THE LOUISIANA FAMILY LAW BENCH BOOK Andrea B. Carroll ... · THE LOUISIANA FAMILY LAW BENCH BOOK...

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THE LOUISIANA FAMILY LAW BENCH BOOK

Andrea B. Carroll

CHAPTER 3:

NULLITY & ENTRY INTO MARRIAGE

Nullity of Marriage.

Marriage is defined in La. Civ. Code art. 86 as a relationship “created by civil contract.”

Thus, marriage is not only governed by the special rules of the Civil Code on Persons and the

family, but also by the Civil Code articles governing obligations in general and conventional

obligations. La. Civ. Code arts. 1756-2057.

In 1997, the Louisiana Legislature adopted a new form of marriage – covenant marriage.

Louisiana now recognizes two types of marriage: covenant marriage and “traditional marriage.”

Covenant marriage, governed by La. Rev. Stat. §§9:272 – 276, is generally both more difficult

to enter into and more difficult to dissolve. Arizona and Arkansas passed similar legislation,

making Louisiana just one of three states with covenant marriage as a possibility. The legislation

was intended to address the rising divorce rate and bring religion back into the community and

into marriage. Nonetheless, it appears that only about 2% of the state’s population has chosen to

engage in a covenant marriage. This Chapter primarily addresses traditional marriage, with

distinctions noted for covenant marriage where appropriate.

I. Absolutely null marriages.

A. Causes. A marriage is absolutely null when contracted without a marriage ceremony,

by procuration, or in violation of an impediment. La. Civ. Code art. 94. The impediments

include prior undissolved marriages, certain close relations, and being of the same sex.

1. Legal impediment. The Louisiana Civil Code lists three impediments to marriage.

1.1 Impediment of prior undissolved marriage. A married person – one who has

perfected a valid marriage that has not terminated – may not contract another marriage. La. Civ.

Code art. 88. This rule is intended to prevent bigamous or polygamous marriages.

Remarriage is allowed if the previous marriage is terminated. Marriage is terminated by

the death of either spouse, divorce, declaration of nullity for a relatively null marriage, and

authorization to remarry for the spouse of a person presumed dead. La. Civ. Code art. 101. Not

listed in the article is the existence of an absolutely null marriage, which requires no declaration.

An absolutely null marriage does not present an impediment to a new marriage. La. Civ. Code

art. 94, comment (b).


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For the purposes of article 88, a divorce judgment does not relate back to the time of the

petition. Once a judgment of divorce is granted, the judgment relates back only for the purposes

of termination of the community property regime, under article 159. Because a marriage is not

considered terminated as of the date of filing, but only on the date of the judgment of divorce, a

second marriage contracted while a divorce action is pending is absolutely null.

1.2 Impediment of close relations. Marriage may not be contracted between ascendants

and descendants and between collaterals within the fourth degree, whether of the half or the

whole blood. La. Civ. Code art. 90.

Ascendants and descendants. Louisiana law prohibits marriage between any

persons in the direct line – that is the series of persons who are the descendants of

those above them and the ascendants of those below them. La. Civ. Code art.

90(A)(1). For example parent and child, grandparent and grandchild, and great-

grandparent and great-grandchild may not marry. All marriages between people

in the ascending and descending lines are prohibited, no matter the number of

degrees between them. This prohibition includes persons related by

consanguinity as well as adoption. La. Civ. Code art. 90(B).

Collaterals within the fourth degree. Not all marriages between collaterals are

prohibited; only those marriages between collaterals within the fourth degree are

null. La. Civ. Code art. 90A(2). “Collaterals within the fourth degree” includes,

for instance, aunt and nephew, uncle and niece, siblings, and first cousins. La.

Civ. Code art. 90, comment (b). Nevertheless, marriages between collaterals of

or over the age of fifty-five, who were married on or before December 31, 1992,

are still recognized. La. Rev. Stat. §9:211.

o Whole or half blood or adoption. The prohibition on marriage between

close relatives applies to collaterals related by whole blood or by half

blood, and adoption. La. Civ. Code art. 90. Collaterals of the half blood

share only one common ancestor, meaning they share only one parent.

Collaterals by adoption are treated the same as those related by blood. A

relation by marriage (affinity) is not covered within the prohibition,

however. Relations by affinity include step-siblings, who can marry even

if they have lived together all their lives, unless they are related by

adoption. Relation by affinity also includes in-laws and step-parents or

step-children. Although there is no prohibition on marriage between step-

parent and step-child or between in-laws, the prohibition on bigamy may

prevent these marriages. Nevertheless, after the principal marriage is

dissolved, the former relations by affinity may marry.

o Exception for adoption. Persons related by adoption in the collateral line

within the fourth degree may marry each other, despite the usual nullity of

such a marriage, if they obtain judicial authorization in writing to do so.

La. Civ. Code art. 90(B). This exception presupposes that the parties are

not otherwise related by blood.


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The prospective spouses must request authorization of the district court in

the parish of either party’s domicile. La. Code Civ. Proc. art. 74.3. In

deciding whether to grant authority for collaterals solely by adoption to

marry “the judge should consider whether the policy of preserving family

harmony will be advanced or impeded by the proposed union.” La. Civ.

Code art. 90, comment e.

☛ Judicial Tip: In determining whether to grant such authority, the court should

consider the closeness of the relatives by blood, whether they were raised together, and the effect

on their extended families. A motion and order to authorize the marriage of collaterals by

adoption can be found at Form No. 3.6.

1.3 Impediment of same sex. Persons of the same sex may not contract marriage with

each other. La. Civ. Code art. 89. Prior to 2004, there were substantial questions about

whether this article banning same sex marriage was constitutional under the Louisiana and U.S.

