I. Marriage
a. Moved from fault based approach to a no-fault based approach for divorce
b. Statistically, women are happier in their marriages today than they were 25 years ago
i. Married people (men and women) tend to be healthier and happier
1. However, it is argued that since divorce is a more acceptable option today unhappy marriages end in divorce, resulting in “happier” married women
c. Preparing for Marriage: Premarital Controversies
i. Breach of Promise to Marry
1. Rivkin v. Postal
a. Issue: Can you sue for breach of promise to marry? Yes.
b. Tennessee law: 1) Claim cannot be joined with other damage claims; 2) Promises or contracts of marriage can only be established using either signed, written evidence of the promise or contract or the testimony of at least two disinterested witnesses; 3) Juries must consider the age and experience in calculating damages; 4) Punitive damages cannot be awarded punitive damages in cases where the alleged breaching party is over 60 years old
2. Today, very few states recognize a cause of action for breach of promise to marry and those that do it is in a very limited sense
3. Defenses to the claim include physical and mental defects, unchastity of the plaintiff, plaintiff’s lack of love for the defendant, and mutuality of the decision to terminate the engagement
4. Today, 17 states and DC recognize the tort of seduction but generally reformulate it as an action for intentional misrepresentation , i.e., false statements that induce a person’s acquiescence to sexual relations
5. Some states impose criminal liability
6. Problem P. 122
a. Assuming this was a jurisdiction that recognized a cause of action for breach of promise to marry
i. Elements
1. Detrimental reliance
2. Exchange of promises and breach
ii. Remedies (Roots in contract and tort)
1. Expenditures in reliance on marriage
a. Wedding dress, reception, etc.
2. Expectation damages
a. Income
i. However, it can’t be too speculative since the parties could have divorced at any time if they had gotten married
b. Historically, loss of social prestige and lack of employment for women
3. Punitive damages (Tort)
4. Emotional/ Non-economic damages (Tort)
b. Assume the state does not recognize such a cause of action, could Marilyn go through with other causes of action: emotional distress, etc.?
i. There is a split of jurisdictions which don’t recognize a breach of promise to marry claim that allow other claims to go forward where all elements can be satisfied
ii. CA and Minnesota bar all other related claims
7. Civil Code 43.5
a. No cause of action arises for:
i. Alienation of affection
ii. Criminal conversation
iii. Seduction of a person over the age of legal consent
iv. Breach of promise of marriage
ii. Gifts in Contemplation in Marriage
1. Fowler v. Perry
a. Issue: Who is entitled the engagement ring when the couple splits before marriage?
b. Depends on whether it is a fault based or no-fault jurisdiction? Was the ring a conditional gift?
i. Modern trend but minority of jurisdictions follow no-fault approach, majority of jurisdictions follow fault based approach
1. No-fault based reasoning is that engagement is a period for the couple to determine whether they really want to be married…you should not be punished for ending an engagement that would likely result in a marriage ending in divorce
a. Same reasoning as the no-fault based approach for divorce
2. Problem 1 P. 127
a. General rule: No recovery for gifts
b. Exception: Where the gift is conditioned on some future event
i. Some states recognize engagement rings alone, but not furniture, etc.
c. Positions
i. Traditional gift
1. No return
ii. Conditional gift
1. Fault (Cal. Civ. Code 1590)
a. Cal. Civ. Code doesn’t name an engagement ring as a special instance
2. No-fault
iii. Engagement ring
1. Fault
2. No-fault
a. Fowler v. Perry
b. Evolving majority opinion
d. Modern argument: If the groom gets the ring back, it is unfair to a bride who has spent a lot of money planning the wedding…therefore, the bride should get to keep the ring to offset the expense
3. Problem 3 P. 128
a. Court probably held that fault is fault and the donee’s executor gets to keep the ring
4. Civil Code 1590
a. Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just
d. Prenuptial Agreements
i. Simeone v. Simeone: The prenuptial agreement is a contract so basic contract doctrine applies
1. Mostly only looks at procedural fairness, absent the defense of unconscionabiliy
a. Absent fraud, misrepresentation, duress, or unconscionability spouses should be bound to the terms of their pre-nup
ii. Binek v. Binek: Contract analysis is unfair because the parties here are not at an arms length like other types of relationships that enter into contracts
1. Courts need to take a closer look at the relationship
a. Procedural Fairness
i. Disclosure
ii. Testified that she understood the agreement when she signed, negating any claim that she was not represented by counsel, and testified that it was voluntary, rebuting claims relating to little notice
b. Substantive fairness at the time of signing and at the time of execution
i. Good faith
ii. Reasonableness
iii. 2 approaches:
1. Whether fair at the time signed
2. Whether fair when executed
c. Since the pre-nup in this case only dealt with the couple’s property the court could still award her spousal support
iii. Uniform Premarital Agreement Act (UPAA)
1. Requires “unconscionability” to invalidate a premarital agreement
2. Requires both procedural and substantive fairness
a. Higher standard for substantive fairness than Binek
3. §6. (a) A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:
a. That party did not execute the agreement voluntarily; or
b. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
i. Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party
ii. Did not voluntary and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
iii. Did not have, or reasonably could have had, an adequate knowledge of the property or financial obligations of the other party
iv. American Law Institute (ALI)
1. Premarital agreements must meet standards of procedural fairness and substantive fairness
a. Procedural = i.e. informed consent and disclosure
2. A rebuttable presumptio
ii. State argued that it wasn’t discrimination based on race since the statute applied to everyone equally and therefore rational basis test should be applied
iii. Court did not accept this argument and found that the law was based on White Supremacy intent since other races were allowed to marry each other
2. Zablocki: The freedom to marry is a fundamental liberty protected by the Due Process Clause of the 14th Amendment, and therefore a law which denies a marriage license to someone who is behind in child support is unconstitutional
a. Denying someone the right to marry violates Substantive Due Process
b. Court found a legitimate state interest but found the law unconstitutional because it was not narrowly tailored to serve the interest
i. The law ignores the possibility that permitting the law may make it more likely that the kids would be supported by additional income brought into the marriage
ii. Denying the marriage license would likely just result in more children born out of wedlock
iii. The language that the Court uses suggests that they used intermediate scrutiny and not strict scrutiny because the case was more of an Equal Protection case, and not fundamental rights
1. “sufficiently important state interest”
2. “closely tailored”
3. More like a hybrid of a fundamental right and Equal Protection approach
iv. Resulting in a sort of 2 tier analysis
1. Direct and substantial = intermediate scrutiny
2. Incidental interferences = rational basis
v. The Court is certain of one thing: Rational basis test applies where a child is going to lose their child support benefits where one parent gets married
c. Overall, regulations that substantially and directly interfere with the freedom to marry must receive elevated scrutiny
d. For exam purposes, use Zablocki test
3. Turner: The right to marry still applies to prisoners
a. Prisoners retain those constitutional rights that are not inconsistent with their status as a prisoner or with the legitimate objectives of the corrections system
4. Problem 1, P. 159
a. Where the state requires a prisoner to pay for his transportation or video conference with the clerk to get a marriage license, does it unjustifiably interfere with the right to marry?
i. The courts are split on this question.
ii. However, courts have determined that prisoners have no right to procreate
ii. State Regulation of Entry into the Marital Relationship
1. Substantive Restrictions
a. Capacity to Marry
i. Same Sex
1. Goodridge: Argued based on Equal Protection and Due Process grounds
a. Court claims to apply rational basis test, the test applied is actually more strict
b. State posed 3 legislative rationales for prohibiting same-sex marriage:
i. Best advances public policy in favor of procreation
