765.002 History
History: 1979 c. 32 s.
48;
1979 c. 89,
176,
177; Stats. 1979 s. 765.002;
1981 c. 20;
1991 a. 315.
765.01
765.01
A civil contract. Marriage, so far as its validity at law is concerned, is a civil contract, to which the consent of the parties capable in law of contracting is essential, and which creates the legal status of husband and wife.
765.01 History
History: 1979 c. 32 s.
48; Stats. 1979 s. 765.01.
765.01 Note
NOTE: In
Wolf, et. al. v. Walker, et. al.,
26 F. Supp. 3d 866, the United States District Court, Western District of Wisconsin declared that “Any Wisconsin statutory provisions, including those in Wisconsin Statutes chapter 765, that limit marriages to a `husband' and a `wife,' are unconstitutional as applied to same-sex couples." Affirmed.
766 F.3d 648.
U.S. Seventh Circuit Court of Appeals, Case No. 14-2526, issued September 4, 2014. See also Obergefell v. Hodges, 576 U. S. ___,
135 S. Ct. 2071,
191 L. Ed. 2d 953 (2015).
765.01 Note
NOTE: See also Art. XIII, sec. 13, Marriage.
765.01 Annotation
Same-sex couples may exercise the fundamental right to marry in all states. The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the 14th amendment couples of the same-sex may not be deprived of that right and that liberty. Obergefell v. Hodges 576 U. S. ___,
135 S. Ct. 2071,
191 L. Ed. 2d 953 (2015).
765.02
765.02
Marriageable age; who may contract. 765.02(1)
(1) Every person who has attained the age of 18 years may marry if otherwise competent.
765.02(2)
(2) If a person is between the age of 16 and 18 years, a marriage license may be issued with the written consent of the person's parents, guardian, custodian under
s. 767.225 (1) or
767.41, or parent having the actual care, custody and control of the person. The written consent must be given before the county clerk under oath, or certified in writing and verified by affidavit or affirmation before a notary public or other official authorized to take affidavits. The written consent shall be filed with the county clerk at the time of application for a marriage license. If there is no guardian, parent or custodian or if the custodian is an agency or department, the written consent may be given, after notice to any agency or department appointed as custodian and hearing proper cause shown, by the court having probate jurisdiction.
765.03
765.03
Who shall not marry; divorced persons. 765.03(1)
(1) No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood. A marriage may not be contracted if either party has such want of understanding as renders him or her incapable of assenting to marriage.
765.03(2)
(2) It is unlawful for any person, who is or has been a party to an action for divorce in any court in this state, or elsewhere, to marry again until 6 months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of 6 months from the date of the granting of judgment of divorce shall be void.
765.03 History
History: 1971 c. 220;
1977 c. 8,
83,
203;
1979 c. 32 s.
48; Stats. 1979 s. 765.03.
765.03 Annotation
Chapter 765 sets out the criteria for a valid marriage in this state. Failure to meet one of these criteria often results in a void marriage. An action for declaratory judgment under s. 806.04 is the established mechanism for testing the validity of a marriage in an estate case because s. 806.04 explicitly provides standing for interested parties in an estate action. McLeod v. Mudlaff,
2013 WI 76,
350 Wis. 2d 182,
833 N.W.2d 735,
11-1176.
765.035
765.035
Validity of marriages of epileptics. All marriages, otherwise valid and legal, contracted prior to April 24, 1953, to which either party was an epileptic person are hereby validated and legalized in all respects as though such marriages had been duly and legally contracted in the first instance.
765.035 History
History: 1979 c. 32 s.
48; Stats. 1979 s. 765.035.
765.04
765.04
Marriage abroad to circumvent the laws. 765.04(1)
(1) If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state goes into another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state.
765.04(2)
(2) Proof that a person contracting a marriage in another jurisdiction was (a) domiciled in this state within 12 months prior to the marriage, and resumed residence in this state within 18 months after the date of departure therefrom, or (b) at all times after departure from this state, and until returning maintained a place of residence within this state, shall be prima facie evidence that at the time such marriage was contracted the person resided and intended to continue to reside in this state.