Constitutions. The state constitutional question was resolved in 2004 when Louisianan amended

its Constitution to include Article 12 § 15, which defines marriage as a union between one man

and one woman and prohibits courts from recognizing unions between persons of the same sex

or any alternative statuses for same sex couples that are similar to marriage. The question of

whether this code article and state constitutional provision violate either the Equal Protection or

the Due Process clauses of the U.S. Constitution has not yet been answered.

The legislature has not defined the terms “man” and “woman.” This poses a particular

problem, because it is now possible that a person can be born a man and, through the use of

hormones and surgery, essentially be transformed into a woman, and vice versa. Louisiana

Revised Statutes 40:62 allows a person whose sex has changed as a result of a “sex

reassignment surgery” to get a new, amended birth certificate reflecting a new sex. The statute

does not make it clear whether an amended birth certificate changes a person’s sex for all legal

purposes, however, and it is not necessarily dispositive of the issue of what a person’s sex is for

determining whether a couple is a same sex couple.

Some states that have faced the issue have concluded that sex reassignment surgery

cannot change the legal status of the sex of a person. Still other states faced with this issue have

held that it is possible to change sex through surgery. Louisiana has not yet answered this

question, but La. Rev. Stat. §40:62 makes it difficult for Louisiana court to determine that sex at

birth is all that matters.

2. Marriage ceremony. A marriage ceremony is required for entry into marriage. La.

Civ. Code art. 87. The most significant aim of this requirement is to prevent the recognition of

common law marriage in Louisiana. Fifteen states currently recognize this doctrine, whereby a

man and a woman can be considered married by living together for a period of time and

“hold[ing] themselves out to the community as husband and wife.” The Louisiana legislature,

however, has never been amenable to the idea that Louisiana domicialiaries should be able to

enter a common law marriage.


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The substantive requirements for the marriage ceremony are set out in the Civil Code.

The parties must participate in a marriage ceremony performed by a third person who is qualified

or reasonably believed by the spouses to be qualified, to perform the ceremony. La. Civ. Code

art. 91. The violation of these substantive requirements results in absolute nullity.

2.1 Presence of the Spouses/Procuration. The last sentence of article 91 makes it clear

that physical presence is a necessity. This requirement is also implied by the Code’s prohibition

on marriage by procuration. “[A] marriage may not be contracted by procuration.” La. Civ.

Code art. 92. Unlike roughly six other states, Louisiana does not allow a marriage to be

contracted through an agent. Marriage is a contract, of course, but it is considered in Louisiana

to be of such a personal nature that the normal possibility of contracting through a mandatary is

not available.

2.2 Participation of a “qualified” celebrant. The ceremony must be “performed by a

third person who is qualified, or reasonably believed to be qualified to perform it.” La. Civ.

Code art. 91. The requisites for a qualified officiant are set out in La. Rev. Stat. §§9:201-205.

An officiant is a person authorized by law to perform marriage ceremonies. La. Rev. Stat.

§9:201. That may include a religious official, judge, or justice of the peace.

Religious official. A priest, minister, rabbi, or any other clergyman of any

religious sect may be a qualified officiant if:

o He is authorized by the authority of his religion to perform marriages; and

o He is registered to perform marriages, La. Rev. Stat. §9:202(1). He may

register by:

Depositing an affidavit stating:

His lawful name;

Denomination; and

Address

with the clerk of court of the parish in which he will principally

perform marriage ceremonies; or

If in Orleans Parish, he may deposit with the office of the state

registrar of vital records. La. Rev. Stat. §9:204.

Judge or justice of the peace. Judges and justices of the peace must comply with

the territorial limits set out in La. Rev. Stat. §9:203. They may perform marriage

ceremonies within the following territorial limits:

o Justice of the supreme court (active or retired) – within state;

o Judge of a court of appeals (active or retired) – within circuit;

o Judge of a district court (active or retired) – within district;

o Family, juvenile, parish, or city court judge (active or retired) – within

parish in which court is situated;

o Orleans parish traffic or municipal court judge (active or retired) – within

parish in which court is situated;


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o Justice of the peace (active) – within parish in which court is situated, and

any parish in the same supreme court district which has no justice of the

peace court.

Retired justice of the peace may perform marriage ceremonies

within the same territorial limits if:

He has served a total of 18 years; and

He registers as required by La. Rev. Stat. §9:204.

o Justice of the peace of any of the following parishes may perform

marriage ceremonies within any of these parishes, provided they meet the

other requirements of La. Rev. Stat. §9:203A.

Desoto

Bossier

Caddo

Bienville

Webster

Red River

o Federal District Court or magistrate judge may perform marriage if

authorized by court rule, resolution, or standing order by a majority of the

judges sitting en banc authorizing judges to perform such ceremonies.

2.3 Officiant “reasonably believed” to be qualified. A marriage may be valid even if the

officiant is not “qualified” under Louisiana law so long as the ceremony is performed by

someone the parties reasonably believe to be qualified. La. Civ. Code art. 91. The goal of this

reasonableness test is to prevent nullity of marriages “for technical reasons reasonably beyond

the control of the intended spouses.” La. Civ. Code art. 91, comment (c). If the officiant is

reasonably believed by the parties to be qualified, but did not in fact meet the legal requirements,

the marriage is not a nullity. If the officiant is not qualified, the result is civil sanction against

the officiant, not a consequence for the spouses.

2.4 Expressed consent. The free consent of the parties “to take each other as husband and

wife” must be expressed at the ceremony. La. Civ. Code art. 87. Both parties must express their

consent orally to take each other as husband and wife. While all that is necessary is a verbal

indication of the taking of spousal roles, many choose to say the exact words of the code article

to avoid issues of construction.

