§ 42-103 — Marriages; when void

Nebraska § 42-103

• Jurisdiction: Nebraska
• Ch. 42: Households and Families

Text

Marriages are void (1) when either party has a husband or wife living at the time of the marriage, (2) when either party, at the time of marriage, is mentally incompetent to enter into the marriage relation, and (3) when the parties are related to each other as parent and child, grandparent and grandchild, brother and sister of half as well as whole blood, first cousins when of whole blood, uncle and niece, and aunt and nephew. This subdivision extends to children and relatives born out of wedlock as well as those born in wedlock.

Legislative History

Source: R.S.1866, c. 34, § 3, p. 254; Laws 1911, c. 76, § 1, p. 322; Laws 1913, c. 72, § 1, p. 216; R.S.1913, § 1542; C.S.1922, § 1491; C.S.1929, § 42-103; R.S.1943, § 42-103; Laws 1963, c. 243, § 1, p. 736; Laws 1976, LB 990, § 1; Laws 1986, LB 1177, § 14; Laws 1989, LB 22, § 1. Cross References: Bigamy, penalty, see section 28-701. Incest, penalty, see section 28-703. Incestuous marriages are void, see section 28-702. Annotations: 1. Void marriage, party has spouse 2. Void marriage, mental illness 3. Void marriage, related parties 4. Miscellaneous 1. Void marriage, party has spouse A marriage contract between a man and a woman, one of whom is married, is void. Boersen v. Huffman, 189 Neb. 469, 203 N.W.2d 489 (1973); Scott v. Scott, 153 Neb. 906, 46 N.W.2d 627 (1951), 23 A.L.R.2d 1431 (1951). Marriage within six months of divorce is void, but cohabitation after impediment is removed, though removal is unknown, validates. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904); Eaton v. Eaton, 66 Neb. 676, 92 N.W. 995 (1902). Applicant for widow's social security benefits denied entitlement where evidence revealed purported marriage to deceased consummated during interlocutory period of deceased's former divorce. McGuire v. Califano, 440 F.Supp. 1031 (D. Neb. 1977). 2. Void marriage, mental illness In action to annul marriage, mental illness of party was not of such nature as to render marriage void. Homan v. Homan, 181 Neb. 259, 147 N.W.2d 630 (1967). Absolute inability to contract, insanity or idiocy, but not mental weakness alone, will make marriage void. Aldrich v. Steen, 71 Neb. 33, 98 N.W. 445 (1904). 3. Void marriage, related parties Marriage in Iowa of first cousins, residents of Nebraska, is valid here. Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911). 4. Miscellaneous A marriage that is void is not valid for any legal purpose. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021). It is generally held that a marriage is not void unless the statutes expressly so declare and that courts should not so construe it unless the legislative intent to such effect is clear and unequivocal. State v. Johnson, 310 Neb. 527, 967 N.W.2d 242 (2021). Marriages are void under this section only if there existed at the time of marriage such a want of understanding as to render the party incapable of assenting thereto. Edmunds v. Edwards, 205 Neb. 255, 287 N.W.2d 420 (1980). This section declares what marriages are void. Baker v. Baker, 112 Neb. 738, 200 N.W. 1003 (1924).