Louisiana Marriage Law — Comprehensive Study Notes

MARRIAGE IN LOUISIANA — COMPREHENSIVE STUDY NOTES

  • Focus: Louisiana law on marriage, including constitutional framework, civil code provisions, ceremonial requirements, impediments, covenant marriage, and practical implications.

  • Context: Slides illustrate a hypothetical couple (Solomon and Sarah) to ground legal concepts in real-world examples.

MARRIAGE DEFINITIONS AND RESEARCH FRAMEWORK

  • Louisiana Civil Code Article 86 defines marriage as:

    • A marriage is a legal relationship between a man and a woman created by civil contract.

    • Expressed in La. Civ. Code Art. 86: A marriage is a legal relationship between a man and a woman created by civil contract.\text{A marriage is a legal relationship between a man and a woman created by civil contract.}

  • Practical research note:

    • Louisiana Legislature website (legis.la.gov) is the starting point for finding relevant laws.

    • Steps (illustrated briefly):

    • Click on Laws at the top left.

    • Under Search, select Civil Code, Children’s Code, Code of Civil Procedure, Louisiana Constitution, and Revised Statutes.

    • Type the word “Marriage” and click search.

    • Purpose of the exercise: to show where to begin, not to memorize every statute.

  • Take-away from the scenario:

    • The initial definition emphasizes a man–woman framework; later sections address how this interacts with evolving federal law and state-level changes.

  • Key takeaway: The material uses a concrete example to contrast historic and current law, and to set up discussions of civil contract, impediments, and covenant marriage.

CONSTITUTIONAL AND CIVIL CODE FRAMEWORK FOR MARRIAGE

  • SAME SEX MARRIAGE: Constitutional framework (Louisiana)

    • Louisiana Constitution, Article XII, Section 15 (Defense of Marriage):

    • Marriage in the state shall consist only of the union of one man and one woman.

    • No official or court of the state shall recognize any marriage contracted in any other jurisdiction that is not the union of one man and one woman.

    • This creates a constitutional language that historically limited recognition to opposite-sex unions.

  • SAME SEX MARRIAGE: Civil Code framework

    • Louisiana Civil Code Article 3520(A):

    • A marriage that is valid in the state where contracted, or in the state where the parties were first domiciled as husband and wife.

    • Note: This provision recognizes validity when contracted elsewhere or when parties were domiciled as spouses, but context matters for recognition of same-sex marriages.

    • Louisiana Civil Code Article 3520(B):

    • A purported same-sex marriage violates a strong public policy of Louisiana.

    • Such a marriage contracted in another state shall not be recognized in Louisiana for any purpose, including any rights or claims arising from that purported marriage.

  • UNITED STATES SUPREME COURT IMPACT

    • Obergefell v. Hodges (2015): The Supreme Court held that same-sex couples may exercise the fundamental right to marry; this effectively legalized same-sex marriages nationwide.

    • Consequence for Louisiana: prompted analysis and potential statutory changes to reflect evolving constitutional and federal law.

  • LEGISLATIVE RESPONSE AND RESEARCH:

    • March 14, 2016: Louisiana State Law Institute Unconstitutional Statutes Committee published a Biennial Report to the Legislature.

    • Recommendations in the Biennial Report regarding same-sex marriage:

    • For Defense of Marriage (Constitution Article XII, Sec. 15): propose amending to replace the phrase one man and one woman with two natural persons.

    • For Civil Code Article 89: consider referencing Obergefell or repealing the article entirely.

    • For Civil Code Article 3520(B): consider referencing Obergefell or repealing the provision entirely.

    • Louisiana Legislature’s response (as presented):

    • The Defense of Marriage language remained in the constitution, and the Biennial Report was noted but the language largely remained unchanged in Articles 39 and 3520; other statutes continued to reflect the historical framework.

    • Practical takeaway from slides: SAME-SEX MARRIAGES ARE LEGAL IN LOUISIANA, but the written text of the laws may not yet reflect that reality in all provisions.

CIVIL CONTRACT OF MARRIAGE: DEFINITION AND COMPONENTS

  • Restatement of Article 86: A marriage is a civil contract between a man and a woman.

