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Family Law
University of Alabama School of Law
Davis, Penny





A. Function Versus Form in “Family” Relationships

1. City of Ladue v. Horn – (SCOTUS) Unmarried couple that lived together w/ their respective Cs does not have to legally be considered a “family.” There is a governmental interest in marriage and in preserving the integrity of the biological or legal family but not just a group of people.

i. Zoning Ordinance definition of family did not violate Constitutional rights of association, privacy, or equal protection (One or more persons related by blood, marriage, or adoption)

ii. Definition of family w/in ordinance or regulation was important in deciding whether this particular group was a family.

2. Notes:

i. Compare this decision to Braschi v. Stahl (74 NY.2d 201 (1989)), which extended the definition of ‘family’ to include an unmarried gay couple (in New York anyway).

a. One major difference is that Braschi and Stahl could not get legally married.

ii. Ladue supports the traditional or “form” definition of family and upheld the governmental interest in preserving integrity of biological or legal family

iii. A major question of Family Law is what constitutes a family? Is it just people who are related by blood, marriage, or adoption (aka a form family), or does it include adults who intend to be a family (aka a function family)?

iv. Historically: opposite sex couples precluded from entering into civil unions, reciprocal beneficiary or domestic PS

3. MacGregor v. Unemployment Insurance Appeals Bd. (Cal. 1984) – (not in book) Worker left job to accompany non-marital partner and their C so he could be near his elderly F. Court held that he left for “good cause”; therefore, he was entitled to unemployment benefits. Lack of legal marriage does not prevent demonstrating compelling familial obligations

B. Marriage: The State’s Interest

1. Defining Marriage: According to Bishop’s commentaries on law of marriage and divorce: “civil status of one man and one woman united for life, for the discharge, to each other and Community, of the duties legally incumbent upon those whose association is founded on the distinction of sex”

2. Contract: (1) Capacity – age, single, health, (cf.) minor (m. Age) (2) Consideration – i.e., mutual promises (3) Breach of K w/ damages (4) Merger upon execution – loses K nature

3. Maynard v. Hill (US 1888) – p. 62 – Marriage is more than a mere K. Although it requires consent of 2 parties, it creates a relation b/t parties that cannot be changed. Marriage is an institution, a social relationship comparable to that b/t P and C. Rights, duties and obligations established are those of law, not K. Can be changed or modified w/ court approval

4. Recognition of a foreign country marriage (p. 67)

i. Polygamy – not permitted in US

ii. Denmark – gay marriage (not permitted in most US states)

5. Defense of Marriage Act 1 USS § 7: The word “marriage” means only a legal union b/t one man and one woman as H and W, and the word “spouse” refers only to Person of the opposite sex who is an H or a W.

6. Ala. Code 30-1-19 – Marriage b/t persons of same sex is prohibited and will not be recognized from other jx. They said this is contrary to public policy so that gives them excuse to not follow full faith and credit clause.

C. Regulating Marriage And Other Intimate Relationships: Some Constitutional Dimensions:

1. Reynolds v. US (US 1878) – p. 69 (RELIGION) – Religious belief cannot be accepted as a justification of an act made criminal by the law of the land. B/c society is built upon civil contract of marriage; gov’t can permissibly pass laws regulating marriage. Permitting certain class of people to willfully defy the nation’s laws w/o repercussions in the name of religious liberty would permit every citizen to become a law unto himself and lead to the existence of a gov’t in name only. While laws of the nation cannot interfere w/ religious beliefs and opinions, they can interfere w/ religious practices.

2. Ala. Code §13A-13-1 – prohibits Bigamy. (Reynolds: usually cited as recognizing state authority to define marriage as monogamous and to impose sanctions based on polygamy)

D. Getting Married

1. Determining Legal Eligibility:

i. Minimum Age Requirements

a. Moe v. Dinkins (NY 1981) – p. 225

(1) Facts: Raoul (18) wanted to marry Maria (15). They had a C. Needed parental consent; M’s M would not give.