765.04(3)
(3) No marriage shall be contracted in this state by a party residing and intending to continue to reside in another state or jurisdiction, if such marriage would be void if contracted in such other state or jurisdiction and every marriage celebrated in this state in violation of this provision shall be null and void.
765.04 History
History: 1979 c. 32 s.
48;
1979 c. 176; Stats. 1979 s. 765.04.
765.05
765.05
Marriage license; by whom issued. No person may be joined in marriage within this state until a marriage license has been obtained for that purpose from the county clerk of the county in which one of the parties has resided for at least 30 days immediately prior to making application therefor. If both parties are nonresidents of the state, the marriage license may be obtained from the county clerk of the county where the marriage ceremony is to be performed. If one of the persons is a nonresident of the county where the marriage license is to issue, the nonresident's part of the application may be completed and sworn to or affirmed before the person authorized to accept marriage license applications in the county and state in which the nonresident resides.
765.05 History
History: 1979 c. 32 ss.
48,
92 (2);
1979 c. 89,
176,
177,
355; Stats. 1979 s. 765.05;
1981 c. 20,
142,
314;
1999 a. 85.
765.05 Annotation
Choice of Law: Will a Wisconsin Court Recognize a Vermont Civil Union? DeFranco. 85 MLR 251 (2001).
765.08
765.08
Application for marriage license. 765.08(1)
(1) Except as provided in
sub. (2), no marriage license may be issued within 5 days of application for the marriage license.
765.08(2)
(2) The county clerk may, at his or her discretion, issue a marriage license within less than 5 days after application if the applicant pays an additional fee of not more than $25 to cover any increased processing cost incurred by the county. The county clerk shall pay this fee into the county treasury.
765.08 History
History: 1979 c. 32 s.
48;
1979 c. 176; Stats. 1979 s. 765.08;
1981 c. 20,
142;
2009 a. 28.
765.09
765.09
Identification of parties; statement of qualifications. 765.09(1)(a)(a) No application for a marriage license may be made by persons lawfully married to each other and no marriage license may be issued to such persons.
765.09(1)(b)
(b) Paragraph (a) does not apply to persons whose marriage to one another is void under
s. 765.03 (2) and who intend to intermarry under
s. 765.21.
765.09(2)
(2) No marriage license may be issued unless the application for it is subscribed by the parties intending to intermarry, contains the social security number of each party who has a social security number and is filed with the clerk who issues the marriage license.
765.09(3)(a)(a) Each applicant for a marriage license shall present satisfactory, documentary proof of identification and residence and shall swear to or affirm the application before the clerk who is to issue the marriage license or the person authorized to accept marriage license applications in the county and state where the party resides. The application shall contain the social security number of each party, as well as any other informational items that the department of health services directs. The portion of the marriage application form that is collected for statistical purposes only shall indicate that the address of the marriage license applicant may be provided by a county clerk to a law enforcement officer under the conditions specified under
s. 765.20 (2).
765.09(3)(b)
(b) Each applicant for a marriage license shall exhibit to the clerk a certified copy of a birth certificate, and each applicant shall submit a copy of any judgment or death certificate affecting the applicant's marital status. If any applicable birth certificate, death certificate or judgment is unobtainable, other satisfactory documentary proof of the requisite facts therein may be presented in lieu of the birth certificate, death certificate or judgment. Whenever the clerk is not satisfied with the documentary proof presented, he or she shall submit the presented proof to a judge of a court of record in the county of application for an opinion as to its sufficiency.