☛ Judicial Tip: The three substantive requirements for a marriage ceremony above –

(1) physical presence of the spouses, (2) a qualified celebrant or one reasonably believed to be

so, and (3) the expression of consent to take each other as husband and wife – lead to nullity if

not met. The formal requirements that follow this note, on the other hand, result in civil

penalties for the celebrant rather than nullity.

2.5 Marriage license. Spouses must obtain a marriage license, under the rules set out in

La. Rev. Stat. §§9:221-225, 9:234-236, and 9:241-243. A marriage license is valid for only 30

days after the date of issuance; a celebrant is not authorized to perform a marriage ceremony

after that. La. Rev. Stat. §9:235. An officiant is not to marry applicants until they have had a

marriage license for at least seventy-two hours. La. Rev. Stat. §9:241.


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☛ Judicial Tip: Louisiana requires the production of a birth certificate to obtain a

marriage license. For some, however, production of such a document may prove impossible or

highly impracticable. Form No. 3.7 authorizes you to direct the clerk of court to grant a marriage

license in the absence of a birth certificate under extenuating circumstances.

2.6 Witnesses. “[T]he marriage ceremony shall be performed in the presence of two

competent witnesses of full age.” La. Rev. Stat. §9:244.

2.7 Marriage certificates. At the ceremony, a marriage certificate is to be prepared, as

provided by La. Rev. Stat. §9:245. The record is then transmitted to the state registrar of vital

records, who maintains all official marriage, birth, and death records. It is to be signed by the

parties, the witnesses, and the officiant, and therein everyone attests to the fact that the marriage

did occur as described. La. Rev. Stat. §9:245.

☛ Judicial Tip: The violation of the rules in §§2.5-2.7 result in civil penalties for the

officiant, but not invalidity of the marriage.

3. Free consent. “[T]he free consent of the parties to take each other as husband and

wife, expressed at the ceremony.” La. Civ. Code art. 87. The objective manifestation of this is

the expression of consent at the ceremony. Without such an expression, which is the core of the

marriage ceremony, a marriage is absolutely null.

B. Effects of absolutely null marriage: in general. In general, absolutely null

contracts have no civil effect; they are void ab initio. These contracts cannot be confirmed, or

ratified, or in any way legally sanctioned, because the defect in the contract is so serious that,

legally, no contract exists at all. A judicial declaration is not necessary for an absolutely null

marriage, because it has no effects. La. Civ. Code art. 94. Nevertheless, an action to declare its

nullity may be brought by anyone. Id.

B.1. Exception: putative marriage doctrine. While absolutely null contracts generally

produce no effects whatsoever, La. Civ. Code art. 96 provides an exception to this rule. Under

the putative marriage doctrine, an absolutely null marriage can produce legal effects under

certain circumstances. The legislature makes such an exception in the marriage context, because

marriage is different from a typical contract. The relationship often produces children that may

need protection, for instance. Even without children, the actions of the spouses in an absolutely

null marriage are sometimes given effect under the putative marriage doctrine, despite the

nullity.

B.2 Putative marriage: requirement of good faith. A putative marriage may produce

effects in favor of “a party who contracted it in good faith.” La. Civ. Code art. 96. While the

phrase “good faith” is used often throughout the Louisiana Civil Code, it does not have an well-

defined or consistent meaning that flows throughout the Code. While the text of the article 96

itself provides no definition in this specific context, comment (d) refers to Louisiana

jurisprudence in reaching a definition of the term. In the putative marriage context, Louisiana


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courts have long maintained a consistent definition, which is that good faith is an honest and

reasonable belief that there exists no legal impediment to the marriage.

B.3 Putative marriage: burden of proof. Good faith is a question of fact. La. Civ. Code

art. 96, comment (d). Good faith is presumed, with the burden of proving bad faith falling on

the party challenging it. La. Civ. Code art. 96, comment (b). However, in the case of a prior

undissolved marriage, the bigamous spouse bears burden of proving he conducted second

marriage in good faith. La. Civ. Code art. 96, comment (d).

B.4 Putative marriage: effects. La. Civ. Code art. 96 sets out the consequence of the

existence of a putative marriage. A putative marriage produces “civil effects,” which means that

the putative marriage produces all the same effects that a legal marriage would. The list includes

the existence of a community property regime and the right to half of the community property,

the legitimacy of children born during the marriage, intestate succession rights, the right to child

support, the right to spousal support, and the right to sue for the wrongful death of a spouse.

Marriage has myriad legal effects, and putative marriage, if it exists, brings all of them.

B.5 Putative marriage: parties who benefit. Article 96 provides that civil effects of a

putative marriage flow “in favor of a party who contracted it in good faith.” This may include

one or both parties to the supposed marriage. The article’s third paragraph broadens the rule that

civil effects flow only in favor of a party in good faith by providing that civil effects flow in

favor of children of the parties as well. Thus, only good faith parties and children of the putative

marriage can claim the civil effects of a putative marriage.

Of course, it is possible that both parties are in good faith. If both are in good faith, civil

effects can flow for both. More often, though, one knows of the defect in the supposed marriage

and the other does not.

B.6 Putative marriage: duration of effects. La. Civ. Code art. 96 provides the general

rule that civil effects flow “in favor of a party who contracted [the marriage] in good faith for as

long as that party remains in good faith.” The purpose of the rule ending the civil effects of the

putative marriage when the spouse in whose favor effects flow loses good faith is that the

putative marriage is reprehensible – necessary, but still reprehensible – so that once a party

knows of the marital defect, that party needs to do something about it. This public policy of

encouraging action should take the form either of terminating the relationship or taking steps to

rectify the deficiency and engage in a valid marriage.

