Marriage

Common Law

In this topic, we will discuss one of the most significant and recognized institutions within Family Law: marriage. The importance of this institution lies in the fact that it often marks the legal inception of the family unit, constituting the foundation of a family and, in most cases, the initial step to forming one.

For that reason, it is very important to understand its well-defined rules and regulations, established independently by each state.
Within the law of marriage, the principle of federalism becomes particularly significant, as they vary a lot across the country, resulting in specific regulations for each state. An example of the strong influence that federalism has is that, even though the whole country prohibits incest and establishes the minimum age for marriage, these rules themselves are not uniform in every state, as some permit marriage between cousins or even allow sixteen-year-olds to marry.

Also, in this area, the issue of marital property goes so far as to divide the country into two systems:

• Community Property
  The minority of the states apply the first system, which is very similar to what we know in Brazil as the “legal system”, since the rule is that any property acquired for value, during the marriage, is equally divided between them in the event of divorce .
• Common Law Property
  The other system, in turn, adopted by most states, protects each spouse’s individual estate in its entirety, such that, the title/documentation of the property determines ownership, not merely the fact that the couple is married.

However, we must comprehend that, even though marriage in the U.S. highlights the role of federalism in Family Law, the right to marry is a fundamental right protected by the Constitution, which means that all states must respect and protect this guarantee equally.

In this regard, as we discussed in the previous topic, while Family Law is grounded in the principle of privacy – granting individuals the freedom to structure their own family relationships – there are certain rules enacted by all states that must be followed for a marriage to be legally valid. A rule that doesn’t vary from state to state, for example, is the prohibition of bigamy, which means that marriage can only be formed by two individuals (couple), and a person may only remarry if the prior marriage has ended, either by the death of a spouse or by a final divorce .

Thus, as discussed, federalism plays a central role in the regulation of marriage in the U.S., since the matter related to marriage has well-defined rules that are specific to each state, reflecting its authority and regulatory power. However, while this principle has a strong influence on this regard, some rules — such as the right to marry and the prohibition of bigamy — are the same across all states.

Dra. Fabiana Panattoni das Neves