Chapter 765

CHAPTER 765

MARRIAGE

765.001   Title, intent and construction of chs. 765 to 768.

765.002   Definitions.

765.01   A civil contract.

765.02   Marriageable age; who may contract.

765.03   Who shall not marry; divorced persons.

765.035   Validity of marriages of epileptics.

765.04   Marriage abroad to circumvent the laws.

765.05   Marriage license; by whom issued.

765.08   Application for marriage license.

765.09   Identification of parties; statement of qualifications.

765.11   Objections to marriage.

765.12   Marriage license, when authorized; corrections; contents.

765.13   Form of marriage document.

765.14   Form of marriage document when solemnized by parties.

765.15   Fee to county clerk.

765.16   Marriage contract, how made; officiating person.

765.19   Delivery and filing of marriage document.

765.20   Records and forms.

765.21   Unlawful marriages void; validation.

765.22   Immaterial irregularities as to authority of person officiating.

765.23   Immaterial irregularities otherwise.

765.24   Removal of impediments to subsequent marriage.

765.30   Penalties.

765.31   Action to recover penalties.

765.001 765.001 Title, intent and construction of chs. 765 to 768.

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 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).

765.001 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 Under 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 Annotation As 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 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. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (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 record 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; 2017 a. 334.

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 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 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. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (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 any county in this state. If one of the persons is a nonresident of this state, 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; 2021 a. 84; 2021 a. 240 s. 30.

765.05 Annotation Residency 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 3 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 3 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; 2021 a. 84.

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 who has a social security number, as well as any other informational items that the department of health services directs. The clerk shall accept as proof of identification documentation as set forth under par. (b). 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).