounds for divorce there is one more which would justify the sundering of husband and wife. 7:26]. I will pass over in silence the matter of the conjugal duty. each man should have his own wife. I will leave this as St. St. A Roman official was once supposed to encourage young men to take wives (because the country was in need of a large population on account of its incessant wars).Luther: The Estate of Marriage. recognise that God has placed this burden upon you. but only in such a way that they must both refrain from remarrying or else become reconciled. or other physical considerations. and remain unmarried for the rest of his days. That is a lie. Some of them designate special times for this. For an evil spouse. for he is under obligation to endure evil. as Paul writes to the Thessalonians [I Thess. Should he try to say that the blame rests not upon him but upon his spouse. Here the proverb applies. the husband should not divorce his wife. and unbearable husband. He will surely grant you grace." Although Christian married folk should not permit themselves to be governed by their bodies in the passion of lust. Likewise. let him divorce her before he does anything worse. that would doubtless be a wonderfully blessed cross and a right way to heaven. but since we cannot do without them. this will not do. nevertheless each one must examine himself so that by his abstention he does not expose himself to the danger of fornication and other sins. Paul left it when he said in I Corinthians 7 [:9]. Part Three. "It is better to marry than to burn". Consider that in this invalid God has provided your household with a healing balm by which you are to gain heaven. then you may leave matters in his care. the granting and the withholding of it. such that some have thought that even if Wisdom itself were a woman one should not marry. take to yourselves mhtml:file://E:\PROJECTS\Zehren. This is the case where husband and wife cannot get along together for some reason other than the matter of the conjugal duty. In the third part. and says he has found a woman more bitter than death [Eccles. and again [in v. or else be reconciled to her husband. or to be released from his cross only by God. Blessed and twice blessed are you when you recognise such a gift of grace and therefore serve your invalid wife for God's sake. What we would speak most of is the fact that the estate of marriage has universally fallen into such awful disrepute. in a manner of speaking. Let him serve the Lord in the person of the invalid and await His good pleasure. in order that we may say something about the estate of marriage which will be conducive toward the soul's salvation. Neither should he pay any attention to holy days or work days. But if she does. 4:5]. let her remain single. that you will not have to bear more than you are able. fulfils the devil's function and sweeps clean him who is able to recognise and bear it. "My dear young men. however. since some filth-preachers have been shameless enough in this matter to rouse our disgust. Paul speaks of this in I Corinthians 7 [:10-11]. He is far too faithful to deprive you of your wife through illness without at the same time subduing your carnal desire. One may also find a rude." Solomon complains much in the Proverbs about such wives." What about a situation where one's wife is an invalid and has therefore become incapable of fulfilling the conjugal duty? May he not take another to wife? By no means. if we could only live without women we would be spared a great deal of annoyance. Now if one of the parties were endowed with Christian fortitude and could endure the other's ill behaviour. But you may say: I am unable to remain continent. we shall now consider how to live a Christian and godly life in that estate. and exclude holy nights and women who are pregnant. brutal. if you will but faithfully serve your invalid wife. "To avoid immorality. John\marriage\MartinLuther-Estate-of-Marriage. and give thanks to him. There are many pagan books which treat of nothing but the depravity of womankind and the unhappiness of the estate of marriage.

" There you see that he calls the woman good. Indeed. who are ignorant of the fact that man and woman are God's creation. drudgery. For this reason young men should be on their guard when they read pagan books and hear the common complaints about marriage. Every day one encounters parents who forget their former misery because. "Brief is the joy. that man and woman are the work of God. they express with their grumbling and complaining whenever they get together. The world says of marriage. lasting the bitterness. or call that evil which he himself has called good.Luther: The Estate of Marriage. What they have failed to set down in writing. Keep a tight rein on your heart and your lips. of which the books of the pagans are full. what God wills and creates is bound to be a laughingstock to them. "He who finds a wife finds a good thing. in their consciences. on the contrary. as Solomon says. To recognise the estate of marriage is something quite different from merely being married. he therefore also gave them their reward." etc. [Prov. These are the words of blind heathen.mht 10/31/2010 . He was criticised by some on the ground that his words were ill-considered and would only serve to discourage the young men. it is certainly your own fault." Let them say what they please. They deter their children from marriage but entice them into priesthood and nunnery. Even their women carnally abused themselves and each other. They blaspheme his work. Thus do they bring their own children home to the devil. a helper. for an honourable man should speak the truth without fear or hypocrisy. and anguish. I will make him a helper fit for him. as he says in Genesis 1 [2:18]. you neither understand nor believe God's word and work. love. of which Paul writes in Romans 1 [:24-28]. like the mouse. "He who finds a wife finds a good thing. In order that we may not proceed as blindly. If you deem it otherwise. "It is not good that the man should be alone. John\marriage\MartinLuther-Estate-of-Marriage. I suspect. with this statement of God one stops the mouths of all those who criticise and censure marriage. The kind of joy and pleasure they have outside of wedlock they will be most acutely aware of. citing the trials and troubles of married life. was speaking against just such blasphemers when he said in Proverbs 18 [:22]. to frighten men away from this godly life and entangle them in a web of fornication and secret sins. Because they blasphemed the work of God. it seems to me that even Solomon. See. however. This is why the devil has contrived to have so much shouted and written in the world against the institution of marriage. Since God had to suffer such disdain of his work from the pagans." What is this good thing and this favour? Let us see. as if man and woman just came into being spontaneously! I imagine that if women were to write books they would say exactly the same thing about men. and that no household can be without such an evil. Page 10 of 15 wives. 18:22]. he gave them up to a base mind. they have now had their fill. He who is married but does not recognise the estate of marriage cannot continue in wedlock without bitterness. He knows better than you yourself what is good and to your benefit. lest they inhale poison. although he amply censures evil women. and ordained that they should beget children and care mhtml:file://E:\PROJECTS\Zehren. as we daily observe. But he who recognises the estate of marriage will find therein delight. hold fast first of all to this. he will inevitably complain and blaspheme like the pagans and blind. Others. Now the ones who recognise the estate of marriage are those who firmly believe that God himself instituted it. For the estate of marriage does not set well with the devil. and allowed them to fall into immorality and a stream of uncleanness until they henceforth carnally abused not women but boys and dumb beasts. but rather conduct ourselves in a Christian manner. brought husband and wife together. because it is God's good will and work. said that because Metellus was a brave man he had spoken rightly. most shamelessly crammed full. irrational men. and joy without end. they provide them with ease for the body and hell for the soul. do not criticise his work. and obtains favour from the Lord." etc. So they concluded that woman is a necessary evil.

