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Family Law
University of Alabama School of Law
Davis, Penny

Marriage Law Summer 2008
Domestic Relations Cases and Materials 6th ed. Wadlington
I.        Marriage and Family Generally
a.       City of Ladue v. Horn (SCOTUS): Unmarried couple who lived together with their respective children 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 the constitutional rights of association, privacy, or equal protection
1.       One or more persons related by blood, marriage , or adoption
ii.      Definition of family within the ordinance or regulation was important in deciding whether this particular group was a family.
b.      Same-sex families (Braschir v. Stahl NY Court of Appeals)
i.      2 men living together considered a family for rent control purposes in N.Y.
ii.      Court found that a family could be defined as “2 adult lifetime partners whose relationship is long-term and characterized by an emotional and financial commitment and interdependence”
1.       Definition should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage document or adoption order.
iii.      Purpose of rent control law was important here. It was to protection individuals from a sudden dislocation and to protect surviving family members from hardship of eviction following the death of the named tenant.
c.       Opposite Sex Unmarried Families
i.      When non-marital cohabitants marry after a period of time, SOME courts have been willing to consider as marital property all the property acquired when the parties were cohabitating. 
ii.      Some courts have been willing to enforce orders of support between 2 unmarried parties.
1.       For equity and unjust enrichment purposes
2.       Some states require cohabitations to enforce order of support
iii.      Ala Statute has said that marriage between persons of same sex is prohibited and will not be recognized from other jurisdictions. They said this is contrary to public policy so that gives them excuse to not follow full faith and credit clause.
d.      Non-martial couples, landlords and the first amendment
i.      Several states have statutes that particularly prohibit discrimination based on marital status
ii.      Based on free exercise clause argument.
e.      State’s Interest in Marriage
i.      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 the community, of the duties legally incumbent upon those whose association is founded on the distinction of sex”
ii.      Marriage can be looked at as a contract: (1) Capacity – Age, single, health; (2) Consideration – i.e., mutual promises; (3) Breach of K – Damages; (4) Merger upon execution – Loses K nature and gains higher merger of a status
1.       Bama: Sec. 30-1-4 Minimum age for marriage is 16, but must have parental consent if under 18, but over 16 (Sec. 30-1-5)
iii.      Maynard v. Hill (SCOTUS) Marriage is more than a K, it is a relationship which is changed or modified with court approval. States have power to regulate marriage.
1.       Marriage is “something more than a mere contract…It is an institution, the maintenance of which in its purity the public is deeply interested…”
iv.      Covenant Marriages: page 63
v.      Consent is the heart of marriage
1.       Marriage is a civil contract and consent is the essence of the contract. In the absence of any positive law prohibiting marriage by consent only, the marriage will be de

ted requirement
iv.      Moe v. Dinkins
1.       Court upheld the parental consent requirement. States have power to make adjustments to minors’ constitutional rights b/c they’re vulnerable, unable to make informed and mature decisions, and parents play important role in child-rearing.
a.       This is upheld even in face of Zablocki that said that right to marry was a fundamental right and part of right to privacy
b.       Strict scrutiny not applied here because that would “cast doubt on a network or restrictions that the states have fashioned to govern marriage and divorce”
2.       State has a legitimate interest in mature decision-making and in preventing unstable marriages that might be entered into by immature minors
a.       Reasons justifying conclusion that constitutional rights of children cannot be equated with those of adults
i.      vulnerability of children
ii.      their inability to make informed decisions in a mature manner
iii.      importance of the parental role in child rearing
b.       There is a presumption that the parents will act in best interest of children.
3.       Parental consent ensures at least one mature person in the decision making process.
4.       Also, parental consent protects the parents privacy right to act in the best interests of their child
5.       This is a temporary situation because can marry which reach age of majority