(2) Holding: Law is constitutional b/c the State has a legitimate interest in protecting minors from immature decision making. Constitutional rights of Cs cannot be equated w/ adults for 3 reasons: (a) Peculiar vulnerability of Cs; (b) inability to make critical decisions in an informed and mature matter; (c) importance of parental role in C-rearing. This law should not be examined under a strict scrutiny standard, but rather it must be determined if there is a rational relationship b/t means chosen and legitimate state interests advanced. P consent requirement ensures that at least one mature person will participate in marriage decision. B/c of this and minors’ lack of experience, perspective, and judgment, law is rationally related to legitimate state interest.

b. Alabama

(1) § 30-1-4: Person under the age of 16 years is incapable of contracting marriage.

(2) § 30-1-5: Consent of Ps is required for a minor under 18

(3) Williams v. W (1958) – W said she was over 18 but was 15. Not grounds for annulment.

(4) Adams v. Boan (ACA 1990) – 16 year old had legal capacity to have valid C/L marriage

c. Uniform Marriage and Divorce Act (UMDA): Court can invalidate a marriage where party <16 and did not have P/G consent AND judicial approval or where party was 16 or 17 and did not have P/G consent OR judicial approval. Can be invalidated by party/P/guardian until party reaches age that he could have married w/o satisfying omitted requirement

ii. Kinship: Reasons for banning sex or marriage between close relatives – Negative eugenics, Religious doctrine, Promoting family harmony, Social taboos, Protecting young and dependent females

a. UMDA: prohibits marriage b/t ancestor and descendant; b/t brother and sister whether by half, whole or adoption; b/t uncle and niece or aunt and nephew whether half or whole blood. Each state decides how close it can be.

b. Singh v. Singh (Conn. 1990) – p. 235 –Court found that under Common-law, prohibited degrees of relationship by blood included persons of half-blood as well as whole blood. It noted the statute did not explicitly mention half-blood relatives. However, it found that CT incest laws were based on British ecclesiastical laws that treated whole and half-blood relatives equally. Court noted that there has been no change in CT law since then.

(1) It held statute should be read to encompass half-blood relatives, b/c it is all part of the same statutory scheme. – Couple did share some blood, after all.

(2) Even though marriage was valid in CA, it did not transfer to CT b/c CT found it against public policy.

c. Ala. Code 13A-13-3: (a) Person commits incest if he marries or engages in sexual intercourse w/ person he knows to be, legitimately or illegitimately: (1) Ancestor or descendant by blood or adoption; or (2) Brother or sister of the whole or half-blood or by adoption; or (3) Stepchild or stepparent, while marriage creating the relationship exists; or (4) Aunt, uncle, nephew or niece of the whole or half-blood.

(1) Adopted brother and sister cannot marry in AL – SC of CO held this type of prohibition unconstitutional

d. General rule – marriage valid where performed is valid everywhere unless against public policy (?)

iii. Physical or Mental Incapacity

a. Edmunds v. Edwards (Neb 1980) – p. 248 – Court held that “mere weakness or imbecility of mind is not sufficient to void Contract of marriage unless there be such a mental defect as to prevent Party from comprehending the nature of Contract and from giving fee and intelligent consent to it.” Court found that in order to establish capacity to marry, Person has to show evidence that they understand three factors: (1) That marriage is Commitment for life (2) That it involves sexual relations, and (3) That it carries financial obligations.

(1) Court noted that a marriage is presumed valid, and the burden of proof is upon Party seeking annulment.

(2) Court further found that there was not enough evidence to overturn the decision of the Trial Court.

b. NB: Temporary mental incapacity can affect the validity of a marriage if Condition exists at the time of Ceremony and ratification does not take place after the disability has terminated.

c. Temp. Men. Incapacity: Hamlet v. H. (Ala. 1941) –Intoxication during ceremony, never ratified. Annulment permitted

d. Transgender Issues:

(1) MT v. JT (NJ 1976) – p. 264 – Marriage of Postoperative transsexual. Anatomy vs. Gender (emotional and psychological sense of sexual being). Sexual capacity v. Chromosomal test. Court found valid M.