Should it mean your death.Luther: The Estate of Marriage. wrote that one should kiss the new-born infant. even before it is baptised. provide for her. and let him have his way with you." What then does Christian faith say to this? It opens its eyes. John\marriage\MartinLuther-Estate-of-Marriage. as she suckles the child. should I make such a prisoner of myself? 0 you poor. I say that all nuns and monks who lack faith. labour at my trade. takes a look at married life. endure this and endure that. Page 11 of 15 for them. and they can be certain that he does not lie. heal its rashes and sores. and as she busies herself with other duties and renders help and obedience to her husband. It says. I will become a priest or a nun and compel my children to do likewise. with all their cleverness they are nothing but devil's fools. for you will die in a noble deed and in subservience to God. and someone ridicules him as an effeminate fool. If you were not a woman you should now wish to be one for the sake of this very work alone. or to be entrusted with the care of the child and its mother. not because that father is washing diapers. wretched fellow. how can the heart have greater good. do this and do that. she turns up her nose and says. "Alas. works. rocks and bathes it. This is also how to comfort and encourage a woman in the pangs of childbirth. and cares for it in other ways. I also know for a certainty that it meets with thy perfect pleasure. These are truly golden and noble works. my dear fellow you tell me. are not worthy of rocking a baptised child or mhtml:file://E:\PROJECTS\Zehren. and that this work of God in you is pleasing to him. Cyprian. and on top of that care for my wife. 18:22]) "to obtain favour from the Lord. then depart happily. Work with all your might to bring forth the child. and who trust in their own chastity and in their order. carefree life. in honour of the hands of God here engaged in a brand new deed. For this they have God's word. and suffering is pleasing to God. though the duties should be even more insignificant and despised. as the biggest fool on earth. Now tell me. is smiling. because I am certain that thou hast created me as a man and hast from my body begotten this child. and work is pleasing to God? Now observe that when that clever harlot. not by repeating St Margaret legends and other silly old wives' tales but by speaking thus. wash its diapers. and whatever else of bitterness and drudgery married life involves? What. "Dear Grete. "0 God. but because he is doing so in Christian faith. who correctly recognised and regarded God's work and creature. which of the two is most keenly ridiculing the other? God." Tell me. neither drudgery nor labour. is not this indeed (as Solomon says [Prov. smell its stench. How is it that I. Those who sneer at him and see only the task but not the faith are ridiculing God with all his creatures. when a father goes ahead and washes diapers or performs some other mean task for his child. St. joy. For here you have the word of God. and despised duties in the Spirit. Neither frost nor heat. They can therefore also be certain that the estate of marriage and everything that goes with it in the way of conduct. take care of it when it cries. that great and admirable man and holy martyr. I confess to thee that I am not worthy to rock the little babe or wash its diapers. Indeed.mht 10/31/2010 . will distress or dissuade me. have come to this distinction of being certain that I am serving thy creature and thy most precious will? 0 how gladly will I do so." A wife too should regard her duties in the same light. though that father is acting in the spirit just described and in Christian faith. that you might thus gloriously suffer and even die in the performance of God's work and will. who so created you and implanted within you this extremity. remember that you are a woman. with all his angels and creatures. What do you suppose he would have said about a baptised infant? There was a true Christian. distasteful. stay up nights with it. for I am certain that it is thus pleasing in thy sight. looks upon all these insignificant. have you taken a wife? Fie. must I rock the baby. and is aware that they are all adorned with divine approval as with the costliest gold and jewels." even in the midst of such extremity? Now you tell me. our natural reason (which the pagans followed in trying to be most clever). and delight than in God. take care of this and take care of that. Therefore. when one is certain that his estate. they are only ridiculing themselves. make its bed. Genesis 1 [:28]. without any merit. fie upon such wretchedness and bitterness! It is better to remain free and lead a peaceful. Trust joyfully in his will. conduct.

I Corinthians '7 [:28]. St. Solomon is not speaking here of carnal pleasure. He is rather offering godly comfort to those who find much drudgery in married life. "See. They cannot boast that what they do is pleasing in God's sight. They have no knowledge of God's word and will concerning their estate. conduct. like the pagans. is pleasing to God and precious in his sight. Page 12 of 15 preparing its pap. this thou hast spoken. and thence arises of necessity the loud outcry and the writings against women and the estate of marriage. "Those who marry will have worldly troubles. we have all had need of them. indeed. and precious so that Solomon even congratulates such a man and says in Proverbs 5 [:18]. and are therefore just as wretched as monks and nuns since both lack the comfort and assurance of God's good pleasure. These works are indeed insignificant and mean. Bitterness is joined with bitterness. for it lacks the word and pleasure of God. spiritual delight. so that Christ even says to their warning in Matthew 15 [:9]. "In vain do they worship me according to the commandments of men. yet it is from them that we all trace our origin. as He says in Isaiah 55 [:9]. John\marriage\MartinLuther-Estate-of-Marriage. If they inwardly fail to realise that their estate is pleasing in the sight of God. No one can have real happiness in marriage who does not recognise in firm faith that this estate together with all its works. unhappy. We have seen how all these shortcomings in fact comprise noble virtues and true delight if one but looks at God's word and will. I say these things in order that we may learn how honourable a thing it is to live in that estate which God has ordained. vain. godly." and again in Ecclesiastes 11 [9:9]. and pernicious. Paul tempers his words nicely when he says.Luther: The Estate of Marriage. since it is the Holy Spirit who speaks through him. even if it were the child of a harlot. troublesome mode of life. as can the woman in childbirth. This is because their order and manner of life has no word of God as its warrant." There is therefore no comparison between a married woman who lives in faith and in the recognition of her estate. I will not mention the other advantages and delights implicit in a marriage that goes well that husband and wife cherish one another. even if her child is born out of wedlock. if they then seek an outward pleasure therein. outward bitterness. "Rejoice in the wife of your youth. so that he can speak right up and say to God. because outward bitterness is common to both believers and unbelievers. This is why it is impossible for them to endure outward bitterness and drudgery. serve one another. All its works." what does such a man care if it seems to be displeasing and ridiculous to the whole world? Small wonder that married folk for the most part experience little but bitterness and anguish. Without them no man would exist. it is characteristic of the estate of marriage. For this reason they are pleasing to God who has so ordained them. This he does by way of defence against those who scoff at the divine ordinance and. however insignificant." It is a great blessing for one to have God's word as his warrant. and thereby recognises its true nature. and a cloistered nun who lives in unbelief and in the presumptuousness of her ecclesiastical estate. seek but fail to find in marriage anything beyond a carnal and fleeting sensual pleasure. God's work and ordinance must and will be accepted and borne on the strength of God's word and assurance. we learn how wretched is the spiritual estate of monks and nuns by its very nature. He is silent on the inner. just as God's ways and man's ways are beyond compare. it is thy good pleasure. become one. "As the heavens are higher than the earth. Therefore. In it we find God's word and good pleasure. bitterness is already there. Conversely. and sufferings are un-Christian. however. by which all the works. otherwise they do damage and become unbearable. Observe that thus far I have told you nothing of the estate of marriage except that which the world and reason in their blindness shrink from and sneer at as a mean." that is." Doubtless. so are my ways higher than your ways. they fail to find it.mht 10/31/2010 . for it is too much for a man to have to suffer both inward and outward bitterness. and sufferings of that estate become holy. "Enjoy life with the wife whom you love all the days of your vain life. conduct. and other attendant blessings lest somebody shut me up by saying that I am speaking mhtml:file://E:\PROJECTS\Zehren. and thereby graciously cares for us like a kind and loving mother.

