This Manual is based upon the statutes in effect as of January 1, 1991. The laws are subject to change. References in the Manual to statutes appear as in the following example: MCL 551.2; MSA 25.2, where "MCL" refers to Michigan Compiled Laws, and "MSA" refers to Michigan Statutes Annotated. The numbers are the chapter and section numbers assigned to the statutory provisions, and indicate where in the two publications they may be found.
Lansing, Michigan 48933
Prepared By
James P. Ryan, Esq.
Plymouth, Michigan
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Giving legal recognition to a marriage carries with it a number of important consequences, including the creation of additional duties and rights. Among other things, marriage:
(2) results in certain "privileges" (e.g., support, and property and inheritance rights);
(3) creates certain responsibilities (e.g., support); and
(4) provides the state, which sanctions the marital status itself, with the right and authority to regulate finances (e.g., support), property (e.g., inheritance rights, creditors' rights), personal activity (e.g., abuse, desertion), and the methods, reasons, and consequences of dissolution of the marital status.
Regulation of marriage, therefore, abounds. Some regulations are civil in nature, others are criminal. Regulatory statutes, both civil and criminal, employ the following factors in varying combinations: (a) age; (b) sex; (c) marital status; (d) mental health; (e) physical health; (f) consent/intent; (g) affinity (marriage); (h) consanguinity (blood); (i) adoptive status.
Name Change Upon Marriage: Michigan law does not require a woman to take the name of her husband upon marriage. Op Atty Gen, 1928-1930, pp 824, 826.
Names of Children: Michigan law provides that the name of the husband at the time of conception (or if none the husband at birth) shall be registered as the father of the child, and the child's surname shall be registered as designated by the child's parents. MCL 333.2824; MSA 14.15(2824).
Common Law Marriage: Consent and cohabitation alone have been insufficient since January 1, 1957, when the requirement of a license and solemnization was added. However, a common law marriage entered into before then, or created in a state that does recognize them, will still be recognized as valid in Michigan. The following jurisdictions appear to still allow common law marriages: Alabama, Colorado, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and the District of Columbia.
Age Requirements: Michigan law allows marriage without parental consent at age 18; with parental (or legal guardian) written consent at age 16; and with parental consent and probate court permission at ages under 16. MCL 551.51; MSA 25.21, and MCL 551.103; MSA 25.33. Age has always been a regulated factor, due to concerns about nonsupport, divorce rates, and general immaturity.
Marriage of a Minor: The legal marriage of a minor ''shall release such minor from parental control ...." MCL 551.251; MSA 25.61.
Capacity to Contract Marriage: ''No insane person, idiot, or person who has been afflicted with syphilis or gonorrhea and has not been cured of the same, shall be capable of contracting marriage .... No person who has been confined in any public institution or asylum as a feeble-minded, imbecile or insane patient, or who has been adjudged insane, feeble-minded or an imbecile by a court of competent jurisdiction, shall be capable of contracting marriage without ... filing ... a verified certificate from 2 regularly licensed physicians of this state that such person has been completely cured of such insanity, imbecility or feeble-indedness and that there is no probability that such person will transmit any of such defects or disabilities to the issue of such marriage ...." MCL 551.6; MSA 25.6. While many of the phrases used in this law no longer have meaning as diagnostic terms, the law represents a policy first adopted in 1838 of protecting those persons not considered capable of protecting themselves from their own actions. The capacity of a party to an intended marriage who has had a guardian appointed should be clarified. (Web master Special Note: MCL 551.6; MSA 25.6 has been repealed by Public Act 9 of 2001 effective May 29, 2001).
From 1923 to 1963, epileptics were included among the above groups. None of these laws existed from 1788 to 1838, since common law was concerned only about conditions affecting potency and ability to consummate, not genetics.
Prohibited Marriages: There is a distinction between prohibited marriages that will not be recognized by the state regardless of the capacity of the parties (and are, therefore, invalid or void), and those that could be valid but are voidable due to some incapacity of the parties.
Two mirror-image statutes provide:
"No woman shall marry her father, grandfather, son, grandson, stepfather, grandmother's husband, daughter's husband, granddaughter's husband, husband 's father, husband 's grandfather, husband's son, husband's grandson, nor her brother, brother's son, sister's son, father's brother, mother's brother, or cousin of the first degree. " MCL 551.4; MSA 25.4.
