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Family Law
St. Johns University School of Law
Scheinkman, Alan D.

I. Getting Married
A. Promise to Marry
· Marriage has its genesis in K law, Offer & acceptance
· ancient common law actually viewed it as a real K with financial consequences for breach
· considered more from the pt of view of the female
· consider public policy-should we discourage engagement breaks?
(1) Wightman (1818)
· If man breached promise to marry, W suffers from social stigma. thus W should be compensated for the breach, & damages should include loss of social status
(2) standard (1977)
· a little more modern-here the court said that where a promise to marry is broken, there may be reliance damages.
· such damages should include $$ spent on wedding expenses, rings, etc., and mental anguish caused by the break up, BUT cannot compensate for loss of social status or expected financial security
(3) NY-
· abolished common law actions for breach of K to marry in 1930s
· in fact, it’s a felony for a party or attny to file such a cause of action.
· the causes of action abolished in NY include alienation of affection, seduction (H sues wife’s new BF), and criminal conversion (Wife sues Husband’s new GF)
· heart balm statutes- all of the above-idea that $$ would mend a broken heart-
o Case-Wife #1 sues wife #2 and husband for an injunction to prevent W2 from using H’s name. CT invalidated action-said its too much like a heart balm action
o Full faith & Credit-NY will recognize heart balm actions rendered in other states-i.e a husband sued his wife’s lover in Vermont and won. lover didn’t pay. man tried to collect judgment in NY, adultery defended on the basis of abolished heart balm statutes-but NY enforced the judgment on full faith and credit
(4) NY exception to the Norm
· Tuck v Tuck-Δ wants to have sex with Π, she says not until we’re married. Δ went to jersey, got a phony license & someone to pretend to be judge, & set up a fake ceremony. after that they had sex, she later finds out & sues.
· Δ says you cant sue me, this is like a heartbalm case.
· ct says no, this is really fraud and not HB. You can still sue for extreme fraud.
B. Getting Back Chattel from broken engagement
· NY- chattel can be recovered where sole consideration for it was promise to marry. Marriage is the condition subsequent that never occurred.
· so, gotta give back that e-ring in NY
· Presumption is that gifts exchanged btwn people about to be married are gifts given in contemplation of marriage. Presumption is so strong that it can be overturn only with clear & convincing evidence.
· this also applies to gifts given by 3rd parties. if you give a gift to engaged couple for their impending marriage, you can get it back if they break off engagement.
(1) Illegality
· Lowe v. Quinn-married man proposes to someone else. then he breaks of the engagement and asks for ring back. she refuses. he sues, citing NY law. Ct of Appeals rejects his claim. they said the K was illegal bc he was still married, so leave the parties as we find them
(2) consideration means motive/reason, not legal consideration
· gaden v. gaden
o H re-dates his ex-wife & wants to get married again. he wants to place her on the deed for his new property. closing attny says it will present a problem unless she is also on the mortgage. so she signs mortgage
o he breaks it off and wants her name off of the lease. he says property was given in contemplation of marriage
o she says there is other consideration here, she signed the mortgage.
o ct says no, impending factor was still in contemplation of marriage. H got property back but had to remove her from mortgage
CTS may deny reimbursement of the physical object, but award $$ or lien on the item.
II. Rules of Marriage
A. history
· marriage was not always statutory creation
· formalized by the council of trent-b4 that no organized rules for getting married
· 1700s English lords added rules
· eventually licensure adopted-but it was slow to catch on in the U.S
· Common law marriages are marriages w/o licenses.
· common law marriages still valid
(1) crosson v. crosson
· Alabama ct said all u need is capacity to get married, words of present mutual intent to enter into marital relationship to the exclusion of others, & public recognition-holding yourself out to the public as being married
(2) Meister
· unless statute expressly states that formality is required thereby making any other way of getting married a nullity, common law marriage is ok
· problem with common law marriages-proof & how do we really know parties intent? its subjective
(3) NY
· Abolished common law marriage in 1933, but NY does recognize common law marriages validly entered into in other states, and marriages in ny b4 1933
(4) presumptions for marriage
· a ceremonial marriage has a presumption of validity that can only be overcome by proof of the common law marriage
· so even if the ceremonial marriage conducted after common law, the ceremonial one is the one that is presumed valid
· although strong presumption in favor of ceremonial marriage, the common law one can be proven by direct or circumstantial evidence
(5) Mott v Duncan Petroleum
· Mott is killed in on the job accident
· Widow mott tries to collect benefits from employer Duncan
· Duncan was challenging the marriage to try to get out of paying
· The Motts had been in Georgia and engaged in acts that would indicate they were in a common law marriage relationship (held themselves out as married0
· Motts again held themselves out as married in NY (filed joint tax return)
· Court of appeals held in favor of the marriage
· Even though this took place after 1933, the court allowed evidence of the NY common law marriage activities to support the Georgia common law marriage (which was valid in Georgia). Not saying that there was a common law marriage formed in NY