property. My dear fellow. This was the sin cited as the reason why the world was drowned in the Deluge. Through such a variety of evil consequences God takes a rigid position. and confine myself to such good as Scripture and truth ascribe to marriage. Genesis 6 [:1-13]. and then becoming righteous. redounds to the benefit not alone of the body. in that they remain exempt from the plagues imposed by God. "He who does it not in his youth does it in his old age"." The estate of marriage. woman her own husband. either by the grace of God or through marriage. property. "To avoid immorality. a good conscience. "Early to rise and early to wed. For we see how a licentious and wicked life not only brings great disgrace but is also a spendthrift life. Beyond that it consumes the body. The first reason is that fornication destroys not only the soul but also body. and each. However. It is the devil who has brought this about. that should no one ever regret. and physical constitution. corrupts flesh and blood. they say.Luther: The Estate of Marriage. mhtml:file://E:\PROJECTS\Zehren. an old devil. since God has created man and woman to produce seed and to multiply? Why should one not forestall immorality by means of marriage? For if special grace does not exempt a person. Page 13 of 15 about something I have not experienced and that there is more gall than honey in marriage. "One has to play the fool at least once". and should give thanks to God. 1:28]. We see only too well how they make out every day. few are thereby convinced or converted." Why? Well because from that there come people who retain a sound body. and that illicit partners necessarily occasion greater suffering for one another than do married folk. each man should have his own wife. Genesis 19 [:1-24]. however. more costly than wedlock. but also to the benefit of whole cities and countries. it is well-nigh impossible to regain them scarcely one in a hundred succeeds. and soul of an individual. It is certainly a fact that he who refuses to marry must fall into immorality. or. and family as well. that would be doing very well. like devils. He who intends to lead a chaste life had better begin early. How could it be otherwise. and force myself to remain continent? Do you not hear that restraint is impossible without the special grace? For God's word does not admit of restraint. This was the benefit cited by Paul in I Corinthians 7 [:2]. how else can it occur except in fornication or secret sins? But. Many think they can evade marriage by having their fling [auss bubenn] for a time. that. unless men do not recognise it or perversely misuse it. We see before our very eyes that God even now sends more new plagues. I therefore pass over the good or evil which experience offers. or. which to me is surer than all experience and cannot lie to me. This is heathenish. have given the matter thought and so learned from their own experience that they have coined an excellent proverb. however.mht 10/31/2010 . This in itself is so great a good that it alone should be enough to induce men to marry forthwith. Some. and Sodom and Gomorrah were buried in flames. We know only too well that the most terrible plagues have befallen lands and people because of fornication. "Be fruitful and multiply" [Gen. and attain it not with but without fornication. He who finds still other good things in marriage profits all the more. suppose I am neither married nor immoral. once lost. if one in a thousand succeeds in this. and honour and family. property. "A young saint. It might well be called plunging into immorality rather than growing to maturity. it is God's ordinance and takes its course. neither does it lie when it says. If this does not occur within marriage. and for many reasons. You can neither escape nor restrain yourself from being fruitful and multiplying. It is no slight boon that in wedlock fornication and unchastity are checked and eliminated. nature. they speak like heathens. honour. Whatever God calls good must of necessity always be good. I base my remarks on Scripture." Such are the sentiments of the poet Terence and other pagans. and coined such damnable sayings as. all of which are so ruined and dissipated by fornication. as though he would actually drive people away from fornication and into marriage. yea. his nature must and will compel him to produce seed and to multiply. John\marriage\MartinLuther-Estate-of-Marriage. honour.

John\marriage\MartinLuther-Estate-of-Marriage. because to God there can be nothing dearer than the salvation of souls. etc. bishops. however. Let each one act as he is able. that they want to be sure first of their material resources. nothing but fornication and all manner of misfortune follow. This is true. Finally. That which should have issued in fruitfulness and propagation has to be absorbed within the body itself. and foul-smelling. Yes. Let them bear themselves out.Luther: The Estate of Marriage. but teaching the gospel produces apostles and bishops. Most certainly father and mother are apostles. or entice anyone away from virginity into marriage. we have before us one big. there is no greater or nobler authority on earth than that of parents over their children. But the greatest good in married life. where they are to get their food. They are lacking in this. What shall I say to this objection? It shows lack of faith and doubt of God's goodness and truth. and as he feels it has been given to him by God. we see how weak and sickly barren women are. If they should be lucky enough to obtain such wives the marriages would still be un-Christian and without faith. Unless there is terrific hunger or immense labour or the supreme grace. drink. that we might bring a single soul to God. for it is they who make them acquainted with the gospel. and happier. Mitre and staff and great estates indeed produce idols. indeed. I simply wanted to check those scandalmongers who place marriage so far beneath virginity that they dare to say: Even if the children should become holy (I Cor. and clothing [Matt. One should not regard any estate as better in the sight of God than the estate of marriage. cleanlier. Therefore. wait. since it has fewer cares and anxieties. take a wife and live on that. 6:31]. you can see how rich the estate of marriage is in good works. Let such heathen go their way. the body cannot take it. beautiful. the celibate life is far inferior. this is the greatest obstacle to marriage. Hence. It is better to have a brief life with good health than a long life in ill health. if need be. kind. sweaty. In all the world this is the noblest and most precious work. he may find his wife in the sight of God and obtain favour from the Lord [Prov. enervated.mht 10/31/2010 . He who would enter into wedlock as a mhtml:file://E:\PROJECTS\Zehren. whoever teaches the gospel to another is truly his apostle and bishop. that which makes all suffering and labour worth while. however. or ultimately bear themselves out that does not hurt. Those who are fruitful. My purpose was only to enumerate those which a Christian can have for conducting his married life in a Christian way. they will get married only if they can get wives who are rich. Yes. In short. See therefore how good and great is God's work and ordinance! Here I will let the matter rest and leave to others the task of searching out further benefits and advantages of the estate of marriage. "In the sweat of your face you shall eat bread. 7:14]. God has entrusted to its bosom souls begotten of its own body. so that. 18:22]. as St Paul says in I Corinthians 7 [:32-34]. for this authority is both spiritual and temporal." They want to be lazy. we'll have a picture of them drawn for you. greedy rascals who do not need to work. pious. it is this above all which prevents and breaks up marriage and is the chief excuse for fornication. Undoubtedly. they want to pull their head out of the noose of Genesis 3 [:19]. It is God's word and the preaching which make celibacy. however. and that they are well supplied. celibacy would still be better. as Solomon says. And even if they bear themselves weary. They trust in God as long as they know that they do not need him. better than the estate of marriage. we will not argue with them. and priests to their children. whence the body becomes unhealthy. In a worldly sense celibacy is probably better. strong objection to answer. not for its own sake but in order that the celibate may better be able to preach and care for God's word. In saying this I do not wish to disparage virginity. they say. it would be a fine thing to be married. on whom it can lavish all manner of Christian works. it necessarily becomes unhealthy and sickly. but how will I support myself? I have nothing. is that God grants offspring and commands that they be brought up to worship and serve him. Now since we are all duty bound to suffer death. It is therefore no wonder that where faith is lacking. Page 14 of 15 Physicians are not amiss when they say: If this natural function is forcibly restrained it necessarily strikes into the flesh and blood and becomes a poison. are healthier. In itself. This is the purpose for which they exist. such as that of Christ and of Paul.

