2023 New Mexico Statutes › Chapter 40 - Domestic Affairs › Article 1 - Marriage in General › Section 40-1-1 - [Marriage is civil contract requiring consent of parties.]

Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.
History:
Laws 1862-1863, p. 64; C.L. 1865, ch. 75, § 2; C.L. 1884, § 978; C.L. 1897, § 1415; Code 1915, § 3425; C.S. 1929, § 87-101; 1941 Comp., § 65-101; 1953 Comp., § 57-1-1.
ANNOTATIONS
Cross references.
— For marriage settlement and separation contracts,
see
40-2-4 to 40-2-7 NMSA 1978.
For dissolution of marriage,
see
40-4-1 NMSA 1978 et seq.
For jurisdiction of children's court to authorize marriage of minor,
see
32A-1-8 NMSA 1978.
For magistrates solemnizing contract of marriage,
see
35-3-2 NMSA 1978.
Purpose of marriage laws.
— The purpose of New Mexico marriage laws is to bring stability and order to the legal relationship of committed couples by defining their rights and responsibilities as to one another, their children if they choose to raise children together, and their property.
Griego v. Oliver
, 2014-NMSC-003.
Same-gender marriages.
— Barring individuals from marrying and depriving them of the rights, protections and responsibilities of civil marriage solely because of their sexual orientation violates the equal protection clause of Article II, Section 18 of the New Mexico constitution. The state of New Mexico is constitutionally required to allow same-gender couples to marry and must extend to them the rights, protections and responsibilities that derive from civil marriage under New Mexico law.
Griego v. Oliver
, 2014-NMSC-003.
Meaning of the phrase "civil marriage" in New Mexico marriage laws.
— The phrase "civil marriage" in New Mexico marriage laws shall be construed to mean the voluntary union of two persons to the exclusion of all others. All rights, protections and responsibilities that result from the marital relationship shall apply equally to both same-gender and opposite-gender married couples. When reference is made to marriage, husband, wife, spouse, family, immediate family, dependent, next of kin, widow, widower, or any other word, which in context denotes a marital relationship, the same shall apply to same-gender couples who choose to marry.
Griego v. Oliver
, 2014-NMSC-003.
Effect of section is to deny validity to mere consent marriage.
In re Gabaldon's Estate
, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980.
Marriage, standing alone, is presumed valid.
— That is, the party attacking it carries the burden of proof and the invalidity must be proven by clear and convincing evidence.
Panzer v. Panzer
, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Lack of evidence of license does not rebut presumption.
— Mere lack of evidence of a record of the issuance of a license or of a ceremonial marriage is not sufficient to rebut the presumption of a ceremonial marriage.
Trower v. Board of Cnty. Comm'rs
, 1965-NMSC-040, 75 N.M. 125, 401 P.2d 109,
overruled on other grounds
Panzer v. Panzer
, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Presumption attaches to marriage that is later in time.
Panzer v. Panzer
, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Evidence to prove valid marriage.
— While this article prescribes the manner in which a marriage may be solemnized in this state, nowhere does it set forth rules of evidence by which a valid marriage must be proven. The fact of marriage may be proven either by direct or circumstantial evidence, documentary evidence or by parol, and the sufficiency of the evidence to establish a marriage is governed by the general rules of evidence.
Trower v. Board of Cnty. Comm'rs
, 1965-NMSC-040, 75 N.M. 125, 401 P.2d 109,
overruled on other grounds
Panzer v. Panzer
, 1974-NMSC-092, 87 N.M. 29, 528 P.2d 888.
Common-law marriages historically invalid.
— Until the enactment of this section, the law relating to marriages in New Mexico stood as if the rule of the council of Trent of 1563 was the law of the land, except as modified by the section compiled as 40-1-2 NMSA 1978. Under said rule, valid marriages must have been celebrated before the parish or other priest, or by license of the ordinary, and before two or three witnesses, and consent marriages were invalid. Section40-1-2 NMSA 1978 added only the provision that any clergyman or a civil magistrate could perform marriages, and the law of which the present section was a part added the first regulatory provisions without changing the basic foundation of lawful marriages. Since the civil law rule was modified by statute prior to the adoption of the common law as the rule of practice and decision here, the latter had no effect, and common-law marriages have never been valid in New Mexico.
In re Gabaldon's Estate
, 1934-NMSC-053, 38 N.M. 392, 34 P.2d 672, 94 A.L.R. 980.
Marriage is a contract.
— In New Mexico, marriage is a civil contract which must be licensed and a contract in which the public is interested and to which the state is a party.
In re Bivians Estate
, 1982-NMCA-132, 98 N.M. 722, 652 P.2d 744, cert. quashed, 98 N.M. 762, 652 P.2d 1213.
Marriage not recognized unless formally contracted and solemnized.
— New Mexico does not recognize any marriage consummated therein which is not formally consummated by contract and solemnized before an official.
Hazelwood v. Hazelwood
, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345;
Merrill v. Davis
, 1983-NMSC-070, 100 N.M. 552, 673 P.2d 1285.
De facto marriage not ground for retroactive modification of alimony.
— A "de facto marriage," whatever may be required to constitute such, does not constitute grounds for retroactively modifying or abating accrued alimony payments; although, the district court does have discretion to modify prospectively or terminate an alimony award, if the circumstances so warrant, where the termination of alimony was largely predicated on its finding of a de facto marriage, the judgment of the trial court was reversed and the cause remanded.
Hazelwood v. Hazelwood
, 1976-NMSC-074, 89 N.M. 659, 556 P.2d 345.
Special power of attorney for application and marriage by proxy.
— The execution of a special power of attorney, for the purpose of participating in the application for a marriage license and subsequently in a marriage ceremony by proxy, should be before a person authorized to administer oaths, including military officers on active duty and should specify completely the required information as to age, relationship of the engaged persons, consanguinity, present marital status, and a specific statement authorizing the named attorney in fact or proxy to enter into a contract with the person named. 1957 Op. Att'y Gen. No. 57-13.
Law reviews.
— For article, "Annulment of Marriages in New Mexico: Part II - Proposed Statute," see 2 Nat. Resources J. 270 (1962).
For note and comment, "The Irrational Legacy of Rooner v. Evans: A Decade of Judicial Review Reveals the Need for Heightened Scrutiny of Legislation that Denies Equal Protection to Members of the Gay Community," see 36 N.M.L. Rev. 565 (2006).
For note and comment, "New Tort Rules for Unmarried Partners: The Enhanced Potential for Successful Loss of Consortium and NEID Claims by Same Sex Partners in New Mexico After Lozoya," see 34 N.M.L. Rev. 461 (2004).
Am. Jur. 2d, A.L.R. and C.J.S. references. —
52 Am. Jur. 2d Marriage §§ 4, 6, 7.
Recovery for services rendered by persons living in apparent relation of husband and wife without express agreement for compensation, 94 A.L.R.3d 552.
Marriage between persons of the same sex, 81 A.L.R.5th 1.
55 C.J.S. Marriage § 18.