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PART I. REQUISITES, PROCEDURES
Note: Part heading added by L 1984, c 79, §1.
§572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, which shall be only between a man and a woman, it shall be necessary that:
(1) The respective parties do not stand in relation to each other of ancestor and descendant of any degree whatsoever, brother and sister of the half as well as to the whole blood, uncle and niece, aunt and nephew, whether the relationship is the result of the issue of parents married or not married to each other;
(2) Each of the parties at the time of contracting the marriage is at least sixteen years of age; provided that with the written approval of the family court of the circuit within which the minor resides, it shall be lawful for a person under the age of sixteen years, but in no event under the age of fifteen years, to marry, subject to section 572-2;
(3) The man does not at the time have any lawful wife living and that the woman does not at the time have any lawful husband living;
(4) Consent of neither party to the marriage has been obtained by force, duress, or fraud;
(5) Neither of the parties is a person afflicted with any loathsome disease concealed from, and unknown to, the other party;
(6) The man and woman to be married in the State shall have duly obtained a license for that purpose from the agent appointed to grant marriage licenses; and
(7) The marriage ceremony be performed in the State by a person or society with a valid license to solemnize marriages and the man and the woman to be married and the person performing the marriage ceremony be all physically present at the same place and time for the marriage ceremony. [L 1872, c 23, §1; am L 1903, c 28, §1; am L 1907, c 42, §1; am L 1913, c 8, §1; RL 1925, §2943; RL 1935, §4630; am L 1935, c 185, §1; am L 1937, c 59, §1; am L 1939, c 122, §1; RL 1945, §12351; am L 1949, c 53, §29; am L 1953, c 79, §1; RL 1955, §323-1; am L 1965, c 232, §1; HRS §572-1; am L 1969, c 152, §1; am L 1970, c 9, §1; am L 1972, c 182, §1 and c 192, pt of §1; am L 1978, c 74, §1; am L 1981, c 202, §1; am L 1984, c 119, §1; am L 1994, c 217, §3; am L 1997, c 52, §5]
Attorney General Opinions
Effect of adoption. Parties who by adoption become uncle and niece not disqualified to intermarry. Att. Gen. Op. 62-49.
Common-law marriages invalid. Att. Gen. Op. 73-5.
If requirements of valid marriage met, validity not affected by absence of filed marriage certificate. Att. Gen. Op. 84-10.
It appears that the Attorney General opinion about common law marriages being invalid if attempted to be undertaken in Hawaii was not issued until 1973. It relied on a statute passed sometime before that date.
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MARRIAGE ESTABLISHED BY REPUTATION PRESUMED VALID. --Where the marriage is established by reputation, it will be presumed, in the absence of any showing that would repel such conclusions, that the parties were legally competent to marry, and that they first secured a license and complied with all other requirements necessary to make valid the marriage contract. In re Estate of
Kalamau, 26 Haw. 81 (1921).
IN A SUIT FOR THE ANNULMENT OF A MARRIAGE, THE PRESUMPTION IS THAT THE MARRIAGE IS VALID and the burden is upon the libelant to prove the incompetency of the libelee to enter into the marriage. Okubo v. Sato, 29 Haw. 716 (1927).
EVIDENCE OF MARRIAGE. --Celebration of a marriage is generally proved by the record thereof or by the witnesses present. The latter is considered stronger evidence, but it is not necessary to produce the record or the celebrant, unless perhaps the other evidence is purely circumstantial. Republic of Haw. v. Kuhia,
10 Haw. 440 (1896).
CERTIFICATE OF MARRIAGE RECORD AS EVIDENCE OF VALID MARRIAGE. --Where the certificate of the marriage record was admissible, it was not necessary to produce the license to marry nor to prove that the agent who granted it had the requisite authority. Republic of Haw. v. Waipa, 10 Haw. 442 (1896) (decided
under prior law).
THE SUPREME COURT HAS REJECTED THE THEORY OF MATRIMONIAL ACTION OF AN EQUITABLE NATURE. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990).
COHABITATION DOES NOT ESTABLISH AGREEMENT FOR SUPPORT. --Cohabitation, no matter for how long, does not by itself prove the existence of an express agreement for post-cohabitation rehabilitative support or equitable division of separate property acquired or improved during cohabitation. Aehegma v. Aehegma, 8 Haw.
App. 215, 797 P.2d 74 (1990).
OR IMPLIED CONTRACT. --Cohabitation, no matter for how long, does not by itself prove the existence of a contract implied in fact. Aehegma v. Aehegma, 8 Haw. App. 215, 797 P.2d 74 (1990).
OPINIONS OF ATTORNEY GENERAL
ABSENCE OF FILED MARRIAGE CERTIFICATE DOES NOT AFFECT THE VALIDITY OF THE MARRIAGE, if the requirements of this section have been met. Op. Att'y Gen. No. 84-10 (1984).
COMMON LAW MARRIAGES INVALID. --Because a marriage license is a prerequisite to a valid marriage under paragraph (7), common law marriages are invalid in Hawaii. Op. Att'y Gen. No. 73-5 (1973).
COUPLE THAT DIVORCED BUT LATER LIVED AS MARRIED WERE NOT MARRIED. --Since common-law marriages contracted in Hawaii are void under the state statutes, where a husband and wife were divorced in Hawaii but later reconciled and lived together ostensibly as husband and wife until the husband died, the woman was not the wife of the man under Hawaiian law, was not a "wife" under HawaiianHomes Commission Act @ 209(1), and was not a qualified successor to the man's Hawaiian home lands homestead. Op. Att'y Gen. No. 73-5 (1973).
Airtight cases are rare. Clients, because they may tend to focus on a desired outcome, sometimes can't wrap their minds around the "what if's" in any case where the lawyer doesn't already have all the answers to the questions being raised.