God has shown sufficiently in the first chapter of Genesis how he provides for us. Should he fail to exalt you and them here on earth. and know that he will exalt you there. a young woman at fifteen to eighteen. He knows too that even though all his storehouses were full to overflowing. together with the beasts and all growing things. as Psalm 51 [:5] says. before he created man. To sum the matter up: whoever finds himself unsuited to the celibate life should see to it right away that he has something to do and to work at. God makes children. The unbeliever sees. John\marriage\MartinLuther-Estate-of-Marriage. even before we ask him for it. and he preserves in and through the sin all that good which he has implanted and blessed in marriage. I have not meant to ascribe to nature a condition of sinlessness. comprehends. he is a manservant or a maidservant. second. With all this extolling of married life. Intercourse is never without Sin. and feels all the same that even if he worries himself to death over it. however. that God will most certainly provide for him if only he does his job to the best of his ability. Thereby he demonstrated how he has laid up for us at all times a sufficient store of food and clothing. if he cannot be a squire or a prince. Yet this has no effect upon him. All we need to do is to work and avoid idleness. he could not make use of a single morsel or thread unless God sustains him in life and health and preserves to him his possessions.mht 10/31/2010 . corrupted through Adam. and doing insignificant work. He should take satisfaction in this: first. he can neither produce nor maintain a single grain of wheat in the field. then take satisfaction in the fact that he has granted you a Christian marriage. A young man should marry at the age of twenty at the latest. Page 15 of 15 Christian must not be ashamed of being poor and despised. but God excuses it by his grace because the estate of marriage is his work. On the contrary. is conceived and born in sin. and that. He first created and prepared all things in heaven and on earth. But a pitiful unbelief refuses to admit this. I say that flesh and blood. then we shall certainly be fed and clothed. then let him strike out in God's name and get married. that's when they are still in good health and best suited for marriage. Indeed. mhtml:file://E:\PROJECTS\Zehren. Let God worry about how they and their children are to be fed.Luther: The Estate of Marriage. that his status and occupation are pleasing to God. he will surely also feed them. and be thankful to him for his gifts and favours.

and in force at the time of the alleged marriage. 27. MOORE. and the defendants. enact as follows:—— 'SECT. conveyed the demanded premises to the plaintiff. That that evidence utterly failed to establish a valid marriage at common law. under the statute of Michigan. who afterwards married one Isaacs. and had one child born to them. named Elizabeth. The Revised Statutes of Michigan upon the subject of the Page 77 solemnization of marriages. and continues to preach the gospel. and there became acquainted with Mary. in the State of Michigan. establish a valid marriage between William Mowry and the Indian woman. The plaintiff. Both parties claimed under William Mowry. some time in 1852. adopted in the year 1838.S. 1873. This was ejectment. 2. for the possession of certain lots of ground in Pittsburg. Meister. Aug. the plaintiff.Ed. that said Mowry died intestate. and thereafter lived and cohabited together as man and wife. the daughter of an Indian named Pero. regulating the solemnization of marriage. some time in the year 1844 or 1845. that. and who resides within this State.' . in the latter part of the year 1845. at Pittsburg. The defence was—— 1. as the vendees of his mother. Pa. brought Oct. even if true. Mowry and Mary were married. by Bernard L. 1877 ERROR to the Circuit Court of the United States for the Western District of Pennsylvania. leaving no issue living at his death save said Elizabeth. and that they. introduced evidence tending to prove that. 6. in whom the title of the property vested. That the plaintiff's evidence. 826 MEISTER v. October Term. as the alience of the alleged wife and daughter of said William. to maintain the issue on his part. and they may be solemnized throughout the State by any minister of the gospel who has been ordained according to the usages of his denomination. 9.96 U. said William went from Pittsburg to the Saginaw Valley. if he died unmarried and without issue. did not. 1873. Marriages may be solemnized by any justice of the peace in the county in which he is chosen. 76 24 L.

Patterson. 461. Worcester. 335. 7 Mass. Chicago Page 78 Legal News. so far as they relate to the manner of solemnizing marriages. Such is the ruling of the Supreme Court of Michigan. Bashaw v. C. Bigelow. 2 Me. a marriage per verba de praesenti is valid. Term. 1878. State of Tennessee. nor shall the validity thereof be in any way affected on account of any want of jurisdiction or authority in such supposed justice or minister: Provided. Stat. 198. 1877.' Rev. Jan. Worthington.—it was invalid under the statute of that State. The judgment below is not erroneous. Evid. Mar. 2 id. June 16. (N. 280..—and such was the plaintiff's proof. People v. & B. Judgment was rendered accordingly. 346. H. Roche v. 1 Bishop. 126. and that. or Quakers. 679. Washington. 48. A statute regulating the forms of marriage is merely directory. Milford v. that they take each other as husband and wife. Grisham v. Buxton. (U. C. 15. not yet reported. 509. pp. 42 Ala. present at the ceremony.) Eq.'SECT.) 177. 334. Holmes. 462. State of Tennessee. 2 Greenl. or either of them. unless it contains an express clause of nullity. 1 Abb. & Div. in the presence of the magistrate or minister and the attending witnesses. 'SECT. The State. Mr. 19 Ind. except that the parties shall solemnly declare. W. Hutchins v. Proctor v.. and.' 'SECT. 2 Dev. There was a verdict for the defendants. Acheson. whereupon the plaintiff brought the case here. The State v. 2 Ired. Robertson v.) 525. W. 11 Bush (Ky. Holmes v. Ligonia v. 589. sects. 177.. and their verdict should be for the defendants. No marriage solemnized before any person professing to be a justice of the peace or a minister of the gospel shall be deemed or adjudged to be void. 1 Yerg. Commonwealth v. The preceding provisions. but such marriages may be solemnized in the manner heretofore used and practised in their respective societies. besides the minister or magistrate. The State v. that the marriage be consummated with a full belief on the part of the persons so married. Slack. 277 a. In the solemnization of marriage no particular form shall be required. Jackson. Kimmell. 283 et seq. sects.) L. 53. Weir for the plaintiff in error. M. if they found that neither a minister nor a magistrate was present thereat. shall not affect marriages among the people called Friends.). 95. 279. contra. nor marriaged among the people called Menonists. Mr. 14. (N. . 1838. State v. (Tenn. Samuel. 8. 15 Mich. In every case there shall be at least two witnesses. S. that they have been lawfully joined in marriage. 31 Mich. The court below charged the jury that the validity of the alleged marriage must be determined by the laws of Michigan.

