Family Law Outline

Title I. Marriage

Chapter 1. Jurisdiction Over Marriage

1.1 Scope of the Chapter
The rights, authority, competence, or jurisdiction to legislate and to adjudicate on the matter of marriage

4 aspects of this jurisdiction:
1. religious (spiritual) and secular (temporal) authorities
2. state or federal governments in the United States
3. among states of the United States
4. among nations or states one of which at least in not a state of the Union

1.2 Spiritual and Secular Claims to Jurisdiction Over Marriage
History of Marriage Legislation
▪ In Roman Empire, marriage was governed by civil law
▪ With advent of Christianity, the Church established new precepts for marriage
▪ What had begun as only a disciplinary power of the Church became a true power with rights of legislation and jurisdiction
▪ By 10th century, and continuing for over 600 years thereafter, the Church was the sole authority on marriage and made the only laws regarding it.
▪ 16th century – royalty began to regain control of matrimonial matters (the civil cts had always retained juris over pecuniary effects, which they used as a base from which to expand)
▪ Began trying separation and nullity cases, distinguishing the K of marriage from the sacrament
▪ Little by little, the state has regained its authority over marriage

Marriage: History and Background
▪ American law adopted English law principles that determined validity of marriage (either as part of CML or expressly by statute)
▪ BUT had no tribunal like the England courts authorized to apply the rules so inherited
▪ One solution was to make this body of law part of equity jurisdiction (at least fraud and duress resembled equity ct matters)
▪ English influence on our marriage law:

the method of entering the relationship
the factors marriages invalid
the jurisdiction of courts to rule on the validity of marriages

Marriage: The State’s Power to Control the Relationship
▪ Although departing from our English inheritance, in America, marriage has always been regulated by the civil authorities (i.e. marriage is a CIVIL CONTRACT)
▪ Therefore, religious denominations are clearly subordinate to the law with respect to marriage (despite their continued interest in the marital status and its obligations)
▪ ULTIMATE POWER TO REGULATE MARRIAGE RESTS WITH THE STATE, and is constitutional under the states police power essential for public welfare

Note: 2 different trends concerning the regulation of marriage and the influence of religious authorities, moving in different directions
▪ Canadian movement, recognition of same-sex marriages, toward governmental abandonment of “the marriage and divorce business”, making it solely a religious institution (like returning to year 900 when Church was sole authority and only needed to register with civil authorities)
▪ Modest United States “covenant marriage” movement, allowing states to adopt an optional form of marriage…inviting religion back (could retain the power to determine legal rights and benefits, but otherwise, goes to the Church)

P3 Patton v. Cities of Philadelphia and New Orleans (1846)
▪ Man’s 2nd marriage was only civil and was never celebrated by a religious ceremony
▪ Was the 2nd marriage valid, as a civil K, under the laws in force in Louisiana at the time, although the marriage was not thereafter solemnized before the Church?
▪ Was the Council of Trent, adopted by Spain, applicable to the discovered colonies when the Spanish acquired LA? Ct said yes, but
▪ Christian sovereigns were allowed to suspend parts of the Council of Trent, especially in remote colonies (i.e. Natchitoches Parish had no priest) — evidence that King Philip exercised his authority and suspended portions in La of other sacraments in the same way (i.e. couples don’t need 3rd party, perform sacrament themselves)

1.3 The Louisiana Position
▪ The meaning of marriage under La’s own Article
Art. 86. Marriage; definition
Marriage is a legal relationship between a man and a woman that is created by civil contract. The relationship and the contract are subject to special rules prescribed by law.
▪ Article announces clearly that ONLY Louisiana law controls all aspects of marriage
▪ Historical derivation of the Article, the meaning of K in that Article, and use of the word civil –
o French Constitution of 1791: basically copied from Blackstone’s commentary, influenced by commentators
o The comments to the predecessor of Art 86 explains that the word civil was included to emphasize the complete powerlessness of the Church, since the separation from the Church had just occurred, and that marriage is created by a secular K
▪ The essence in K is consent and agreement. Although use the word K, know that both state and fed have impact (Const prohibition against the impairment of K) Marriage is NOT an ordinary K, rather an INSTITUTION, and subject to special rules (rather than ordinary K rules)
▪ 1987 amended, so law doesn’t view marriage only in context of K

Relative nullity of a marriage – that can be cured.

Ordinary marriages – you need to get:
– A marriage license

Legislation and Custom – Sources of Law. So Legislation gives the right to marry a person.

P39 Hurry v. Hurry (1919)
▪ Ct distinguishes marriage K from a conventional K
▪ Can only be contracted by a male and a female (realize cases before that language was added to CC)
▪ Parties have to be capable, but capacity here is different from the general contractual capacity requirements

parties can’t contract a second marriage (without first dissolving a prior)
cannot contract a marriage if related (within certain degrees)
can only contract marriage with one person at a time
the rt to regulate this K, without interference of the Const guarantee against impairment of K, belongs to the state by its police power

▪ Wife argued that even though they (spouses) lived separate and apart for 12 years, hubby couldn’t take advantage of the no fault divorce b/c it was implemented after their separation
▪ Ct: Const guarantee that protects parties to K from the impairment of such, DOES NOT APPLY to institution of marriage

▪ Same argument has recently been raised again
o p40 Stallings v. Stallings (1933) –the period of living separate and apart after a judgment of separation for the unsuccessful litigant in the separation suit was reduced from two years to one year and 60 days, party successful in obtaining judgment of separation argued that the new legislation could not be applied to allow other party to seek a divorce before two years elapsed from the date of the judgment, the ct applied the legislation to the rights of the persons in existence on the effective date of the Act (i.e. retrospectively)
o Most recently, in 1981—holding spouses could not take advantage of changes in divorce law by legislation?

▪ Marriage is NOT a simple K …consequence: neither State nor Fed Const guarantees against impairment of K apply (La Const, Art I)

▪ But, what about the language in Art 86: “…a relationship, created by civil K”?
o Civil simply alerts reader to fact that it’s only secular authority that has jurisdiction to legislate and adjudicate on marriage and its termination—social institution, subject to civil authority, not religious authority over matters related to marriage
o Basis of K is the consent/ agreement:
§ Do conventional vices of consent apply to marriage? Art 86 suggests that this relationship and the K itself subject to special rules (i.e. cannot rely on general K rules when dealing with Ks of marriage) …K made under duress or by one who is incapable of contracting are diff from vices in Art 48, BUT might argue that if there is no specific rule (law is silent) then could refer to general rules of K
§ Art. 93 defines when consent is not
1.4 State and Federal Juri