Inmate Marriages: Can Common Law Apply?

In the United States, prisoners retain the right to marry, subject to restrictions resulting from their detention. While it is possible for an inmate to marry, there are several legal requirements that must be met, and the process can be very restricting. In addition to meeting the standard marriage eligibility requirements, such as being of marriageable age and mentally competent, inmates typically need to request permission to marry from the corrections department and may have to undergo premarital counseling. The wedding ceremony may also need to take place in the correctional facility, and the couple is responsible for all associated costs. In Texas, inmates and their common-law spouses can submit an Affidavit of Informal Marriage form to the warden to prove their common-law marriage.

Characteristics of Common-Law Marriage for Inmates

Inmates retain the right to marry, but there are restrictions

In the United States, prisoners retain the right to marry, but this right is subject to restrictions as a result of their detention. The U.S. Marshals may allow a prisoner in their custody to marry unless the marriage would interfere with the prisoner's judicial proceedings or is inconsistent with the country. Prisoners hoping to get married may need to confirm to the penal institution that their chosen partners are of the opposite sex in states that prohibit gay marriage.

Inmates usually have to request permission to marry from the corrections department. The inmate may need a premarital counselling session for the wedding approval. The correctional facility may also require an inmate marriage request form, which may ask about prior marriages and children. Both the prospective spouses and the wedding officiant will sign the marriage license, which can be obtained from the court house in the county of residence. If the inmate does not live in the same state as their partner, the marriage license must be obtained from the court house in the county where the inmate is incarcerated.

The couple needs to find a qualifying officiant to perform the marriage, get approval from the jail, and pay the costs of the wedding. The type of officiant who can perform a legal marriage depends on state law. Generally, an officiant includes judges, pastors or priests, or a facility chaplain. The wedding ceremony may be performed by Bureau of Prisons or community clergy, or by a justice of the peace. The Warden may approve the use of institution facilities for an inmate's marriage ceremony. If a marriage ceremony poses a threat to the security or good order of the institution, the Warden may disapprove of the ceremony.

The spouse of an inmate must meet the state's legal requirements for marriage eligibility. Generally, they must be of marriageable age, mentally competent, and not married to someone else. The couple getting married are responsible for providing an officiant and two witnesses, who must complete LEIN clearances. The prisoner's ring cannot be more than $75 and must be a plain band without any stones or insignia.

Same-sex common-law marriages are recognised in Texas

In Texas, same-sex couples can enter into a common-law marriage, also known as an informal marriage. This is a legal marriage without a ceremony or other formalities. It is important to note that Texas has specific requirements for proving a common-law marriage, and these requirements are the same for both same-sex and opposite-sex couples.

To prove a common-law marriage in Texas, the couple must demonstrate the following:

• They agreed to be married;
• After the agreement, they cohabitated (lived) together in Texas as a married couple;
• They represented themselves to others in Texas as a married couple.

It is important to note that simply living together is not sufficient to establish a common-law marriage. While there is no requirement for a specific length of time, the couple must be able to provide evidence that they have met all three of the above requirements. This evidence can include documents such as lease agreements, tax returns, and insurance policies. Additionally, couples can choose to register their common-law marriage by filing a declaration with the county clerk.

The recognition of same-sex common-law marriages in Texas is a result of the United States Supreme Court's 2015 decision in Obergefell v. Hodges, which legalized same-sex marriage nationwide. This decision was further reinforced by the federal Respect for Marriage Act passed in 2022, which created statutory protections for same-sex marriages, including common-law marriages in Texas.

Regarding inmates, the Texas Department of Criminal Justice (TDCJ) has an Affidavit of Informal Marriage form for visitation purposes. Both the inmate and their common-law spouse can submit this affidavit to the warden, with the spouse's affidavit requiring certification by a notary. This process allows for the recognition of common-law marriages involving inmates in Texas.

Inmates must request permission to marry from the corrections department

In the United States, inmates can marry the spouses of their choosing, but they must request permission to do so from the corrections department. The process for requesting permission to marry while incarcerated varies depending on the state and type of prison facility.

For example, in Washington State, incarcerated individuals in segregation or an intensive management unit (IMU) cannot initiate a marriage application. They must first obtain permission from the Out-of-State Department or the Regional Director of the Federal Bureau of Prisons. Inmates in federal institutions must submit a request to the appropriate Community Corrections Manager, who will then advise the confining authority of the request. The Community Corrections Manager will make a decision based on the criteria outlined in § 551.12, which includes factors such as the inmate's behavior and the severity of their sentence.

