Note

Part heading added by L 1984, c 79, §1.

Attorney General Opinions

Enacting legislation to allow same-sex couples to marry is not inconsistent with the state constitution or the U.S. Constitution. Att. Gen. Op. 13-1.

§572-1 Requisites of valid marriage contract. In order to make valid the marriage contract, which shall be permitted between two individuals without regard to gender, 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, two siblings of the half as well as to the whole blood, uncle and niece, uncle and nephew, aunt and nephew, or aunt and niece, whether the relationship is the result of the issue of parents married or not married to each other or parents who are partners in a civil union or not partners in a civil union;

(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) Neither party has at the time any lawful wife, husband, or civil union partner living, except as provided in section 572-1.7;

(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 parties 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 parties 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; am L 2012, c 267, §4; am L Sp 2013 2d, c 1, §3]

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.

Enacting legislation to allow same-sex couples to marry is not inconsistent with the state constitution or the U.S. Constitution. Att. Gen. Op. 13-1.

Law Journals and Reviews

For Better or for Worse, in Sickness and in Health, Until Death Do Us Part: A Look at Same Sex Marriage in Hawaii. 16 UH L. Rev. 447 (1994).

Justice Ruth Bader Ginsburg And Gender Discrimination. 20 UH L. Rev. 699 (1998).

The Hawai`i Marriage Amendment: Its Origins, Meaning and Fate. 22 UH L. Rev. 19 (2000).

The Fine Line Between Love and the Law: Hawai`i's Attempt to Resolve the Same-Sex Marriage Issue. 22 UH L. Rev. 149 (2000).

Love and Let Love: Same-Sex Marriage, Past, Present, and Future, and the Constitutionality of DOMA. 22 UH L. Rev. 185 (2000).

The Defense of Marriage Act: Sex and the Citizen. 24 UH L. Rev. 279 (2001).

The Recognition of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, and Strategic Institutional Choice. 28 UH L. Rev. 23 (2005).

Free Exercise and Hybrid Rights: An Alternative Perspective on the Constitutionality of Same-Sex Marriage Bans. 29 UH L. Rev. 23 (2006).

Judicial Review and Sexual Freedom. 30 UH L. Rev. 1 (2007).

The State Marriage Cases: Implications for Hawai`i's Marriage Equality Debate in the Post-Lawrence and Romer Era. 31 UH L. Rev. 653 (2009).

Tax Justice and Same-Sex Domestic Partner Health Benefits: An Analysis of the Tax Equity For Health Plan Beneficiaries Act. 32 UH L. Rev. 73 (2009).

Baehr v. Lewin and the Long Road to Marriage Equality. 33 UH L. Rev. 705 (2011).

Case Notes

Common-law marriages invalid. 638 F. Supp. 1251 (1986).

Hawaii's marriage laws (this section and article I, §23 of the state constitution), which define marriage as a union between a man and a woman, are rationally related to legitimate government interests and do not violate the equal protection clause or the due process clause of the U.S. Constitution. 884 F. Supp. 2d 1065 (2012).

This section does not treat males and females differently as a class; it is gender-neutral on its face; it prohibits men and women equally from marrying a member of the same sex. 884 F. Supp. 2d 1065 (2012).

Proof of marriage without record in civil cases. 1 H. 83 (1851); 1 H. 139 (1852); 4 H. 548 (1882); 26 H. 81 (1921). Presumption of validity. 29 H. 716 (1927). When destroyed. 34 H. 161 (1937); 35 H. 756 (1940).

Statute as to Chinese being already married held void. 3 H. 631 (1875).

Breach of contract to marry. 5 H. 540 (1886).

Marriage by girl under fourteen only voidable. 6 H. 289 (1881).

No marriage without mutual consent. 8 H. 77 (1890); 12 H. 329 (1900); 28 H. 581 (1925). Corroboration. 25 H. 392, 394 (1920).

If record of marriage introduced, not necessary to prove that license had been granted or that agent had authority to grant same. 10 H. 440 (1896). Or that celebrant had authority to solemnize. 10 H. 442 (1896).

License presumed from fact of marriage. 16 H. 502 (1905).

License is prerequisite to a valid marriage. 25 H. 397 (1920); 295 F. 636 (1924).

This section's age requirement must be read with the requirements of §572-2. 26 H. 89 (1921).

Statute is presumed to be unconstitutional unless defendant, as agent of State, can show that statute's sex-based classification is justified by compelling state interests and statute is narrowly drawn to avoid unnecessary abridgments of applicant couples' constitutional rights. 74 H. 530, 852 P.2d 44 (1993).

Trial court erred in deciding that wife was entitled to prevail on her divorce claim and second husband was not entitled to prevail on his annulment claim where certified copy of judgment of divorce presented undisputed evidence that when wife married second husband, wife had prior lawful living husband and thus did not satisfy the requirement of paragraph (3). 108 H. 459 (App.), 121 P.3d 924 (2005).

Sections 580-1, 580-21, and this section must be read together; only the family court can declare void a marriage obtained by force, duress, or fraud, and it cannot do so where there has been subsequent cohabitation. 112 H. 131 (App.), 144 P.3d 579 (2006).

Cited: 8 H. 77, 78 (1890); 44 H. 271, 273, 353 P.2d 631 (1960).