Home Putative Marriage An Overview of Putative Marriage

An Overview of Putative Marriage

An Overview of Putative Marriage

A putative marriage is an invalid marriage that is entered in good faith by at least one of the two participants. While an individual in a putative marriage may have no idea he or she is in an illegitimate marriage, he or she may find out that there is a legal impediment in the way of his or her marriage’s legality. This is usually due to a spouse’s previous marriage. The putative spouse must have entered into the marriage in good faith, without knowing that the marriage was illegitimate, to be considered putative. Sometimes both spouses will be putative spouses. This means that neither spouse was aware of the fact that the marriage was invalid. If both spouses are putative spouses, then they may take steps to remove the impediment to the marriage’s legitimacy, thus legalizing their marriage. If they do not, then their marriage will remain illegitimate. If one spouse is putative, then he or she will likely have been deceived by his or her partner. This is not the case if both spouses are putative. Many times, if both spouses were mistakenly in an illegitimate marriage the problem can be fixed. A new ceremony is not necessarily needed. When a marriage is validated, it is made retroactively legal from the date of inception.


When one finds out he or she is in a fraudulent, putative marriage, he or she has only two options. He or she can remove the legal problem that is making his or her marriage invalid or he or she can conclusively end the marriage itself. The  actions that the putative spouse takes will most likely depend on the circumstances and the implications of those circumstances. If there was no deceit involved in the marriage, then the putative spouse is more likely to remove the legal impediment and continue in the marriage than he or she is likely to end the relationship. For example, if one spouse had no idea that a divorce was not processed, and cannot be held at fault for the marriage being deemed as putative, then the spouse uninvolved in the divorce would not have much reason to pursue a divorce. If, however, the putative spouse was told that his or her partner was divorced and the supposedly divorced partner knew otherwise, then the putative spouse will most likely want to end the relationship. The court expects the putative spouse to file for an annulment or begin divorce proceedings if he or she finds out the relationship has been deceitful from the beginning. This is why the court is willing to extend protection to putative spouses. If an individual finds out he or she is in a putative marriage and takes no action, then he or she is not protected by any laws. Staying in the marriage constitutes fraud.

For a marriage to be considered putative, the marriage must meet three conditions. At least one of the spouses must be putative, meaning that he or she must enter the marriage believing that it is genuine and legal. This is called entering in good faith. If both parties knew that the marriage was not valid from day one, then they are both at fault and have committed fraud. That marriage is not considered to be putative, since both parties had knowledge of its illegitimacy. If neither party knew the marriage was invalid, then they are both innocent. Such a marriage could still be considered putative. The second guideline is that the putative marriage must have been officiated by an individual who is or was thought to be licensed. Besides a former divorce that was never completed, one of the next most common causes of putative marriages is the officiation of a marriage by an unlicensed official. If that is the case then having a new civil or religious ceremony should validate the marriage. The third condition needed is the belief on behalf of one or both parties that the marriage was maintained in a lawful manner.

A couple who is in a putative marriage are not legally married. Accordingly, they have to either make the marriage legitimate or end it completely. Existing in a state of putative marriage is fruitless. In fact, the marriage is not longer putative if the putative spouse decides to stay in it, since both parties are now aware of the illegality of their union. The laws that exist to protect the putative spouse does not protect the other spouse. If both spouses are putative, then both are protected.
Various Reasons for Usage

There are different reasons why one may find themselves in a putative marriage. The most common reason is due to a previous divorce of one of the parties that was never completed. There is no statistical evidence on whether it is more common for both parties to be putative or just one. However, an individual who finds out that their divorce was never completed can take the steps of finalizing it once they are aware. If a spouse was purposely told that their partner had divorced when the partner knew it was not true, then they are putative. Another reason why an individual may trick a putative spouse into marriage is for financial reasons. If one knows they are legally unable to marry but does it anyway, they may have married to try to gain financial resources. Luckily, only the putative spouse can seek damages when ending the illegitimate marriage. This stops the fraudulent partner from being awarded for what they have done. Other reasons that one may find themselves in a putative marriage vary. Any marriage of an incestuous nature is automatically void from the start. If a couple was married by someone without the proper license for performing the wedding, they are in a putative marriage.
Difference on State Levels
Not every state recognizes the putative marriage, although most states do have laws set up to protect the putative spouse. In general, states adopted their no fault divorce policies from the Uniform Marriage and Divorce Act. This allowed states to grant divorces to couples without placing blame on either. From this, most states formed their definition of exactly what a putative spouse is. Most states do recognize the putative marriage but only two states recognize both that and common law marriage. Those two states are Colorado and Montana. Colorado has a typical definition of a putative spouse, if there is just one in the relationship. A putative spouse is defined in state law as one who lives with an individual who they believe in good faith to be their lawfully wedded spouse. If they have been deceived, most states allow for an annulment to be granted. The putative spouse is also allowed to sue for anything that a regular person in the process of divorce might seek such as alimony and property. Every state law recognizes a child’s right to be supported by both parents, so any issues involving child custody, support or visitation can be worked out no matter where the location.
Examples in Case Law