· remember to look at the intent of parties for common law marriage analysis, as well as whether they held themselves out as married (& capacity)

B. licensure & ceremony
· NY requires a license, but failure to get a license does not invalidate the marriage.
· however, A person who shall solemnize a marriage w/o the presence of a license shall be guilty of a misdemeanor & can be fined and jailed (think NY Paltz mayor)
· There is a 24 hour waiting period after granting of license before you can solemnize marriage-You can get a waiver for good cause
· Blacks are required to test for sickle cell anemia b4 a license is granted, but they can get out of this for religious beliefs. License cannot be denied solely on the existence of the disease.
· although marriage with ceremony & no license not necessarily invalid, a marriage with license but no ceremony is invalid. Have to have ceremony within 60 days of granting of license.
· no stringent requirements for ceremony, but the parties must solemnly declare in the presence of a clergyman or magistrate and the attending witness or witnesses that they take each other as husband and wife. In every case, at least one witness beside the clergyman or magistrate must be present at the ceremony.
1. validity
· validity of a marriage is determined by the local law of the state which has the most significant relationship to the spouses and the marriage (generally place where marriage entered into)
· a marriage which satisfies the requirements of the state where it was contracted will be valid everywhere unless it violates STRONG public policy of another state
2. who can perform marriage ceremony
1. religious leader-anywhere (if someone pretends to be clergy but both parties reasonably believe that the person is clergy-then its still valid)
2. mayors-only within their cities, in large cities city clerk & deputy city clerk too,
3. judges (even retired ones)
4. required- A written contract of marriage signed by both parties and at least two witnesses, all of whom shall subscribe the same within this state, stating the place of residence of each of the parties and witnesses and the date and place of marriage, and acknowledged before a judge of a court of record of this state by the parties and witnesses in the manner required for the acknowledgment of a conveyance of real estate to entitle the same to be recorded.
3. proxy weddings
· Bride or groom can’t make it to the marriage, so some one stands in
· I give you power of attorney, you show up for me
· not recognized in NY
· NY does not recognize proxy weddings from other states or countries
III. void, voidable
1. Void marriages –so against public policy that they are void at the get-go
2. Voidable-Kinda against public policy, so you can get marriage annulled, but subsequent actions may ratify voidable marriages b4 annulment is obtained
A. Void
1. Incestuous marriages: 1. An ancestor and a descendant; 2. A brother and sister of either the whole or the half blood; 3. An uncle and niece or an aunt and nephew. cousin is ok, step-siblings ok too (Not half-sibs!)
2. if you were married b4 and your former spouse is still living, new marriage is void unless you obtain annulment/divorce from old
3. void marriages can also be challenged by 3rd parties, and they can be challenged even after the death of a party
(1) void for kinship
· in NY-ancestor can’t marry descendant
· siblings, either ½ or whole, can’t marry
· uncles/aunts can’t marry nieces/nephews
· If you didn’t know you are siblings, like long-lost siblings fall in love unwittingly and later discover, its STILL void. No scienter requirement.
· additionally, incest is a felony in NY-but for a conviction you need to prove the relationship with a birth certificate or something of that sort, more than just testimony
(2) Void because you’re already married!!
· if you marry 2 people at once and later divorce 1, the other is still invalid because it was bigamous at the time of entry! you can validate it by remarrying the 2nd, or after a while it might become common law (not NY)
· Similarly, if you obtain an invalid divorce and then marry another person, 2nd marriage is bigamous bc first divorce was not valid.
· Interlocutor

