765.03 Who shall not marry; divorced persons.

(1) No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than 2nd cousins except that marriage may be contracted between first cousins where the female has attained the age of 55 years or where either party, at the time of application for a marriage license, submits an affidavit signed by a physician stating that either party is permanently sterile. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood. A marriage may not be contracted if either party has such want of understanding as renders him or her incapable of assenting to marriage.

(2) It is unlawful for any person, who is or has been a party to an action for divorce in any court in this state, or elsewhere, to marry again until 6 months after judgment of divorce is granted, and the marriage of any such person solemnized before the expiration of 6 months from the date of the granting of judgment of divorce shall be void.

History: 1971 c. 220; 1977 c. 8, 83, 203; 1979 c. 32 s. 48; Stats. 1979 s. 765.03.

A marriage can be declared null and void after the death of a spouse, although a marriage may not be annulled after the death of a party. Ellis v. Estate of Toutant, 2001 WI App 181, 247 Wis. 2d 400, 633 N.W.2d 692, 00-2535.

Chapter 765 sets out the criteria for a valid marriage in this state. Failure to meet one of these criteria often results in a void marriage. An action for declaratory judgment under s. 806.04 is the established mechanism for testing the validity of a marriage in an estate case because s. 806.04 explicitly provides standing for interested parties in an estate action. McLeod v. Mudlaff, 2013 WI 76, 350 Wis. 2d 182, 833 N.W.2d 735, 11-1176.