Categories: General
      Date: Jun 17, 2009
     Title: Ask The Lawyer

My mom was married to my stepdad for almost two years.  They divorced about five years ago.  My former stepdad had a son who is my age.  We were 15 when our parents divorced and now we are 20.  We hated each other when our parents were married, and we didn’t spend much time together at all.  He lived with his mother and only visited a couple of times each year.  We met each other again in college and found out that we have a lot in common.  We have been dating each other for almost a year.  We want to get married, but my mom said that it is illegal for a family member to marry an ex-family member.



    Question:  My mom was married to my stepdad for almost two years.  They divorced about five years ago.  My former stepdad had a son who is my age.  We were 15 when our parents divorced and now we are 20.  We hated each other when our parents were married, and we didn’t spend much time together at all.  He lived with his mother and only visited a couple of times each year.  We met each other again in college and found out that we have a lot in common.  We have been dating each other for almost a year.  We want to get married, but my mom said that it is illegal for a family member to marry an ex-family member.  She said she read it online.  I tried to find what she was talking about.  We don’t really know what to do now.  His dad isn’t opposed and said that because we never actually lived together when we were kids and never acted like we were brother and sister during their brief marriage that it shouldn’t matter.  I think my mom just can’t stand the thought of having to deal with her ex-husband.  Would it be illegal for me and my former stepbrother to get married?

    Answer:   The question posed touches upon two ideas that are encompassed in Texas law.  One is what is “legal” and the other is what is “moral.”  Most of the laws that are written, both criminal and civil, are designed to control behavior.  Behavior is controlled to conform to the moral beliefs at the time the law is enacted.  If a change occurs in what is morally accepted, then often laws are amended or repealed.  The laws found in the Texas Family Code govern whom a person may “not” enter into marriage with.  

    The Family Code lists forbidden relationships, for the purpose of marriage, in Title 1, The Marriage Relationship, Chapter 2, the Marriage Relationship.  Persons seeking to apply for a marriage license must answer certain questions, including:  “…check ‘true’ or ‘false’ in response to the following statement:  ‘The other applicant is not related to me as:  (A) an ancestor or descendant, by blood or adoption; (B)  a brother or sister, of the whole or half blood or by adoption; (C)  a parent’s brother or sister, of the whole or half blood or by adoption; (D)  a son or daughter of a brother or sister, of the whole or half blood or by adoption; (E)  a current or former stepchild or stepparent; or (F)  a son or daughter of a parent’s brother or sister, of the whole or half blood or by adoption.’”  

    Reading the statue is somewhat confusing, so what it says in layman’s terms is that people entering into marriage may not be related as father and daughter or mother and son, brother and sister, uncle and niece or aunt and nephew, stepchild and stepparent, or first cousins.  The change that first cousins in Texas may not marry one another is recent, and until 2005, first cousins were free to marry one another.  The relationships are those created by consanguinity (by marriage) or affinity (by blood).  Another relationship that is important is one created through adoption.  

    A relationship between an adopted sister and brother is not allowed, or an adopted child and adoptive parent, or an adopted child and uncle or aunt or cousin.  Those relationships, whether current or former are considered the same under the law.  A person is not free to marry their former stepparent or stepchild.  Children who are related by the half blood may not marry one another.

    The purpose behind the law as written is twofold.  One is that people who may eventually bare children should not be related by blood and two, that people who enter a family through adoption are treated equally with those born into a family.  Although there is no risk of blood related problems in having children with a person who was adopted into a family, treating them differently could cause problems in other areas of the law that protect adoptive relationships such as probate.  

    Forbidding former stepparent and stepchild from marrying has no genetic basis under the law, but is one of those areas that have the “ick” factor.  People continue to feel it would be morally wrong for that relationship to become legal through marriage.  But to date that is as far as the Legislature has gone when creating laws that affect former step relationships.  Under the current Texas law, two former stepsiblings may marry one another.

    As long as two people, a man and a woman, are able to answer the questions posed in the application for marriage license, then their connection to each other that is not described by those questions is irrelevant.  They never have to check a box that states they were once related in some fashion.  The father in the question posed doesn’t have an issue with the marriage because he, like the former stepsiblings, never viewed the children as brother and sister.  The mother’s objections are not clear except she believes it is illegal.

    When people get married to one another then find out that for some reason or another they should not have been able to marry, the law provides ways to dissolve the legal marriage.  Marriages that violate the statute however, are considered incestuous under the law and are crimes that could be prosecuted.

    This article is meant for informational purposes only and not as a substitute for sound legal advice.  Please forward your questions to Ask the Lawyer at lawyer@thedalharttexan.com.