Brainscape's Knowledge GenomeTM


Top Flashcards (Certified)
All Flashcards

family law > Marriage > Flashcards

Marriage Flashcards

1
Q

What is the intent required for a common law marriage?

A

An intent to be married

This refers to holding oneself out to be married without going through statutory measures.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Can common law marriages be created in South Carolina after July 25, 2019?

A

No, common law marriages can no longer be created in SC after this date

However, those established before this date are still valid.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

What rights and obligations does a valid common law marriage carry?

A

Same as statutory law marriage, including:
* Laws of inheritance
* Descent and distribution
* Other property rights

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Is there a fixed minimum time period of cohabitation required to establish a common law marriage in SC?

A

No fixed minimum time period is required.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

What can dissolve a common law marriage?

A

Death or a judgment of divorce.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

How can an official record of a common law marriage be made?

A

By filing with the official whose duty it is to record marriages in the county.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

What three elements are necessary for a common law marriage?

A

Elements:
* Agreement
* Cohabitation
* Holding out

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

What does ‘holding out’ mean in the context of common law marriage?

A

Parties must present themselves to the public as husband and wife.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

What evidence can satisfy the holding out requirement for common law marriage

A

Evidence such as:
* Filing of joint tax returns
* Renunciation of dower rights
* Listing as husband and wife on children’s birth certificates

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

What happens if an impediment to marriage exists?

A

Any attempted marriage will be invalid if the impediment is not removed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

What is the most common type of impediment to forming a valid marriage?

A

The existence of a prior, undissolved marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Under what condition can a marriage contracted while either party has a former spouse be valid?

A

If the other spouse was absent for five years and the party did not know they were living.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

What are the three key facts to determine if an invalid marriage has become valid?

A

Facts:
* Knowledge of the impediment at marriage
* Awareness of the removal of the impediment
* Actions taken after removal

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

What happens if parties are unaware of an impediment when they attempt to marry?

A

Their relationship will become valid once the impediment is removed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

What level of proof is required to prove the existence of common law marriage entered into SC before July 25, 2019?

A

Clear and convincing evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

What must parties demonstrate to validate a common law marriage?

A

Mutual assent to be married by clear and convincing evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

True or False: Continuing to live together as husband and wife is sufficient to validate a marriage after an impediment is removed.

A

False.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

What case did away with common law marriage?

A

Stone v Thomas

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

What was the holding in Stone v Thomas?

A

The parties intended to be in a committed relationship and business partnership, but their conduct fell short of proving they intended to be married and knew the other intended the same.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

What did Callen establish in relation to common law marriage?

A

Callen established the impediments in common law marriage.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

What is the Stone rule regarding common law marriage in South Carolina?

A

The supreme court of SC has abolished common law marriage effective July 24, 2019. Parties may no longer enter into a valid marriage in SC without a license.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

What is the key element in determining if parties are common law married?

A

The key element is mutual assent: each party must intend to be married to the other and understand the other’s intent.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

What must a party asserting common law marriage demonstrate?

A

A party must demonstrate mutual assent to be married by clear and convincing evidence.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

What does the Callen rule state about impediments to marriage?

