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Family Law
South Texas College of Law Houston
Carlson, Richard R.

I.        Families and Other Intimate Relations
a)      What is Family?
i)        It is a basis for allocating rights and for imposing duties
ii)       Varies with culture, economic and psychological factors
b)      Constitutional Rights of the Family:  Cohabitation/household unit, Procreation/Child Rearing; “Marriage”
i)        Rights of Self-Definition of a “Family” Unit
(1)    Government must pass strict scrutiny
(a)    Identify Liberty
(b)   State Justification
(c)    Means must be effective and Well-Tailored
ii)       The Right to Create a Family
(1)    The Right to Have Children
(a)    Procreation is fundamental right, essential to “the race.”
(b)   Fundamental right to possession and custody of one’s own “children.”
(c)    Includes the right to make basic decisions re school, health care, discipline and religious or moral training.
(d)   NOT absolute:  Subject to state’s rights to protect child from real dangers
(2)    The Right to Marry
(a)    Marriage was once essential to procreation or paternity
(b)   Loving v. Loving appeared to elevate marriage to a fundamental liberty interest
(c)    Marital Motivations
(i)      Love/Intimacy – personal declaration of commitment to an exclusive relationship and a public commitment to an exclusive relationship
(ii)    Child Rearing – basis for presumed paternity and assigning weight to husband’s claim
(iii)   Economic Advantage – assures enjoyment of all public rights assigned to marriage; mutual duties of financial support, care giving; mutual right to public welfare, insurable interests
(d)   Marriage is a fundamental interest but is still subject to state regulation
(e)   The severity of the restriction/regulation determines the degree of scrutiny of justification, means.
(f)     Must examine the State v. Personal interests
II.      Regulation of Entry Into Marriage
a)      Presumption of Validity
i)        TFC §1.101:  It is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.  Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Ch. 6 or unless expressly made voidable by Ch. 6 and annulled as provided by that Chapter
ii)       No disqualification from marriage unless clearly stated as void or as voidable (& annulled) by Code.
iii)     If a wedding or marriage violates a rule, it is still valid unless the Code expressly states as above.
iv)     Evidentiary presumptions favor inference of marriage based on cohabitation and holding out
v)      Wedding leads to rebuttable presumption that any prior marriage was properly and full dissolved
b)      Qualifications to Marry
i)        Minors
(1)    Marriage by a person younger than 16 is “VOID” (unless a court has authorized the underage marriage)
(2)    Marriage at age 16 or 17 is VOIDABLE unless with parental or judicial consent
(a)    Marriage emancipates a child
(b)   Emancipation severs parental rights and duties
(c)    Each party to a Common Law marriage must be at least 18 though
(d)   A minor and her parents have standing to seek annulment but NOT the adult spouse
(3)    Consent is unnecessary at 18
ii)       Prisoners
(1)    Prisoners still have the right to marry, subject to presumed approval
(2)    Warden must approve for only compelling reasons
c)       Restrictions on Marital Partners
i)        Genders of the Partners
(1)    Laws Prohibiting Same-Sex Relationships
(a)    Same-sex marriages are not recognized and person of the same sex who enter into a civil union or similar relationship in another state are not recognized in Texas.  Texas has likewise rejected the “marriage-like relationship” doctrine.  Furthermore, the results of a sex change operation are not recognized for the purposes of marriage.
(b)   Lawrence stated that States cannot criminalize homosexuality
(2)    Choice of Law Problems: State v. State
(a)    Validity is usually decided by law of place of wedding
(b)   Exceptions:
(i)      Marriage violates public policy of other state with more or most significant relation to the parties
(ii)    OR of state with more or most significant relation to certain issue (divorce?)
(c)    Elopement vs. Reverse Elopement
(d)   Texas courts lack jurisdiction to grant “same sex” divorce; but can void the marriage
(3)    Choice of Law Problems: State v. Federal Law
(a)    No express constitutional authorization for federal regulation marriage or family life
(b)   But federal interest sometimes require a “federal” decision about marriage:  Immigration, taxation, social security, welfare benefits, other “family rights” laws
(c)    Defense of Marriage Act (DOMA)
(i)      #1 The word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is husband or a wife.