or by an exemplification of the registry. The learned judge of the Circuit Court instructed the jury. but such an enactment is a very different thing from a law requiring all marriages to be entered into in the presence of a magistrate or a clergyman. if neither a minister nor a magistrate was present at the alleged marriage of William A. 298. and they address themselves principally to the functionaries they authorize to perform the ceremony. for example. JUSTICE STRONG delivered the opinion of the court. Mar. but to provide a legitimate mode of solemnizing it. it must be admitted. (Pa. Whatever directions they may give respecting its formation or solemnization. But the statute contained a provision declaring . courts have usually held a marriage good at common law to be good notwithstanding the statutes. is void. 283 and notes. In a small number of the States. Bank v. It certainly withdrew from the consideration of the jury all evidence. Mowry and the daughter of the Indian Pero. but there is always a presumption that the legislature has no such intention. and Div. No doubt. 206. if any there was. In most cases. and this instruction is now alleged to have been erroneous. And such. or be attested by witnesses. of informal marriage by contract per verba de praesenti. (Pa. the marriage was invalid under the Michigan statute. Smith.) 233. the leading purpose is to secure a registration of marriages. the remedy is exclusive. instead of being treated as destructive of a common-law right to form the marriage relation by words of present assent. sect. MR. where the statute of North Carolina was in force. such statutes have been construed as denying validity to marriages not formed according to the statutory directions. a statute may take away a common-law right. we think. Morgan. but they do not confer the right. Statutes in many of the States. Stradling v. unless it be plainly expressed. We do not propose to examine in detail the numerous decisions that have been made by the State courts. Haldeman. not to declare what shall be requisite to the validity of a marriage. Hob.) 118. and evidence by which marriages may be proved. 7 Watts & S. Slade v. Bishop. Plowd. Mitchell v. They speak of the celebration of its rite rather than of its validity. it is true. Marriage is everywhere regarded as a civil contract. A contract in contravention of statutory provisions which contain nothing from which its validity can be inferred. that. unless they contain express words of nullity. A statute may declare that no marriages shall be valid unless they are solemnized in a prescribed manner. 1 Binn. Drake. has been the rule generally adopted in construing statutes regulating marriage. in view of the adjudications made in this country. by certificate of a clergyman or magistrate. but their object has manifestly been. Hence they are not within the principle.. that. Notably has this been so in North Carolina and in Tennessee.Affirmative statutes which introduce a new rule or prescribe a specific mode of doing a thing imply a negative of all that is not within their purview. after an examination of the authorities. where a statute creates a right and provides a remedy for Page 79 its enforcement. In many of the States. or publication of banns. This is the conclusion reached by Mr. regulate the mode of entering into the contract. Bishop. Such formal provisions may be construed as merely directory. or that it be preceded by a license. That such a contract constitutes a marriage at common law there can be no doubt. enactments exist very similar to the Michigan statute. from its earliest settlement to the present day.

and inflicting penalties on all who disobey the regulations. in 2 Kent. void. if not all. as has sometimes been said.. In Parton v. in Massachusetts. absolutely void. in the absence of any positive statute declaring that all marriages Page 81 not celebrated in the prescribed manner shall be void. notwithstanding the statute.' As before remarked.null and void all marriages solemnized as directed. 283 et seq. Henry (1 Gray (Mass. though had in violation of the specific regulations imposed by statute. the statutes are held merely directory. and because. 119). yet it is generally considered. any marriage. Milford v. and in 2 Greenleaf on Evidence. because it is the policy of the State to encourage it.). but which was not entered into in the manner directed by the written law. however. The rule deduced by all these writers from the decided cases is thus stated by Mr. any other construction would compel holding illegitimate the offspring of many parents conscious of no violation of law. the court held it good and binding. when duly solemnized. Com.' There are two or three other States in which decisions have been made like that in 7th Massachusetts. without the consent of parents or guardians). or between parties of certain ages. It may well be doubted. would still be a valid marriage. it was early decided that a Page 80 statute very like the Michigan statute rendered illegal a marriage which would have been good at common law. it is held that all marriages regularly made according to the common law are valid and binding. whether such is now the law in that State. contained all the provisions of the Michigan one). 91. by penalties on them. . Mar. and to prevent as far as possible. the court said: 'The effect of these and similar statutes is not to render such marriages. They are intended as directory only upon ministers and magistrates. one in accord with the opinion we have cited from 1 Gray. 48. or that none but certain magistrates or ministers shall solemnize a marriage. So. Greenleaf:—— 'Though in most. in the absence of any provision declaring marriages not celebrated in a prescribed manner. without observing the statute regulations. We will not undertake to cite those which hold a different doctrine. 199. in Reeve's Domestic Relations. In speaking of the effect of statutes regulating marriage. the United States there are statutes regulating the celebration of marriage rites. 200. as we have said. whether a marriage of a girl only thirteen years old. that. although the statute provisions have not been complied with. sect. without a license first had. including the Massachusetts statute (which. 90. was a valid marriage (the statute prohibiting clergymen and magistrates from solemnizing marriages of females under eighteen. because marriage is a thing of common right. Reference is made to them in Bishop. and Div. the solemnization of marriages when the prescribed conditions and formalities have not been fulfilled. married without parental consent. But. where the question was. regularly made according to the common law. Worcester. 7 Mass.

There. an inference is attempted to be drawn that lawful marriages of all other persons must be in the mode directed or allowed. be controlling with us. and upon persons joining others in marriage. tenth. As to them the act gives no directions. with the apparent consent and cooperation of the parties. or one professing to be such. also. the court found it necessary to declare what the law of the State was. The fourteenth and fifteenth sections are those upon which most reliance is placed in support of the charge of the Circuit Court. it is true. should be celebrated in the manner prescribed. Both these sections. or Friends. The fifteenth section exempts people called Quakers. It is unnecessary. that they have been lawfully joined in marriage. evidence. If there has been a construction given to the statute by the Supreme Court of Michigan. as also Menonists. It does not deny validity to marriages which are good at common law. in this case. would have been evidence of a marriage. The sixth section declares how they may be solemnized. But the implication is not necessarily so broad. From this. from the operation of the act. the direct question was. the fourteenth and the fifteenth. Whatever the form of ceremony. that a ceremony was performed ostensibly in celebration of it. sixteenth. a case decided on the 13th of January. 126). eleventh. knowing that they are not lawfully authorized so to do. in considering it. The ninth. The former declares that no marriage solemnized before any person professing to be a justice of the peace or minister of the gospel shall be deemed or adjudged to be void on account of any want of jurisdiction or authority in such supposed minister or justice. except some particularly mentioned. The twelfth and thirteenth impose penalties upon justices and ministers joining persons in marriage contrary to the provisions of the act. and seventeenth sections provide for certificates. The most that can be said of it is. whether a marriage had been effected in a foreign country. This.: 'Had the supposed marriage taken place in this State. The seventh describes what shall be required of justices of the peace and ministers of the gospel before they solemnize any marriage. and from that time lived together . But. J. raises an implication that marriages not in the presence of a minister or justice. The eighth declares that in every case. that is. And we think the meaning and effect of the statute has been declared by that court in the case of Hutchins v. to pursue this line of thought. that construction must. in which it has been decided that the statutes do not make invalid common-law marriages. that it contains implications of an intention that all marriages. if the parties agreed presently to take each other for husband and wife. whenever any marriage shall be solemnized in the manner described in the act. It does not declare marriages void which have not been entered into in the presence of a minister or a magistrate. and exemplifications of records of marriages solemnized by magistrates and ministers. It is satisfied if it reach not beyond marriages in the mode allowed by the act of the legislature. were intended to be declared void. or even if all ceremony was dispensed with. We think the inference is not a necessary one. and it was thus stated by Cooley. provided the marriage be Page 82 consummated with a full belief on the part of the persons so married. or had affirmatively shown that they were not.The Michigan statute differs in no essential particular from those of other States which have generally been so construed. 1875. are to be found in the acts of other States. it is argued. Kimmell (31 Mich. there shall be at least two witnesses present beside the minister or magistrate. even though it had fallen short of showing that the statutory regulations had been complied with. registers. however. or either of them.