A

If there is an impediment to marriage, such as one party being married to a third party, no common law marriage may be formed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
What happens after an impediment to marriage is removed according to the Callen rule?
The relationship does not automatically become a common law marriage; a new mutual agreement is required.
26
What is the Kirby rule regarding intent in marriage?
The intent in marriage is usually evidenced by a public and unequivocal declaration, but it may exist without formal declaration.
27
What does the Barker rule state about common law marriage?
A common law marriage exists if the parties intend to enter into a marriage contract; cohabitation alone does not constitute marriage.
28
Who qualifies as a surviving spouse in the context of common law marriage?
A surviving spouse does not include a person claiming to be a common law spouse unless established by adjudication before the decedent's death.
29
Who may contract to marry?
All persons, except mentally incompetent persons and those prohibited by the statute.
30
Can you marry your family members?
No, you cannot marry your family members, whether by blood or marriage.
31
What change occurred regarding marriage between same-sex individuals?
The provision that no man can marry another man and woman marry women was overturned.
32
Who is authorized to perform a marriage ceremony in South Carolina? (four in all)
1.ministers of the Gospel 2. Jewish rabbis, 3. officers authorized to administer oaths in this State, 4. and the chief or spiritual leader of a Native American Indian entity recognized by the South Carolina Commission for Minority Affairs are authorized to administer a marriage ceremony in this State.
33
What is the legitimacy status of children from marriages contracted after a five-year absence?
Children from such marriages are considered legitimate and legal heirs of their parents.
34
What conditions must be met for a marriage to be considered legitimate after a spouse's absence?
The spouse must be absent for a period of five years and not heard from or known to be living during that time.
35
What is bigamy?
Bigamy is the act of going through a marriage ceremony while already married to another person.
36
What happens to marriages contracted while either party has a former spouse living?
All marriages contracted while either of the parties has a former wife or husband living shall be void.
37
Are there exceptions to the rule against bigamy?
Yes, the rule does not apply to a person whose spouse has been absent for five years, not knowing the other is living, or to a person who is divorced or whose first marriage is declared void by a competent court.
38
What is the minimum age for valid marriage?
Any person under the age of sixteen is not capable of entering into a valid marriage.
39
What happens to marriages entered into by persons under the age of sixteen?
All marriages entered into by such persons are
40
Is a license required for marriage?
Yes, it is unlawful for any persons to contract matrimony within this State without first procuring a license.
41
What is unlawful regarding marriage ceremonies?
It is unlawful for anyone to perform the marriage ceremony for persons who have not first obtained a license.
42
What happens if someone performs a marriage ceremony without a license?
They shall be punished by a fine of not more than one hundred dollars nor less than twenty-five dollars or by imprisonment for not more than thirty days nor less than ten days.
43
What is required before the issuance of a marriage license?
A written application is required 24 hours before issuance.
44
Who must the written application be filed with for a marriage lisence?
The application must be filed with the probate judge or the clerk of court in Darlington and Georgetown counties.
45
What information must the application for a marriage license contain?
The application must contain the same information required for the issuing of the license, including social security numbers.
46
What must the issued marrige license show?
The license must show the hour and date of the filing of the application and the hour and date of the issuance of the license.
47
How must the application be stored for a marriage license
The application must be kept as a permanent record by the probate judge or clerk of court.
48
What is adjudication of presumed death?
Adjudication whereby absent spouse is conclusively presumed dead in so far as any children or kindred resulting from any marriage of abandoned spouse during such absence may be concerned.
49
How long must a spouse be absent for adjudication of presumed death?
The spouse must have left and been absent for 7 years, without the person knowing/hearing anything about the absent spouse.
50
Does the reappearance of an absent spouse affect the adjudication?
Reappearance of such absent spouse will not alter adjudication or invalidate any subsequent marriage entered into by abandoned spouse.
51
What is the provision regarding service on military personnel overseas?
No action shall be brought against a man or woman in the military or naval service who is beyond the seas.
52
When can an action be brought against military personnel after they return?
An action can be brought after the military personnel has returned for a period of three months.
53
What is the exception to the rule regarding actions against military personnel?
The exception is if the defendant consents to such proceeding.
54
What are annulments?
Annulments are actions to establish the invalidity of marriages.
55
What does an annulment declare?