Case law refers to any available writings about a court case. Typically, the judge or judges will write about the decision or verdict that was made in order to provide clarity on the subject. This way, if a case has to be tried in several different courts, the new judges can read what the previous judges had to say about the matter. The putative marriage doctrine was created as a way to set clear guidelines about defining and dealing with putative marriage. Prenuptial agreements are an example of an issue with which putative spouses have to deal. If a putative spouse is married to an individual who has a prenuptial agreement, they have a right to challenge the prenuptial agreement in court. Prenuptial agreements may become completely voidin the case of a putative marriage, making it easier for the putative spouse to get a fair settlement.
Religious Usage
Catholic Canon law is clear about the status of children born into putative marriages. They are still considered to be legitimate in the eyes of the church. This is because at least one of the individuals in the marriage thought that it was valid. Canon law relies on the belief that these individuals should not be punished for being ignorant of the fact that their marriage was not valid. Therefore any child conceived in or born into a putative marriage is considered to be legitimate. Today’s Putative Marriage Doctrine derives from the Canon laws that relate to putative marriage. Many times a putative marriage that had only one putative spouse will end with an annulment being granted. While children of couples who receive annulments are not always considered to be legitimate under Canon law, the cases involving putative marriages are considered to be special circumstances that allow for legitimacy.
Putative Marriage Lawyers
Seeking the help of a lawyer that specializes in family litigation is important when dealing with the fallout of a putative marriage. If a couple decides to stay and legitimize a putative marriage, then consulting with a lawyer is a smart next move to take. Since law varies state to state, a lawyer should be able to help make a couple aware of their options and what they have to do to make their marriage valid. Some marriages can be validated by having a new civil ceremony. Others may need to work on completing a previous divorce again. A marriage lawyer can also help the putative spouse to protect themselves. If one finds out that they are a putative spouse, they are still generally entitled to anything that other separated or divorcing spouses are entitled to. A marriage lawyer can help their client to recover what is rightfully theirs under state property laws. Another job of the marriage lawyer is to decide if actual divorce proceedings are needed or just an annulment. One can find a marriage lawyer to help with their putative marriage resolution by searching in their local phone book or on the Internet.
Putative Marriage Versus Common Law Marriage

A common law marriage is not a putative marriage. Common law marriages are also known as informal marriages. Not every state recognizes a common law marriage as being real. To enter into one a couple must vow to live together in a manner that is like a married couple. The marriage is not recognized by the government since no marriage license is needed. A marriage license is needed in a putative license, even though it is not valid. Each party in a common law marriage knows that they are not really married, while one or both parties in a putative marriage believes that they are. Common law couples must be legally able to marry. Any marital requirements, including age must be recognized by common law couples. A putative marriage is based on false premises from the beginning, although it may only be known by one individual. Common law couples generally must live together for a period of time. Both common law and putative spouses are allowed to seek damages if their relationship ends. Both putative and common law marriages need a formal ending, whether it be an annulment or something like divorce proceedings.
Application In Other Countries

Other countries treat putative marriage in a similar way that the United States does. Many places offer putative spouses protection when their invalid marriages fall apart. Europe especially has publicly recognized putative marriage to be a valid form of marriage in terms of protection for the putative spouse. Although putative marriage is not technically marriage, it can be recognized as such in the eyes of the law if need be. Many countries recognize a backdated marriage. This means that a putative marriage that is later validated can be considered to exist legally since the original marriage date, even though it was invalid.