In Illinois, an inmate wishing to marry must submit a written request to the chief administrative officer at least 30 days before the requested date of the ceremony. The request is then reviewed by the chief administrative officer, who considers security concerns and the inmate's best interests. If approved, the facility chaplain or a designated official will conduct a premarital counseling session with the inmate and/or their intended spouse.

The process for obtaining permission to marry an inmate can be complex and varies depending on the specific circumstances. In general, inmates and their spouses are responsible for all costs associated with the wedding ceremony. In some cases, the corrections department may grant a family furlough or community leave, allowing the wedding to take place outside of the prison. It is recommended that individuals seeking to marry an inmate consult a local family law lawyer for legal advice and guidance on the specific requirements and procedures.

The wedding may have to take place in jail

In the United States, prisoners retain the right to marry, subject to restrictions as a result of their detention. The wedding ceremony may have to take place in jail, depending on the state and the correctional facility's rules.

In Michigan, for example, weddings are scheduled based on the availability of time, space, and staff work schedules. The couple is responsible for providing an officiant and two witnesses, who must complete LEIN clearances. The Michigan Department of Corrections staff cannot serve in this capacity. The officiant must be a qualifying one, as defined by state law. For example, in Michigan, the officiant could be a judge, pastor, priest, or facility chaplain. The couple must also get approval from the jail and pay the costs of the wedding.

In Texas, common-law marriage, also known as marriage without formalities or informal marriage, is a valid and legal way for a couple to marry. Both the inmate and their common-law spouse can submit an Affidavit of Informal Marriage form to the warden. The inmate can file an unsworn affidavit, while the spouse must have their affidavit certified by a notary.

In some cases, the corrections department may grant a family furlough or community leave, allowing the wedding to take place outside of prison. This depends on the department's furlough procedures, and a lawyer can advise on how to request such leave.

Conjugal visits are a privilege that may be granted or revoked

Conjugal Visits: A Privilege, Not a Right

In the context of incarceration, a conjugal visit is a scheduled period during which a prisoner is permitted to spend several hours or days in private with a visitor, usually their legal partner. Conjugal visits are typically understood as opportunities for inmates to have intimate contact, including sexual intercourse, with their partners. These visits are considered a privilege for inmates who exhibit good behaviour and may be revoked or granted based on the severity of their sentence.

History of Conjugal Visits

The history of conjugal visits in the United States is marked by changing attitudes and policies. In 1993, 17 states had conjugal visitation programs, but by the early 2000s, only six states continued to allow such visits. This decline has been attributed to a shift in public opinion, with an increasing belief that prison should primarily be a place for punishment, and that conjugal visits are incompatible with this punitive purpose. Additionally, academic literature from the 1980s and 1990s argued that some criminals were beyond rehabilitation, challenging the rationale for providing opportunities for rehabilitation through conjugal visits.

Benefits of Conjugal Visits

Despite the controversy, advocates of conjugal visits highlight their potential benefits for inmates, their families, and society. Studies suggest that prisoners who maintain close ties with spouses, partners, and family members are more likely to successfully reintegrate into society upon release and less likely to recidivate. Conjugal visits can also help alleviate the trauma experienced by children with incarcerated parents, who are at a higher risk of poverty, housing insecurity, and emotional distress. Furthermore, conjugal visits can serve as an incentive for inmates to comply with prison rules and regulations, fostering a more orderly prison environment.

Requirements and Procedures

In the few jurisdictions that still allow conjugal visits, inmates must meet certain requirements to qualify for this privilege. Both the inmate and the visitor may be required to undergo background checks and health screenings to ensure they are free of sexually transmitted diseases. Visitors may also be subject to strict rules regarding what items they can bring into the prison, and they may be searched before and after the visit to prevent the smuggling of contraband.

Alternatives to Conjugal Visits

While conjugal visits are becoming less common, some correctional facilities offer alternatives such as family furloughs or community leave programs. These programs allow inmates to spend time with their families outside of the prison setting, providing a less artificial way to maintain family ties. However, furloughs are typically only granted to inmates who are close to completing their sentences.

Frequently asked questions