. Judgment reversed. it must have been the law in 1845. We do not consider the other questions presented. Mowry and the Indian girl were married. Bissell. If all the evidence given or legally offered were before us. and. which embraced the same facts as did the preceding case. or apparent dissent. the few cases of dissent. remarked that the opinion given in that case controlled this. that there was no evidence of any marriage good at common law. The case must. MR. therefore. JUSTICE STRONG. NOTE. And if the law in 1875. we might be of that opinion. it is claimed. however.' We cannot regard this as mere obiter dicta. when. and the verdict should be for the defendants. such marriage was invalid. but the record does not contain it all. therefore. accepting it as the law of Michigan. in delivering the opinion of the court. that. therefore.professedly in that relation. we are constrained to rule there was error in charging the jury.' citing a large number of authorities. that the error of the court could have done the plaintiff no harm. Judgment reversed. being borne down by the great weight of authority in favor of the rule as we have stated it. and which would subject them and others to Page 83 legal penalties for a disregard of its obligations. and concluding. It is rather an authoritative declaration of what is the law of the State. to say the ruling of the court was immaterial. and new trial ordered. notwithstanding the statute regulating marriages. and which was argued at the same time and by the same counsel as was that case. and new trial ordered. The decision of the Michigan Supreme Court had not been made when this case was tried in the court below. 'such being the law of this State.—In Meister v. It has been argued. This has become the settled doctrine of the American courts. it would doubtless have been followed by the learned and careful circuit judge. and we are unable. But. They may not arise on the second trial. if they found neither a minister nor a magistrate was present at the alleged marriage. proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties. which could be submitted to the jury. for it is not claimed that any change of the law was made between the time when the statute was enacted and 1875. go back for a new trial. Had it been.

or "establish" a marriage. Some believe it to be the manner in which God intended a man and woman to be married. In short. common law does not operate upon a marriage unless or until the validity of a marriage is challenged in court. or whether they are simply using the word "married" without the existence of any of the fundamental elements being present that society understands to accompany a true marriage. The common law does not so much "control" the act of getting married. we must look at the origins of common law marriage as well as the manner of its use over the past few centuries. marriages have been taking place since the beginning of time. and that government laws concerning marriage are a relatively new event. we believe that in this instance it is best to state the conclusive legal reality of common law marriage first and then investigate the particulars.Common La. As society progressed. It is only "marriage" that is the noun. Most people today see "common law marriage" as a noun. it is customary to lay foundation and then come to the final conclusive point.Common Law Marriage Page 1 of 7 Learn About: Constitutions The Law Citizenship 14th Amendment Clarified Federal Subject Matter Jurisdiction Constitutional Taxation Federal Income Tax Employment Tax State Sales Tax Internal Revenue Districts The Misapplication of Form I-9 Debunking IRS Lies Willful Failure to File Scam Federal Firearms Law What is the United States Code? What are Federal Regulations? Common Law Marriage Common Law Trusts What is the Patriot Movement? Jury Summons Response Letter Common Law Marriage There is much confusion about common law marriage. and historical records show that they were already in existence at the beginning of written history. 10/31/2010 . Here is the holding from the decision of the United States Supreme Court in Meister v. Such marriages may rightly be called a "statutory marriage" because it is the system of "statutory law" that this type of marriage utilizes. As we stated earlier. Today's commonly accepted method of marriage is to acquire a government marriage license. John\marriage\Original Intent Treatise . "Common law" is merely a system of law that certain marriages utilize.Original Intent Treatise . Over time. as it sets out the markers that can be used to determine whether a man and woman are in fact married. It should be remembered that men and women have been getting married for at least 5. However. the court will use the common law standards that have evolved to decide if the alleged marriage was truly established as such. At that time. That perception is inaccurate.000 years. These questions originally revolved around issues such as inheritance and the status of children as bastards.. What's Legally Valid and What's Not? When examining a legal question. others believe it to be nothing more than "shacking up" covered by dubious veneer of respectability. Moore 96 US 76 (1877): Video Archive: SpeakEasy with Host Brian Champion (Jury Duty) SpeakEasy with Host Brian Champion (Income Tax) Audio Archive: Dave Champion on KNAK with host Sam Bushman (Income Tax) Dave Champion on KCXL with host Peter McCandless (Employment Tax) Coming Soon: Worker's Compensation US Territorial Authority Executive Orders Administrative Law State Codes Alphabet Soup Agencies Federal Reserve/Banking The Federal Courts The State Courts Due Process Right to Travel For Real Law Enforcement Officers Stay Informed: Subscribe to our Mailing List Please report technical problems found on this web site to: webmaster@originalintent. In other words.. and its legal systems matured. it is a singular thing. questions arose as to what really constituted a marriage.org mhtml:file://E:\PROJECTS\Zehren. the "common law of England" (from which America derived its common law) began to develop legal boundaries that expressed society's view of what constituted a marriage. So what is the truth? In order to find the truth.

