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Family Law
University of Alabama School of Law
Davis, Penny

Family Law Outline Davis Spring 2013
General Marriage
v  “Family Relationships”: Function vs. Form
·         Zoning Ordinances – City of Ladue v. Horn (SCOTUS) (FORM)
o    Holding: Unmarried man & woman living together with respective children NOT “family” for the purposes of zoning ordinance – two distinct families.
·         Rent Control – Braschi v. Stahl (NY) (FUNCTION)
o    Holding: Gay couple = “family/married” for rent control purposes.
·         Bottomline: Some courts favor a “form” approach to defining family/marriage – that the members must have a commitment to a permanent relationship and perceived reciprocal obligations to support and care for each other.
v Marriage – State’s Interest
·          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”
·         Elements of a Contract: (1) Capacity – age, single, health, (2) Consideration – i.e., mutual promises (3) Breach of K w/ damages (4) (marriage) Merger upon execution – loses K nature
·         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
·         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.
·         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.
·         Three Ways to End Marriage:
o    1) Death
o    2) Divorce
o    3) Annulment
·         Prenuptial Agreements: A way to mitigate the loss of the marriage relationship.
v Qualifications for Marriage
·         1) Legal Qualifications
o    Minimum Age Requirements
§  Moe v. Dinkins (NY)
·         Facts: Raoul wanted to marry Maria (15) b/c they had a child together. NY law required parental consent, which Maria’s Mom refused. Couple challenged law as unconstitutional
·         Holding: Standard is rational basis – BUT the law is valid b/c of (a) the peculiar vulnerability of minors; (b) their inability to make critical decisions in an informed/mature manner; (c) important of parental role in child-rearing.
§  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
·         Bottomline: These two cases basically REMOVE the parental consent requirement in Alabama.
§  Uniform Marriage and Divorce Act (UMDA): Court can invalidate a marriage where party Kinship: Reasons for banning sex or marriage between close relatives – Negative eugenics, Religious doctrine, Promoting family harmony, Social taboos, Protecting young and dependent females
§  General rule – Reciprocity – marriage valid where performed is valid everywhere unless against public policy (?)
§  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.
§  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.
§  Adopted brother and sister cannot marry in AL – SC of CO held this type of prohibition unconstitutional
§  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.
§  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.
§  Even though marriage was valid in CA, it did not transfer to CT b/c CT found it against public policy.
o    Physical or Mental Incapacity
§  General Rule (Edwards v. Edwards): “mere weakness or imbecility of mind” is NOT sufficient to annul a marriage UNLESS it prevents the party from comprehending the nature of the Contract AND from giving free and intelligent consent.
§  Temporary Mental Incapacity (Hamlet v. Hamlet, ALA): Intoxication during ceremony – never ratified. – Annulment GRANTED.
·         2) Governing Rules/Laws:
o    Waiting Period:
§  Ala. 30-2-10 – requires 60 days
§  Krug v. Krug, AL 1974
·         Facts: H&W married within 60 days of wife’s prior divorce in Georgia. They moved to Alabama. He was sent to Vietnam and was KIA. His parents sought to annul the marriage.
·         Full Faith & Credit – Contract Law: States give FF&C to other states’ laws/contracts
·         Rule: “a marriage valid where celebrated is valid everywhere.”
o    “a statutory post-divorce restriction has no extraterritorial effect and does not invalidate a subsequent marriage solemnized in another state.”
·         Holding: the GA marriage is NOT valid in Alabama – but they had a valid Common Law Marriage under Alabama law.
§  Presumption: If a party to a marriage has been previously married to another and that marriage partner is alive, a presumption arises that the previous marriage had been dissolved by divorce.
·         The burden of proof is upon the party seeking to set aside the latest marriage to show that the prior marriage has not been dissolved by divorce.
§  Equity may preclude attacking foreign divorce decree
§  Cant benefit from own misconduct
§  Estoppel doctrine (would not validate void M) – only prohibits party from attacking validity of foreign decree if it would be inequitable
§  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.
§  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.
§  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, presumptionarises that previous marriage has been dissolved by divorce. Burden of proof is upon party seeking to set aside new marriage to show prior marriagehas not been dissolved by divorce
·         3) Death
o    Disappearance: Ala § 43-2-231 (5 years): Presumption of death within 5 years of disappearance
o    Bigamy – § 13A-13-1: Bigamy when he intentionally Ks or purports to K a marriage w/ another person when he has a living spouse.
§  Defense (b) –               
·         1) He reasonably believes his previous marriage was dissolved by death, divorce, or annulment.
·         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.
§  (c) Bigamy is a class C felony
v Regulating Marriage – Constitutional Restrictions
·         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.
·         Ala. Code §13A-13-1 – prohibits Bigamy. (Reynolds: usually cited as recognizing state authority to define marriage as monogamous and to impose san

the relationship as a marriage and public assumption of marital duties and cohabitation.
·         Kicker: The parties don’t actually have to know that they are getting married, as long as the other elements are met.
§  4) (Skipworth) (merges with 3): Cohabitation or mutual assumption openly of marital duties & obligations
·         Meeting the objective criteria for CL marriage = presumption of CL
·         That presumption cannot be rebutted by the subjective intent of one party, except where parties are separated and one of parties marries another under a legal marriage. {W in Crosson able to overcome this exception.}
o    Crosson – Facts/Holding: After being divorced, Crosson's lived together as H and W. Couple had sex, D was beneficiary of P's health insurance, D maintained car insurance for P, and D signed P's name to obtain pistol license for P. Court said parties entered into CL marriage even though H married another.
o    Skipworth – Facts/Holding: Following D, couple lived together, represented to others they were married, purchased a double grave/headstone, W was beneficiary on policy, and socially used same last name. But, they filed separate taxes, had separate bank accounts, W used different last name for her business, lived apart at times, maintained different residences, and planned to get married. Holding: Court said they were CL married.
o    Terminating CL Marriage: 1) Death, 2) Divorce; 3) Annulment
o     Ore Tenus – TC finding not disturbed unless plainly or palpably wrong. – When you’re on the equity side and judge is sitting as the fact finder, Presumption is that since the trial judge witnessed Person giving the testimony, then he is in the best position to make a determination about that testimony. {It’s so important to win at the trial level.}
v  Palimony
·         Alabama Cases: Cases where couples are not married but seek damages in court:
o    Merchant’s v. Cotnam, Ala 1948. (women sued estate on cliam for services rendered under oral contract that she leave her job and take care of him and she would be compensated).
§  Rule: An executor promise in consideration of illicit sexual relations to occur in the future is unenforceable
§  Exception: PL had equitable right in compensation – no illicit consideration
o    Albae v. Harbin, 1947
§   Man, with whom woman was living as her agent in contracting to buy land, Court will enforce a resulting trust.
§  In other words, it will be hard for live-in couples to get their money back once they combine their assets.
v  Annulment
·         Void Marriage (Annulled) vs. Voidable Marriage (divorce) Distinction
·         Purpose: Brought to declare the legal invalidity of Particular union from its inception – 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.
·         Challenges: 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.
·         Timeframe: No set timeframe for how soon annulment action has to be brought. Judges are more inclined to give one w/ a  shorter time frame
·         Legitimate Children: Cs born into a marriage that is found to be annulled are legitimate (Taylor v. Taylor)
·         Ala. Grounds for Annulment: (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)