765.001(1)(1)Title. Chapters 765 to 768 may be cited as “The Family Code".
765.001(2) (2)Intent. It is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the family. It is the intent of the legislature to recognize the valuable contributions of both spouses during the marriage and at termination of the marriage by dissolution or death. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. The seriousness of marriage makes adequate premarital counseling and education for family living highly desirable and courses thereon are urged upon all persons contemplating marriage. The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned. Under the laws of this state, marriage is a legal relationship between 2 equal persons, a husband and wife, who owe to each other mutual responsibility and support. Each spouse has an equal obligation in accordance with his or her ability to contribute money or services or both which are necessary for the adequate support and maintenance of his or her minor children and of the other spouse. No spouse may be presumed primarily liable for support expenses under this subsection.
765.001(3) (3)Construction. Chapters 765 to 768 shall be liberally construed to effect the objectives of sub. (2).
765.001 History History: 1979 c. 32 ss. 48, 92 (2); 1979 c. 175 s. 53; Stats. 1979 s. 765.001; 1983 a. 186.
765.001 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).
765.001 Annotation A land contract that required a reconveyance to the husband's parents if he became divorced within 10 years was not against public policy. In re Terrill v. Terrill, 98 Wis. 2d 213, 295 N.W.2d 809 (Ct. App. 1980).
765.001 Annotation The family code does not preclude an unmarried cohabitant from asserting contract and property claims against the other cohabitant. Watts v. Watts, 137 Wis. 2d 506, 405 N.W.2d 303 (1987).
765.001 Annotation The obligation of support is imposed under s. 765.001 and is not relieved simply because s. 766.55 (2) (a) may not apply. Sinai Samaritan Medical Center, Inc. v. McCabe, 197 Wis. 2d 709, 541 N.W.2d 190 (Ct. App. 1995), 95-0012.
765.001 Annotation Under 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 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).
765.001 Annotation A 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 Annotation Same-Sex Divorce and Wisconsin Courts: Imperfect Harmony? Thorson. 92 MLR 617.
765.002 765.002 Definitions.
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 document consisting of the marriage license, the marriage certificate and the confidential information collected for statistical purposes only.
765.002(5) (5) In this chapter, “marriage license" means that portion of the marriage document designated as such, which is authorization for the marriage to take place.
765.002(6) (6) In chs. 765 to 768 “void" means null and void and not voidable.
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.
765.02 History History: 1971 c. 149; 1971 c. 213 s. 5; 1975 c. 39, 94, 200; 1979 c. 32 ss. 48, 92 (4); Stats. 1979 s. 765.02; 1981 c. 20 s. 2200; 1999 a. 85; 2005 a. 443 s. 265.
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 A 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 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 AnnotationResidency requirements are discussed. 80 Atty. Gen. 236.
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)(1)
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) (3)
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)(1)
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.
765.12 History History: 1977 c. 105; 1979 c. 32 ss. 48, 92 (2); 1979 c. 176, 196; Stats. 1979 s. 765.12; 1981 c. 20; 1985 a. 19; 2001 a. 16; 2015 a. 162.
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.
765.13 History History: 1977 c. 418; 1979 c. 32 s. 48; Stats. 1979 s. 765.13; 1981 c. 20; 1995 a. 27 s. 9126 (19); 1997 a. 191; 2001 a. 16; 2007 a. 20 s. 9121 (6) (a).
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.
765.15 History History: 1971 c. 125; 1979 c. 32 s. 48; 1979 c. 176; Stats. 1979 s. 765.15; 1981 c. 20; 1985 a. 29; 1991 a. 269; 2003 a. 225; 2005 a. 443 s. 265; 2013 a. 20.
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.
765.16(1m)(d) (d) Any judge of a court of record or a reserve judge appointed under s. 753.075.
765.16(1m)(e) (e) Any circuit court commissioner appointed under SCR 75.02 (1) or supplemental court commissioner appointed under s. 757.675 (1).
765.16(1m)(f) (f) Any municipal judge.
765.16(2m) (2m) An officiating person under sub. (1m) (a), (b), (d), (e), or (f) must be at least 18 years old.
765.16 History History: 1977 c. 323; 1979 c. 32 ss. 48, 92 (4); 1979 c. 176, 259; Stats. 1979 s. 765.16; 1981 c. 20 s. 2200; 1985 a. 29; 1991 a. 315; 1999 a. 85; 2001 a. 61; 2013 a. 372.
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.
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2015-16 Wisconsin Statutes updated through 2017 Wis. Act 58 and all Supreme Court and Controlled Substances Board Orders effective on or before September 20, 2017. Published and certified under s. 35.18. Changes effective after September 20, 2017 are designated by NOTES. (Published 9-20-17)