Marriage Mechanics

Question 1

Gay Marriage

Answer 1

DOMA: “marriage is between one man and one woman”

Few Jx allow it, Many explicitly ban it.

Although a Jx doesn’t allow the Marriage, they will adjudicate the Divorce.

No FF&C required b/c of DOMA + {the ff&c provision about offending public policy}

Question 2

Elements of Marriage

Answer 2

1) Solemnities/Formalities
(a) License
(b) : Officient/Witnesses
(c) : Registration thereafter
(d) : STD tests (traditionally)
2) Proper Ceremony
3) Mutual Assent (no duress or fraud)
4) No STAT or Public Policy violations:
(a) : No Fraud, Duress, Coercion
(b) : no VOID factors
(c) : *Voidable OK until someone challenges it later.

These can vary from Jx to Jx based on CL & STATs.

Question 3

Right to Marriage

*3 SCOTUS Cases

Answer 3

Griswold v. CT

 * Marriage is a fundamental liberty right under 14A and lies within the "zone of privacy."
 * In this case, that "zone of privacy" was extended to the marital bedroom in order to invalidate a law prohibiting the use of contraceptives.

Loving v. VA
*RT to Marry is a fundamental liberty right under 14A-SDP & applies to interracial couples; Miscegenation laws are Constitutionally invalid.

Zablocki v. Redhail
*Loving applies to STATutory schemes that inferfere with the RT to marry if the statute does not serve an underlying state interest that is “SUFFICIENTLY IMPORTANT.” Here, preventing a marriage due to positive child support arrears balance is not ok. Stuff like ‘no incest’ is ok.

Question 4

Common Law Marriage

• background
• elements
• potential evidence
• policy

Answer 4

Doesn’t really exist anymore, but people can be grandfathered in if the elements of CLM can be shown to have been established prior to the enactment of the relevant STATs.

Elements:

1) Cohabitation of two heterosexuals
2) Hold themselves out to be married
3) Mutual intention to be married

CTs will look at the duration of the cohabitation, the commingling of assets, whether a ceremony happened, and the testimony of friends/family, use of surnames, etc

• Public Policy for having it: To promote legal marriages by preventing people from avoiding the responsibilities of marriage through a legal formality/loophole.
• Public Policy for banning it: To promote legal marriages by refusing to extend marital benefits to those who do not commit to a legal marriage.

Question 5

Domestic Partnerships

Answer 5

& Civil Unions…. Valid in some STs and not valid in others.

Requirements may have age restrictions.

Provides benefits that are similar to married people benefits.