MEE - Family Law

Question 1

Marriage

Answer 1

A marriage is a legal union of 2 parties, the requirements are:
1/ Legal age - 18+
2/ Not blood relations
3/ persons have capacity - mental and physical
4/ persons are not already married

Question 2

Requirements of a formal marriage

Answer 2

Procedural requirements (marriage licence which is solemnised in a ceremony and signed by a clergy member or judge).

State of mind requirements - must understand the act of getting married and must voluntarily consent to it

Question 3

Common law marriage

Answer 3

A common law marriage exists where the parties hold themselves out as married but they have not satisfied the formal requirements of marriage.

Holding out as married involves living together in an exclusive relationship, sharing property / bank accounts, surnames and calling each other husband /wife.

Most states have abolished common law marriage but a state must recognise common law marriage from another state in which it exists

Question 4

Marriage by estoppel

Answer 4

An innocent party to an invalidated marriage can claim marriage by estoppel to obtain benefits such as spousal support, property division etc., usually happens when one of the parties is already married and the subsequent marriage is invalidated

Question 5

Pre marital agreements

Answer 5

A pre marital agreement provides for the distribution of property upon divorce or death.
1/ To satisfy the SoF, the pre marital agreement must be in writing.
2/ Marriage is sufficient consideration for the agreement.
3/ It has to be entered into with full and frank disclosure as to the parties’ respective wealth
4/ The agreement must be entered into voluntarily free from unconscionability and duress. Unconscionability is measured at the time of entry into the agreement.

*Legal rep not necessary *Cannot decide children’s matters *Can still be invalidated for public policy grounds (i.e. waiving spousal support)

Question 6

Settlement agreements

Answer 6

Settlement agreements can be entered into in anticipation of a divorce. Most states require that they be fair and entered into voluntarily (free of undue influence). Consider: whether there was full and frank disclosure in entering into the settlement agreement.

Question 7

Property during marriage

Answer 7

Land? Presumed tenancy by entirety if 2 parties married. Only terminated by divorce and parties become tenants in common.

Duty of support owed to each other.

Agency? One spouse may be bound by the transactions entered into by the other spouse - where there was implied or express consent from that other spouse.

Necessaries doctrine? a spouse is liable for the cost of necessaries incurred by the other spouse (such as medical care, shelter, clothing)

Question 8

Annulment

Answer 8

An annulment occurs where a judge decrees that the original marriage was invalid on some ground. Usual grounds for annulment are:
1/ One of the parties was already married
2/ The parties are blood relations
3/ One of the parties was or is underage
4/ One of the parties is impotent
5/ One of the parties did not have the capacity to consent (duress, intoxicated)
* Defences? Arguing that the ground relied upon does not exist

Question 9

Annulment and spousal support

Answer 9

Spousal support might be ordered while annulment proceedings are taking place but most states do not allow after an annulment has been ordered

Question 10

Annulment and division of property

Answer 10

The property is divided to put the parties in a position they would have been in but for the annulled marriage

Question 11

Divorce grounds

Answer 11

A divorce order terminates a marriage. Most states offer “no fault” divorce which come sin the form of:
1/ irreconcilable differences
2/ living apart
3/ incompatibility

Question 12

Defences to divorce

Answer 12

The defences to a no fault divorce exist in some states; however, as a general rule, the court will not force a party to a marriage it does not wish to be a part of. Therefore, the most that a defence could do is restart the clock on any minimum timing requirement.

Question 13

Separation

Answer 13

Parties may separate but remain legally married for financial and / or religious reasons. Parties that are separated can seek orders as to: property division, spousal support, child custody.

*Separated parties cannot remarry

Question 14

Jurisdiction for annulment & divorce

Answer 14

A state will have jurisdiction over an ex parte annulment or divorce so long as one of the parties is a bona fide resident.

Subsequent courts have to recognise the divorce / annulment decree accordingly, and give it Full Faith and Credit.

