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Family Law > Marriage & Divorce > Flashcards

Marriage & Divorce Flashcards

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1
Q

What is marriage?

A

The legal union of two individuals, with accompanying obligation and liabilities.

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2
Q

Does a person have an action for breach of promise to marry?

A

No, but may be able to recover the engagement ring if the gift was conditional on the marriage.

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3
Q

What is the position regarding the motivation or elimination of child support under a prenuptial agreement?

A

The agreement cannot modify or eliminate such provisions.

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4
Q

A prenup contains child custody arrangements. Are these valid?

A

Yes, but they don’t bind the court, so can always be reviewed.

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5
Q

What are the requirements to form a valid prenuptial agreement?

A

— In writing

— Signed by both parties

— Freely made (meaning no undue influence or disparity in bargaining power)

— No UNCONSCIONABILITY, meaning economic provisions are fair and reasonable.

— No LACK of DISCLOSURE (meaning (1) other party did not make a financial disclosure; (2) you had no independent knowledge of the hidden assets; and (3) no waiver

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6
Q

Does a prenup need to be formalised before the marriage?

A

No, but if done once the couple are married, it’s called a marital agreement.

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7
Q

What are the requirements to enter into a common law marriage?

A
  1. Consent between two people
  2. Co-habitation
  3. Holding out to the public that you are living together as spouses
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8
Q

Generally, what 3 steps does a couple need to formally marry?

A
  1. Freely intend to enter into a marriage relationship
  2. Licence
  3. Officiant to conduct the marriage
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9
Q

What is a putative marriage?

A

Where a party thinks they are entering into a marriage, but it’s subsequently declared invalid.

The court can provide equitable relief to the couple in such circumstances

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10
Q

Broadly speaking, what are the two ways to end a marriage?

A
  1. Annulment

2. Divorce

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11
Q

What is annulment?

A

The declaration that a marriage is invalid because there was an impediment at the time of marriage.

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12
Q

Once an annulment decree is entered, what is the effect?

A

The parties are treated as though they were never married.

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13
Q

If there was a MORE SERIOUS impediment to your marriage being formed, the marriage is considered what?

A

VOID and it’s as though the marriage never existed.

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14
Q

If a marriage is VOID, can the defect be waived?

A

No and the parties do not need an annulment.

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15
Q

Can an interested party seek annulment of a void OR voidable marriage?

A

Only a VOID marriage. They have no interest in a VOIDABLE marriage.

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16
Q

What are the two grounds for a marriage being VOID?

A
  1. Bigamy

2. Incest

17
Q

Why might a spouse want to pursue an annulment if their marriage is already VOID?

A

— For clarity of the record

— Resolve collateral issues

18
Q

If a marriage is VOIDABLE, can this less serious impediment be waived?

A

Yes and you are married until your case is heard by a judge.

19
Q

State the 5 issues that could make a marriage Voidable?

A

— Underage

— Mental incapacity

— Incurable physical impotence

— Duress

— Fraud (that goes to an ESSENTIAL aspect of the marriage)

20
Q

What is a common method of waiving the impediment to a Voidable marriage?

A

Continuing to co-habit

21
Q

A woman lies to her to-be-husband about her social status and her family inheritance. Would this be a ground for annulment?

A

No, lying about money, property or social status is NOT a ground for annulment.

22
Q

Under the modern approach, do you require marital misconduct in order to seek divorce?

A

No

23
Q

When should a spouse pursue a no fault divorce?

A

When there has been an irretrievable breakdown of the marriage.

24
Q

How do you prove an irretrievable breakdown of a marriage?

A

Spouse living separately + no physical relations

25
Q

What are the grounds for a divorce based on martial misconduct?

A

— Adultery

— Desertion

— Extreme Cruelty

— Conviction of a Felony (jail time)

— Voluntary addiction

26
Q

How is desertion defined (ground for martial misconduct)?

A

Unjustified departure from the martial home

With no intent to return

Within a statutorily specified time (usually 1 year)

27
Q

If one spouse changes the locks when you’re out of the house and leaves your suitcase at the door, this could be an example of what ground for marital misconduct?

A

Constructive divorce

28
Q

The exam asks you to focus on fault divorce. Why might you also consider discussing no fault divorce for your client?

A

Because it’s cheaper, quicker and less messy

29
Q

What are the defences to a fault-based divorce?

A

— Condonation (Waiver)

— Connivance (Consent)

— Collusion

— Recrimination (Clean Hands)

30
Q

When might the defence of Condonation (waiver) arise?

A
  1. The person knew of the misconduct
  2. The person forgave the misconduct
  3. Resumes marital relations
  4. But conduct cannot happen again
31
Q

What is an ex parte divorce?

A

Dissolves the marriage but without settling collateral matters

32
Q

What is legal separation?

A

A judicial proceeding that litigates all of the martial separation issues, but leaves the marriage in tact.

33
Q

On grounds can parties obtain a legal separation?

A

They are the same as divorce
+
Failure to provide economic support

34
Q

Which state court has jurisdiction to grant a divorce?

A

Any state where one spouse is domiciled AND resident for a certain period (6weeks - 6months)

35
Q

Can you litigate collateral matters of a divorce in any state where one spouse is domiciled and has been resident for the requisite period?

A

No, to litigate collateral matters, the court must have personal jurisdiction over the parties (domicile or personal availment). This means you can end up settling the entire divorce in two separate courts.

36
Q

Are divorce decrees from other countries recognised?

A

Bilateral divorce = Yes

Unilateral divorce = rarely

37
Q

What’s the choice of law for prenuptial agreements?

A

The law where the contract was executed, unless the agreement contains a choice of law provision.

38
Q

In order for a separation agreement to be valid, it must be what two things?

A

Contain full and fair disclosure

Entered into voluntarily

39
Q

What is a separation agreement?

A

It is an agreement entered into during the marriage, before the issuance of a divorce decree, in which the parties may resolve economic issues.

The agreement will be governed by general contract principles

Family Law (3 decks)

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