Note, however, that La. Civ. Code art. 96 contains an exception on duration that threatens

to swallow the general rule. When the cause of the absolute nullity is a spouse’s prior

undissolved marriage, “civil effects continue in favor of the other party, regardless of whether

the latter remains in good faith, until the marriage is pronounced null or the latter party contracts

a valid marriage.” The exception recognizes the inability of the innocent spouse to take real

action that would cure the nullity. It therefore allows the effects of the putative marriage to go

on longer than they would under the general rule.


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C. Remedy for absolute nullity. A spouse aggrieved by entry into an absolutely null

marriage can use both the putative marriage doctrine and any other appropriate legal remedies to

seek redress. Putative marriage is not the exclusive remedy for a spouse injured by an absolutely

null marriage. Tort remedies are now available for inducement into an absolutely null marriage

– a recognition of the insufficiency of family law to provide an adequate remedy between the

parties.

II. Relatively null marriages.

A. Causes. In addition to the objective manifestation of consent at a marriage

ceremony, as described above, there is a subjective component to consent. Specifically, “a

marriage is relatively null when the consent of one of the parties to marry is not freely given.”

La. Civ. Code arts. 93, 95. This is the remaining cause of relative nullity in traditional

marriage. Consent is not free in the marriage context when it is given under duress or there is an

incapability of discernment. La. Civ. Code art. 93.

1. Duress. A marriage cannot be contracted under duress. Duress is not defined by the

Persons articles, but La. Civ. Code art. 93, comment (b) gives examples of what may and may

not be enough to nullify a marriage for duress. The meaning of duress is set out in the articles on

conventional obligations – specifically 1959-1964. The basic requirement is the presence of

violence or a threat of violence “of such a nature as to cause a reasonable fear of unjust and

considerable injury to a party’s person, property, or reputation.” La. Civ. Code art. 1959. And,

of course, all of the other elaborations on that basic rule that apply to regular contracts apply here

as well. For instance, the injury or threat need not be against the prospective spouse, but can be

directed toward a relative. The prospective spouse does not have to exert the duress; it can still

qualify as duress if a third person does it. There is no duress, however, where a person threatens

engage in a lawful act or to exercise a right. The body of jurisprudence on conventional

obligations should be consulted when assessing the validity of a duress claim in the marital

context.

☛ Judicial Tip: Unlike the vices of consent under conventional obligations or contracts,

fraud and error are not listed as vices of consent for which a marriage may be annulled under

Article 93.

2. Incapability of discernment. Persons “incapable of discernment” cannot validly

contract a marriage because they cannot meet the requirement of free consent. La. Civ. Code

art. 93. Comments (c) and (d) help to elaborate upon the definition of this requirement as well

as providing examples of the classes of persons that might not qualify. Comment (d) suggests

that a person must have the ability to “understand the consequences of the marriage celebration.”

That means that he must understand the nature of marriage, what rights and duties it brings, and

what kind of commitment it entails. A person does not need to have detailed knowledge, of

course, but he must have some knowledge about what marriage is. Drunk people, “mentally

retarded people” to use the language of the comment, persons who are “too young to understand

the consequences of the marriage celebration” and the like are incapable of giving free consent to

marry, and thus their marriages will be nullities. La. Civ. Code art. 93, comment (d). (Under

the basic rules applicable to contractual obligations, drunkenness and insanity are issues of


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capacity, not consent. However, they are considered in the Persons book of the Code as issues of

consent.)

The conventional obligations articles on capacity generally preclude persons from

entering into valid contracts if they are unemancipated minors, interdicts, or persons deprived of

reason. La. Civ. Code art. 1918. In the Persons articles, however, those categories are not

spoken of at all and the only people prohibited from marrying are those incapable of

discernment. In many factual scenarios, the result under either standard would be the same.

Because the comments to article 93 define incapability of discernment to include a situation in

which a person is unable to understand the consequences of the marriage celebration, the inquiry

is probably similar to the that of whether a person is deprived of reason. In other words, the

technical standards under the general conventional obligations articles and the Persons articles

conflict, but as applied to this class of persons, there is likely no difference in outcome.

☛ Judicial Tip: Because of the differences in terminology in what would be a capacity

issue in contracts (“persons deprived of reason”), be sure to use the language from Article 93 and

its comments (person “incapable of discernment”) in giving written or oral reasons for a

judgment of nullity of a marriage.

The distinction between the standards is more important, however, in the context of

minority. In contracts, of course, the general rule is that unemancipated minors are simply

incapable of contracting. But the only requirement of La. Civ. Code art. 93 is that a person be

capable of discernment. A fourteen year-old may very well meet that standard. So, although the

fourteen year-old will be incapable of entering into contracts in general, he may be capable of

contracting a marriage, because he must only be capable of discernment.

Minors can contract a valid marriage in Louisiana and they simply must be found capable

of discernment under article 93. However, there are restrictions on an officiant’s ability to

perform marriage ceremonies for minors under article 1545 of the Children’s Code, which

requires written consent of both parents if the minor is between sixteen and eighteen, along with

written authorization of a judge if the minor is under sixteen. Failure to obtain parental or

judicial authorization does not result in nullity, so long as the discernment standard is met, but

does subject the officiant to fines and liability. More specifically, an officiant may perform

marriage in which a minor is a party with:

the written consent of

o both of his parents,

o his tutor,

o his custodian, or

o a juvenile court. La. Ch.C. art 1545.

If the minor is under sixteen, he must also obtain written authorization from a

judge of a juvenile court. La. Ch.C. art 1545.

o The judge may authorize the marriage

If he finds a compelling reason that it should take place. La.

