Marriage Laws United States Marriage's Validity

The Department of Defense (DoD) Financial Management Regulation, (DODFMR) Vol. 7A, discusses DoD policy on the validity of marriages in general, and the services generally follow the civilian practice of recognizing a marriage that is valid under the laws of the jurisdiction where it was contracted. Ceremonial marriages are presumed valid, but when a marriage's validity is contested, a decision as to validity will be based on the facts and circumstances of the particular case.

Similar guidance on validity of marriages appears in AR Department of Defense Financial Management Regulation, (DODFMR) Vol. 7A, discusses Department of Defense policy concerning the validity of marriages in general, and the services generally follow the civilian practice of recognizing a marriage that is valid under the laws of the jurisdiction where it was contracted. Ceremonial marriages are presumed valid, but when a marriage's validity is contested, a decision as to validity will be based on the facts and circumstances of the particular case.

Additional guidance on validity of marriages appears in AR 37-104-4 (Military Pay and Allowances Policy and Procedures Active Component). 37-104-4 (Military Pay and Allowances Policy and Procedures Active Component).

If marriages are irregular in form, such as the types of marriage discussed below, validity will not be presumed, and the military will employ a greater degree of scrutiny to determine if the parties are in fact married. The issue of a marriage's validity typically arises in the context of applying for increased Basic Allowance for Housing (BAH) or other military-related benefits (such as health care) which accrue to the "lawful spouse" of a military member.

The Defense Finance and Accounting Service (DFAS) service representative determines the validity of questionable marriages or relationships. Paragraph 260403F3 of DODFMR Vol. 7A lists the various service directors and addresses. For determinations in the Army, submissions are sent to Army Director, DFAS-IN, Indianapolis, IN 46249-0855. Questions regarding marriages generally arise after the fact; that is, the soldier may have married a person who was not divorced from a prior spouse, and the soldier may have received increased BAH for a substantial period of time. If Finance officials later discover the impediment to the marriage, the soldier is in danger of having large sums collected from his pay as recoupment of his BAH benefits. If he is found to have entered the marriage in good faith, however, the money will not be collected. There is one other administrative mechanism through which the federal government will rule on the validity of a marriage. In cases of "doubtful relationship" where a soldier has applied for increased BAH, the Finance Officer may submit a Request For An Advance Decision to the Comptroller General through finance channels. This occurs in all cases involving a request for increased BAH where the claim is based on a common law marriage, or in any case that involves a divorce granted by a foreign country.

Military Criminal Prosecution and Administrative Actions

The validity of a marriage can, of course, come up in many contexts in legal assistance, but it can also be a question by a court-martial with respect to bigamy. For example, United States v. McDonald, 32 C.M.R. 689 (1962), involved a disputed remarriage that allegedly occurred in early January 1960, but "[a]s to this remarriage, the accused testified that he was intoxicated during the first week in January 1960 and had no knowledge of going through a marriage ceremony with his ex-wife." While the military will defer to state law on whether a valid marriage exists, within the context of a military criminal prosecution, military law defines the offense of adultery, and not the law of the state in which the alleged adultery occurred.

See United States v. Johanns, 17 M.J. 862 (A.F.C.M.R. 1983). For a comprehensive discussion of the history of adultery as a military offense, see U.S. v. Hickson, 22 M.J. 146 (C.M.A. 1986) and Major William T. Barto, The Scarlet Letter and the Military Justice System, ARMY LAW., Aug. 1997.

Proxy Marriages

While proxy marriages may be convenient and effective, soldiers should avoid them if possible. Proxy marriages create "doubtful relationships" for finance purposes, and therefore the soldier may experience delays in receiving an increase in BAQ and travel authorization while the case is reviewed. Moreover, survivor benefits hinge on the validity of the marriage, and tragic results can arise if deficiencies in the marriage are discovered only after the soldier has died. The same can be said for common law marriages, marriages completed by telephone, and other variations from the norm of a ceremonial marriage with both parties present. They will be valid for military purposes if they are valid under the law of the jurisdiction where contracted (unless the marriage violates basic principles generally recognized in American law, such as the prohibition against brothers marrying their sisters), but the administrative burden of proving their validity can be cumbersome and time consuming. Moreover, the possibility of defects in the process is increased, and so is the possibility that latent defects will not be discovered until it is too late to correct the error.