*Orders as to property division and child custody/support are different

Question 15

Property division - community property

Answer 15

Community property approach requires a 50-50 division of property acquired during the marriage. Separate property acquired before the marriage or via gift or bequest is not divided

Question 16

Property division - equitable division of all property

Answer 16

Under the equitable division of all property approach, all property whether separate or part of the marriage, is divided equitably between the parties

Question 17

Property division - equitable division of marital property

Answer 17

Under the equitable division of marital property approach, each spouse retains their ‘separate property’ and the marital property is divided equitably between them

Question 18

Property division - general approach

Answer 18

The general approach is to discern which property is separate and which is marital and then apply equitable criteria to divide the property

Question 19

Marital property

Answer 19

Marital property is property that is acquired during the marriage - regardless by whom or who holds title.

Marital property includes property:
- which appreciates by the efforts of either party
- which transmutes from being separate property to being marital property where (for example: the parties put it in one title)
- which is commingled with marital property (starts off as separate but then is mixed with marital property such that it cannot be traced back)
- salary / pension earned during marriage and mortgages paid off during marriage will form part of marital property

Question 20

Separate property

Answer 20

Property which is acquired before marriage or received by one spouse as a gift or bequest (or property which is purchased using separate property). Note, however: commingling, transmutation and the fact that if separate property appreciates after marriage by reason of the efforts of either spouse, the appreciation will be marital property.
Licences, accreditation and degrees are separate property

Question 21

Distribution of property - equitable factors

Answer 21

Once the court determines which property is separate / marital, it will distribute the property according to the equitable factors, which include:
1/ income of each spouse
2/ education /employability
3/ duration of marriage
4/ contribution to marriage
5/ assets liabilities of parties
6/ economic fault (gambling, spending money on lover)
7/ whether distribution is in lieu of spousal support
*Adultery is not a factor

Question 22

Property division - jurisdiction

Answer 22

A court cannot determine out-of-state property rights or maintenance rights unless it has jurisdiction over both parties. Therefore, at an ex parte divorce application the court will not have jurisdiction over property rights unless it has jurisdiction over both the parties.

There is a limited exception where the property is located in the state in which the divorce decree is being heard (i.e. spouse moves states and brings some property with them)

Question 23

Spousal support

Answer 23

The purpose of spousal support is to provide assistance to a spouse who becomes economically dependent as a result of the marriage relationship.

Question 24

Spousal support - factors

Answer 24

The court has a significant discretion to order spousal support and will consider a totality of factors, including:
1/ financial resource so each of the parties (incl their ability to be self sufficient)
2/ standard of living achieved in the marriage relationship
3/ time necessary for party seeking support to become self sufficient
4/ contribution during the marriage (financial and homemaker)
* Some states will consider marital fault / adultery

Question 25

Types of spousal support

Answer 25

1/ Permanent periodic spousal support
2/ Rehabilitative spousal support
3/ Lump sum spousal support - not modifiable
4/ Reimbursement spousal support - not modifiable

Question 26

Modification of spousal support orders

Answer 26

Spousal support orders may be modifiable (save for lump sum and reimbursement orders) where there is a “substantial change in circumstances.” A substantial change is substantial, material and unanticipated. It cannot be voluntary

Question 27

Child support

Answer 27

Both parents have an absolute duty to support their children. Child support obligations are calculated by reference to guidelines which concern, primarily:
1/ the needs of the child (education, health etc)
2/ the ability of the parents to pay
The court may diverge from the guidelines if a parent is a particularly high earner

Question 28

Child support - parental visitation

Answer 28

A parent’s rights to visit a child are independent from their child support obligations - so visitation cannot be withheld on the basis that child support obligations have not been adhered to

Question 29

Child support - modification

Answer 29

Child support orders are modifiable where there is a substantial change in circumstances that affects either the needs of the child or the parent’s ability to pay.

Self induced changes will not suffice.

