765.001 AnnotationUnder the unique circumstances of the case, including prior residence in a common-law marriage state, the marriage of a Hmong couple who were married in a traditional Hmong ceremony that was not certified by the former Laotian government was valid. Xiong v. Xiong, 2002 WI App 110, 255 Wis. 2d 693, 648 N.W.2d 900, 01-0844.

765.001 AnnotationUnder Xiong, a putative marriage is a marriage that has been solemnized in proper form and celebrated in good faith by one or both parties, but which, by reason of some legal infirmity, is either void or voidable. Here, the trial court properly found that the parties took part in traditional Hmong marriage rituals and that both of these parties believed they were married as supported by immigration documents in which one party represented that he was the other’s husband, a real estate deed was signed by both parties as “husband and wife,” and the parties submitted joint income tax returns. The Xiong case was not inapplicable because it was a wrongful death lawsuit, rather than a family court action, and the Xiong court’s ruling that a putative marriage existed did not depend on its finding that the parties in that case had lived for years in a state that recognized common-law marriage. Xiong v. Vang, 2017 WI App 73, 378 Wis. 2d 636, 904 N.W.2d 814, 16-1281.

765.001 AnnotationAs a general matter, whether a marriage is valid is controlled by the law of the place where the marriage is contracted. There is no legal authority for the proposition that the law of the parties’ country of domicile should determine the validity of their marriage, rather than the law of the country where the marriage occurred. Xiong v. Vang, 2017 WI App 73, 378 Wis. 2d 636, 904 N.W.2d 814, 16-1281.

765.001 AnnotationSame-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. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

765.001 AnnotationA wife’s assets could be used to pay for her husband’s appointed counsel. United States v. Conn, 645 F. Supp. 44 (E. D. Wis. 1986).

765.001 AnnotationSame-Sex Divorce and Wisconsin Courts: Imperfect Harmony? Thorson. 92 MLR 617.

765.002(1)(1) Unless the context clearly indicates otherwise “member of the clergy” in this chapter means spiritual adviser of any religion, whether the adviser is termed priest, rabbi, minister of the gospel, pastor, reverend or any other official designation.

765.002(2)(2) In this chapter “church under his or her ministry” includes any congregation, parish or place of worship at which any member of the clergy is located or assigned and also any administrative, missionary, welfare or educational agency, institution or organization affiliated with any religious denomination or society in this state.

765.002(3)(3) In this chapter, “marriage certificate” means that portion of the marriage document designated as such, which includes the marriage license as well as the information concerning the marriage ceremony, signatures resulting from the ceremony and proof of filing.

765.002(4)(4) In this chapter, “marriage document” is that record consisting of the marriage license, the marriage certificate and the confidential information collected for statistical purposes only.

765.01765.01 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 NoteNOTE: In Wolf v. Walker, 26 F. Supp. 3d 866 (2014), the U.S. 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. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

765.01 AnnotationSame-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. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).

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(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 AnnotationA marriage can be declared null and void after the death of a spouse, although a marriage may not be annulled after the death of a party. Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692, 00-2535.

765.03 AnnotationChapter 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.