It declares that a marriage never occurred because of some defect.
56
What are the two types of invalid marriages?
Void and voidable.
57
What is a void marriage?
A void marriage is one where circumstances are such that the marriage could NEVER have come into being.
58
Does a void marriage require judicial action?
Technically, it needs no judicial action to declare that it is void.
59
Who can declare a marriage void?
A marriage may be declared void by judicial action at the request of any interested individual at any time.
60
What is a voidable marriage?
A voidable marriage is recognized under the law as a valid marriage until an action is brought to prove it invalid.
61
what are the grounds for annulment
lack of cohabitation/consummation fraud duress
62
Factors relevant in defining consummation by cohabitation
Living together, sharing the same bed, and engaging in an intimate relationship (does not have to be sex), and the length of time together before and after the marriage
63
what are the consequences of an annulled marriage
o As if marriage never happened o No duty to pay alimony & may revive alimony of prior marriage o Can keep new name
64
What is the significance of the length of time together in cohabitation?
The length of time together before and after the marriage is a relevant factor in defining consummation by cohabitation. ## Footnote This duration can influence the perception of the relationship's seriousness.
65
What are the common law contract defenses recognized in South Carolina regarding marriage contracts?
Duress and fraud are recognized as appropriate considerations in determining the validity or invalidity of marriage contracts.
66
What is duress in the context of marriage annulment?
A marriage will be annulled if one party enters into it under duress, which involves threats or violence that inspire great fear of bodily harm.
67
What must be true for duress to dominate a transaction?
The duress must dominate throughout the transaction to such an extent that the injured party could not and did not act as a free agent.
68
What is an example of duress in marriage?
An example is a 'shotgun wedding' where the victim must attempt escape from those forcing him to marry, and the threat of harm must be real or apparently so.
69
What type of fraudulent representations can lead to annulment?
Fraudulent representations must be essential to the marriage relation, making it impossible to perform the duties and obligations of that relation.
70
What are the legal implications of an annulment?
If a marriage never occurred, then no legal rights or obligations could have been created by marriage.
71
Can an annulled couple live together?
If an annulled couple wishes to live together, there is nothing to stop them from doing so.
72
What is the effect of annulment on sexual intercourse?
Annulment removes the legal right and social expectation that married couples will engage in sexual intercourse.
73
What might annulment declare about sexual relations?
Annulment may serve as a declaration that any sex between the parties was criminal fornication.
74
What happens to alimony obligations after annulment?
If a person is judicially declared not to have been a spouse, there is no duty to support the other spouse and no duty to pay alimony.
75
When can spousal support be awarded after annulment?
An exception is that spousal support may be awarded if fraud is the ground for the annulment.
76
What happens to confidentiality of communications after annulment?
There is no SC case or statute regarding the survival of the privilege against disclosure of confidential communications made by one spouse to another during marriage.
77
Can a person continue using their married surname after annulment?
A person can choose to continue using the surname used during the marriage or any other name they desire.
78
What is the family court's role after annulment?
The family court has jurisdiction to divide property equitably following the annulment of a marriage.
79
What happens to property dispositions under a will after annulment?
Annulment revokes any disposition of property to a spouse under a will, unless the will states otherwise.
80
What is the status of a person whose marriage to a deceased person was annulled?
A person whose marriage to a deceased person was annulled is not a surviving spouse and is not entitled to an elective share of the deceased estate.
81
How does annulment affect the legitimacy of children?
There are no factual differences between children of annulled or divorced marriages.
82
What jurisdiction does the family court have regarding children of annulled marriages?
The family court has jurisdiction to decide issues related to the care and custody of children of annulled marriages.
83
What is the effect of annulment on alimony obligations from prior marriages?
An annulment might revive an alimony obligation from a prior marriage, decided on an equitable, case by case basis.
84
What is the effect of annulment on bigamous marriages?
An annulment that declares a pre-existing marriage does not relate back to give validity to a marriage that was bigamous before the annulment was granted.
85
What can a court declare if a marriage contract has not been consummated by cohabitation?
The court may declare such contract void for want of consent of either of the contracting parties or for any other cause.
86
What do false representations regarding one's character, social standing, or fortune not constitute?
They do not constitute fraud sufficient to annul a marriage.

family law (19 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2025 Bold Learning Solutions. Terms and Conditions