which is not subject to interference or regulation by government. 10/31/2010 . modify. A "statutory marriage" is registered with the State as a result of the man and woman applying for a State marriage license and thus entering into a threeparty contract with the State. such a law could not withstand the scrutiny of the US Supreme Court. the Court refused to even examine the numerous state court decisions prior to making its own decision. The statutes to which the Court was referring were statutes in Massachusetts and Michigan that purported to render invalid marriages not entered into under the term of written [statutory] state law. or interfere with. we can only agree with the Court in its choice because a state court opinion has no authority to affect a fundamental right that existed antecedent to the formation of the state. the US Supreme Court cut straight to the heart of the issue in declaring that statutes controlling marriage can only be directory because marriage is a common right." [emphasis added] Directory . It is equally obvious that a private common law marriage would not be "known to exist" to State authorities. John\marriage\Original Intent Treatise . which is a mere direction or instruction of no obligatory force. Nothing could be further from the truth. We agree with that legal concept and we can see nothing in that matter to concern us.. Obviously the State keeps records of all contracts to which it is a party and therefore such a marriage is "known to exist" to State authorities.. Without getting into a lot of legal mumbo-jumbo "not recognized" means that in the eyes of the State "the marriage is not known/understood/perceived to exist". It should be noted that Meister has never been reversed and is still controlling case law concerning the fundamental right to marry without state interference. and therefore it is beyond their purview to alter. There is no state law anywhere that claims to make common law marriage "unlawful". which must be followed. "Recognized" versus "Unlawful" A lot of Americans hold the incorrect perception that common law marriage is unlawful. the statutes are held merely directory. because marriage is a thing of common right."not recognized" does not mean. Given the fact that common law marriage is lawful. and involving no invalidating consequence for its disregard. and none have done so! To state the point most clearly . "invalid". Given the decision in Meister. as opposed to an imperative or mandatory provision. 6th Ed. And of course the exercise of a fundamental right is always lawful! It is true that in many states common law marriage is not "recognized". Black's Law Dictionary.Original Intent Treatise . such a right.Common Law Marriage Page 2 of 7 "As before remarked. rule of procedure. Or phrased another way.. In its decision in Meister. The problem arises from the erroneous view that "not recognized" is synonymous with "invalid".Common La. While the various state courts have prattled on for almost 200 years about what the laws of their states do and do not allow concerning marriage. Validity of Marriage mhtml:file://E:\PROJECTS\Zehren. one might reasonably ask what it meant by "not recognized". the God-given right to marry existed prior to the creation of the states or the national government.A provision in a statute. While this was assailed by legal commentators of the day as an egregious choice.. or the like. Because of Meister. abolish. no state can arbitrarily declare common law marriage invalid by legislation.

Marriage Certificate providing evidence of a ceremony. Consent . It is bringing the marriage within the scope of judicial review that raises the specter of the marriage being invalidated. One should be able to prove (through evidence) that any prior marriages have been properly dissolved. signed by both husband and wife. The contract should specify the basic rights and duties of each party. A secret or deceptive marriage. Whether a religious figure performed the marriage ceremony. Solemnization or ceremony . as opposed to constituting a promise of marriage at some designated time in the future.Although the accepted doctrine is that a ceremony of solemnization is not a required element for validity.present or future tense Prior marriages still in effect. John\marriage\Original Intent Treatise . Contract . one might then reasonably inquire as to what constitutes a "valid" marriage at common law? It should be pointed out that under the common law.It is critical to be able to provide evidence of consent. The existence of a marriage contract . a marriage thought proper by the consenting parties is a valid marriage. 10/31/2010 . This treatise would be prohibitively long (and likely pretty boring) if we explored each of these issues in depth. Whether or not there is/was cohabitation. it is highly recommended that consent by demonstrated through the existence of a written marriage contract. Although verbal consent is sufficient for validity. unless there is a controversy that arrives before a court of law. again..Common Law Marriage Page 3 of 7 Now that we have established that "recognition" and "validity" are two separate issues. Prior Marriages . which calls into question the validity of a marriage. such a ceremony demonstrates consent as well as dispelling any speculation of secrecy or deception. Certificate of Marriage . For this reason. such an agreement is by means as secure as a present tense contract. Instead we think it is in the best interest of the reader to discuss the elements that create a common law marriage that can never be invalidated by a court. Solemnization or ceremony. Whether the scope and effect of an impediment produces an invalid marriage.Although courts have upheld the validity of some marriages in which one or both parties were still married (at common law) to other people. one can create a marriage certificate mhtml:file://E:\PROJECTS\Zehren. The issues that a court may review in determining the validity of a marriage are: Consent of both parties.Although the courts have generally accepted the view that a husband and wife may choose to keep a marriage secret without affecting its validity. Although courts have supported future tense marriage agreements..While marriage certificates are most common these days in statutory marriages.oral or written. Cohabitation is also generally viewed as evidence of consent. one should steer clear of arrangements that leave room for today's court to render unfavorable decisions concerning validity. The existence of a marriage contract . Secret Marriages . Whether there are children that will be rendered bastards.Original Intent Treatise . A marriage based on false representations.Common La. one should not count on such leniency.A written marriage contract should establish the marriage in the present tense. there are times (such as after one party has died) that a showing of verbal consent by both parties may be difficult to achieve.

By applying each of these elements. Why has Common Law Marriage acquired a dubious reputation? Many people shy away from common law marriage today because they feel it is nothing more than "shacking-up". Additionally. and people in the community know you and your spouse are married. or one can have a graphic artist create one for you. 3. In summary. and more importantly. Have a ceremony with witnesses present. Have both parties sign a marriage contract and have the document notarized. Religious Ceremony . The certificate should be signed by three witnesses. We encourage people to use their right of common law marriage only in circumstances where a truly committed marriage is desired.Original Intent Treatise . its dignity promoted and preserved. That's just human nature.. John\marriage\Original Intent Treatise . there will always be people who will misuse that right. Photographic Evidence . Since those are really two separate issues. mhtml:file://E:\PROJECTS\Zehren. co-workers. Pretending To Be Married People who look at common law marriage as merely shacking-up are not necessarily wrong in their view. One who wishes to make an incontrovertible record should: 1. It is also true that historically the state courts have been filled with people alleging to be the spouse of a deceased person only for the purpose of getting at the decedent's property..Common Law Marriage Page 4 of 7 easily enough on a personal computer. 2. there is no court in America that can declare your common law marriage invalid. as well as affording no legal protection concerning property rights and child custody issues if the marriage fails. validity (or lack thereof) is often determined based a composite picture drawn from the totality of the circumstances. Whenever The People have a right secured to them that the government cannot control or interfere with. be more prone to misuse than some other rights. today one can memorialize the event in photographs or on video. marriage should be approached with reverence. Let friends. 6. In our opinion. lets look at the "shacking-up" perception first. A properly executed marriage certificate lends to the evidentiary weight of consent. 4. 10/31/2010 . Have three witnesses sign a marriage certificate. It is sad but true that many people simply use the principle of common law marriage as a convenient cover for cohabitating without any intention of establishing a true marriage. for a religious leader to perform a wedding ceremony.The requirement to have a religious figure perform the service is essentially dead. Memorialize the ceremony in photographs or on video. These circumstances (as well as others) have led the courts to establish criteria for the validity of common law marriages. This reality has been given recognition by the courts. The person who wishes to establish an incontrovertible record of a valid common law marriage should make sure to steer clear of areas that leave room for ambiguity. Such a requirement would bar atheists from marriage.In addition to a certificate of marriage. by its nature. Common law marriage is not immune to that human foible and may very well. the common law is based on the Bible and there is no scriptural command.Common La. or even permission. covered by a very thin veneer of respectability. 5. Cohabitate after the contract has been signed or the ceremony performed.