(2) Ala. § 22-9A-19(d) – AL allows amended birth certificate after sex change

2. What Law Governs?

i. Waiting Pd.: Many states have waiting period after D before you can remarry (usually b/t 6 mos. and a yr.).

a. In re Marriage of Summers (Mo. 1983) – p. 265

(1) Facts: H had previously been married and in prior divorce decree a lower court ordered that he couldn’t remarry w/in six months of the date of the decree. H & W married w/in 6 months, in IA.

(2) Holding: Court held there was no evidence to aid in presumption that H’s prior W was still alive and therefore the H failed to sustain his burden to show that he had a W living when he married his W. Court also noted that the H, because he produced the misleading situation, could not have set up the invalidity of his marriage when that invalidity was advantageous to him. H was estopped to deny the efficiency of the divorce decree even it were shown that his prior W was alive and well when parties were married.

(a) Presumption that the marriage was valid and the D failed to rebut that presumption

b. Krug v. Krug (Ala. 1974)

(1) Facts: Widow had married decedent in GA w/in 60 days from divorce from her former H formed a valid common law marriage. This was a battle between widow and his Ps.

(2) Holding: B/c they left AL to avoid waiting period, Court found that was not a valid marriage in GA. However, since he served in Vietnam for several months and they wrote letters, AL court found that there was a valid CL marriage after waiting period was over. (1) Every requirement was met in the marriage so that it could be presumed to be CL marriage; (2) Only reason TC did not hold marriage a valid CL marriage was that parties did not live together after a statutory impediment to their ceremonial marriage was removed; and (3) Even though soldier and putative W did not live in the same house or the same locality b/c soldier was in combat in Vietnam, they did live as H and W, and facts showed that there was sufficient living together to gain the recognition of Public that they were living as H and W and not in a state of concubinage.

ii. Principles:

a. Ala. 30-2-10 – requires 60 days

b. General presumption for valid subsequent marriage is stronger than presumption for continued life

c. Equity may preclude attacking foreign divorce decree

d. Cant benefit from own misconduct

e. Estoppel doctrine (would not validate void M) – only prohibits party from attacking validity of foreign decree if it would be inequitable

(1) McGlaughn v. McGlaughn (ACA, 1992) – Party who has w/ knowledge of facts, assumed particular position in judicial proceeding is estopped form later assuming position inconsistent w/ first one to prejudice the adverse party. Accordingly, he was judicially estopped from assuming Position inconsistent w/ his first position to Prejudice of the W, who had since remarried in reliance on the validity of the divorce.

f. Ex parte Edwards (Ala. 1913) – Court has power to impose disability to remarry upon party against whom divorce is granted – Still technically allowed to do but no one does.

g. Ellis v. E. (ACA 1973) & Leonard v. L. (ACA 1990) – If party to marriage has been previously married to another and that partner is alive, presumption arises that previous marriage has been dissolved by divorce. Burden of proof is upon party seeking to set aside new marriage to show prior marriage has not been dissolved by divorce

3. Death (p. 270-72)

i. Presumption of death after disappearance

a. Ala. Code 43-2-231 (5 years)

b. Ala. Code 13A-13-1 Bigamy (5 years) (a) Bigamy when he intentionally Ks or purports to K a marriage w/ another person when he has a living spouse. Person who contracts a marriage outside this state, which would be bigamous if contracted in this state, commits bigamy by cohabiting in the state w/ the other party to such a marriage. (b) Person does not commit an offense under this § if: (1) He reasonably believes that previous marriage is void or dissolved by death, divorce or annulment; or (2) He and ex have been living apart for 5 consecutive years next prior to the subsequent marriage, during which time ex was not known by him to be alive. (3) Burden of injecting the issues under this sub§ is on the ∆, but this does not shift the burden of proof. (c) Bigamy is Class C felony.

ii. Civil Death: 30-2-1(a)(4) – grounds for divorce – imprisonment for 2 yrs. under sentence of 7 or more yrs.

