Marriage as a civil contract
Marriage is contemplated by the law as a civil contract, for which the consent of the contracting parties, capable in law of contracting, is essential.
(New Mexico Statutes Ann. Section 40-1-1)
Prohibited marriages; annulment
No marriage between relatives within the prohibited degrees or between or with infants under the prohibited ages, shall be declared void, except by a decree of the district court upon proper proceedings being had therein. A cause of action may be instituted by the minor, by next friend, by either parent or legal guardian of such minor or by the district attorney. In the case of Best Section End minors, no party to the marriage who may be over the prohibited age shall be allowed to apply for or obtain a decree of the court declaring such marriage void; but such minor may do so, and the court may in its discretion grant alimony until the minor becomes of age or remarries. All children of marriage so declared void as aforesaid shall be deemed and held as legitimate with the right of inheritance from both parents; and also in the case of minors, if the parties should live together until they arrive at the age under which marriage is prohibited [FN1] by statute, then and in that case, such marriage shall be deemed legal and binding.
(New Mexico Statutes Ann. Section 40-1-9)
Sandoval County Clerk Victoria Dunlap decided to start issuing marriage licenses to same-sex couples after seeing the example of San Francisco. The state Attorney General filed suit to stop her illegal actions. The court issued a temporary restraining order, which remains in place as a preliminary injunction. The case is pending.
The Sandoval County Clerk filed a mandamus action in the New Mexico Supreme Court in an effort to lift the preliminary injunction against issuing marriage licenses to same-sex couples. The Supreme Court rejected her request.