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Family Law
Southern Illinois University School of Law
Upchurch, Angela K.

Family Law • Fall 2015 • Upchurch
Private Arrangement of Relationships
a)      Legal Recognition of Cohabitating Relationships
(1)   Doesn’t have to be in writing, unless contract is based in meretricious sexual services
(2)   Anything that looks like it has anything to do with the relationship, shouldn’t be in the contract—could be construed as meretricious sexual services
b)     Finding of an implied contract between cohabitants
i)        Continuous cohabitation
ii)      Duration
iii)    Purpose of relationship
iv)    Pooling of resources
v)      Intent of parties
c)      Reasons for not recognizing legal rights re: cohabitation
i)        Public policy concerns
(1)   Weaken marriage
(2)   Impact other legal decisions: inheritance, wrongful death actions, workmen’s compensation
(3)   Parental rights
(4)   Child welfare (social and psychological effects)
(5)   General welfare of the citizens of the state
ii)      Public policy is best dealt with by legislature
(1)   Considers Marvin court to be naïve – these Ks are based on sexual relationship
(2)   Better able to determine impact on society and evaluate social mores
iii)    Legislature clearly suggests not permitted
(1)   No common law marriage
(2)   No no-fault divorce
(3)   Limitations on private contracts in marriage altering legal rights
(4)   Recognition of putative spouse doctrine
d)     Approaches around the country
i)        Several states permit enforcement of contracts between cohabitants
ii)      Several limit this to express written contracts
iii)    Several forbid any enforcement (IL/ Tenn)
(1)   rejecting loss of consortium claims, disallowing award of equitable interest of shared property, etc.
a)      Uniform Premarital Agreement Act
i)        Formalities: in writing and signed
ii)      Other Jurisdictions also require: notarized/formally acknowledged
b)     What can be consented to?
i)        Property rights (including management)
ii)      Disposition of property upon separation, divorce or death
iii)    Spousal support (including waiver)
iv)    Testamentary documents
v)      Death benefits
vi)    Choice of law
vii)  Catch-all  (not in violation of public policy)
viii)            ***NOT child support, custody or visitation
(1)   The court will NOT automatically enforce child-custody provisions in premarital agreements. 
(a)   Rather, the court provides an independent review to determine whether the arrangement is in the child’s best interests.
(2)   ** Other Jurisdictions (Additional limititations)
(a)    Some do not permit consent to waiver of spousal support or attorney’s fees
c)      Enforcement: Not enforceable if…
i)        Not executed voluntarily, or
ii)      Unconscionable when executed and before execution, that party:
(1)   Not provided fair and reasonable disclosure
(2)   Did not voluntarily and expressly waive disclosure; and
(3)   Did not have adequate knowledge
(4)   *** No review for unconscionability if there’s been an adequate disclosure of assets & obligations.
(a)    Must show party:
(i)     Did not receive disclosure
(ii)   Did not waive disclosure and
(iii) Did not have adequate knowledge of other’s assets & responsibilities
(b)   Some courts take very narrow view – only find uncon. if fraud, misrepresentation, or duress.
(c)    States not following the UPAA: Courts review agreements for fairness (e.g., determine if they are unconscionable) even when a full disclosure of assets has been made.
d)     Factors that might make a prenup involuntary? (Bond Factors)
i)        The question of voluntariness must be examined in the unique context of the marital relationship.
ii)      Presence/absence of coercion/fraud/duress/undue influence
iii)    Did the party understand the agreement and, in particular, the rights being waived?
iv)    Was there full disclosure of property & debts?
v)      Did the party have time to study the agreement or was it presented shortly before the wedding?
vi)    Was the party represented by independent counsel?
vii)  Was the party sufficiently mature & intellectually capable of understanding agreement?
viii)            Were the parties of equal or unequal bargaining power and sophistication?
e)      Timing: at time of execution (when agreement is made)
Marriage as a Contract
a)      Like any contract, a marriage contract must be voluntary and there must be the requisite capacity (to understand the obligations & consequences of the contract) 
i)        Unlike with ordinary contracts, a court order is required in order for a marriage contract to be modified or terminated. 
b)      Three key requirements for a marriage contract to be valid
i)        Capacity
(1)   Capacity comes in two flavors: State of mind & Age
(a)    State of Mind (mental state) – refers to a person’s ability to understand the nature and consequences of a marriage contract. 
(b)   Age – If someone lacks the mental state to appreciate what it means to be married, they lack the requisite mental capacity to enter into a marriage contract.
(2)   If either spouse is determined not to have the requisite capacity at time of marriage, the marriage contract will not be enforced.
(3)   The relevant time frame for determining the capacity requirement is at the time the marriage is entered into, not before and not after.
(a)    n.b. if a spouse possessed the requisite mental capacity at the time of marriage, but then later down the road loses capacity, the marriage is still valid
(4)   Four requirements must be satisfied in order for a couple to have the capacity to marry
(a)    First, the marriage must not result in bigamy, meaning neither spouse can be legally married to someone else.
(b)   Second, the marriage must not result in incest, meaning the spouses cannot be related to each other in a way that would result in incest as defined by the jurisdiction’s laws.
(c)    Third, each spouse must possess the mental ability to understand the consequences and obligations of marriage.
(i)     Both spouses must possess the requisite state of mind to enter into a marriage contract.  This means that at the time of marriage both spouses must voluntarily consent to entering into the union and po

Putative Spouse
(ii)   On others
1.      Revival of spousal support
2.      Revival of spousal support if annulment was for “void” marriage
3.      Case-by-case decision to revive spousal support
ii)      Marriage License
(1)   A couple intending to marry must execute a marriage license.
(2)   When obtaining a marriage license, a couple must follow the specific procedures required by the jurisdiction.
(a)    most states impose a waiting period of a few days between the date the marriage license is received and the actual marriage ceremony. 
(i)     mandatory waiting periods serve as a time buffer, forcing otherwise instinctual couples to think through their decision before jumping into an ill-advised marriage.
(ii)   This waiting period, which is typically no longer than three days, can be waived by the court in extraordinary circumstances (commonly in the context of death or deployment).
iii)    Ceremony
(1)   There must be a marriage ceremony presided over by a member of the clergy or a secular official who has been given the requisite authority by the state to conduct marriage ceremonies.
(2)   A marriage ceremony does not need to take place in a certain place
(3)   Most jurisdictions only require that a marriage ceremony is presided over by a member of the clergy of any religion or a court appointed official, that vows are exchanged indicating the couple’s intention to wed, and the ceremony is witnessed by someone other than the couple and the presiding official.
(4)   Exception to this marriage requirement in jurisdictions that recognize common law marriages.
(a)   A couple that has cohabitated for an amount of time sufficient to be considered common law married does not need to have a marriage ceremony in order to be legally recognized as common law spouses.
(b)   This makes sense, as the whole concept of common law marriage stems from the fact that, although a couple cohabitates for many years, the couple never officially solemnized their relationship in a ceremony.
c)      Once created a marriage contract cannot be modified or terminated unilaterally by one spouse or bilaterally by both spouses without the consent of the state
i)        This is b/c the terms and obligations of a marriage contract are governed by the laws of the jurisdiction where it was entered into.
ii)      Unlike with an ordinary contract, under which the parties to the contract have the freedom to define the parameters and duration of the contract, a marriage contract binds a couple to a lifelong relationship.