E. Courtship and the Marriage Promise

1. Enforcing Promise to Marry

i. Breach of Promise

a. AL has abolished action for breach of promise to marry, seduction, criminal conversion, and alienation of affection.

b. Wightman v. Coates (Mass. 1818) – p. 180 – Courts had every right to enforce K to which parties both agreed. They relied on the fact that females are the weaker sex and it is left to Courts to protect their rights.

c. Stanard v. Bolin (Wash. SC 1977) – p. 181 – Action was not contrary to public policy. Court reasoned that when two persons agree to marry, they should realize that certain actions will be taken in reliance on mutual promise to marry. They felt that injuries caused should not go unanswered just b/c the breach of promise to marry action may be subject to abuse. Court did conclude that damages for loss of expected financial and social position should no longer be recoverable. Costs for expenditures recoverable.

d. Notes:

(1) Cf. Stanard w/ Promise of Prom Date (May 1989) (greater protection than marriage offer)

(2) Breach of promise can be K or tort. Which statute of limitations applies?

(3) Defenses – fraud, misrepresentation, insanity, prior marriage, etc.

(4) § 6-5-330 – abolished the action in AL

ii. Seduction

a. Common law tort that still exists in some jx that allows unmarried women to sue for loss of chastity

b. AL still recognizes seduction of a female <19 – poses problem of EP b/c no protection for males similarly situated.

c. Ala. Code 6-5-331 abolished the action for women 19 or older (What about women under 19? Cf. Young)

d. At common law, the action centered on fraud.

e. Some courts and legislatures allowed women to bring seduction actions for damages based on reputation loss, embarrassment, or other such harm

iii. Alienation of Affection: Robbing H or W of conjugal affection, etc.

a. D.D. v. C.D. & T.J. (Ala. 1992) – Court says H cannot bring claim based on alienation of affection. H filed against W’s lover. He claimed interference w/ marriage but court said it was still alienation of affection barred by statute.

b. Henley v. Rockett – action for alienation of affection has been abolished. However, injunctive relief is still allowed to keep 3rd party away from spouse. AL does not allow injunctive relief if there is a legal separation.

c. § 6-5-331 – abolished action in AL (Also abolished conversion (3rd party defilement of marriage bed))

iv. Gifts in Contemplation of Marriage

a. Phillips v. Phillips (ACA 1997) Dicta in Dissent: Although AL has yet to address whether a wedding ring is considered to be spouse’s separate property or marital property, other states have considered the issue. . . Majority of other courts have held that an engagement ring, although conditional gift when first presented to W in contemplation of marriage, is separate property not subject to division in the divorce.

b. Vigil v. Haber (NM 1994) – p.189 –


4. AL Cases:

i. Merchant’s Nat’l Bank of Mobile v. Cotnam (Ala. 1948) – woman sued estate on claim for services rendered under oral K that she leave her job to take care of him and she would be compensated. An executory promise in consideration of illicit sex to occur in future is unenforceable. Court found an equitable right in nature of a trust.

ii. Albae v. Harbin (Ala. 1947) – Man, w/ whom woman was living acted as her agent in contracting to buy land. Court will enforce a resulting trust. She paid for it.

5. Domestic Relations Exception

i. Barber v. B. (US 1858) – p. 52: Fed courts do not decide domestic relations matters even w/ diversity of citizens.

ii. Anastasi v. A. (US DC NJ 1982) – p. 48: There was a breach of agreement to provide lifetime support. Should these cases be w/in the Fed Jx Domestic Relations Exception? Yes. The same type of judgment is required

iii. Rubin v. Smith (NH 1993) – p. 52: DRE does not bar a M’s §1983 claim arising out of Custody battle that was filed against the F and Police for taking Cs from her.

iv. Ankenbradt v. Richards (US 1992) – p. 52: Courts have jx based on diversity of citizenship in case involving alleged torts (sexual and physical abuse) committed by the former H of petitioner and his female companion against petitioner’s Cs or should court abstain jx. Therefore, NO DRE in tort cases such as this

6. Elden v. Sheldon (Cal 1988) – Court denied loss of consortium to unmarried cohabitants

J. Annulment

1. Brought to declare the legal invalidity of Particular union from its inception

2. People may want an annulment instead of a divorce b/c: Religious reasons – Some religions prohibit divorce; Don’t want to pay support or alimony.

