2022 Nebraska Revised Statutes
Chapter 42 - Households and Families
42-101 - Marriage a civil contract.

42-101. Marriage a civil contract.

In law, marriage is considered a civil contract, to which the consent of the parties capable of contracting is essential.

Source

• R.S.1866, c. 34, § 1, p. 254;
• R.S.1913, § 1540;
• C.S.1922, § 1489;
• C.S.1929, § 42-101;
• R.S.1943, § 42-101.

Cross References

• Agreements based on consideration of marriage, must be written, see section 36-202.
• Child whose parents marry is legitimate, see section 43-1406.

Annotations

• 1. Nature of contract

• 2. Agreement of parties

• 3. Validity of marriage

• 4. Common-law marriage

• 5. Miscellaneous

• 1. Nature of contract

• Although this section denotes marriage as a "civil contract," persons entering into matrimony establish a social status, not a contractual relation. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980).

• Where consent is obtained by fraud, marriage may be annulled. Zutavern v. Zutavern, 155 Neb. 395, 52 N.W.2d 254 (1952).

• Marriage is a civil contract which, if procured by fraud, may be set aside. Hudson v. Hudson, 151 Neb. 210, 36 N.W.2d 851 (1949).

• State is always a party. Willits v. Willits, 76 Neb. 228, 107 N.W. 379 (1906).

• Consent of state is necessary. Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995 (1902).

• Marriage is a social status, and only in a limited sense is the relation contractual. University of Michigan v. McGuckin, 64 Neb. 300, 89 N.W. 778 (1902).

• 2. Agreement of parties

• Consent of parties mentally competent is required. Kutch v. Kutch, 88 Neb. 114, 129 N.W. 169 (1910).

• Mental weakness alone does not avoid contract. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904).

• 3. Validity of marriage

• It is not a ground for annulment that license was wrongfully obtained where parties are competent and marriage is fully consummated. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).

• Marriages valid in Indian tribe under Indian customs, are valid here. Ortley v. Ross, 78 Neb. 339, 110 N.W. 982 (1907).

• Marriage is valid where minds of competent parties meet. University of Michigan v. McGuckin, 62 Neb. 489, 87 N.W. 180 (1901).

• Where marriage is celebrated in good faith, it is binding though parties had agreed it should not be. Hills v. State, 61 Neb. 589, 85 N.W. 836 (1901).

• 4. Common-law marriage

• Since 1923, common-law marriages cannot be made in this state. Collins v. Hoag & Rollins, 122 Neb. 805, 241 N.W. 766 (1932), reversing 121 Neb. 716, 238 N.W. 351 (1931).

• 5. Miscellaneous

• Agreements to separate are against public policy. Brun v. Brun, 64 Neb. 782, 90 N.W. 860 (1902).