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Thursday, February 11, 2016

Why are Vital Records Vital to Genealogists? Part Eight -- Marriage and the laws that govern legality

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It is very common for genealogists to focus on the categories of birth, death and marriage almost exclusively. As I assist people in finding their ancestors I often hear questions about finding one of these types of records. Unfortunately, some genealogists think that once the birth, death and marriage dates are found that is the end of the research. From this limited standpoint, failure to find one or more of these records is a calamity and is considered by some to be a brick wall. In these cases, it is important to realize that vital records are only one way of identifying an ancestor. They are an important factor in specifically identifying people, but not the only way to do so.

Marriage has always affected the property ownership interests of the married parties to some extent or another. It is this direct relationship between marriage and property that makes marriage information so valuable to genealogical researchers.

The marriage date recorded in a record may or may not reflect the existence of a "legal" marriage. For genealogical researchers, determining whether or not an ancestor who lived with a marriage partner and had children was actually married can be an important issue. However, the reality for a researcher is that the laws governing marriage can vary from state to state, country to country and even within the states and countries by religion or cultural heritage.

Marriage laws date back into antiquity. Some of the most ancient recorded laws deal with marriage and property. It is imperative that genealogists researching back in time into Europe and other parts of the world understand the changes that occur as they move back in time and into different countries, religions and cultures. The relationships between family members is technically called a kinship system. The web of relationships in some cultures are far from adequately represented by the commonly used pedigree chart. The core concept of a "marriage" is that the union of a man and a woman is considered by the society to be binding and as having an effect on property ownership.

There are several online glossaries of genealogical terms that include many references to marriage. Here are some useful links.
Some researchers focus on finding a "marriage certificate." The document above is a marriage certificate from Russia dating from 1907. But this type of document is not the only one created that evidences a marriage relationship. To do adequate genealogical research it is necessary to understand the marriage laws and customs of the countries where your ancestors lived. But here, I will focus on the legal documents and laws that have governed marriages in the Unites States.

Before I begin a general discussion of marriage laws, it is important to know that in the United States we have two major systems of law, one inherited from English Common Law and one from Spanish Civil Law. The differences between these two systems is particularly noteworthy as they pertain to marriage laws. The states that have adopted provisions from the civil law for marriage are often known as "Community Property Law" states. There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska is also an opt-in community property states. In Community Property states, a marriage makes the parties to the marriage equal partners with full ownership of all of the property in what is called the "marital community." The marriage partners are said to own an undivided interest in the whole of all of the property obtained or co-mingled during coverture. Ownership of property in a community property states is distinctive from the way marital property is owned in the other states although the processes of getting married and divorced are very similar.

Because immigrants came to America from a huge variety of countries with a variety of customs within those countries, it is very difficult to generalize marriage customs even from the earliest colonial times. The basic process involved negotiating a dowry, followed by the betrothal or engagement and then the wedding. As I have pointed out previously, the steps in this process were recorded by churches and at some point, civil authorities. For many European countries civil registration began in stages only in the 1800s. Earlier records of births, deaths and marriages are usually found only in church records. However, in some parts of Colonial America principally New England, some of these events were recorded in town records.

It would be nice if we could just go to some centralized register and find all the marriages recorded, but that did not happen until well into the 20th Century in the United States. Marriage records where they were kept by civil authorities are scattered in all of the counties across the country. As of 2013, the United States had 3,007 counties and 137 county equivalents for a total of 3,144 places to look for marriage information. See Wikipedia: County (United States). When you consider that many of these counties have changed their boundaries over time, researching marriage records in no small task. The records could be archived in different locations depending on the historical circumstances of the changes. Researchers should also remember that the states themselves have changed over the years beginning with the arrival of the first Europeans.

Some of the legal considerations of the marriage relationship include whether or not a common law marriage was or is recognized as valid, the age by which consent of the parents is required for a marriage, whether or not the states require a medical examination and the waiting period before a marriage license will be issued. The Cornell University Law School has prepared a useful chart showing the application of the law in each of these categories. See Marriage Laws (

When a man and a woman live together for a certain period of time as if they were married and have not gone through a formal marriage, the relationship is often referred to as a "common law" marriage. However, one reason for starting with the discussion about Community Property States is that they generally do not recognize common law marriage. However, there are common law states that do not recognize such marriages and community property law states that do. From the standpoint of a genealogical researcher, if the state where your ancestors lived recognizes a common law marriage and your ancestors lived in such a relationship, you may not find any evidence of a formal marriage. But even if the state did not recognize a common law marriage, your ancestors may have lived together as man and wife without the sanctity of the marriage laws.

In the United States presently, the age at which a person may get married without parental consent is almost uniformly 18 years of age. But this may have varied in the past and it is not uncommon to discover that one or even both of the married couples lied about their age in order to marry. But you might want to check the law in your ancestors' state at the time in question. The age required could have been as high as 21 years of age or, in the case of Mississippi, for example, 17 for a male and 15 for a female. There are also states, such as Wisconsin and Wyoming where the age is 16 years old.

It is not always a part of the legal system, but many church marriages required a formal announcement of the marriage on one or more occasions before the wedding could proceed. These announcements are usually called "wedding banns or bans" and could have been required as long as a month or more before the actual wedding. Sometimes the custom of the church required multiple announcements on successive Sundays or other meeting day. The existence of these customs point out the importance of learning about the cultural, religious and legal environment during the time your ancestors lived. Within the same community, there could be dramatically different marriage customs depending on the ethnic or religious background of your relatives.

If the marriage ended, either through a divorce or the death of one of the partners, the inheritance laws or laws of distribution of assets in a divorce also vary considerably by the time period involved and the geographic area. For example, in Arizona, the surviving spouse, without a will, inherits all of the deceased's half of the community property and of course, owns their own half even if they have children. But if the surviving spouse has children from more than one marriage, the laws get more complicated. This is the case across the entire country.

During different time periods in America, some marriages were absolutely prohibited. The most common prohibition was between closely related individuals, usually this applied to siblings and first cousins. These prohibitions applied not only to church weddings but were commonly incorporated into civil law. Interracial marriages were prohibited in many areas of America and were only abolished in the 20th Century. There are still areas in the United States where interracial marriages are not accepted.

To summarize, the laws concerning marriages vary over time and from place to place. The also vary according to the ethnic background of your ancestors. A careful researcher will take the time to investigate the particular laws that apply to his or her ancestors. Here is a selection of books that will be helpful in researching applicable marriage laws.

Albin, Mel, and Dominick Cavallo. Family Life in America, 1620-2000. St. James, N.Y.: Revisionary Press, 1981.
Hartog, Hendrik. Man and Wife in America: A History. Cambridge, Mass.: Harvard University Press, 2000.
Jacobson, Cardell K, and Lara Burton. Modern Polygamy in the United States Historical, Cultural, and Legal Issues. New York: Oxford University Press, 2011.
Katz, Sanford N. Family Law in America. Oxford; New York: Oxford University Press, 2003.
Koegel, Otto E. Common Law Marriage and Its Development in the United States. Washington [D.C.]: J. Byrne & Co., 1922.
North, S. N. D, and Desmond Walls Allen. Marriage Laws in the United States, 1887-1906. Conway AR: Arkansas Research, 1993.
Snyder, William L. The Geography of Marriage; Or, Legal Perplexities of Wedlock in the United States. New York; London: Putnam, 1889.
United States, Bureau of War Risk Insurance, and United States. Digest of the Law Relating to Common Law Marriage in the States, Territories, and Dependencies of the United States. Washington: Govt. Print. Off., 1919.

Here are the previous installments of this series.

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