CYNTHIA BOND – FAMILY LAW – SPRING 2017
Griswold v. Connecticut (1965) – The specific guarantees of the Bill of Rights have penumbras that help to give them life and substance that create zones of privacy. The right of marital privacy is included therein and cannot be subject to regulations that have an unnecessarily broad sweep.
Eisenstadt v. Baird (1972) –A state may not constitutionally discriminate between persons on the basis of their marital status in regulating the distribution of birth control devices.
In re J.M. (2003) – The right to privacy gives one the right to define one’s social circle free from public scrutiny including sexual acts between consenting adults.
Eisenstadt v. Baird (1972) – A state may not constitutionally discriminate between persons on the basis of their marital status in regulating the distribution of birth control devices.
Only need 1 parent to consent to underage marriage
If neither approve can have a ct. approve
Illinois judicial approval;
(a) The court, after a reasonable effort has been made to notify the parents or guardian of each under aged party, may order the county clerk to issue a marriage license…to a party aged 16 or 17 years who has no parent capable of consenting to his marriage or whose parent or guardian has not consented to his marriage.
(b) A marriage license…may be issued under this Section only if the court finds that the underaged party is capable of assuming the responsibilities of marriage and the marriage will serve his best interest. Pregnancy alone does not establish that the best interest of the party will be served.
Subst. Requirements: (1) Age; (2) Non-Relation; (3) Monogamy; (4) Consent = (A) No Fraud & (B) No Duress
Constitutional Right to Marry:
A statutory classification which significantly interferes with the exercise of a fundamental right cannot be upheld unless it is supported by sufficiently important state interests and is clearly tailored to effectuate only those interests. (Zablocki) – Equal Protection Violation
Zablocki – reinforces fundamental nature of marriage BUT allows that some state regs are OK
Obergefell v. Hodges = Marriage is a fundamental right:
2 issues; Licensing and Recognition
1. Individual autonomy
2. Union unlike others
3. Protecting children and families
4. Marriage keystone of social order
ALL apply EQUALY to same sex couples
There is NO fundamental right to polygamous marriage. Reynolds (SCOTUS) still the law.
ALL states prohibit bigamy, many criminalize it [Brown under criminal stat.]
Void v. Voidable:
Void: Couple never married and therefore no judicial intervention required to end it
Can be attacked by anyone, not just one of the spouses
Cannot be ratified (made into a marriage by some action of the parties)
No division of property
Voidable:Is valid until annulled by a judge/requires judicial action to be ended
Attackable only by parties to marriage
Can be ratified in some cases
Can be property division in an annulment proceeding
Illinois Standard of invalidity of marriage;
Declaration of invalidity–Grounds. The court shall…declar[e] the invalidity of a marriage (formerly known as annulment) entered into under the following circumstances:
(1) a party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage [voidable] (2) a party lacks the physical capacity to consummate the marriage by sexual intercourse and at the time the marriage was solemnized the other party did not know of the incapacity; [voidable] (3) a party was aged 16 or 17 years and did not have the consent of his parents or guardian or judicial approval; or [voidable] (4) the marriage is prohibited. [e.g. by public policy]. [void] Duress – forced marriage; grounds for annulment
ge doesn't always req. strict scrutiny
Don't want to make states divorce mills
Difficult to prove
Adulterous disposition/inclination + opportunity
Standard = Clear prep. Of evidence
A showing of sexual intimacy is enough
Cruel & inhuman treatment;
conduct which “endangers life, limb, or health, or creates reasonable apprehension of danger, rendering relationship unsafe; OR
“unnatural and infamous” conduct making the marital relation “revolting” and making it impossible for the spouse to “discharge the duties of marriage”
Corroboration required [not all juris.] Used a lot in fault based context
Courts look at effect on complaining spouse
Generally have to plead a repeated/habitual course of conduct…or one EXTREME act
Actual breaking off of cohabitation + intent to desert
Durational req (most juris = 1 year)
Constructive desertion standard;
Grounds: Spouse’s intolerable conduct justifies other spouse’s leaving
May also be desertion defense
RECRIMINATION—the spouse bringing the divorce complaint is also ‘guilty’ of marital misconduct upon which divorce can be granted; party suing must have clean hands.
CONTEMPORARY TREND: “Doctrine of Comparative Rectitude”: courts grant divorce to party least at fault.
CONTEMPORARY TREND: Court grants divorce against party whose fault was proximate cause of split.
CONDONATION—If injured spouse later reconciles with spouse who causes injury, condones conduct, cannot subsequently sue based on past misconduct. Condoning acts include cohabitation, sexual relations.