Ch.C. art. 1547. The judge must hear the request in chambers, for the sake of

confidentiality. La. Ch.C. 1548.


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Such a proceeding may be commenced in the parish in which the

minor resides or the marriage is to be performed. La. Ch.C. art.

1546. o The authorization must be:

Written;

One copy must be given to the parties; and

Another must be filed with the marriage certificate. La. Ch.C. art.

1549.

☛ Judicial Tip: Look for the parental affidavit in Form No. 3.3 for minors of at least 16

years of age. Where the minor seeks judicial consent to marry, use the motion and order

authorization Form No. 3.4 if the minor is under the age of 16 and Form No. 3.5 if the minor is

over the age of 16 and seeks authorization to marry without first obtaining parental consent.

3. Other Causes? Error and fraud are no longer causes of nullity in marriage. Before

1987, “mistake respecting the person” was a ground for annulling a marriage, but with the

legislature’s repeal of that provision, error is no longer a ground for nullity. Contracts may

generally be annulled for error (see La. Civ. Code art. 1948), but La. Civ. Code art. 93 likely

trumps the general contracts provisions as a more specific rule.

One might argue in favor of a heightened need to recognize fraud as a ground for nullity

in a covenant marriage, resting on the requirement that the spouses declare to each other

everything that would have adversely affected the other’s decision to enter into the marriage. If

a spouse lies about or fails to disclose something serious, there is now an affirmative

misrepresentation and not just a suppression of the truth, perhaps justifying, from a policy

perspective, fraud as a grounds for annulling the covenant marriage. If fraud is ever recognized

as a grounds for annulling a covenant marriage, it would act as a relative nullity in the same

manner as provided by conventional obligations general code provisions, since those provisions

apply in the absence of special legislation on fraud in covenant marriage.

B. Effects. Relatively null contracts have full effects unless and until one party goes to

court to have the nullity declared. This rule applies in the context of relatively null marriages as

well. “A relatively null marriage produces civil effects until it is declared null.” La. Civ. Code

art. 97. This includes all of the civil effects that a valid marriage produces – the community

property regime, inheritance rights, the legitimacy of children born during the marriage, the right

to recover for wrongful death of your spouse, and all other civil effects.

Whether one spouse knew that the other lacked free consent is completely irrelevant in

the context of a relatively null marriage. Good faith is important to absolutely null marriages as

a prerequisite for the putative marriage doctrine, but is not relevant to relative nullity.

Because deficiencies in consent lead only to relative nullity, as is typical of relative

nullities in the Louisiana Civil Code, the nullity may be asserted only by the spouse who failed to

give free consent or who was incapable of discernment. Others may not raise the relative nullity.

La. Civ. Code art. 95.


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C. Confirmation. Unlike absolute nullities, the law generally recognizes the possibility

that relatively null acts may be confirmed. This principle applies to relatively null marriages as

well. “The marriage may not be declared null if that party [the party suffering from the lack of

free consent] confirmed the marriage after recovering his liberty or regaining his discernment.”

La. Civ. Code art. 95.

Confirmation is a question of fact, but history is significant here. Before article 95 was

revised in 1987, it provided that a marriage could not be declared null if the parties “cohabited

together” after the party suffering from lack of free consent recovered his liberty or discernment.

By replacing “cohabit together” with “confirm” in 1987, the legislature broadened the

possibilities for confirmation. Confirmation through express declaration in a juridical act is

possible now under La. Civ. Code art. 1846. A party may execute an affidavit, for instance,

stating that he knows of the nullity and that he intends to confirm the marriage. Much more

likely, however, is that confirmation occurs through informal action. La. Civ. Code art. 95

comment (c) states that “[p]roof that the parties have lived together as man and wife will

continue to be persuasive evidence that the one whose consent was initially defective

subsequently intended that a valid marriage should subsist.” The jurisprudence generally

interprets this to mean having a sexual relationship. It is possible, though unlikely, that parties to

a relatively null marriage may cohabit together, but not as “husband and wife.” Such activity

would not give rise of the relatively null marriage. Thus, the change in Article 95’s language

allows for inclusion of other ways to confirm, while reflecting that cohabitation itself does not

always result in confirmation.

According to the rules governing conventional obligations in general, relative nullities

can be confirmed only by the party in whose interest the ground for the nullity exists. This

limitation is reinforced in the marriage context, where article 95 specifically states that a

relatively null marriage may be confirmed only by the party whose consent was not free.

D. Action for annulment. An action to annul a relatively or absolutely null marriage

may be brought in a direct action, La. Civ. Code art. 97, comment:

o By the party whose consent was not free. La. Civ. Code art. 96.

o When the marriage has not be confirmed. La. Civ. Code art. 95.

o In the parish in which either party is domiciled or the parish of the last

matrimonial domicile. La. Code Civ. Proc. art. 3941.

Venue may not be waived under this provision. La. Code Civ.

Proc. art. 3941.

o One or both of the parties must be domiciled in Louisiana. La. Code Civ. Proc.

art. 10.

☛ Judicial Tip: A sample judgment recognizing a marriage as absolutely null can be

found at Form No. 3.1. With slight modification, this judgment can be used in a judgment

recognizing a relative nullity as well.

Relief Available. In an action for declaration of nullity, a court may:

o Pending declaration, award interim incidental relief. La. Civ. Code arts. 151,

152.


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o After declaration, award final incidental relief. La. Civ. Code arts. 151, 152.

☛ Judicial Tip: In awarding interim or final incidental relief, notice the differences

between the relief available in absolute v. relative nullities in La. Civ. Code arts. 151 and 152.