the husband and wife are legally bound to obey the State in matters that are controlled by the State's Family Code.). If the agency says that the certificate is unsatisfactory. Generally. and the State . company provided medical benefits to spouse. dates. usually a properly executed Marriage Certificate will do the trick. You cannot back out if you don't like what the court decides. if you submit your marriage contract to the Family Law Court. In the case of a statutory marriage. it will assume jurisdiction. rather than by some government bureaucrat in a black robe. In such marriages. one may need to provide a sworn affidavit. We say "must" because once the State was involved in the contract as the superior party of interest. John\marriage\Original Intent Treatise . you always have the option of submitting your marriage to the jurisdiction of your State's family law court. In your testimony. If the right or benefit is coming from a government agency. the wife. Often times constructing a framework for such matters when you're happy and in love will help provide a smoother road if the unfortunate occurs. a sworn affidavit is considered conclusive on a matter unless the opposing party can rebut the affidavit. And have no doubt. In a section of the contract concerning the dissolving of the contract. Ask to be sworn in and then give direct testimony that you and your spouse are married. one should start by submitting the properly executed Marriage Certificate. the parties can specify how property is to be divided and how child custody issues will be addressed. You should understand that if you take this route. contract. If pre-structuring a mechanism for divorce within the contract doesn't appeal to you. the contract is between three parties . The first and most desirable method is to structure the contract to include the mechanism by which a termination of the contract shall occur. Submit into evidence items 1. 3.. 10/31/2010 .the State being the superior party of interest.e. The parties to the contract (husband and wife to be) can sit down and agree on how they would want to dissolve the marriage if that circumstance were to occur. if the husband and wife wish to dissolve the marriage they must do so through a court that is enforcing that State's Family Law Code. That is one of the many inaccurate perceptions of common law marriage. etc. Examples of such matters are. In the case of common law marriage. one should immediately ask for an administrative hearing.the husband. plus any other items of evidentiary value that proves the marriage. 2.Common Law Marriage Page 5 of 7 Property and Custody Right There is a perception that there are no protections for property rights and/or child custody concerns in a common law marriage. If that is deemed insufficient.. In this way the decisions that you're seeking will be rendered by people who know you and love you. death benefits to spouse on a life insurance policy. etc. are based on a contract. All marriages. statutory and common law. ceremony.Common La. & 4 (above).Original Intent Treatise . include the Court's holding mhtml:file://E:\PROJECTS\Zehren. Proving Your Marriage You will only be called upon to "prove" your marriage if you are seeking some right or benefit (either private or public) that is available only to a person who is married. You will be bound by the decisions of the court just as if you'd entered into a statutory marriage. If the right or benefit is coming from a private firm. give the details of your marriage (i. there are two ways that property rights and child custody issues can be addressed. one should do the following: 1. We suggest structuring methods that involve submitting your possible disputes to your church elders or to a small panel of trusted friends. you are surrendering your independence to the State. At the hearing.

4. odds are good the agency will recognize your marriage as valid and binding upon them. Fine. statutory law that lays a duty upon a person must be mhtml:file://E:\PROJECTS\Zehren. to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division. By statute in most jurisdictions.. that all State marriage statutes are merely directory in nature and that there can be no adverse consequence or invalidity for not following a statute that is only directory. it is nothing more than an "administrative appeal" handled by a guy in a black robe.A license or permission granted by public authority to persons who intend to intermarry...] Statutes prohibiting marriage between persons of different races have been held to be invalid as contrary to equal protection clause of the Constitution. it is made an essential prerequisite to lawful solemnization of the marriage." So far. Ask the agency representative (who should not the be the hearing officer) to be sworn in and then ask him/her to enter into the official record any evidence the agency possesses that your common law marriage is not lawfully valid. The only evidence that the court can consider about your marriage is that which was entered into the official record during the administrative hearing and any agency regulations on the subject.] Keeping the foregoing facts in mind.Marriage is a personal relation arising out of a civil contract between a man and a woman.Original Intent Treatise . let's look at a typical State marriage statute.. If they don't. we'll examine the section from the California Family Code: Section 300 . Black's Law Dictionary (6th Ed): Miscegenation . 3. but the courts do not say that it is unconstitutional to require such marriages to be licensed. John\marriage\Original Intent Treatise .See Miscegenation. a license is required for persons who desire to "intermarry". but what exactly does "intermarry" mean? Black's Law Dictionary (6th Ed): Intermarry . [Editor's Note: Please note that the courts have held it to be unconstitutional to altogether "prohibit" such marriages. Term formerly applied to marriage between persons of a different race. [Underlines added for emphasis] As you likely know. then their own official record can now be used against them in a court action to force them to recognize the marriage. Ask the agency representative to enter into the official record any evidence that the agency is precluded from recognizing any lawfully valid marriage. when a court reviews an agency's decision.Mixture of races.. 6th Ed [1991] (which is the one used in a Family Law court): Marriage license .Common La. If you are prepared. Remember.Common Law Marriage Page 6 of 7 from Meister. More on Common Law Marriage It is interesting to note the current definition of "marriage license" in Black's Law Dictionary. so good. Since we are most familiar with California statutes. 10/31/2010 . [Now called "intermarry". and you're astute during the hearing..

Black's Law Dictionary.. 10/31/2010 . If the legislative draftsmen who wrote these laws were not attempting to deceive you. like the word "shall".C... Consent may be followed by the issuance of a license if a license is applied for.Common Law Marriage Page 7 of 7 specific in the particulars that give rise to the duty. an excellent legal analysis of the subject can be found in the book. D. to which the consent of the parties capable of making that contract is necessary. mhtml:file://E:\PROJECTS\Zehren. If a license is issued. it merely says that consent "must" be followed by the issuance of a license. Given the US Supreme Court's holding in Meister [that all State marriage laws are merely directory in nature] which of the two definitions of "must" are applicable? Clearly the definition that gives the statute a directory character must be applied if the statute is to comports itself with the Meister decision. and it is often used in a merely directory sense.Original Intent Treatise . You will note that the section 300 does not require anyone to apply for a license. Consent alone does not constitute marriage. But this meaning of the word is not the only one. "Common Law Marriage and its Development in the United States"... written by Otto E.Marriage is a personal relation arising out of a civil contract between a man and a woman. and consequently is a synonym for the word "may".. How then shall we interpret "must" in this context? Must ...L. John\marriage\Original Intent Treatise . the marriage must then be followed by solemnization as authorized by this division.This word. is primarily of mandatory effect. section 300 would not depend on the subterfuge of veiled definitions. and it would read as follows: Section 300 (our revised version) . Koegel.Common La. Reference Material If you would like to learn more about common law marriage. and thus remain within the bounds of Constitutionality. This book was published by John Byrne & Company in 1922 and can generally only be found in a well-stocked law library. 6th Ed.