765.11
765.11
Objections to marriage. 765.11(1)
(1) If any parent, grandparent, child, or natural guardian of a minor applicant for a marriage license, any brother, sister, or guardian of either of the applicants for a marriage license, either of the applicants, the district attorney, or a circuit court commissioner believes that the statements of the application are false or insufficient, or that an applicant is adjudicated incompetent without the right to marry, that person may file with the court having probate jurisdiction in the county in which the marriage license is applied for, a petition under oath, setting forth the grounds of objection to the marriage, and asking for an order requiring the parties making the application to show cause why the marriage license should not be refused. Whereupon, the court, if satisfied that the grounds of objection are prima facie valid, shall issue an order to show cause as aforesaid, returnable as the court directs, but not more than 14 days after the date of the order, which shall be served forthwith upon the applicants for the marriage license residing in the state, and upon the clerk before whom the application has been made, and shall operate as a stay upon the issuance of the marriage license until further ordered; if either or both of the applicants are nonresidents of the state the order shall be served immediately upon the nonresident by publication of a class 1 notice, under
ch. 985, in the county in which the application is pending, and by mailing a copy thereof to the nonresident at the address contained in the application.
765.11(2)
(2) If, upon hearing, the court finds that the statements in the application are willfully false or insufficient, or that either or both of said parties are not competent in law to marry, the court shall make an order refusing the marriage license, and shall immediately report such matter to the district attorney. If said falseness or insufficiency is due merely to inadvertence, then the court shall permit the parties to amend the application so as to make the statements therein true and sufficient, and upon application being so amended, the marriage license shall be issued. If any party is unable to supply any of the information required in the application, the court may, if satisfied that such inability is not due to willfulness or negligence, order the marriage license to be issued notwithstanding such insufficiency. The costs and disbursements of the proceedings under this section shall rest in the discretion of the court, but none shall be taxed against any district attorney or circuit court commissioner acting in good faith.
765.11 History
History: 1979 c. 32 s.
48;
1979 c. 176; Stats. 1979 s. 765.11;
1981 c. 20 ss.
1777v,
2200;
2001 a. 61;
2005 a. 387.
765.12
765.12
Marriage license, when authorized; corrections; contents. 765.12(1)(a)(a) If
ss. 765.02,
765.05,
765.08, and
765.09 are complied with, and if there is no prohibition against or legal objection to the marriage, the county clerk shall issue a marriage license. With each marriage license the county clerk shall provide information describing the causes and effects of fetal alcohol syndrome and the dangers to a fetus from the mother's use of cocaine or other drugs during pregnancy.
765.12(1)(b)
(b) If, after completion of the marriage license application, one of the applicants notifies the clerk in writing that any of the information provided by that applicant for the license is erroneous, the clerk shall notify the other applicant of the correction as soon as reasonably possible. If the marriage license has not been issued, the clerk shall prepare a new license with the correct information entered. If the marriage license has been issued, the clerk shall immediately send a letter of correction to the state registrar to amend the erroneous information.
765.12(1)(c)
(c) If, after completion of the marriage license application, the clerk discovers that correct information has been entered erroneously, the clerk shall, if the marriage license has not been issued, prepare a new license with the correct information correctly entered. If the marriage license has been issued, the clerk shall immediately send a letter of correction to the state registrar to amend the erroneous information.
765.12(2)
(2) The marriage license shall authorize the marriage ceremony to be performed in any county of this state within 30 days of issuance, excepting that where both parties are nonresidents of the state, the ceremony shall be performed only in the county in which the marriage license is issued. The officiating person shall determine that the parties presenting themselves to be married are the parties named in the marriage license. If aware of any legal impediment to such marriage, the person shall refuse to perform the ceremony. The issuance of a marriage license shall not be deemed to remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal, and the marriage license shall contain a statement to that effect.
765.13
765.13
Form of marriage document. The marriage document shall consist of the marriage license and the marriage license worksheet. The marriage license shall contain a notification of the time limits of the authorization to marry, a notation that the issue of the marriage license shall not be deemed to remove or dispense with any legal disability, impediment or prohibition rendering marriage between the parties illegal, and the signature of the county clerk, who shall acquire the information for the marriage document and enter it in its proper place when the marriage license is issued. The marriage license worksheet shall contain the social security number of each party, as well as any other information items that the department of health services determines are necessary and shall agree in the main with the standard form recommended by the federal agency responsible for national vital statistics. The county clerk shall transmit the marriage license worksheet to the state registrar within 5 days after the date of issuance of the marriage license.
