Historically legal marriage was defined as “a contract between man and woman who consent to marriage”.  Even though that is how marriage has been defined, limitations of marriage were placed on residents by individual states.  For instance, many states made interracial marriage illegal until the U.S. Supreme Court found that it was unconstitutional in Loving v. Virginia in 1967.  And although the states have the authority to determine its own marriage requirements, there are times when Congress has enacted laws that addressed marriage.  In 1996, Congress passed the Defense of Marriage Act (“DOMA”), which states that marriage is defined as “a legal union between one man and one woman”.  This legislation gives states the authority not to recognize same sex relationships that would be recognized as marriage in another state. (40 states have adopted their own version of DOMA, New York has not.)  There are other instances where either Congress or the U.S. Supreme Court has forbidden certain types of marriage. Polygamous and close relative marriages, for example, are not permitted in any state.  States, consequently, do have some basic requirements that are common amongst each of them.  These basic requirements include the capacity to marry, consent to marry and age to marry.  Where states differ are on the procedural requirements, the types of marriage and more recently, whether same sex can legally marry. 

          New York law on marriage is governed by the Domestic Relations Law (“DRL”).  Under New York’s DRL, marriage is legal when:

                   -The parties are 18 years old or 16 years old but with judicial or parental consent;
                  -The parties are not parent-child; siblings; ancestor to descendant; aunt/uncle to nephew/niece;
                  -The parties consent and are capable in law, of making a contract;
                  -The marriage takes place after 24 hours but no later than 60 days of receiving the marriage license;
                  -Not bigamous or polygamous marriage; and
                  -Performed by clergyman, minister or leader of Society of Ethical Culture; Mayor; County executive or police  magistrate; a judge (within their territorial jurisdiction); or entered into by written contract between the parties and two witnesses (and acknowledged by a judge). 

         If these requirements are not met then the marriage is considered “void” in New York, or not legal.  On the other hand, there are instances when marriages are “voidable”, where a court must “declare” the marriage void.  Voidable marriages in New York, are marriages that occur when either party is under 18 years old; is incapable of consent or lacks understanding; is incapable of being married because of physical limitations; or acquired consent by fraud, duress or force or has an incurable mental illness for a period of five years or more.

          Although not explicit in the statute, New York forbids common law marriages, same sex marriages and proxy marriages.  The statute, however, implicitly permits first cousin marriages, religious marriages and marriages performed outside of the U.S. (as long as the legal marriage requirements of that country are met).  Further, New York criminalizes bigamous or polygamous marriages, Penal Law § 255.15 states:

                A person is guilty of bigamy when he contracts or purports to contract a marriage with another person at a time when he has a living spouse, or   the other person has a living spouse. Bigamy is a class E felony.

         Even where New York does not permit specific types of marriages (common law, same sex and proxy marriages), marriages legally established in other states pursuant to those states’ laws will more than likely, be recognized in New York.  (Although this is still a debatable issue regarding same sex marriages, see my blog entry “Will New York Recognize Same-Sex Foreign Marriage and/or Divorce”).  Common law marriages, particularly, are the most common “untraditional” type of marriage (at least 15 states permit them).  These marriages are marriages that were not solemnized by clergy or judge and the parties did not have a marriage certificate.  Proxy marriages, on the other hand, are not automatically recognized.  These marriages occur when either party is not present during the actual ceremony, but appear by a power of attorney, proxy or other legal stand in (these are only permitted in four states).

     Feel free to contact my office to discuss your legal rights under your “nontraditional marriage”.