Marriage Flashcards
Name three requirements of valid marriage.
- Absence of Legal Impediment (results in absolute nullity)
- Marriage ceremony (results in absolute nullity)
- Mutual consent of both parties expressed at ceremony (relative nullity)
(cant have issues, must say I DO at the ceremony!)
Is a marriage valid even though one spouse was already married?
No. The marriage is absolutely null because of spouse being already married. This marriage suffers from impediment of bigamy. An absolutely null bigamous marriage is devoid of all legal effect from the moment of its inception.
What are the legal impediments to marriage?
existing marriage (bigamy)
same sex marriage
incest (through 5th degree)
What are the elements of a marriage ceremony for it to be valid?
qualified celebrant both parties attend 2 witnesses 18 or older signed certificate summary of laws marriage license (won't invalidate)
What are the requirements for the mutual consent of both parties expressed at ceremony for a wedding?
free from duress, no mental impediment, age of consent (16-18 parent or court, 16 or under court permission required)
What rights of non-bigamous spouse in a bigamous marriage?
Never married due to absolute nullity. However, non-bigamous spouse entitled to civil effects of marriage under the putative marriage doctrine, so long as he/she was in good faith at the time of marriage. Because of bigamy, civil effects continue until either an official declaration of nullity OR innocent spouse remarries. (Civil effects include child support, interim support, final periodic support,e tc)
Can Bigamous spouse sue non bigamous for divorce based on fact he was already married?
No, the marriage was absolutely null. Must have a marriage before you can sue for divorce.
What are the requirements for the contract of marriage?
Parties must express their free consent at a ceremony performed by a third party celebrant who is qualified and there must be no legal impediments to marriage. Legal impediments include bigamy, same sex marriage, and marrying those too closely related.
True or False:
A marriage which is contracted without a marriage ceremony is relative nullity.
False. The marriage is absolutely null. Only marriage lacking consent is relatively null.
What does putative marriage give?
Civil effects arise and flow to one or both spouses, same as in normal marriage EXCEPT in community property. Can get spousal support, gives legitimacy to children, gets marital portion, wrongful death, etc.
Community property depends on GOOD FAITH.
Both in good faith, wives split 1/2, other half to heirs.
If one in bad faith, that 1/2 of community property goes to first wife, other 1/2 to putative spouse, none to kids
Civil effects continue as long as good faith exists, exception is bigamy… this continues until official declaration of nullity or innocent spouse remarries.
When does putative marriage doctrine apply?
When absolute nullity (violation of impediment or ceremony) + atleast one good faith spouse. Good faith is the honest and reasonable belief there is no legal impediment to marriage. First hand knowledge of impediment vitiates good faith, second hand knowledge imposes durty to inquire.
What does a widow or divorcee need to do to change back to her maiden name?
Marriage does not change either spouses surname, but a married person may use the surname of one or both spouses. A widowed, divorced, or remairreid woman may use her former spoues name or may resume using her maiden name with no special steps required.