ave a male to female operation, ct will consider you a female for marriage purposes.
· you can obtain an annulment on the basis of fraud, but it be fundamental to the marriage where the ct can conclude that it would be reasonable for Π to not marry Δ if she had known the truth.
· again, this is voidable, so if you cohabitate after you find out the truth, you can’t later claim fraud.
· wolf v wolf- W wants to marry H, who is devout catholic. he tells her he cannot marry someone who’s ex-husband is still alive bc of his religion. W lies and says ex died in a car-crash. they get married, he finds out the truth. when H finds out the truth, he moves out! Ct finds that this fraud was sufficient to render marriage invalid. she knew the importance of religion to him, and he moved out when he found out the truth (whereas if he continued to sleep with her after finding out truth, he would be ratifying marriage)
· Fraud must be fundamental-not enough to say you are famous when you’re not
· what about lying about $$$?-depends on whether it is essential to the marriage
o Hypos-Man tells W that he cannot get married because he has no $$. W lies and says she has enough $$ to support them both and for him to start a business. H later finds out, wants an annulment. Ct grants it because they said he knew he didn’t have enough $$ to support a family, and here $$ was essential because now neither can support the relationship.
o Hypo 2- wealthy wife marries impoverished nobleman. they have a fight, he tells her he married her for $$. that is not fraud. misrepresentation about love & affection is not fraud. But then she said he committed a fraud because he said he was from a high social position, qualified to be a good husband, and would not take $$ from a woman. although he did in fact lie about all this, it was not enough for fraud
o hypo 3- woman married someone, found out later that H is a nazi. lower court denied annulment, said it’s only political views. CT of appeals overturned, allowed annulment because Nazism at variance with views in NY. prof thinks today this prob would not be enough for annulment.

· Prob enough for Fraud
o false representation as to pregnancy or paternity
o false representation of prior marriage?
o false representation that you are not addicted to a drug
o false rep. as to willingness to have kids (has to false when made, not change of heart)
o FR of willingness to convert religion, or to raise kids in a certain religion
o marrying only for evading immigrant status
o FR as to mental capacity made when lucid
o FR as to willingness to enter into a subsequent religious marital ceremony
o FR that one has reformed from prior criminal conduct
o failure to disclose pregnancy by 3rd party in the past
o concealing children from prior marriage
o failure to disclose felony

· Prob not enough
o FR as to chastity
o FR as to religious devotion- i.e saying you go to church every week when in fact u rarely go
o Failing to disclose non-STD illnesses not enough unless it interferes with sexual relations
o concealing mental illness of other family members not enough (but concealing your own may be!)
· Maybe
o Lying about nobility
o failure to make disclosure, i.e., H never mentions that he has syphilis
(d)voidable for duress or force
· i.e., marry my daughter or I’ll turn you over to the D.A.
· marry me or I’ll burn your house down, etc.
· marry me or I’ll tell my dad all the things you’ve done to me has been held enough for force
· but if you voluntarily cohabitate after fraud or duress is removed that is ratification of marriage
IV. Prenups (antenups)
· early common law did not have pre-nups because after marriage you were considered one legal entity-so how could you contract with yourself?
· Married women’s act removed the concept of one legal entity-but prenups still disfavored bc it was considered against public policy
· now they are popular and encouraged
· 3 types:
old people with children from old marriage, often these old people K to