  • Three main requirements of a civil contract of marriage

    • Absence of Legal Impediment

    • Marriage Ceremony

    • Free Consent of Parties

    • These are foundational to a valid marriage under Louisiana law.

  • Formal framework for the civil contract

    • The contract is only valid if all three elements are satisfied; failures in any element can render the marriage invalid or subject to nullity/adjudication.

ABSENCE OF LEGAL IMPEDIMENT (WHAT CAN BLOCK MARRIAGE)

  • General concept: Certain conditions prevent a valid marriage from being formed.

  • Major impediments include:
    1) Existing marriage: cannot contract another marriage while a spouse is alive and living.
    2) Relationship (within 4th degree): certain relatives cannot marry (ascendants, descendants, and collaterals within the 4th degree in whole or half blood, by blood or adoption).
    3) Impediment of age: age-related restrictions apply; see details below.
    4) Adoption: relationships created by adoption have special rules governing marriage; see Article 74.3.

  • BIGAMY (Literal impediment to marriage):

    • Louisiana Revised Statute 14:76 defines bigamy as marriage to another person by someone already married with a living husband or wife, or habitual cohabitation in this state with the second spouse.

    • Consequence: bigamy is a crime punishable by fine or imprisonment.

  • RELATIONSHIP IMPEDIMENTS: details

    • Within the 4th degree of consanguinity or affinity:

    • Ascendants (parents, grandparents, etc.)

    • Descendants (children, grandchildren, etc.)

    • Collaterals within the 4th degree (siblings, aunts/uncles, nieces/nephews, cousins, etc.), including related by adoption.

  • DESCENDANTS, ASCENDANTS, AND COLLATERALS (definitions and scope)

    • Ascendants: ancestors such as parents and grandparents.

    • Descendants: children and their descendants (grandchildren, etc.).

    • Collaterals: relatives not in the direct line (siblings, aunts/uncles, nieces/nephews, cousins).

    • These terms are defined for the purpose of determining legal impediments to marriage.

  • EXAMPLES AND DIAGRAMS (illustrative):

    • A practical diagram shows Nancy, Fred, Helen, Brandon, Jeremy, Harry, etc., to illustrate how collaterals and ascendents interact.

    • The key learning: count degrees from each party to the common ascendant to determine if the marriage is within the 4th degree.

  • EXCEPTION TO THE 4TH-DEGREE IMPEDIMENTS:

    • An exception exists for marriages within the 4th degree if both parties are 55 years old or older and entered into the marriage on or before December 31, 1992.

  • IMPEDIMENT OF AGE

    • Minor under 16: cannot contract marriage.

    • Minor 16 or 17: cannot marry someone who is of the age of majority if there is an age difference of 3 years or more, unless certain conditions are met (e.g., judicial authorization and written consent from parents/tutor/guardian).

  • MARRIAGE OF PERSONS RELATED BY ADOPTION (Art. 74.3)

    • Persons related by adoption seeking to marry must obtain judicial authorization under Civil Code Article 90.

    • This authorization is sought in the parish of domicile for either party.

  • SUMMARY FORMULA FOR COLLATERAL DEDUCTIONS

    • To determine if a marriage is permissible between two parties A and B: identify common ascendant C, compute distances d(A,C) and d(B,C), and evaluate the sum:

    • deg⁡(A,B)=d(A,C)+d(B,C)\deg(A,B) = d(A,C) + d(B,C)

    • If deg⁡(A,B)≤4\deg(A,B) \le 4, marriage within the 4th degree is prohibited (subject to exceptions); if greater, potential legality subject to other requirements.

  • ILLUSTRATIVE NUMBERS FROM THE SLIDES:

    • Common ascendant distance example: Nancy to Helen distance = 2; Brandon to Helen distance = 3; Therefore, \deg(\text{Nancy}, \text{Brandon}) = 2 + 3 = 5 > 4, so Nancy and Brandon may legally marry in Louisiana (subject to other rules).

MARRIAGE CEREMONY: FORMAL REQUIREMENTS

  • The ceremony is required to be performed in a formal setting by a qualified official, and the parties must be physically present at the ceremony.

