Marriage Flashcards
what are some of the privileges of marriage
between parties: alimony, division of property, presumed parent, evidence privilege
to third parties: pension, right to sue, medical decisions
to gov: benefits, migration, less intrusion
what can we restrict marriage based on
age
incest
bigamy
is marriage a basic right
yes – gets SS
what is the test for if a statute fucks with the right to marry too much
if it SIGNIFICANTLY interferes with right to marry
what does significant interference with right to marry mean
is the purpose to interfere? is it a direct obstacle?
basically – you can’t get married cause of it
is delaying marriage a significant interference
no
what is it important for gays to marry
liberty, fundamental right, safeguards families, keystone of social order
states have to issue marriage licenses and recognize out of state gay marriage but does sexual orientation get SS
nope
what are the two kinds of incest
consanguinity
affinity
what are the restrictions for consanguinity
can’t do it
Oregon says: no first cousins or nearer but adoption only cousins are ok
what are the restrictions for affinity
basically none
what is the rule of lenity
the interpretation of a state must be construed in way most favorable to criminal ∆
what is / isn’t morality
morality is sincere and consistent, not prejudice, emotional reaction
what’s the usual age of consent
18 - 21
how old can you marry with parental permission
Oregon - 17
majority of states - 16
policy consideration around age of consent
if marriage is ok under an appropriate age do we even need parental consent
what are the requirements for consent
- lack of coercion
- capable of assuming/understanding responsibilities of marriage
how do you just mental capacity to enter marriage
if party is incapable of understanding nature effect and consequence of marriage
judged at time of marriage. immaturity is not mental incompetency
are underage marriages or marriages without the requisite permission voidable
yes generally
does age requirement for marriage get SS
no – just delays, doesn’t significantly interfere
what are the state interests for age reqs
protect kids, teen marriages not stable
how is age req over and under inclusive
some mature kids and some real bad parents
purpose behind prohibition on polygamy
-protect marriage as social institution
- prevent fraud against spouses and gov
- protect from exploitation
- men are nuts
- dependence on state
does first amendment protect bigamy
no – it protects the ability to believe, not ability to do conduct
what is an annulment
declaration that no marriage existed due to an impediment at time of creation of marriage
what kind of marriages are void/voidable
bigamy, incest = void
fraudulent, underage = voidable
what’s the policy difference between void and voidable
void = society condemns
voidable = concern about coercion
what’s ratification
when a party with full knowledge of the impediment to the marriage continues to act like they are married. takes away option of voiding a voidable marriage
what if a marriage is void from the start (void ab initio)
courts will not recognize, annul retroactively
is divorce a remedy for void / voidable
void = no, because never existed
voidable = yes
will kids of an annulment be bastards
no
who can challenge validity of the marriage and when
third parties can challenge void marriages at any point.
some states only allow marriage to be challenged up to 5 years after divorce.
voidable marriage can only be challenged while parties are alive
what are other equitable defenses to void/voidable
unclean hands, estoppel
what are two approaches to conflicts
Traditional: lex loci
- if marriage is valid where performed, it’s valid everywhere unless there’s a strong public policy reason
- applies to common law too
Restatement
- validity is determined by laws of state with the most significant relationship to the spouses
what is the problem with traditional lex loci approach to conflicts
evasionary marriages
what factors will a court consider for the restatement approach to conflicts
- predictability
- maintenance of state’s relationship to spouses
- administrability
- state’s interests
- court’s preference for which law they like
basically ask which state has more significant interest
courts favor validating long term relationships
what are two kinds of laws that solve conflict of law problems
- marriage evasion statute (says if you go get married in a way that’s illegal here, we ain’t counting it)
- validation statute (all marriages valid at time of k or subsequently validated by the state they happened in are valid here too_
what will the court usually do in incidents of marriage
o In a situation where a long established married couple moves to a place they cannot be married, the state will usually give foreign marriage validity in the state.
is a limited purpose marriage valid
yes it is validated for all purposes
can you get annulment for limited purpose marriage
nope just divorce
what do we need for marriage
basically intent and capacity
will being an 81 stop you from marrying
no
why is the test for mental capacity so low for marriage
administribility, we want people to get married and benefit from marriage
defenses to marriage
drugs and alcohol
fraud and duress
what are the factors to consider for drug and alcohol defense to marriage
- pre existing relationship
- ceremony
- intent
- involuntary intoxication
- how long ago did it happen and did you ratify it with action
what do we consider for fraud and duress
the fraud has to go to an essential of the marriage. could be willingness to have kids, sex.
what do you need procedurally to get married
license and solemnize
why does the state have an interest in solemnizing
require people to hold out as married, forces people to recognize importance
can you be married by proxy
uniform marriage and divorce act says yes but must consumate
can you get an annulment if you claim the officiant wasn’t real. like say he was an indian
not if you previously said he was legit and you’d get an unfair advantage
what is the mock priest statute
if either party thinks the priest is legit, the marriage is valid
general approach for solemnization
law wants to give benefit of marriage to those who think they are married
person attacking the validity of solemnization has burden of rebutting that it was valid
what do we presume about getting married
-marriage is valid
-formalities were complied with
-ceremony was proper
-parties have capacity
what does a covenant marriage require
- mandatory premarital counseling
- agreement to go to counseling to overcome issues
- limits grounds for divorce, dependent on misconduct, more waiting
what if a covenant marriage moves to state that doesn’t have it
state will apply its own laws
what are the elements of common law marriage
- agreement to marry presently (intent)
- cohab
- holding out
is common law different than marriage
no
can you annul a common law marriage
no only divorce
what is a putative spouse
someone who believes in good faith that they are married and is afforded legal rights because of their reliance on that belief
what is the presumption for putative if the first and second marriages are both valid
stronger presumption that the latest one is the valid one
first spouse can rebut by showing there was no end to first marriage by checking records in ALL jdx they were domiciled in
when do you stop being putative spouse
find out he’s married
death or divorce, can ripen into regular spouse
