We have covered several aspects of invalid or bad marriages. Let’s now look at the requirements to marry. Generally, a person must consent to be married, the marriage license must be obtained, and the marriage must be properly solemnized. Let’s look at the first requirement: that the person consents to be married.

Consent generally refers to a voluntary agreement or acquiescence by a person. A person is able to voluntarily enter into marriage if they have the requisite mental capacity (by age and by mental competence), they are not under duress, or subject to fraud.

To marry requires the capacity to enter into contracts. State statutes invariably require this base level of mental capacity. Mental capacity only has to exist at the time the marriage was entered into. Presumably, this means the time when the marriage license is approved.

Unfortunately, state statues usually do not provide an effective mechanism to ascertain a marriage applicant’s mental condition. Typically the matter lies entirely in the hands of the low-level clerks authorized to issue marriage licenses.

Voluntary agreement or acquiescence also requires an intent to marry. If the consent to marry was obtained by force, duress, or fraud, the non-intending party may be able to annul the marriage. This is often raised in the general idea of a shot gun wedding. Where there is an actual shotgun involved, the would-be husband will probably be under sufficient duress to annul the marriage.

Yet, marriages with limited intent have usually been upheld by the courts. For example, sham marriages with the limited purpose and limited intent of giving a baby a last name have been upheld. Marriages to obtain citizenship or immigration status have also been upheld.

The courts may turn a deaf ear on these arguments if both would-be spouses had engaged in force, duress, or fraud related to the marriage. In legal terms, the courts may consider whether the party requesting court action had unclean hands.

Having considered the consent element of marriages, let’s now look at the second and third requirements: that the marriage license is obtained and the marriage be properly solemnized.