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Marriage Requirements Basics: Consent, Age, and Capacity

Perhaps you think the legal requirements for marriage are confusing and overwhelming. With so much that goes into planning a wedding these days: selecting the perfect dress, choosing a carefully coordinated menu of classic dishes culminating with a show-stopping wedding cake, and finding just the right venue -- navigating through the legal requirements might be low on your to-do list.

The reality is that once you know what is required in your state, the steps are simple, leaving you more time to concentrate on the more enjoyable parts of getting married.

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 spouses.

Age

Age is an additional aspect of consent to marry. All states set the age which must be reached by both parties to the marriage before they are able to legally agree to become spouses without parental permission. For all but two states, this "age of consent" is eighteen (in Mississippi the age is 21 and in Nebraska the age is 19).

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 such as financial obligations. 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.

Can I Marry Anyone I Want?

No, you can't. Two people generally cannot be blood relatives. In most states, they can't be closer than third cousins. Many states allow first cousins to marry if they are of an elderly age and no longer able to conceive.

Many states still only allow marriage to be between a man and a woman - but same-sex marriage laws are changing every day. Although the majority of states have some form  of legal restriction on same sex marriage, a growing number of states and/or courts are allowing same sex marriages.

Consult an Experienced Family Law Attorney

If you and your partner are considering getting married, you may need an experienced family law attorney. A good lawyer will ensure that all the legal requirements of marriage are met before you talk that way down the aisle. However, remember that it's important to speak to a lawyer familiar with the laws in your jurisdiction. Most offer free consultations, so your first step should be to contact an experienced family attorney.

Next Steps
Contact a qualified family law attorney to make sure
your rights are protected.
(e.g., Chicago, IL or 60611)

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