765.14
765.14
Form of marriage document when solemnized by parties. If the marriage is to be solemnized by the parties without an officiating person, as provided by
s. 765.16 (1m) (c), the marriage document shall contain all those items and notations as required by
s. 765.13.
765.14 History
History: 1977 c. 418;
1979 c. 32 ss.
48,
92 (2); Stats. 1979 s. 765.14;
1981 c. 20;
2013 a. 372.
765.15
765.15
Fee to county clerk. Each county clerk shall receive as a fee for each license granted the sum of $49.50, of which $24.50 shall become a part of the funds of the county, and $25 shall be paid into the state treasury. The county shall use $20 of the amount that it retains from each license fee only for expenses incurred under
s. 767.405. The county may, but is not required to, use any or all of the remainder of the amount that it retains for education, training, or services related to domestic violence. Each county board may increase the license fee of $49.50 by any amount, which amount shall become a part of the funds of the county.
765.16
765.16
Marriage contract, how made; officiating person. 765.16(1m)(1m) Marriage may be validly solemnized and contracted in this state only after a marriage license has been issued therefor, and only by the mutual declarations of the 2 parties to be joined in marriage that they take each other as husband and wife, made before an authorized officiating person and in the presence of at least 2 competent adult witnesses other than the officiating person. The following are authorized to be officiating persons:
765.16(1m)(a)
(a) Any ordained member of the clergy of any religious denomination or society who continues to be an ordained member of the clergy.
765.16(1m)(b)
(b) Any licentiate of a denominational body or an appointee of any bishop serving as the regular member of the clergy of any church of the denomination to which the member of the clergy belongs, if not restrained from so doing by the discipline of the church or denomination.
765.16(1m)(c)
(c) The 2 parties themselves, by mutual declarations that they take each other as husband and wife, in accordance with the customs, rules and regulations of any religious society, denomination or sect to which either of the parties may belong.
765.19
765.19
Delivery and filing of marriage document. The marriage document, legibly and completely filled out with unfading black ink, shall be returned by the officiating person, or, in the case of a marriage ceremony performed without an officiating person, then by the parties to the marriage contract, or either of them, to the register of deeds of the county in which the marriage was performed within 3 days after the date of the marriage.
765.19 History
History: 1977 c. 418;
1979 c. 32 s.
48;
1979 c. 221,
355; Stats. 1979 s. 765.19;
1981 c. 20;
1983 a. 221.
765.20
765.20
Records and forms. 765.20(1)
(1) The state registrar of vital statistics shall prescribe forms for blank applications, statement, consent of parents, affidavits, documents and other forms as are necessary to comply with the provisions of this chapter. The county clerk shall keep among the records in the office a suitable book called the marriage license docket and shall enter therein a complete record of the applications for and the issuing of all marriage licenses, and of all other matters which the clerk is required by this chapter to ascertain relative to the rights of any person to obtain a marriage license. An application may be recorded by entering into the docket the completed application form, with any portion collected only for statistical purposes removed. The marriage license docket shall be open for public inspection or examination at all times during office hours.
765.20(2)
(2) A county clerk may provide the name of a marriage license applicant and, from the portion of the marriage application form that is collected for statistical purposes, as specified under
sub. (1), may provide the address of the marriage license applicant to a law enforcement officer, as defined in
s. 51.01 (11). A county clerk shall provide the name and, if it is available, the address, to a law enforcement officer who requests, in writing, the name and address for the performance of an investigation or the service of a warrant. If a county clerk has not destroyed the portion of the marriage license application form that is collected for statistical purposes, he or she shall keep the information on the portion confidential, except as authorized under this subsection. If a written request is made by a law enforcement officer under this subsection, the county clerk shall keep the request with the marriage license application form. If the county clerk destroys the marriage license application form, he or she shall also destroy the written request.
765.20 History
History: 1979 c. 32 s.
48;
1979 c. 176; Stats. 1979 s. 765.20;
1981 c. 20;
1995 a. 469;
2001 a. 107.
