Marriage Law in the U.S.

Who makes marriage law in the U.S.?

Marriage in the United States is primarily a matter of state law. Each state sets its own rules on who may marry, how to get married, and how a marriage ends. Federal law matters in two ways: the Constitution limits what states may do, and federal statutes attach many benefits, such as tax filing status, Social Security and immigration, to marital status.

Because states differ, a couple's rights can depend on where they live. Still, the Supreme Court's decisions and the requirement that states recognize marriages validly performed elsewhere have created a common national core.

Legal requirements for a valid marriage

• License: couples obtain a marriage license from a county or local official, often with a short waiting period.
• Age: most states set 18 as the age to marry without restrictions. A growing number of states ban marriage under 18 entirely; others allow it with parental consent or court approval.
• Capacity and consent: both parties must understand the nature of marriage and agree freely. Fraud or duress can make a marriage voidable.
• No existing marriage: bigamy is prohibited everywhere.
• Not closely related: marriages between close relatives are barred; states differ on first cousins.
• Solemnization: a ceremony performed by an authorized official or clergy member, with the license then recorded.

A handful of states and the District of Columbia still recognize common-law marriage, formed without a license when a couple agrees to be married, lives together and holds themselves out as married. Other states don't allow it to form within their borders but generally recognize common-law marriages validly created elsewhere.

Marriage as a fundamental right: landmark cases

The Supreme Court has treated marriage as a fundamental right protected by the Fourteenth Amendment. In Loving v. Virginia (1967), it unanimously struck down Virginia's ban on interracial marriage, holding that it violated both equal protection and due process. In Zablocki v. Redhail (1978), it invalidated a law barring people behind on child support from marrying without court permission, and in Turner v. Safley (1987), it held that prison inmates retain the right to marry.

In Obergefell v. Hodges (2015), the Court held 5–4 that same-sex couples have the right to marry and that states must recognize same-sex marriages performed in other states. Justice Kennedy's opinion drew on the line of privacy and autonomy cases. In 2022, Congress passed the Respect for Marriage Act, which repealed the Defense of Marriage Act and requires federal and interstate recognition of valid marriages regardless of sex, race or ethnicity.

The marriage cases share a pattern: the state tried to decide who was worthy of marrying. Each time, the Court answered that the choice of a spouse belongs to the people marrying.

Rights and duties that come with marriage

Marriage changes legal relationships in many ways. Spouses may file joint tax returns, receive Social Security spousal and survivor benefits, petition for a spouse's immigration, make medical decisions when a spouse is incapacitated, and refuse to testify against a spouse in some situations under the spousal privilege. Spouses also owe each other support.

Property rules depend on the state. Nine states, including California and Texas, use community property, treating most property acquired during marriage as owned equally by both spouses. The rest use separate property during marriage and equitable distribution at divorce. Inheritance rules protect surviving spouses too: in most states a spouse can't be completely disinherited, a topic covered in how to write a will. Couples can change many default rules through a prenuptial agreement, which many states regulate under the Uniform Premarital Agreement Act.

Ending a marriage: divorce and annulment

California adopted the first modern no-fault divorce law in 1969, allowing divorce based on "irreconcilable differences" without proving wrongdoing. By 2010, when New York joined, every state allowed some form of no-fault divorce, though some also keep fault grounds such as adultery or cruelty. Divorce courts divide property, may award spousal support (alimony), and decide child custody based on the best interests of the child and child support under state guidelines.

An annulment declares that a valid marriage never existed, for reasons such as bigamy, incest, lack of capacity, or fraud going to the essence of the marriage. Procedural fairness matters in all these cases; custody and support decisions must follow due process, including notice and an opportunity to be heard.

Korea vs. the U.S.

Korea's Civil Act sets a uniform national rule. The minimum age to marry is 18 (art. 807), and minors need parental consent (art. 808). Marriage between blood relatives within the eighth degree is prohibited (art. 809), and bigamy is barred (art. 810). Marriage takes legal effect only when it's registered under the Family Relationship Registration Act (art. 812). Couples who live as spouses without registering have a de facto marriage (사실혼), which courts protect in some respects, such as property division on separation, but not in others, such as inheritance.

Divorce can be by agreement (협의이혼), with a reflection period of three months if there are minor children and one month otherwise (art. 836-2), or by court judgment on statutory grounds (art. 840). In 2015 the Supreme Court's en banc decision maintained the rule that a spouse mainly responsible for the breakdown generally can't obtain a contested divorce, keeping Korea closer to a fault-based model. Korea doesn't recognize same-sex marriage, though in 2024 the Supreme Court en banc held that a same-sex partner could be covered as a dependent under national health insurance.

Both countries treat marriage as a legal status, but they disagree about how much the state should decide. The U.S. moved toward individual choice at both the beginning and end of marriage; Korea keeps more weight on fault and formal registration.

What are the legal requirements to get married in the U.S.?

Generally a marriage license, minimum age, legal capacity and consent, no existing marriage, not being closely related, and a ceremony by an authorized officiant.

Is common-law marriage still recognized?

Only a few states allow it to be formed, but most states recognize common-law marriages validly created where they're allowed.

Is same-sex marriage legal in every state?

Yes. Obergefell v. Hodges (2015) requires all states to license and recognize same-sex marriages.

How is Korean marriage law different?

Korea uses one national law, marriage takes effect on registration, same-sex marriage isn't recognized, and contested divorce follows a fault-based approach.

References and official sources

1. Marriage, Wex. Cornell LII
2. Loving v. Virginia, 388 U.S. 1 (1967). Justia
3. Obergefell v. Hodges, 576 U.S. 644 (2015). Justia
4. Zablocki v. Redhail, 434 U.S. 374 (1978). Justia
5. Respect for Marriage Act, H.R. 8404 (117th Congress). Congress.gov
6. 민법. 국가법령정보센터