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Legally, what is marriage?
Are common-law marriages allowed?
Does New York law recognize same-sex marriages?
What is the effect of marriage on legitimacy of children?
What are the legal restrictions for getting married?
What are the age and consent requirements for minors?
When does a couple truly become married?
Is a particular type of marriage ceremony required?
Who may conduct a marriage ceremony?
Are there legal remedies if a husband or wife refuses to have sexual relations with his or her spouse?
What is loss of consortium?
May wives and husbands sue each other?
Can a husband or wife testify against each other in court?
Does a woman's last name change when she gets married?
Q: Legally, what is marriage? A : Of course, marriage is a sacred, intimate, private bond between two people, but it is also an important social institution. New York defines marriage as a civil contract so far as its validity in law is concerned. However, marriage is not subject to dissolution at the will of the parties because it is a relationship formed by contract, but once formed, is a status protected by, and subject to law. As our society becomes more complex, there is no longer a single form of familial relationships or a short answer to the question "What is marriage". New forms of relationships have been created, including "domestic partnerships" and "civil unions". Definitions and opinions of the proper functions of marriage continue to change. Marriage will remain, but it will also continue to evolve. So will the law governing marriage and familial relationships.
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Q: Are common-law marriages allowed in New York? A : Common-law marriage has been abolished in New York since April 29, 1933. However, New York recognizes the validity of a marriage if the couple has consummated a common-law marriage at a jurisdiction where a common-law marriage is valid before they move to New York.
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Q : Does New York law recognize same-sex marriages? A : No. New York does not recognize or authorize same sex marriages.
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Q: What is the effect of marriage on legitimacy of children? A: A child born of parents who prior or subsequent to the birth of such child get married is the legitimate child of both natural parents notwithstanding that the parents? marriage is void or voidable or has been or can be annulled or judicially declared void, or the marriage is a civil or religious marriage, or the parents have consummated a common-law marriage where a common-law marriage is valid.
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Q : What are the legal restrictions for getting married? A : (a) Familial restrictions: A marriage may not take place in New York State between an ancestor and descendant, a brother and sister (full or half blood), an uncle and niece or an aunt and nephew, regardless of whether or not these persons are legitimate or illegitimate offspring. (b) Previous Marriages: Previous marriages must be dissolved. Information regarding previous marriages must be furnished in the application for a marriage license. This includes whether the former spouse or spouses are living, and whether the applicants are divorced and, if so, when, where and against whom the divorce or divorces were granted. A certified copy of the Decree of Divorce or a Certificate of Dissolution of Marriage may be required by the clerk issuing the marriage license. No premarital examination or blood test is required to obtain a marriage license in New York State.
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Q:What are the age and consent requirements for minors? A: If either applicant is under 14 years of age, a marriage license cannot be issued. If either applicant is 14 or 15 years of age, such applicant(s) must present the written consent of both parents and a justice of the Supreme Court or a judge of the Family Court having jurisdiction over the town or city in which the application is made. If either applicant is 16 or 17 years of age, such applicant(s) must present the written consent of both parents. If both applicants are 18 years of age or older, no consents are required. One parent alone may consent to a minor's marriage if:
- The other parent has been missing for one year preceding the application;
- The parents are divorced and the consenting parent was given sole custody of the child when the divorce decree was awarded;
- The other parent has been judged incompetent; or the other parent is deceased.
Parents, guardians or other people consenting to the marriage of a minor must personally appear and acknowledge or execute their consent before the town or city clerk or some other authorized official. If the notarized affidavit is made before an official outside of the State of New York, it must be accompanied by a certificate of authentication when the consent is filed in New York State.
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Q : When does a couple truly become married? A: A couple who intends to be married in New York State must apply in person for a marriage license to any town or city clerk in the state. Although the marriage license is issued immediately, the marriage ceremony may not take place within 24 hours from the exact time that the license was issued. A marriage license is valid for 60 days, beginning the day after it is issued. After the marriage ceremony is performed, a couple is truly married.
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Q : Is a particular type of marriage ceremony required? A : There is no particular form or ceremony required except that the parties must state in the presence of an authorized member of the clergy or public official and at least one other witness that they take each other as husband and wife. There is no minimum age for a witness. However, in selecting a witness, choose at least one person who you feel would be competent to testify in a court proceeding as to what he or she witnessed.
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Q : Who may conduct a marriage ceremony? A : To be valid, a marriage ceremony must be performed by any of the individuals specified in Section 11 of the New York State Domestic Relations Law. These include:
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the mayor of a city or village;
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the city clerk or one of the deputy city clerks of a city of more than one million inhabitants;
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a marriage officer appointed by the town or village board or the city common council;
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a justice or judge ;
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a village, town or county justice;
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a member of the clergy or minister ;
- other officiants as specified by Section 11 of the Domestic Relations Law.
The person performing the ceremony must be registered with the City of New York in order to perform a ceremony within the New York City limits. The officiant does not have to be a resident of New York State. Ship captains are not authorized to perform marriage ceremonies in New York State.
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Q : Are there legal remedies if a husband or wife refuses to have sexual relations with his or her spouse? A : In New York, the refusal to have sexual relations with a spouse is a specific ground for divorce. A court, of course, would not order a person to have sexual relations with his or her spouse. In fact, in many states, a spouse who forces sexual relations with a partner can be charged with rape under the state's criminal laws.
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Q : What is loss of consortium? A : Loss of consortium refers to the loss of companionship and sexual relationship with one's spouse. (The concept also can apply more broadly to the loss of companionship and affection from other family members such as a child or parent.) In personal injury actions, plaintiffs may seek monetary damages for loss of consortium in addition to payment for other losses such as medical expenses, lost wages, and physical pain and suffering. For example, if a man is injured in an auto accident caused by a negligent driver and the man is unable to have sexual relations with his wife for two years because of the accident, both the husband and wife may seek damages for that loss.
| Top of Page | Q : May wives and husbands sue each other? A : Yes. They can sue each other, of course, in connection with a divorce. They also usually can sue each other in connection with financial deals in which one may have cheated the other. A growing number of states also will allow one spouse to sue the other for deliberate personal injuries, such as those suffered in a beating. Some husbands and wives may try to sue each other in connection with an auto accident in which one of them, as the driver, accidentally causes injury to the other, who was a passenger. In effect, the person suing may be trying to collect money from an insurance company rather from the person's spouse. Many states do not allow such lawsuits.
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Q : Can a husband or wife testify against each other in court? A : Yes. Husbands and wives routinely testify against each other in divorce cases. There is an old rule of law that husbands and wives cannot testify about confidential communications between themselves made during the marriage. Although the rule may be applied in some circumstances, it generally does not apply if the husband and wife are involved in a lawsuit against each other.
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Q : Does a woman's last name change when she gets married? A : Every person has the right to adopt any name by which he or she wishes to be known simply by using that name consistently and without intent to defraud. A person's last name (surname) does not automatically change upon marriage, and neither party to the marriage is required to change his or her last name. The bride and groom need not take the same last name. The marriage certificate, containing the new name, if any, is the proof that the use of the new name, or the retention of the former name, is lawful. The local Social Security Administration office should be contacted so that its records and your social security identification card reflect the name change.
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