2 - marriage Flashcards
marriage
issues
1) requirements, & 2) rights and responsibilities
marriage
requirements
- license
- ceremony with an authorized officiant
- No legal impediments to marriage
- capacity to consent
marriage
requirements
license
- Some states require a medical certificate showing no disease.
- Most states provide a 72 hour waiting period after the application before the ceremony can take place.
Failure to meet procedural requirements will not invalidate the marriage (they are directive and administerial)
marriage
requirements
ceremony with an authorized officiant
The ceremony must be conducted with an authorized officiant.
marriage
requirements
No legal impediments to marriage
- Can’t be too closely related
a. Can’t marry ascendants, descendants, siblings, aunts/uncles, nieces/nephews, whether whole or half blood
b. Many states prohibit marriages between those related by marriage, step-relations, or adoption
c. Some states permit marriage to first cousins - Can’t be already married to someone
marriage
requirements
capacity to consent
- Capacity - must have the mental ability to consent AT THE TIME of the ceremony (consider someone under the effects of alcohol or drugs, or mentally handicapped)
- Age - must be age of majority, generally 18. Parental consent (16-17) or judicial consent (under 16) required for underage persons to marry
marriage
requirements
common law marriage - 3 requirements if permitted
- Consent to marriage (not just cohabit) (still must have capacity to consent and no legal impediments to wed)
- Cohabitation
- Holding yourself out publicly as husband and wife
In states that do not permit common law marriage, those states will regard the marriage as valid if entered into under the laws of a state that permits common law marriage.
marriage
requirements
marriage by estoppel (putative marriage)
- Equitable remedy that may be given by some courts to the innocent party who acted in good faith when entering into an invalid marriage.
- In some states, the putative spouse can acquire all of the rights of a legal spouse.
marriage
rights and responsibilities between spouses
property, support, spousal abuse orders, tortious interference with marriage
marriage
rights and responsibilities between spouses
property
- Each spouse owns and controls his/her own property, but in the event of divorce, title is not dispositive in the equitable division of property.
- Generally, if spouses take title to real estate in their joint names, a tenancy by entirety is presumed; therefore, one spouse cannot convey or encumber the property without the consent of the other spouse.
marriage
rights and responsibilities between spouses
support
- During marriage, spouses owe support to one another.
- The doctrine of necessaries can be used to make one spouse liable to 3rd parties for the other spouse’s purchases for NECESSARY expenses, such as food, clothing, and health care.
marriage
rights and responsibilities between spouses
spousal abuse orders
- Laws in every state protect victims of domestic abuse both in and outside of marriage.
- The victim is entitled to a protective order against the other spouse which can be granted ex parte and can last for one month to several years depending on the jdx.
marriage
rights and responsibilities between spouses
tortious interference w/marriage
2 claims: alienation of affection or criminal conversation
marriage
rights and responsibilities between spouses
tortious interference w/marriage
alienation of affection
- Requirements: a) genuine love and affection between spouses who are validly married, b) love and affection was alienated and destroyed, c) D’s acts caused the loss of love and affection.
- Adultery is NOT a requirement
- Proof of damage is REQUIRED and is highly subjective. Punitive damages are permitted in some jdx.
marriage
rights and responsibilities between spouses
tortious interference w/marriage
criminal conversations
- Requirements: a) marriage of the spouses, b) ADULTERY between D and the spouse DURING the marriage
- Damages same as alienation of affection