"No marriage shall be contracted whilst either of the parties has a former wife or husband living, unless the marriage with such former wife or husband, shall have been dissolved." MCL 551.5; MSA 25.5.
First cousins are, under current law, prevented from marrying, although there appears to be no strong biological evidence to support this, and the Attorney General has ruled (1918) that adoptive first cousins can marry. Michigan's history regarding first cousins has been one of change, first allowing (1788-1820), then prohibiting (1820-1838), then allowing (1838-1903), then prohibiting again (1903 on).
While uncle-niece and aunt-nephew marriages are prohibited, there is no prohibition where the relationship is by adoption, and no known Michigan law on the subject.
Common law, in combination with canon law, prevented second marriages from 1788 until 1820, when a prohibition was added as part of a definition of capacity ("not having a husband or wife living"), leaving open the church sanction requirement until 1838, when the phrase "unless dissolved" was added. Polygamous marriages have been "absolutely void" since 1838 if solemnized in Michigan. MCL 552.1; MSA 25.81. Polygamy is a crime which requires either a second marriage in Michigan (it is not a defense that the second marriage is legally void, since all bigamous marriages are void), or cohabitation here after a bigamous marriage elsewhere. MCL 750.439; MSA 28.694. A divorce from, or death of, a first spouse will not validate a second (bigamous) marriage. A new marriage is required.
While there is no express prohibition of "same-sex'' marriages, Michigan law often refers to the "husband and wife" "man and woman" or "person of the opposite sex" and over 200 years of custom and tradition would seem to rule out the validity of such a marriage. Since prohibitions of marriage relate only to the time of the event of marriage, a post marriage sex change operation would not invalidate a traditional marriage.
Secret Marriages: Michigan has an unusual set of laws, first enacted in 1897, that probate court consent. Upon an approved application, the probate judge issues a marriage license and performs the ceremony. If the couple request that some other authorized persons solemnize the marriage, permission will be given and that person performs the ceremony and returns the certificate. No record shall be made of the marriage, except the record made by the judge, and the file is sealed. "All knowledge of facts ... under this act shall be privileged communications. A violation of confidence ... is a misdemeanor, ... Iiable in an action of libel ...." MCL 551.201 to 551.204; MSA 25.51 to 25.54.
Recognition of Foreign Marriages: Enacted in 1939, one Michigan statute only recognizes out-of-state marriages by legally competent Michigan residents, not marriages of nonresidents who later move to this state. MCL 551.271; MSA 25.15. The latter group of marriages, if valid where performed, would be recognized in Michigan as valid, even if it would not be valid if solemnized in Michigan (e.g., first cousins)
Blood Test: The old blood test requirement was repealed on December 28, 1988.
HIV Counseling: Individuals applying for a marriage license must be counseled by a physician or a local health officer (or designee) regarding the prevention of venereal disease and HIV infection. Tests will be offered. If tests are taken, and come out positive, the couple will be contacted and given further counseling. The county clerk will provide the couple with a booklet about these matters and on prenatal care, which lists counseling and testing services. The couple must file with the clerk either a certificate that they received the counseling, or a written objection that such counseling violates their personal religious beliefs. (Web master's Special Note: This requirement was repealed effective January 1, 2001)
License: The parties intending to marry must obtain a marriage license from the county clerk in the county in which one of the parties lives (or, if both parties are non-residents, in the county where the marriage is to be performed), and deliver it to the person who is to solemnize the marriage, before the marriage can be performed. MCL 551.101; MSA 25.31.
License Fee: The marriage license fee is $20.00 ($30.00 if both parties are nonresidents), and $15.00 of it is allocated for family counseling services. Wayne County is authorized to charge more. A probate court may waive the marriage license fee in cases of undue hardship. MCL 551.103(2); MSA 25.33(2).
Waiting Period: The parties must wait three days after applying to receive their marriage license, which becomes void if the marriage is not per-formed within 33 days after application. The county clerk can waive the 3 day waiting period for "good and sufficient cause shown." MCL 551.103a; MSA 25.34.
