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The classic putative marriage doctrine is substantive, ameliorative or corrective; it is designed to allow all the civil effects -- rights, privileges, and benefits -- which obtain in a legal marriage to flow to parties to a null marriage who had a good faith belief that their "marriage" was legal and valid. Most jurisdictions in the United States have developed equitable analogues to the putative spouse doctrine that provide all or part of the relief afforded by the classic doctrine.

If a marriage is declared to be null or void, that declaration is retroactive to the day that the null marriage was contracted. It could be said that the action in nullity does not produce a null marriage, but merely declares that the marriage has never existed. However, many jurisdictions only apply the relation-back doctrine when it will substantially fulfill justice and equity. Thus, generally, a marriage declared null produces no effects of marriage whatsoever. Unless some protective or corrective measure intercedes, the normal civil effects of marriage simply do not flow from a marriage, which is null. Thus, for example, if the results are consistent with the concept of nullity, a minor party to the null marriage would not be emancipated; no marital property regime would ever exist; all donations in contemplation of marriage should be null, as well as all donations in or since the marriage contract that were made to the party as spouse; children of the couple born during the null marriage would be illegitimate; children of the couple who would have been legitimated by the marriage have not been legitimated; neither "spouse" has a right to workers' compensation or a wrongful death action through the other; and neither spouse would have a right to the marital portion of the other's estate.

The putative marriage doctrine is a device developed to ameliorate or correct the injustice, which would occur if civil effects were not allowed to flow to a party to a null marriage who believes in good faith that he or she is validly married. A putative marriage, therefore, is a marriage which is in reality null, but which allows the civil effects of a valid marriage to flow to the party or parties who contracted it in good faith. It is a marriage which 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. The doctrine developed as a canon law palliative to protect those persons who went through a marriage ceremony in the good faith belief that the marriage was valid and proper, when it was actually null due to some impediment. It provides that, notwithstanding its nullity, the civil effects of a legal marriage flow to the parties who, in good faith, contract an invalid marriage.

Publication Citation

60 Tul. L. Rev. 1 (1985).