Interim incidental relief is available for both kinds of nullity. Final incidental relief, however, is

only available for relative nullities and for absolute nullities for which the putative spouse

doctrine applies. La. Civ. Code art. 152, comment (b).

The following are not available in an action for declaration of nullity:

o Trial by jury. La. Code Civ. Proc. art. 1732,

o Judgment on the pleadings. La. Code Civ. Proc. art. 969.

o Summary judgment. La. Code Civ. Proc. art. 969.

Appeal of a declaration of nullity must be brought within thirty days. La. Code Civ.

Proc. art. 3942.

Entry Into Marriage.

I. Engagement Contract as Predecessor to Marriage Contract

Nature of the agreement to marry. When a man and a woman agree to become engaged,

they form a contract. This is a preparatory contract, leading to the marriage contract itself.

Under Louisiana law an engagement is an exchange of promises and Louisiana is in the minority

of states which continues to recognize breach of the promise to marry is an actionable breach of

contract claim. The plaintiff’s burden of proof is steep, though, as she must show that the

damages were caused by the breaching party’s fault. La. Civ. Code art. 1994. Because of the

difficulties of meeting this burden, litigants are not frequently successful in recovering damages

for breach of the promise to marry, although cases awarding recovery certainly exist.

Relief for breach. Specific performance is not available in cases of breach of

engagement. This result is reached under the obligations principle that discretionary use of

specific performance in an obligation “to do,” such as the agreement to marry, should not

impinge upon the obligor’s personal freedom. La. Civ. Code art. 1986 and comment (c).

Thus, only damages are available as a remedy for this cause of action.

Because this is a contract action, the damage provisions in the conventional obligations

section of the Code apply – namely articles 1994 and following. A plaintiff may recover the loss

sustained and the profit of which he was deprived. La. Civ. Code art. 1995. The loss sustained

is easy to calculate in many cases. If a party cancels within six months of the wedding, the

church, band, etc. are probably already paid for. The profit deprived could include income from

the prospective spouse, but most courts have found such sums too speculative to award recovery.

Non-pecuniary damages may also be available. These damages are generally available in

contract law when the contract because of its nature, is intended to gratify a non-pecuniary


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interest and, because of the circumstances surrounding the formation of the nonperformance of

the contract, the obligor knew, or should have known, that his failure to perform would cause

that kind of loss. La. Civ. Code art. 1998. A contract to marry is clearly such a contract. If a

party succeeds in a case for breach of promise to marry, non-pecuniary damages are recoverable.

Donations in contemplation of marriage. The engagement ring is considered a donation

in contemplation of marriage. Specifically, it is subject to the suspensive condition that the

marriage take place. See La. Civ. Code art. 1736. If the marriage fails, the donor is entitled to

a return of the property. Donations made in contemplation of marriage are governed by the

general rules applicable to donations inter vivos. See La. Civ. Code art. 1734 (donations made

by third parties), La. Civ. Code art. 1744 (donations made by future or prospective spouses).

Some Louisiana cases suggest that for the engagement ring to be recoverable, the sole

reason it was offered must be in contemplation of the marriage. In other words, if the gift is

given at a time when it might be interpreted to fulfill any other purpose – e.g. a birthday or

valentines day – the gift may not be recoverable. However, the general rule remains that such

donations must be returned if the marriage never takes place.

II. Entry Into Covenant Marriage.

Additional requirements. The requirements of traditional marriage, described in the

absolute and relative nullity sections, apply to covenant marriages as well. In addition to these

traditional requirements are the requirements for entry into covenant marriage, found note in the

Civil Code, but in the covenant marriage statutes. La. Rev. Stat. §§9:293, 294. These

requirements are found in the covenant marriage statutes. Parties that desire to enter into a

covenant marriage should first educate themselves about the rights and duties it brings. To enter

into a covenant marriage, the parties must:

Declare their intent to enter a covenant marriage on their application for marriage

license. La. Rev. Stat. §9:272 (B). This may be done by only one party.

Receive counseling emphasizing the nature and purposes of marriage and the

responsibilities thereto. La. Rev. Stat. §9:272 (A).

o The statute is not very specific about the content of the counseling, but La.

Rev. Stat. §9:273 does list some things that should be discussed – “the

seriousness of covenant marriage, communication of the fact that a

covenant marriage is a commitment for life, a discussion of the obligation

to seek marital counseling in times of marital difficulties, and that they

have received and read the informational pamphlet developed and

promulgated by the office of the attorney general . . .” The statute states

that the counseling can be done by a priest, minister, rabbi, clergyman of

any religious sect, or a professional marriage counselor.

Execute a declaration of intent. La. Rev. Stat. §9:272 (B). The declaration

includes:

o A recitation in which the parties state that they know what covenant

marriage is, that they have disclosed to each other everything that might

adversely affect their decision to enter into marriage, that they have

received premarital counseling, and that they agree that if they have


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marital problems, they will make “all reasonable efforts” to preserve the

marriage. La. Rev. Stat. §9:273.

o A signed affidavit indicating that they have met the requirements of entry

into covenant marriage. La. Rev. Stat. §9:273. The affidavit must be

notarized and signed by the counselor. Suggested forms for both the

declaration and the affidavit are in La. Rev. Stat. §9:273.1. And, of

course, those are nearly always used so as to ensure compliance with the

statutes’ requirements.

File the application and declaration with the official who issues the marriage

license. La. Rev. Stat. §9:272 (B).

☛ Judicial Tip: In considering the validity of an alleged covenant marriage, look for the

Declaration of Intent, Affidavit, and Attestation in Form No. 3.8. Relatively strict adherence to

these particular forms is desired, as the legislature provided the language of the form in La. Rev.

