02. Family Law Flashcards
What is marriage?
A civil contract between two people:
- Capacity
- Consent
- Consideration (mutual exchange of promises + imposition of the rights and obligations that come with the marriage relationship)
NOTE: Can only be terminated or modified with state intervention
What does a ceremonial marriage require?
1) License
2) Solemnization
What are the age restrictions on marriage?
- Most states require both parties to be at least 18 years old
- Most jurisdictions allow parents to consent if younger
- All jurisdictions impose minimum age requirements
What are the requirements for a marriage license?
1) Age
2) Waiting period
3) Premarital medical testing (some states; results can’t be a condition for issuing the license)
4) Expiration (usually 10-30 days after issuance)
When will a marriage license NOT be issued?
1) Already married
2) Related (too closely)
3) Sham
4) Lack understanding (incapable or lack consent due to fraud or duress)
How do you solemnize a marriage?
1) 2 witnesses (most states)
2) Officiant (most states)
3) Marriage license filed
NOTE: Some states allow for proxy marriage
What are the requirements for common-law marriage?
1) Capacity to marry
2) Consent
3) Cohabitation (no minimum time period)
4) Conduct
REMEMBER: The 4 C’s
What are the three ways a valid marriage can be terminated?
1) Annulment
2) Divorce
3) Death
What is an annulment?
A judicial decree that voids a marriage (usually when the marriage was void from the beginning)
What is the difference between a void and voidable marriage?
- Void Marriage: “As if it never happened””; does not require judicial decree; will not be legally recognized for any purpose; any party may seek an annulment for a void marriage
- Voidable Marriage: Valid until one of the parties seeks annulment; requires a judicial decree
What are 3 things that void a marriage?
1) A prior existing marriage (i.e., bigamy) –> second marriage is void
2) Incest –> void because parties are too closely related by blood or marriage
3) Mental Incapacity –> must be lucid & able to understand
What happens if there is a prior existing marriage?
The second marriage will be void
Who bears the burden when trying to prove a prior existing marriage?
The person who is trying to prove the first marriage.
How may a second marriage become valid if there is a prior existing marriage?
If the impediment is removed (some states)
What effect does incest have on marriage?
Voids the marriage because the parties are too closely related by blood (consanguinity) or by marriage (affinity)
What are the common restrictions on marriage with regard to cosanguinity?
- First cousins = barred in 1/2 of states
- Half-blood = barred in most states
- Adoption = barred in many states
What mental capacity is required for a marriage to be valid?
- Lucid = must by lucid for the moment of the marriage contract
- Comprehend = must by able to understand the duties and the responsibilities to which they are engaging
T or F: Temporary insanity would lead to a void marriage
True
What are the 5 things that lead to a voidable marriage?
1) Age
2) Impotence
3) Intoxication
4) Fraud, misrepresentation, duress, coercion, or force
5) Lack of intent
How may a marriage be voidable due to age?
- Minor = Any party who is under the age of marriage consent and who did not seek their parents’ consent can ask for an annulment
- Parent = The parent of the minor child can also seek an annulment
What happens if an underage party in a marriage reaches the age of maturity?
If they continue to cohabitate with their spouse, they can no longer seek an annulment
When is impotence grounds for a voidable marriage?
When one party is naturally and incurably impotent
When is impotence NOT grounds for a voidable marriage?
When the other party knew about the impotence prior to the marriage
When is intoxication grounds for a voidable marriage?
When either party was incapable of contracting due to alcohol or drugs