765.21
765.21
Unlawful marriages void; validation. All marriages hereafter contracted in violation of
ss. 765.02,
765.03,
765.04 and
765.16 shall be void, except as provided in
ss. 765.22 and
765.23. The parties to any such marriage may validate the marriage by complying with the requirements of
ss. 765.02 to
765.24 as follows:
765.21(2)
(2) No earlier than 6 months after the divorce judgment is granted, if the marriage is declared void under
s. 765.03 (2).
765.21 History
History: 1979 c. 32 s.
48; Stats. 1979 s. 765.21;
1985 a. 103,
135.
765.22
765.22
Immaterial irregularities as to authority of person officiating. No marriage hereafter contracted shall be void by reason of want of authority or jurisdiction in the officiating person solemnizing such marriage, if the marriage is in other respects lawful, and is consummated with the full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage.
765.22 History
History: 1979 c. 32 s.
48; Stats. 1979 s. 765.22.
765.23
765.23
Immaterial irregularities otherwise. No marriage hereafter contracted shall be void either by reason of the marriage license having been issued by a county clerk not having jurisdiction to issue the same; or by reason of any informality or irregularity of form in the application for the marriage license or in the marriage license itself, or the incompetency of the witnesses to such marriage; or because the marriage may have been solemnized in a county other than the county prescribed in
s. 765.12, or more than 30 days after the date of the marriage license, if the marriage is in other respects lawful and is consummated with the full belief on the part of the persons so married, or either of them, that they have been lawfully joined in marriage. Where a marriage has been celebrated in one of the forms provided for in
s. 765.16 (1m), and the parties thereto have immediately thereafter assumed the habit and repute of husband and wife, and having continued the same uninterruptedly thereafter for the period of one year, or until the death of either of them, it shall be deemed that a marriage license has been issued as required by
ss. 765.05 to
765.24 and
767.803.
765.23 History
History: 1979 c. 32 ss.
48,
92 (2); Stats. 1979 s. 765.23;
1981 c. 20 s.
2200;
1981 c. 314 s.
146;
2005 a. 443 s.
265;
2013 a. 372.
765.24
765.24
Removal of impediments to subsequent marriage. If a person during the lifetime of a husband or wife with whom the marriage is in force, enters into a subsequent marriage contract in accordance with
s. 765.16, and the parties thereto live together thereafter as husband and wife, and such subsequent marriage contract was entered into by one of the parties in good faith, in the full belief that the former husband or wife was dead, or that the former marriage had been annulled, or dissolved by a divorce, or without knowledge of such former marriage, they shall, after the impediment to their marriage has been removed by the death or divorce of the other party to such former marriage, if they continue to live together as husband and wife in good faith on the part of one of them, be held to have been legally married from and after the removal of such impediment and the issue of such subsequent marriage shall be considered as the marital issue of both parents.
765.24 History
History: 1979 c. 32 ss.
48,
92 (2); Stats. 1979 s. 765.24;
1983 a. 447.
765.24 Annotation
A 2nd marriage entered into while the plaintiff was already married will not be annulled when the plaintiff did not live with the 2nd husband after the first husband died. Smith v. Smith,
52 Wis. 2d 262,
190 N.W.2d 174 (1971).
765.24 Annotation
Public policy favors upholding a marriage attacked as void by a 3rd party as well as by a party to a marriage. Corning v. Carriers Insurance Co.
88 Wis. 2d 17,
276 N.W.2d 310 (Ct. App. 1979).
765.24 Annotation
The equitable doctrine of “clean hands" precluded the defendant from obtaining an annulment of a marriage to the plaintiff. A voidable marriage became valid upon the removal of the impediment to the marriage. Halker v. Halker,
92 Wis. 2d 645,
285 N.W.2d 745 (1979).
765.24 Annotation
A husband was estopped from challenging the validity of his wife's divorce from her first husband. Schlinder v. Schlinder,
107 Wis. 2d 695,
321 N.W.2d 343 (Ct. App. 1982).
