Family Law
v Heart Balm Claims
Ø Breach of promise to marry
· Elements:
§ Mutual promises to marry
§ Breach of the promise
§ w/o justification (legal defense)
· Defenses
§ Illegal Consideration
§ If a valid license could not have been issued
· SOL
§ 3 years
· Ring belongs to the donor (condition precedent)
Ø Criminal Conversation
· brought against paramour
· requires sexual relations
· punitive damages available w/ proof of malice
· SOL
§ 3 years from last pre-separation event
· Elements
§ marriage
§ evidence of voluntary sexual relations
w inclination
w opportunity
§ during the course of marriage
Ø Alienation of Affection
· brought against any 3rd party
· no sexual relations required
· punitive damages available w/ proof of aggravating circumstances
· SOL:
§ 3 years from last pre-separation giving rise to claim
· Elements
§ marriage
§ genuine love and affection
§ love and affection diminished
§ caused by wrongful and malicious (injurious) acts of defendant
v Marriage
Ø Requirements
· man & woman
· legal capacity
· who consent to be H & W
· expressed in each other's presence
· presence of authorized person
§ unless religious denomination or Indian Nation/Tribe recognize ceremony w/o officiating
§ ordained or authorized minister
§ no “licensed” minister
Ø NO:
· same sex couples
· common law marriage
· proxy marriages
Ø Legal Capacity (generally age)
· 18
· 16-18
§ written consent
§ signed by a parent or guardian
· 14-16
§ pregnancy & want to be married
§ court order considering parents'/guardian's views
Ø Void
· nullity from beginning
· others can attack
· generally no equitable defense
· NC: bigamy
· can't be ratified
Ø Voidable
· marriage entered when at least one party had some kind of disability that could render the marriage invalid by the party w/ the legal impediment unless ratified
· parent/guardian can annul for fraud
Ø Remedy for underage marriage (NC)
· § 50-4;51-3
§ annulment
§ voidable (except where child is under 18 and license procured by fraud; parent can annul)
§ either party is under 16
§ voidable only by the underage individual
Ø Marriage License
· required in all jurisdictions
· directory, not mandatory in NC
· no affect on marriage
· $200 fine against person who married couple
Ø Consanguinity
· marriage btw. parent & child; grandparent & grandchild; brother & sister = felony
· any closer than first cousins, marriage is voidable
· NC: doesn't distinguish btw adopted, half-blood, or full blood
· Remedy: annulment
Ø Common Law Marriage
· provides the legal benefits of marriage
· carries the same legal ramifications as a traditional marriage
· CL marriage states may be different legal requirements for recognition
· ABOLISHED in NC but NC recognizes valid CL marri
y
· Grounds
Ø Abandonment/Turning Out
w Requirements
Ø one spouse brings cohabitation to an end
Ø w/o justification and consent, and
Ø w/o the intent of renewing the cohabitation
w Constructive Abandonment
Ø claimed by the party who left, claims the other party's actions were cause for them to leave
v Cruel or Barbarous Treatment
w endangers life of other spouse; physical violence not required
v Indignities
w some amount of insulting, degrading or embarrassing behavior in front of others
w consistent or pattern
v Drug/Alcohol Abuse
w intolerable burden
v Adultery
w requires sexual contact, not necessarily only intercourse
w must be shown to have happened prior to separation; however can use sexual contact after separation to prove sexual contact during the marriage
· Common Law Defenses
Ø Recrimination: P who brought grounds for divorce did not have clean hands
Ø Condonation: Forgiving the D for the behavior that brought grounds for divorce
Ø Connivance: The D's behavior can some way be laid at the door of the P
w entrapment
Ø Collusion: P conspired w/ D to provide evidence for grounds of divorce
v Personal Jurisdiction
Ø required over both parties for:
· alimony
· equitable distribution