Consider: where the child is living, have living arrangements changed etc

Question 29

Child support - Jurisdiction

Answer 29

Child support orders will be recognised in subsequent courts where the original court
1/ Had jurisdiction over the parties
2/ The parties were provided with notice
3/ The parties were given procedural fairness to state their case

The court that recognises the order can enforce it, even though it has no personal jurisdiction over the party.

The issuing court will continue to have exclusive jurisdiction over child custody orders if the child or one of the parties continues tor side in the jurisdiction (or the parties consent)

Question 30

Child custody - Factors

Answer 30

In determining who will have custody over a child, the court considers multiple factors designed to determine the best interests of the child:
- Parents wishes
- child’s wishes - which will be accorded greater weight if the child is 12 +
- ability of each parent to provide for the child’s needs
- child’s adjustment to the home, community
- siblings, step and half siblings

Question 31

Child custody - visitation by parent

Answer 31

Where one parent has sole physical custody, the other parent is entitled to visitation provided that the visitation would not endanger the safety of the child.

Question 32

Child custody - visitation by non parent

Answer 32

Non parents may be granted visitation rights if they have a “substantial relationship” to the child and such visitation would be in the child’s best interests. The court will also accord great weight to the child’s parents

Question 33

Child custody - modification

Answer 33

Modification of a child custody order requires the applicant to show that there has been a ‘substantial material change.’ Consider: child being moved from state to state etc

Question 34

Child custody - jurisdiction & recognition

Answer 34

A court will have jurisdiction to grant custody orders if the child was resident in the state for a continuing 6 months prior to the hearing.

Similarly, another court will recognise orders where the issuing court had jurisdiction for a continuing 6 months prior to the hearing.

Question 35

Child custody - continuing jurisdiction

Answer 35

PKPA: A court will have continuing jurisdiction where one of the parties continues to reside in the jurisdiction and the court does not decline jurisdiction.

UCCA: Original court will have jurisdiction if the child or one of the parties resides in the jurisdiction and there is no other alternative jurisdiction with a better connection to the child / evidence of welfare

Question 36

Unmarried cohabitants - generally

Answer 36

Unmarried co habitants have no special rights by living together simply - unless they fall into the common law exception and their state recognises it

Question 37

Unmarried cohabitants - Contracts

Answer 37

Contract between unmarried cohabitants are valid provided that the sole consideration is not sex (which is unenforceable for public policy reasons).

Question 38

Unmarried cohabitants - Division of property

Answer 38

Resulting trust - titled to another, title doe snot reflect true ownership
Constructive trust - constructive trust over property titled to another where the title would result in unjust enrichment
Quantum eruit - Quasi contractual recovery for valuable services rendered by one party to another

Question 39

Non marital children

Answer 39

A non marital child is born to an unmarried woman. A law that distinguishes between marital and non marital children is unconstitutional

Question 40

Non marital children - paternity suit

Answer 40

A child / mother may seek to establish paternity via a paternity suit to support claim for child support payments. Paternity may be established by scientific evidence, prior statements etc

Question 40

Paternity - Presumption

Answer 40

The husband of a married woman is presumed to be the father of her child, unless there is evidence to the contrary

Question 41

Adoption - consent of child, unwed father etc

Answer 41

The consent of the biological mother and father is required before a child can be adopted.

The consent of the unwed father is not required where he has no relationship / has relinquished his relationship with the child. Even if the father has not relinquished his rights, his consent will not be required if he is an unfit parent.

The consent of the child may be required if the child is 12 +

A parent cannot withdraw once a decree is made

Question 42

Donors

Answer 42

One who produces a sperm or egg for reproduction has no parental rights in the conceived child.

For sperm donors, the mother’s husband is presumed to be the father. However, the parties may agree otherwise and allow some rights to the donors.

Question 43

Surrogacy

Answer 43

Where a woman agrees to a surrogacy arrangement (by agreeing to carry a child conceived of her egg or another woman’s egg) for intended parents. A surrogate agreement is an agreement between the surrogate, her husband (if she has one) and the intended parents in which the surrogate relinquishes her rights to parenting. Most states allow surrogacy in one form or another and treat surrogacy agreements as valid.