Marriage Flashcards

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1
Q

What is Marriage?

A

A Legal Union of two persons as spouses with designated rights and obligations.

It is both a Contract and a Status.

  • A Contract between the parties.
  • A Status that is regulated by the States.
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2
Q

Is Marriage a Fundamental Right?

A

Yes. Equal Protection and Due Process are the foundation of a plaintiff’s challenge of the regulation of marriage.

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3
Q

What are the two types of marriages?

A

Ceremonial and Common Law

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4
Q

What are the elements of a Ceremonial Marriage?

A
  1. Formal/Statutory
  2. Entered into compliance with statutory requirements:
  • Obtaining a Marriage License
  • Marriage ceremony performed by an authorized person before witnesses
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5
Q

Definition of a Common Law Marriage

A

A marriage entered into without a license or traditional ceremony.

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6
Q

Elements of a Common Law Marriage

A
  • Live together as husband and wife (spouse and spouse)
  • Both have the legal right or “capacity to marry”:

Statutory age

Sound Mind

No Bigamy

  • Intent to marry (Very Important) - Mutual Assent
  • Hold themselves out as married.
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7
Q

Stone v. Thompson (2019)

South Carolina Supreme Court Decision

A

South Carolina abolishes common law marriage on July 24th, 2019.

Parties may no longer enter into a valid marriage in South Carolina without a license.

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8
Q

Are Common Law Marriages recognized in North Carolina?

A

No. Common-law marriages by consent that arise in NC are not recognized by the State as valid legal marriages (NCGS § 51-1).

However, common-law marriages arising in other states that recognize such marriages will also be recognized in North Carolina - this is known as Full Faith & Credit.

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9
Q

What are the legal requisites of a valid, legal marriage in North Carolina?

A

NCGS § 51-1: Requisites of Marriage; solemnization

NCGS § 51-2: Capacity to Marry

NCGS § 51-2.1: Marriage of certain underage parties

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10
Q

What is NCGS § 51-1?

A

NCGS § 51-1: Requisites of Marriage; solemnization

A valid and sufficient marriage is created by the consent of a male and female person who may lawfully marry, presently to take each other as husband and wife, freely, seriously and plainly expressed by each in the presence of the other, either:

(1)

a. In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and
b. With the consequent declaration by the minister or magistrate that the persons are husband and wife; or
(2) In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

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11
Q

What is NCGS § 51-2?

A

NCGS § 51-2: Lawful Age to Marry

(a) All unmarried persons of 18 years, or older, may lawfully marry.
(a1) Persons over 16 years of age and under 18 years of age may marry a person no more than four years older, and the register of deeds may issue a license for the marriage, only after there has been filed with the register of deeds a certified copy of an order issued by a district court authorizing the marriage as provided in G.S. 51-2.1, or written consent to the marriage, said consent having been signed by the appropriate person as follows:
(1) By a parent having full or joint legal custody of the underage party; or
(2) By a person, agency, or institution having legal custody or serving as a guardian of the underage party. Such written consent shall not be required for an emancipated minor if a certificate of emancipation is issued pursuant to Article 35 of Chapter 7B of the General Statutes or a certified copy of a final decree or certificate of emancipation from this or any other jurisdiction is filed with the register of deeds.
(b) Repealed by Session Laws 2021-119, s. 1, effective August 26, 2021, and applicable to marriage licenses pending or issued on or after that date.
(b1) It shall be unlawful for any person under 16 years of age to marry.
(c) When a license to marry is procured by any person under 18 years of age by fraud or misrepresentation, a parent of the underage party, a person, agency, or institution having legal custody or serving as a guardian of the underage party, or a guardian ad litem appointed to represent the underage party pursuant to G.S. 51-2.1(b) is a proper party to bring an action to annul the marriage.

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12
Q

What is NCGS § 51-2.1?

A

§ 51-2.1. Marriage of certain underage parties

(a) A district court judge may issue an order authorizing a marriage between a person over 16 years of age and under 18 years of age, to a person no more than four years older under this section only upon finding as fact and concluding as a matter of law that the underage party is capable of assuming the responsibilities of marriage and the marriage will serve the best interest of the underage party. In determining whether the marriage will serve the best interest of an underage party, the district court shall consider the following:
(1) The opinion of the parents of the underage party as to whether the marriage serves the best interest of the underage party.
(2) The opinion of any person, agency, or institution having legal custody or serving as a guardian of the underage party as to whether the marriage serves the best interest of the underage party.
(3) The opinion of the guardian ad litem appointed to represent the best interest of the underage party pursuant to G.S. 51-2.1(b) as to whether the marriage serves the best interest of the underage party.
(4) The relationship between the underage party and the parents of the underage party, as well as the relationship between the underage party and any person having legal custody or serving as a guardian of the underage party.
(5) Any evidence that it would find useful in making its determination.