(ii)    #2  No state shall be required to give effect to any public act, record, or judicial proceeding of any other state respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other state
(iii)   Justice department no longer defends validity of DOMA
(4)    What is Gender
(a)    Intersexual:  Atypical sexual anatomy; AKA pseudo-hermaphroditism
(b)   Transsexual-transgender:  gender dysphoria; gender ID conflicts with anatomy
(c)    Gender is fixed at birth by chromosomes, gonads, and genitalia
(d)   Decision to recognize gender reassignment is legislative task
(e)   Small but growing number of states allow amendment of gender on birth certificate
ii)       Consanguinity Rules
(1)    A person cannot marry a brother or sister (including half blood), an ancestor or descendant, a nephew or niece, an aunt or uncle, a first cousin, or a stepchild
(a)    Except for first cousins, any marriage within the foregoing is void
(b)   This applies to adoption as well as blood
(2)    First-cousin marriages are not void even though they are now prohibited in Texas because, until recently, Texas residents could marry a first cousin.  
d)      One Spouse at a Time
i)        Three separate issues:
(1)    In concurrent marriage, who of two same-gendered spouses in married, and who is not?
(a)    Polygamy does not void a prior valid marriage
(b)   Later marriages are void if an earlier one is still valid
(c)    BUT most recent marriage is presumed valid, subject to proof

y circumstances)
(2)    Declaration of Informal Marriage
(a)    The parties can execute and record a sworn “Declaration of Informal Marriage.” This is not a requirement for establishing a common law marriage, nor is it an alternative to a ceremonial marriage as a means of marrying. Rather, it is a permissible method of proving an already established informal marriage.
(3)    When CL Marriage is NOT Possible
(a)    As is true of ceremonial marriages, a common law marriage is not valid if there is an impediment to the marriage; e.g., if one of the parties is already married. But if the impediment is removed (e.g., divorce granted from prior spouse or the parties reach the age of consent), and the couple continues to cohabit and to hold themselves out as married, a common law marriage can arise at that time. Also, a person under age 18 cannot enter into a common law marriage.
(4)    Presumption against CL Marriage
(a)    If an action prove a CL Marriage is not brought within two years after the parties separate, a presumption arises that the parties had not agreed to be married
v)      Shortcuts to Marriage
(1)    Judicial waiver of time limits
(2)    Proxy wedding for Soldiers, prisoners, kings, busy people
(3)    Common Law Marriage
f)       Remedies for Flawed Weddings
i)        Annulment
(1)    Voidable marriage is valid and emancipates, terminates support
(2)    “Child” has option:  preserve OR annul and seek other remedies
(3)    Annulment makes voidable void
(4)    With the exception of underage parties and violation of the 72-hour waiting period; a party cannot bring suit to annul the marriage if the petitioner has voluntarily cohabitated with the other party after the situation was discovered
ii)       The Putative Spouse Doctrine
(1)    Remedy for a void marriage
(a)    Must have a Wedding (or elements of CL marriage in TX)
(b)   Putative spouse reasonably believed in validity and acted in good faith
(c)    Then putative spouse might gain equitable property rights
(i)      Does not validate the marriage
(ii)    Not limited to bigamy cases
(iii)   Remedy is only for reliance before notice of invalidity
iii)     Fraud
(1)    Misrepresentation by one party to other re status of marriage is tort DAS unlimited by property
iv)     Summary of Remedies for flawed marriage
(1)    CL Marriage
(2)    Ignore flaws, validate marriage
(3)    Estoppel v. annulment, leaves parties to divorce
(4)    SOL bars annulment leaves parties to divorce
(5)    Annulment still allows a division of property
(6)    Putative spouse gains property, no marriage
(7)    Fraud as tort remedy