Marriage Flashcards
Elements of Common-Law Marriage
- Capacity
- Present Agreement (not future)
- Cohabitation
- Holding themselves out as a marital couple
CL Marriage - Conflict of Laws
Marriage entered into in a jurisdiction in one state is valid in another unless if violates a strong public policy
Includes common-law marriage
CL Marriage - Recognition
- Not valid if one is married
- Abolished in most states
License for Marriage requirements
- Age restriction - 18
- Waiting period - many states require between issuance and ceremony
- Premarital medical testing - some state require it, it cannot be a condition for issuance of a license
- Expiration date - 10 to 30 days
Intent for CL Marriage
- Must be evidenced by words in the present tense
- If no present words, look to behavior, cohabitation, and reputation
Age Restriction for Marriage
Must be 18 years old, in the absence of parental consent/judicial approval
*Apply rational basis test
Ceremonial/Statutory Marriage
Requires a license and solemnization
MAY NOT issue a Marriage License
- Party/ies married to someone else
- Too closely related
- Sham marriage
- Incapable of understand nature of the act
Solemnization
Most states don’t have requirements, but many require:
- Two witnesses
- Judge, political official, or member of clergy must solemnize marriage
Some states allow:
* Proxies w/ written authorization
Putative Marriage
When an innocent party of C/S marriage believes in good faith that marriage is valid, but later discover it was not
Innocent party = putative spouse
Allows putative spouse to seek legal remedies
Adopted by most states
Heartbalm Actions
Answer to a jilted party. Look to:
* Breach of promise to marry
* Alienation of affection
* Seduction
* Criminal conversation
These are historical civil tort actions for broken engagements or infedelity
Only use of question makes you use them
The Marriage Relationship
- Brings with it a myriad of rights and responsibilities
- Courts generally leave decisions to private matters unless divorce (ie won’t enforce pm agreement that child attend a specific school)
- Constitutional privacy rights
Ending a Marriage
3 ways
- Annulment
- Divorce
- Death
Includes CL marriage
Annulment Actions
- Void marriages - they never happened
- Voidable marriages - valid until one spouse seeks to legally void the marriage
Void Marriages
- Prior existing marriage (ie bigamy)
- Incest
- Mental Capacity
No decree needed, will never be recognized for ANY purpose
Voidable Marriages
- Age
- Impotence
- Intoxication
- Fraud/Misrepresentation/Duress/Coercion/Force
- Lack of Intent
Requires judicial decree
Prior Existing Marriage (Bigamy)
- Subsequent marriage is VOID
- Burden on person attempting to prove the first marriage
Void
Enoch Arden Rule - some states provide this defense to bigamy if both parties had a good faith belief that the pervious spouse was dead. Some states require a divorce from first spouse
If one party had a good faith belief in validity, some states allow marriage to become valid if the impediement is removed
Age
- Under 18, and without parental consent
- Parent may seek annulment
- If underages reaches age of majority and continues cohabitation, can no longer seek annulment
Voidable
Incest
Marriage/sexual relations between people related within the prohibited degree of kinship
All states: No blood relatives
Half states: no first cousins
Many prohibit halfblood or adoption
Void
Mental Incapacity
Must be able to understatnd nature (duties and responsibilities)
Marriage during a lucid moment is valid
Void
Impotence
- One party is naturally and incurably impotent AND
- other party didn’t know before marriage
Voidable
Intoxication
- Either party incapable of contracting due to alcohol or drugs
- EXCEPTION: continue cohabiation after marriage
Voidable
Fraud, Misrepresentation, Duress, Coercion, or Force
- Fraud that goes to the essence of the marriage
- Fraud must be at present time, not future facts
- Parties must immediately cease living together once fraud is discovered
- Insufficent grounds include lie about wealth, poor morals, bad habits, bad temper, bad character, etc
Voidable
Courts differ on woman=pregnant or feigned religous beliefs
Lack of intent
- Particpate in ceremony in jest or hilarity w/ no intent to be bound
- If consumated, no annulment
- Includes marriages of “limited purpose” (ie green card marriage)
Voidable
Effect of Annulment
- Either party can seek spousal support or equitable distribution of martial property
- Can seek child support if child born within now annuled marriage
- Courts try to put them in the same position as before marriage
- Children born in the annuled marriage are considered marital children
Defenses to Annulment
Deny the impediement
Can still get a divorce, though