There shall be a rebuttable presumption that the marriage will not serve the best interest of the underage party when all living parents of the underage party oppose the marriage. The fact that the female is pregnant, or has given birth to a child, alone does not establish that the best interest of the underage party will be served by the marriage.

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13
Q

What is NCGS § 51-3?

A

§ 51-3. Want of capacity; void and voidable marriages

All marriages -

  • between any two persons nearer of kin than first cousins, or
  • between double first cousins, or
  • between a male person under 16 years of age and any female, or
  • between a female person under 16 years of age and any male, or
  • between persons either of whom has a husband or wife living at the time of such marriage, or
  • between persons either of whom is at the time physically impotent, or
  • between persons, either of whom is at the time incapable of contracting from want of will or understanding,

shall be void.

No marriage followed by cohabitation and the birth of issue shall be declared void after the death of either of the parties for any of the causes stated in this section except for bigamy.

A marriage contracted under a representation and belief that the female partner to the marriage is pregnant, followed by the separation of the parties within 45 days of the marriage which separation has been continuous for a period of one year, shall be voidable unless a child shall have been born to the parties within 10 lunar months of the date of separation.

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14
Q

What are the two standards courts apply to marriage issues?

A

Strict Scrutiny

Rational Basis

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15
Q

What is Strict Scrutiny?

A

If the law is prohibiting marriage, the courts apply the standard of Strict Scrutiny.

Marriage is a fundamental right, therefore:

The state must show that said statutory prohibition is necessary to meet a compelling state interest and the statute is narrowly tailored to achieve that interest.

Strict Scrutiny is the highest bar the state must overcome.

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16
Q

What is the Rational Basis standard?

A

If the law is regulating marriage, then a Rational Basis standard is applied.

The restriction must be reasonably related to the legitimate state interest or purpose.

“Delayed does not mean denied”

Rational basis is the lowest bar for the state to argue.

17
Q

What are some examples of State Interest?

A
  1. Protecting citizens from economic, social, or physical harm.
  2. Procreation
  3. Orderly distribution of property upon death
  4. Protecting Children
  5. Promoting stability of relationships
  6. Preventing unqualified persons from marrying
  7. Record keeping
  8. Enforcement of obligations derived from the marital relationship
18
Q

Doctrine of Necessaries

A

The legal duty of one spouse to provide for the expenses of the other spouse.

Examples of necessaries are food, habitation, medical treatments, furnishings, funeral services, and legal services.

19
Q

What are the four elements a provider must show to establish a claim under the doctrine of necessaries?

A

A healthcare provider must show that:

(1) medical services were provided to the treated spouse;
(2) medical services were necessary for the health and well-being of the treated spouse;
(3) the person against whom action is brought was married to the treated spouse at the time the medical services were provided; and
(4) payment has not been made.

SEPERATION EXCEPTION: If the spouse who is being sued by the medical provider was separated from the treated spouse at the time of the medical services, then the spouse who did not receive treatment cannot be held liable for the overdue medical bills of the other spouse. The Supreme Court of North Carolina concluded that a spouse seeking to benefit from the separation exception must prove that the provider of medical services had actual notice of the separation during the time services were provided.

20
Q

What is the Constitutional Basis for State Intervention in Marriage?

A

The 10th Amendment

21
Q

What is the Constitutional Basis for Privacy?

A

The Penumbra of the Bill of Rights and emphasis on the 9th Amendment

22
Q

Which Amendments create zones of privacy?

A

First Amendment - Right of Association

Third Amendment - Prohibition against the quartering of soldiers

Fourth Amendment - Prohibition against unreasonable searches and seizures

Fifth Amendment - Prohibition against self-incrimination

Ninth Amendment - provides that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

23
Q

How is the zone of privacy created?

A

The enumerated rights in the first 8 amendments, when paired with the 9th amendment create the framework for the creation of the zone of privacy.

24
Q

What is the difference between a void and a voidable marriage?

A

A void marriage is never valid (ie. bigamy), while a voidable marriage is valid until it is annulled. See NCGS § 51-3. Want of capacity; void and voidable marriages.

25
Q

Examples of voidable marriages in North Carolina

A
  • incest, meaning the husband and wife are closer than first cousins (for example double first cousins, uncle/niece, siblings)
  • “false pretenses,” meaning the husband and wife got married believing the wife was pregnant, but then separated within 45 days of the marriage and no child was born within 10 months of the separation
  • either spouse was physically impotent at the time of the marriage (impotence must be diagnosed by a doctor)
  • either spouse was “not of sound mind” and incapable of entering a contract at the time of the marriage, or
  • one of the spouses was under the age of 16 at the time of the marriage (unless there was a court order allowing marriage between ages 14-16 when the wife is pregnant).