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Whether or not a marriage is legally valid can have
important legal consequences. Among matters that can depend on the validity of a marriage
are:
 | Inheritance rights and rights under wills (see "Probate/Estate Planning") |
| Child custody and support rights (see "Dissolution") |
| Spousal support (maintenance or alimony) rights (see
"Dissolution") |
| Entitlement to various government benefit programs,
workers' compensation, and insurance benefits |
| Eligibility for special tax treatment |
| Whether the marriage can be annulled (see the "Annulment" page) |
A valid marriage in Missouri requires three elements:
Mutual consent of the parties, eligibility to marry, and adherence to proper procedures.
The first requirement, that both parties consent to the
marriage, is covered in more detail on the "Annulment"
page.
The second requirement, that both parties be legally
eligible to marry, means that the parties cannot be within a class of persons prohibited
from marrying. By statute, the Missouri General Assembly has specified several categories
of persons ineligible to marry:
| A person under age 18 cannot marry without the consent
of the custodial parent or guardian. |
| A person under age 15 cannot marry without approval of a
judge in the county where the marriage license is sought. The statute states that the
judge should grant approval only upon a showing of "good cause" and that unusual
conditions make the marriage "advisable." |
| Persons lacking mental capacity to consent to marriage
cannot marry without court approval |
| Incestuous marriages are prohibited. The statute defines
such marriages as those between parents and children, grandparents and grandchildren,
brothers and sisters of the half as well as the whole blood, uncles and nieces, aunts and
nephews, and first cousins. The prohibition applies whether the persons were born to
married or unmarried parents. (While a recent Missouri case held that the statute did not
prohibit a marriage between an uncle and niece related by adoption, a marriage between an
ancestor and descendant by adoption might not be permitted because of a separate criminal
incest statute.) |
| Bigamous marriages – that is, marriages where
either or both of the parties is currently married to another living spouse – are
banned in Missouri. (Bigamy is also a criminal offense under Missouri law.) |
| Finally, a relatively new addition to the list of
prohibited marriages is a ban on same-sex marriages. Previously this was assumed to be the
law, but it was made explicit by a new statute adopted by the General Assembly in 1996. |
The third requirement for a valid marriage in Missouri
is that the procedures mandated by the statutes be followed. The basic procedures are:
| The prospective marriage parties must appear together
before the Recorder of Deeds of any Missouri county and apply for a marriage license.
Identification will be required, and the parties’ Social Security Numbers must be
provided (although the numbers are considered a closed record not open to public
inspection). Call ahead to find out the fee charged by the Recorder for issuing a marriage
license. |
| If the application is in order,
the Recorder will immediately issue the
marriage license unless one of the parties withdraws the application
(the former three-day waiting period
for issuance of a license was repealed in 2007). After issuance, the marriage license is valid for 30 days. |
| Within the 30-day period after the marriage license is
issued, the marriage must be "solemnized" by one of the following:
 | A clergyman or clergywoman, active or retired, who is in
good standing with any church or synagogue in Missouri |
| A Circuit Court or Associate Circuit Court judge (who
are prohibited by a Missouri Constitutional provision from receiving any compensation for
the service) |
| A religious society, institution or organization in
Missouri of which either marriage party is a member, in accordance with the
organization’s regulations and customs. |
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| Within 90 days after the marriage ceremony, the person
solemnizing the marriage must complete the marriage certificate issued with the marriage
license and return it to the office of the issuing Recorder. Lack of witnesses does not
render a marriage invalid. However, two witnesses can submit an affidavit that the
marriage ceremony took place if the certificate is lost or destroyed and the person who
solemnized the marriage is unavailable. |
Minor technical defects in following the
above-mentioned procedures have been held by the courts not to invalidate a marriage, but
each situation is different and an attorney should be consulted if there is any question
about the validity of a marriage.
So-called "common law" marriages have been
banned by statute in Missouri since 1921. However, Missouri law does recognize the
validity of common-law marriages entered into in Missouri before 1921, as well as
common-law marriages contracted in other states which permit them. Jurisdictions in the
United States which recognize common-law marriages include Alabama, Colorado, District of
Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode
Island, South Carolina and Texas.
The marriage statutes provide a mechanism for
"legitimizing" children born before the marriage of the parents. Such children
are deemed legitimate children of the marriage if the father and mother give their names
to the solemnizing official at the time of marriage and the official records the names on
the marriage certificate.
Numerous legal rights and relationships arise from a
marriage in addition to those mentioned at the top of this page. A partial list includes:
| The spouse of a criminal defendant may not be required
to testify in the defendant's trial, but may testify at the defendant’s option. |
| A privilege against disclosure of confidential
communications between spouses protects communications during the marriage and can be
exercised even after divorce by either spouse. However, the privilege may not be
recognized when the welfare of children is at issue. |
| A lawfully married minor is considered an adult for the
purpose of entering into a contract for surgical, medical or other treatment for himself
or herself, his or her spouse, or his or her child, or any child in his or her legal
custody. (See the "Juvenile Law" Page, a sub-page of
the "Family Law" page.) |
| Generally, a married couple owning property together are
presumed to own the property as "tenants by the entirety." Neither spouse can
sell the property without the other’s consent. Such property also is exempt from
judgment collection efforts by a creditor of only one of the spouses. (See the "Other Techniques" page, a sub-page of the "Probate/Estate Planning" page.) |
| Each spouse has certain property rights upon the death
of the other spouse (see the "Spousal Rights" page, a
sub-page of the "Probate/Estate Planning" page). |
| Each spouse has a variety of rights under the
dissolution of marriage law if the marriage is dissolved. (See the "Dissolution" page and its sub-pages under the main "Family Law" page.) |
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