  • Procuration (contracting by proxy) is prohibited.

  • The ceremony must be witnessed by two competent witnesses of full age.

  • OFFICIANTS WHO MAY PERFORM A MARRIAGE CEREMONY:

    • A priest, minister, rabbi, clerk of the Religious Society of Friends, or any clergyman of any religious sect who has attained majority and is authorized by their religion to perform marriages and is registered to perform marriages.

    • A state judge or justice of the peace.

  • The officiant must be licensed/authorized to perform marriages.

FREE CONSENT OF PARTIES

  • Consent must be voluntary and free; it cannot be given under duress or by someone incapable of discernment.

COVENANT MARRIAGE (Louisiana-specific concept)

  • Definition and purpose:

    • Covenant marriage is a marriage between one male and one female that is expressly intended to be lifelong.

  • Counseling and prerequisites:

    • Parties must receive premarital counseling emphasizing the nature, purposes, and responsibilities of marriage.

    • Counseling is a prerequisite to entering a covenant marriage.

  • Termination and dissolution:

    • A covenant marriage may not be dissolved, rescinded, or terminated by mutual consent of the spouses.

  • Declaration of intent:

    • The couple may contract a covenant marriage by declaring their intent on the marriage license application and by executing a declaration of intent to contract a covenant marriage.

  • Contents of the declaration of intent:

    • A recitation that the marriage is a covenant between a man and a woman who intend to live together for life.

    • Acknowledgement that the parties chose each other carefully and disclosed information that could affect the decision to marry.

    • Acknowledgement that premarital counseling was received and that the couple understands covenant marriages are for life.

    • A commitment to seek counseling in case of marital difficulties to preserve the marriage.

    • Acknowledgment that the marriage will be governed by Louisiana Covenant Marriage law and that the couple will live according to shared duties as spouses for life.

  • Documentation:

    • An affidavit must be signed by the parties affirming premarital counseling.

    • The counselor must sign an attestation attached to or included in the parties’ affidavit, confirming counsel was provided.

MARITAL DUTIES AND CIVIL EFFECTS

  • MARITAL DUTIES:

    • The mutual duties married persons owe each other are:

    • Fidelity (faithfulness)

    • Support (financial and material care)

    • Assistance (aid when the other is in need)

  • These duties are considered civil effects of marriage and will be discussed in more detail in subsequent modules.

SURNAMES

  • Surnames and name changes in marriage:

    • The parties’ surnames do not automatically change by virtue of marriage.

    • Either spouse may use the surname of the other or both surnames may be used.

    • Practical implication: Solomon may use Sarah’s surname if they choose.

ADDITIONAL NOTES AND KEY CROSS-CONNECTIONS

  • Real-world relevance:

    • The material emphasizes the interaction between constitutional limits, civil code provisions, and federal constitutional changes (e.g., Obergefell).

  • Ethical/practical implications:

    • The tension between longstanding state-defined norms (one man, one woman) and evolving federal law requires ongoing legal interpretation and potential statutory amendments.

  • Formulas and explicit references in the notes:

    • Definition of marriage: Marriage=civil contract between a man and a woman\text{Marriage} = \text{civil contract between a man and a woman}

    • Impediment-degree calculation: deg⁡(A,B)=d(A,C)+d(B,C)with common ascendant C\deg(A,B) = d(A,C) + d(B,C)\quad \text{with common ascendant } C

    • Degrees threshold: deg⁡(A,B)≤4 implies prohibition (with exceptions)\deg(A,B) \le 4\text{ implies prohibition (with exceptions)}

  • Summary takeaway from the slides:

    • Historically, Louisiana text defined marriage as one man and one woman, with formal impediments and ceremonial requirements.

    • Federal law (Obergefell) legalized same-sex marriage nationwide, prompting analysis of Louisiana statutes.

    • The state has considered amendments, but as presented, the written text of several provisions still reflects the historic framework; nonetheless, same-sex marriages are legally recognized in practice.

    • Covenant marriage provides an alternative framework with enhanced premarital counseling and a different dissolution approach.