68 Pages Posted: 3 Jun 2017
Date Written: June 1, 2017
Questions about the choice to marry have dominated the public discourse in recent years. But with the spotlight focused on the question of who can marry whom, few have paid attention to how a couple crosses marriage’s legal threshold. Yet a steady stream of cases in recent years — in which individuals have litigated whether they legally married — has revealed that answers to the latter question can have monumental consequences for the individuals who risk being deemed married or unmarried against their will.
This Article has descriptive and normative goals. Descriptively, it exposes the pervasive legal uncertainty regarding both the role and definition of marital choice. It also reveals the stakes of that choice for individuals, the state, and third parties. Normatively, it argues that a valid choice to marry must promote autonomy by facilitating self-authorship and manifesting consent to the legal rights and obligations of marriage. To perform these functions, the relevant act must be objectively measurable and intelligible to the spouses and the law. For this definition to be sufficiently protective of individual interests, states must adopt rigorous standards for establishing consent. Formalities are often crucial in this process, as they are the currency through which couples most commonly telegraph marriage or non-marriage, but they are not exclusive. This Article considers how burdens of proof, the timing and scope of relief, and objective conduct can also establish a valid choice to marry.
Keywords: Family Law, Marriage, Common Law Marriage, Formalities, Nonmarriage, Right Not to Marry, Social Norms, Surviving Spouse, Public Benefits
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