Solemnization Authority: Marriages may be solemnized by any of the following: (a) federal, probate, district, and municipal judges, and district court magistrates, in their court area; (b) mayors, in their city; (c) Wayne County clerks; (d) ministers of the gospel, anywhere in the state, "if the minister is ordained or authorized to solemnize marriages according to the usages of the denomination, and is a pastor of a church in this state, or continues to preach the gospel in this state"; and (a) non- resident ministers of the gospel, anywhere in the state, if the minister is authorized to solemnize marriages by his or her state's laws. MCL 551.7; MSA 25.7. Does the phrase "minister of the gospel" include a rabbi? There is no known Michigan law on the subject.
Solemnization Form: No particular form or oath is required. The parties merely solemnly declare that they take each other as husband and wife before at least two witnesses and the person officiating. MCL 551.9; MSA 25.9. A special law allows "the people called Friends or Quakers" and "people of any other particular denomination, having, as such, any peculiar mode of solemnizing marriages" to solemnize their marriages in their own manner. MCL 551.17; MSA 25.13.
Solemnization Fee: Mayors and Wayne County clerks are specifically authorized to collect a fee (set by their city, or county commissioners) for solemnizing marriages. The money is to be turned in to the government. MCL 551.7; MSA 25.7. There are no specific provisions concerning fees charged by others.
Certificate: After the wedding ceremony the person who solemnizes the marriage fills in (typed or legibly printed) the certificate with the time and place of the marriage and the names and residences of the two witnesses, and signs it. The part marked "duplicate" is given to the newlyweds, and the original must be mailed to the county clerk that issued it within 10 days. The clerk records the information in a registration book, and mails it on to the the state registrar. The person who performs the marriage must also keep a record ''in a book used expressly for that purpose." MCL 551.104; MSA 25.35. The license, when fully filled out, thus serves a "double purpose" and becomes the certificate.
(b) A person who solemnizes contrary to the provisions of the law (e.g., a prohibited marriage). MCL 551.14; MSA 25.10. [Up to $500]
(c) A clergyman or magistrate who solemnizes a marriage without first obtaining a properly issued license from the parties to the marriage. MCL 551.106; MSA 25.37. [Up to $100; if not paid, up to 90 days]
(d) An applicant for a marriage license who knowingly swears to a false statement on the application. MCL 551.108; MSA 25.39. [Perjury: MCL 750.423; MSA 28.665. Up to 15 years]
(e) A county clerk who refuses to give a license to persons properly applying and legally entitled to be married, or who otherwise knowingly violates the law. MCL 551.105; MSA 25.36. [$25 to $100; if not paid, up to 30 days]
(f) A county clerk who issues a marriage license without getting a certificate concerning HIV counsel-ing. MCL 333.5121(a); MSA 14.15(5121)(a). [Up to $100; up to 90 days]
(g) A person who discloses the fact of, or results of, a person's venereal disease or HIV test, except as provided by law. MCL 333.5121(b); MSA 14.15(5121)(b). [Up to $100; up to 90 days]
(h) A physician who knowingly and willfully makes a false statement in a certificate concerning counseling about venereal disease and HIV infection. MCL 333.5121(c); MSA 14.15(5121)(c). [Up to $100; up to 90 days]
(i) A person whose duty it is to return a marriage certificate to the county clerk, or to keep a record of marriages, who fails to do so. MCL 551.107; MSA 25.38. [Up to $100; up to 90 days]
(j) A person other than a party to a marriage who violates the confidence and secrecy of or makes public information concerning a secret marriage. MCL 551.204; MSA 25.54. [$25 to $100, plus costs; if not paid, up to 3 months]
(k) A person afflicted with syphilis or gonorrhea who marries. MCL 551.6; MSA 25.6. [$500 to $1,000; up to 5 years]
(l) A person of sound mind who knowingly marries a person who is insane, an idiot, or who has been confined as a feeble-minded, imbecile, or insane patient, or who has been adjudged insane, feeble-minded, or an imbecile; or a person who advises, aids, abets, causes, procures, or assists in procuring such a marriage. MCL 551.6; MSA 25.6. [Up to $1,000; 1 to 5 years]
This pamphlet may be purchased individually or in bulk from the State Bar of Michigan, Membership Services Department, 306 Townsend Street, Lansing, Michigan 48933-2083. You may call 1-800-948-1442 ext. 6326 to obtain price information.
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Last Updated 2-18-03
Send your comments, questions and suggestions to Phil Harter at 161 E Michigan Avenue, Battle Creek, Michigan 49014 or e mail to pharter@calhouncountymi.gov