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Marriage Requirements Basics: Consent, Age, and Capacity

Consent

Before a marital union is recognized by a state, there must be consent or agreement between the parties of the union to be married. For consent to exist, both parties must agree to the marriage and there must be no mistake as to the nature of the union. In addition, no force must be used upon either party to enter into the union. Once consent is determined to exist, the laws of the individual states determine the status of the couple as husband and wife.

Age

Age is an additional aspect of consent to marry. All states prescribe the age which must be reached by both parties to the marriage before they are able to legally agree to become husband and wife without parental permission. For all but two states this "age of consent" is eighteen (in Mississippi the age is twenty-one and in Nebraska the age is nineteen).

The states vary in determining the minimum age at which a couple can marry with parental consent. For the majority of states this age is sixteen, though in a very few states the age is as low as fourteen.

Capacity

Capacity generally refers to the mental ability of one or both of the parties to the marriage to agree to become husband and wife. Both parties must be of "sound" mind and capable of agreeing to the marriage. Not all forms of mental illness and insanity serve to render someone incapable of entering into a marriage. A common test of capacity is the ability of individuals to understand the nature of marriage, and what their responsibilities are to their partners once they enter into the union. Physical incapacity -- and in particular the physical inability to have sexual intercourse -- does not in and of itself render one incapable of marrying, and does not on its face void a marriage that has already occurred.

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