Stat. §9.273.1.

Conversion to covenant marriage. Already married couples may choose to designate

their marriage as a covenant marriage. The couple can do so by obtaining marital counseling and

filing a declaration of intent and affidavit with the same officer that issued their marriage license.

La. Rev. Stat. §9:275. A suggested form is provided in La. Rev. Stat. §9:275.1.

☛ Judicial Tip: In considering the validity of an alleged covenant marriage that was

converted from a once-traditional marriage, look for the Declaration of Intent, Affidavit, and

Attestation in Form No. 3.9. Relatively strict adherence to these particular forms is desired, as

the legislature provided the language of the form in La. Rev. Stat. §9.275.1.


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Appendix of Forms

Chapter 3: Nullity & Entry Into Marriage Form No. 3.1 Petition to Declare Marriage Absolutely Null

PETITION FOR DECLARATION OF NULLITY OF MARRIAGE

The petition of ________ , who is domiciled in ________ Parish, respectfully represents:

1.

Defendant in this suit is ________ , who is domiciled in ________ Parish.

2.

Plaintiff was married to the defendant on ________ , in the city of ________ , ________ Parish, Louisiana, where they established their matrimonial domicile.

3.

The defendant was married to ________ on ________ and remained married until ________ when a judgment of divorce was obtained in the matter entitled ________ , ________ District Court, Parish of ________ . A certified copy of the divorce judgment is attached as an exhibit to this petition.

4.

Since the defendant was married at the time of the purported marriage to the plaintiff, the plaintiff's marriage to the defendant is an absolute nullity.

5.

Prior to the parties marriage, the plaintiff had no knowledge that defendant had been married before and no reason to suspect that there was any impediment to the marriage. Plaintiff did not learn of defendant's prior marriage until ________ . At this time plaintiff immediately left the matrimonial domicile.

6.

Although plaintiff's marriage to the defendant was an absolute nullity, plaintiff contracted the marriage in good faith, without knowledge of any legal impediment to the marriage, and thus enjoys all of the rights of a putative wife.

7.

No children were born of the putative marriage of the plaintiff and the defendant.

8.


16

Plaintiff reserves her right to file for a partition of community property. WHEREFORE, plaintiff prays for a judgment declaring the marriage between ________

and ________ on ________ to be an absolute nullity.


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Form No. 3.2 Judgment Annulling Marriage

JUDGMENT

This matter was tried on ________ . The court, after considering the law and evidence, and

for the reasons orally assigned, rendered judgment as follows: IT IS ORDERED, ADJUDGED AND DECREED that the putative marriage between

________ and ________ is declared to be an absolute nullity. JUDGMENT RENDERED AND SIGNED, in ________ , Louisiana, this ________ day

of ________ , 20__ .

_____ Judge


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Form No. 3.3 Affidavit of Parental Consent for Minor Marriage

PARENTAL CONSENT FOR MARRIAGE OF MINOR State of Louisiana Parish of _______________

BEFORE ME, ________ , a Notary Public, qualified and commissioned in this parish, State of Louisiana, personally appeared ________ , married to and living together with each other, residing at ________ , who after being duly sworn, declared that they are the parents of the minor child, ________ , who was born on ________ and that they give their consent to the marriage of their child to ________ .

SWORN TO AND SUBSCRIBED, before me, on the ________ day of ________ , 20__ .

Parents:

_____________________________________

_____________________________________

_____________________________________ Notary Public


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Form No. 3.4 Judicial Authorization for Minor Marriage Under 16

MOTION AND ORDER AUTHORIZING MARRIAGE

On joint motion of ________ and _________, who are domiciled in this parish, and on

suggesting to the court that they are the parents of the minor child, ________ , born on ________ , who resides in this parish, the court recognizes that ____________ and _________ have given their consent to the marriage of their child, ________ , to ________ , who was born on ________ and who resides in this parish, by affidavit of consent attached to this motion, and that they request this court to authorize the marriage of their child ________ to ________ .

ORDER

Considering the foregoing motion: IT IS ORDERED, that the minor child, ________ is authorized to marry ________ , after

compliance with all other provisions of law. ORDERED AND SIGNED, in ________ , Louisiana, in chambers, this ________ day of

________ , 20__ .

______________ Judge


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Form No. 3.5 Authorization for Minor Marriage Without Parental Consent


On motion of ________ , who resides in this parish, the minor child of ________, and on

suggesting to the court that mover's parents will not give their consent to the marriage of mover to ________ and that there are compelling reasons why this marriage should take place, mover requests this court to authorize the marriage of mover to ________ .

ORDER

Considering the foregoing motion: IT IS ORDERED, that the minor child, ________ is authorized to marry ________ , after

compliance with all other provisions of law. ORDERED AND SIGNED, in ________ , Louisiana, in chambers, this ________ day of

________ , 20__ .

______________ Judge


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Form No. 3.6 Authorization of Collaterals By Adoption to Marry


On joint motion of ________ and ___________, who are domiciled in this parish, and on

suggesting to the court that movers are related to each other in the collateral line within the fourth degree, by adoption and not by blood, and that movers desire to be married to each other.

ORDER

Considering the foregoing motion: IT IS ORDERED, that ________ are authorized to marry each other, and after compliance

with all other provisions of law the clerk of court of this parish is ordered to issue them a marriage license.

ORDERED AND SIGNED, in ________ , Louisiana, in chambers, this ________ day of

________ , 20__ .

_______________________

Judge


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Form No. 3.7 Court Order Waiving Production of Birth Certification for Marriage License

MOTION AND ORDER WAIVING PRODUCTION

OF BIRTH CERTIFICATE

On motion of ________ , who is domiciled in this parish and on suggesting to the court

that mover desires to marry ________ in this parish, but mover is unable to produce a birth certificate due to extenuating circumstances, and upon further suggesting to the court that all other requirements of law have been complied with, mover requests this court to order the clerk of court of ________ Parish to issue a license authorizing an officiant to perform a marriage ceremony for the marriage of ________ to ________ .

