husband and wife


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husband and wife,

the legal aspects of the married state (for the sociological aspects, see marriagemarriage,
socially sanctioned union that reproduces the family. In all societies the choice of partners is generally guided by rules of exogamy (the obligation to marry outside a group); some societies also have rules of endogamy (the obligation to marry within a group).
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).

The Marriage Contract

Marriage is a contractual relationship between a man and a woman that vests the parties with a new legal status. Most of the requisites for other binding contractscontract,
in law, a promise, enforceable by law, to perform or to refrain from performing some specified act. In a general sense, all civil obligations fall under tort or contract law.
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 must also be present in the marriage contract. Thus, the parties must have been competent to act, must have acted free from duress, and must not have made fraudulent representations; otherwise the contract may be dissolved by a judicial decree of nullity of marriagenullity of marriage,
in law, an unlawful marriage that is either void or voidable because of conditions existing at the time of the marriage. A bigamous or incestuous marriage, for example, is void, and there is no need to bring a suit to obtain a decree declaring it void.
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. However, marriage is unlike other contractual relationships in that it creates a status that may not be terminated at will by the parties, but only by a court, as by a divorcedivorce,
partial or total dissolution of a marriage by the judgment of a court. Partial dissolution is a divorce "from bed and board," a decree of judicial separation, leaving the parties officially married while forbidding cohabitation.
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. It is thus often said that the state is a third party to any marriage. (Some European nations legally recognize partnerships that, though having some of the legal rights of marriage, are much easier to dissolve.)

With few exceptions, a marriage validly contracted in one place is recognized in others. Thus a common-law marriage—a marriage solely by the consent and behavior of the parties, without ceremony or registration—entered into in a state where such unions are valid will be deemed binding in states where a license to marry and a civil or religious solemnization are required. At an early period, common-law marriages were frequent in Europe; the difficulties arising from them—e.g., the doubtful legitimacy of children—led to their complete prohibition in Roman Catholic countries by the Council of TrentTrent, Council of,
1545–47, 1551–52, 1562–63, 19th ecumenical council of the Roman Catholic Church, convoked to meet the crisis of the Protestant Reformation.
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. Although common-law marriage was abolished in England in 1753, it remained lawful in Scotland and in the American colonies. Today, only 11 U.S. states permit the creation of common-law marriages within their borders. A few states have enacted laws permitting covenant marriages, in which premarital counseling is required and extra restrictions make divorce more difficult, but while such marriages are recognized by other states, the limits they place on divorce may not be, because the U.S. Supreme Court has established that the rules governing divorce are determined by the laws of the state of residence at the time of divorce and not of marriage.

Same-sex marriages, with all but a few of the legal aspects of traditional marriages, have recently been recognized in a few European nations. In the United States, local officials have from time to time registered same-sex couples or solemnized their marriages. At present, however, Vermont is the only state that grants any official recognition to a homosexual union. In some places local authorities have established "domestic partner" laws, granted "certificates of cohabitation," or undertaken similar steps in order to afford homosexual (and some other) couples various rights society reserves for marital partners.

Evolution of Marriage Law

The former Anglo-American law of marriage was chiefly characterized by the view that husband and wife are one legal personality, for whom the husband acts. Accordingly, the husband determined the marital domicile and was the dominant figure in the relation of parent and childparent and child,
legal relationship, created by biological (birth) relationship or by adoption, that confers certain rights and duties on parent and child; in some states the courts have given the nonbiological, nonadoptive partner of a parent standing as a parent in a legal
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. Nearly all the property of the wife passed to his absolute control for the duration of the marriage. The wife ordinarily could not make separate contracts, but if her husband refused support to her or to the children, she might pledge his credit to supply needs. After the death of a spouse, the survivor usually enjoyed a partial interest in the deceased's property. The wife's dowerdower,
that portion of a deceased husband's real property that a widow is legally entitled to use during her lifetime to support herself and their children. A wife may claim the dower if her husband dies without a will or if she dissents from the will.
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 entitled her to one third of the husband's property on his death; curtesy, a similar right of the husband in the wife's property, accrued only if children had been born of the marriage.

In time, the equityequity,
principles of justice originally developed by the English chancellor. In Anglo-American jurisprudence equitable principles and remedies are distinguished from the older system that the common law courts evolved.
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 courts recognized the wife's right during her husband's lifetime to a separate property in trust established for her benefit. By the late 19th cent., the need for a separate trust property disappeared, for Great Britain and all the American states adopted "married women's property" statutes, giving wives complete control over their property and their contracts. Most states provided that, in place of dower and curtesy, a surviving spouse was entitled to a certain share in the estate of the deceased spouse. A few states, following the Spanish law, recognized community property, whereby all property acquired during the marriage is owned by both husband and wife and is divided equally on the dissolution of the marriage.

Other features of the older laws on marriage have persisted, but many have been modified or eliminated. Certain old civil actions for injury to the marital relation that were once available only to the husband, such as actions for criminal conversation (adultery), actions for loss of consortium (marital services) because of physical injury to the wife, and for alienation of the wife's affections, are now either extended to the wife or denied to both parties.

Bibliography

See J. Henslin, Marriage and Family in a Changing Society (2d ed. 1985).

References in periodicals archive ?
Husband and wife of every family were interviewed separately and completed separate questionnaire forms.
George, are believed to be the first husband and wife to serve in the California Legislature simultaneously.
For a different outcome of a domestic dispute between husband and wife over appearance of "property", see Boydston, Home and Work, 97.
A husband and wife named Arnes owned all the stock of a corporation that operated a McDonald's franchise.
In the ruling, a husband and wife initially owned a residence.
Nor was this the only example of husband and wife partnerships recorded.
According to police, the incident began after a dispute between the husband and wife.
Both husband and wife believed selling the A&B stock would have a substantial disruptive effect on A&B's operations, so they agreed the husband would resign from A&B and the wife would receive all the company's stock and a portion of other community property.