3. Is there a time frame in which you must annul? It will depend on Court and the reason why you are seeking annulment. There is no magical bright-line test for the time requirement to get an annulment; however, the facts may show that a reasonable time has passed which precludes Party from using their cause of action.

i. Judges are more inclined to give one w/ a shorter time frame

4. Void Marriage: never existed; no subsequent action can validate it. Usually violates some public policy. No formal action necessary to establish invalidity – Failure to take legal action confers no validity on a void marriage. May be attacked by 3rd person. May be challenged after death – Osinach v. Watkins – Void marriage may be attacked after, as well as before, the death of either or both parties to the marriage.

5. Voidable Marriage: able to make valid. Relation back. May be ratified after removal of legal impediment

i. Cannot be attacked after death of one of Parties to the marriage – Richard v. Trousdale

ii. Effect on alimony from previous marriage after subsequent marriage annulled

iii. Annulment of a voidable 2nd marriage does not entitle the W to reinstatement of alimony payment from H1, where there is a statute providing that alimony shall terminate upon the recipient’s remarriage. (McConkey v. McC)

a. There wasn’t a statute here but other jx have followed this rule in absence of such a statute

b. H should not be held accountable for former W’s mistake of entering into voidable marriage.

c. Alimony might be reinstated after annulment from a void marriage. Gillman v. G.: Doesn’t matter if it is a void or voidable marriage, alimony stops once other party marries or cohabitates w/ person of the opposite sex (30-2-55).

6. Legitimate C: Cs born into a marriage that is found to be annulled are legitimate (Taylor v. Taylor)

7. Jx: Hamlet v. Hamlet – Courts have jx to annul a marriage celebrated elsewhere when both of Parties were AL residents at the time of Ceremony and at Commencement of the suit for annulment. (Allege intoxication). Court granted annulment where party was drunk, he did not cohabitate w/ new W, and promptly disaffirmed contract. Marriage was not afterwards ratified by Parties by acts or conduct

8. Ala. Grounds: (1) Duress: Newman v. Sigler (1930); (2) Mental Incapacity: Beck v. Beck (1971); (3) Unable to K (Intoxication): Hamlet v. Hamlet (1941); (4) Fraud: Hyslop v. Hyslop (1941)

K. Legal Separation

1. Ala. Code 30-2-40 – Decree of legal separation.

i. (a) Court shall enter a decree of legal separation if all of the following requirements are satisfied: (1) Ct. determines that the jurisdictional requirements for the dissolution of a marriage have been met. (2) Court determines the marriage is irretrievably broken or there exists Complete incompatibility of temperament or one or both of Parties desires to live separate and apart. (3) To the extent that it has jx to do so, Court has considered, approved, or provided for C custody, and has entered an order for C support in compliance w/ Rule 32 of the Alabama Rules of Judicial Administration. . .

ii. (c) If Party files Complaint for a decree of legal separation rather than a decree of dissolution of marriage, Court may grant the legal separation. The terms of a legal separation can be modified or dissolved only by written consent of both parties and ratification by Court or by court order upon proof of a material change of circumstances. Proceeding or judgment for legal separation shall not bar either party from later instituting an action for dissolution of the marriage.

iii. (d) Court shall order that the terms of the legal separation relating to alimony or Property settlement be incorporated into a final divorce decree only if agreed to by Parties. Otherwise, Court may consider, but is not bound by, Provisions of the legal separation relating to alimony or Property settlement upon a final dissolution of the marriage.

iv. (e) If either party to a legal separation later institutes an action for dissolution of the marriage, the best interest of C standard shall apply to the determination of C custody.

v. (f) Upon written consent by both parties, after entry of a decree of legal separation, all of the following provisions shall apply: (1) The earnings or accumulations, including the retirement benefits, of each party received after the entry of the decree of legal separation are the separate property of Party acquiring the earnings or accumulations, and shall not be considered by Court in a subsequent divorce action. (2) A spouse may convey his/her real estate w/o the signature or consent of the other spouse. (3) Each spouse may waive all rights to inheritance from other spouse

2. For couple who don’t want a divorce, but need to live separately w/ a financial agreement. Wont become part of divorce unless they agree to it.