ORDER

Considering the foregoing motion: IT IS ORDERED, that the clerk of court of ________ Parish issue, without prior

production of a birth certificate, a license authorizing an officiant to perform a marriage ceremony for the marriage of ________ to ________ , after compliance with all other provisions of law.

ORDERED AND SIGNED, in ________ , Louisiana, in chambers, this ________ day of

________ , 20__ .

____________________________ Judge


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Form No. 3.8 Covenant Marriage Declaration of Intent (with Affidavit and Attestation)

DECLARATION OF INTENT

We do solemnly declare that marriage is a covenant between a man and a woman who

agree to live together as husband and wife for so long as they both may live. We have chosen each other carefully and disclosed to one another everything which could adversely affect the decision to enter this marriage. We have received premarital counseling on the nature, purposes, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take all reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we do hereby declare that our

marriage will be bound by Louisiana law on Covenant Marriages and we promise to love, honor, and care for one another as husband and wife for the rest of our lives.

_______________ (date)

_______________

(Name of prospective spouse)

_______________ (Name of prospective spouse)

***

AFFIDAVIT STATE OF LOUISIANA PARISH OF ________

BE IT KNOWN THAT on this ________ day of ________ , 20___ , before me the undersigned notary, personally came and appeared:

_______________ and _________________

(Insert names of the prospective spouses)

who after being duly sworn by me, Notary, deposed and stated that: Affiants acknowledge that they have received premarital counseling from a priest, minister,

rabbi, clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which marriage counseling included:


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A discussion of the seriousness of Covenant Marriage; Communication of the fact that a Covenant Marriage is a commitment for life; The obligation of a Covenant Marriage to take reasonable efforts to preserve the marriage

if marital difficulties arise, and That the affiants both read the pamphlet entitled “The Covenant Marriage Act” developed

and promulgated by the office of the attorney general, which provides a full explanation of a Covenant Marriage, including the obligation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating a Covenant Marriage by divorce or divorce after a judgment of separation from bed and board.

____________________________ (Name of prospective spouse)

____________________________


SWORN TO AND SUBSCRIBED BEFORE ME THIS _____ DAY OF ________ , 20___ .

_____________ NOTARY PUBLIC

ATTESTATION

The undersigned does hereby attest that the affiants did receive counseling from me as to

the nature and purpose of marriage, which included a discussion of the seriousness of Covenant Marriage, communication of the fact that a Covenant Marriage is for life, and the obligation of a Covenant Marriage to take reasonable efforts to preserve the marriage if marital difficulties arise.

_________ Counselor


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Form No. 3.9 Declaration of Intent to Convert to Covenant Marriage (with Affidavit and Attestation)

DECLARATION OF INTENT

We do solemnly declare that marriage is a covenant between a man and a woman who

agree to live together as husband and wife for so long as they both may live. We understand the nature, purpose, and responsibilities of marriage. We have read the Covenant Marriage Act, and we understand that a Covenant Marriage is for life. If we experience marital difficulties, we commit ourselves to take reasonable efforts to preserve our marriage, including marital counseling.

With full knowledge of what this commitment means, we do hereby declare that our

marriage will be bound by Louisiana law on Covenant Marriage, and we renew our promise to love, honor, and care for one another as husband and wife for the rest of our lives.

______ (date)

____________________________


____________________________ (Name of prospective spouse)

***

AFFIDAVIT STATE OF LOUISIANA PARISH OF ________

BE IT KNOWN THAT on this ________ day of ________ , 20___ , before me the undersigned notary, personally came and appeared:

_______________ and __________________

(Insert names of spouses)

who after being duly sworn by me, Notary, deposed and stated that: Affiants acknowledge that they have received counseling from a priest, minister, rabbi,

clerk of the Religious Society of Friends, any clergyman of any religious sect, or a professional marriage counselor, which counseling included:

A discussion of the seriousness of Covenant Marriage; Communication of the fact that a Covenant Marriage is a commitment for life;


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The obligation of a Covenant Marriage to take reasonable efforts to preserve the marriage

if marital difficulties arise, and That the affiants both read the pamphlet entitled “The Covenant Marriage Act” developed

and promulgated by the office of the attorney general, which provides a full explanation of a Covenant Marriage, including the obligation to seek marital counseling in times of marital difficulties and the exclusive grounds for legally terminating a Covenant Marriage by divorce or divorce after a judgment of separation from bed and board.

________________ (Name of Spouse)

________________

(Name of Spouse)

SWORN TO AND SUBSCRIBED BEFORE ME THIS _____ DAY OF __________, 20__ .

_____________ NOTARY PUBLIC

ATTESTATION

The undersigned does hereby attest that the affiants did receive counseling from me as to

the nature and purpose of marriage, which included a discussion of the seriousness of Covenant Marriage, communication of the fact that a Covenant Marriage is for life, and the obligation of a Covenant Marriage to take reasonable efforts to preserve the marriage if marital difficulties arise.

_________ Counselor


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Form No. 3.10 Request to Clerk of Court to Maintain Confidentiality Of Social Security Numbers To: Clerk of Court From: Date: Pursuant to La. Rev. Stat. §9:224(A)(6), you are hereby requested to maintain the confidentiality of the social security numbers of ________ and ________, which were provided to you at the time of the application for a marriage license.

Signed: ______________________________ ______________________________

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