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Family Law
University of Alabama School of Law
Davis, Penny

o        3 ways to end a marriage: Death, Annulment, and Divorce.
Nature of Marriage
City of Ladue v. Horn(SCOTUS) Unmarried couple who lived together with their 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.
Braschir v. Stahl2 men living together considered a family for rent control purposes in N.Y.
MacGregor v. Unemployment Insurance Appeals BoardOpposite sex unmarried couples considered a family under workers comp b/c good public policy. Lack of legal marriage does not prevent demonstrating compelling familial obligations. They had a common child so the court extended the benefit
Marriage: The State’s Interest
·         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
o        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)
Maynard v. Hill (SCOTUS) Marriage is more than a K, it is a relationship which is changed or modified with court approval. State’s have power to regulate marriage.
Polygamy: As a matter of public policy, states do not recognize polygamous marriages. No full faith and credit (states) or commody (other countries).
Gay marriage: Defense of Marriage Act 1 U.S.S. sec. 7 (man/woman)
·         States can determine whether to give full faith and credit to gay marriages done in other states. Alabama said in sec. 30-1-19: Marriage between persons of same sex prohibited and not recognized from other jurisdictions.
Reynolds v. U.S.Laws cannot interfere with religious belief and opinions, but may with practices.
Griswold v. ConnecticutConstitution contains right to privacy. Law cannot infringe on this right.
Bowers v. HardwickCourt said right to privacy does not extend to homosexual sodomy
Williams v. StateMarital exception for forcible sodomy is severed, therefore, any person who engages with any person, by forcible compulsion is guilty of sodomy. Men are not free to rape their wives in Bama.
ZablockiCourt said right to marry is a fundamental liberty right and part of the right to privacy. Reasonable regulations that do not interfere with decisions to marry are still ok.
Minimum Age Requirements
o        Minimum age in Alabama is 16, but you have to have parents permission. At 18 you don’t have to have parental consent.
Moe v. Dinkins
o        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.
o        State has a legitimate interest in mature decision-making and in preventing unstable marriages
o        Parental consent ensures at least one mature person in the decision making process.
o        Also, parental consent protects the parents privacy right to act in the best interests of their child.
Williams v. W. (Bama) Wife said she was over 18, but was actually 15. Court said this was not grounds for annulment and recognized it as a common law marriage. NOTE: this was when the minimum age to marry was 14.
Adams v. Boan (Bama) 16 year old had legal capacity to have valid common law marriage. Do not have to have parents permission for common law marriage. Bama is one of the few states that still recognizes a common law marriage as a valid marriage.
o        Reasons for banning sex or marriage between close relatives: Negative eugenics, Religious doctrine, Promoting family harmony, Social taboos, Protecting young and dependent females
o        Each state decides how close the relationship can be. Alabama bans marriage between adopted brothers and sisters.
Singh v. SinghMarriage between half-uncle and half-niece is void and incestuous. Violates strong public policy
Physical or Mental Capacity
Edmunds v. EdwardsMental retardation must be so much of a mental defect as to prevent comprehension of nature of contract and free and intelligent consent to it–mere weakness of mind is not enough.
Hamlet v. H. (Bama) Intoxication during ceremony makes annulment permissible b/c of temporary mental incapacity.
If you cannot make a contract you cannot be married.
Rickards v. RickardsAnnulment granted when man was considered incurably impotent based on mental, not physical problems. If a sexual relationship could not be entered into, then it could be grounds for divorce or annulment.
o        If married couple has not consummated relationship after a long period of time, impotency is legally presumed even if it was because of the wife.
o        There are no statutes related to annulment in Alabama. It is a common law principle. There are no time limits on when an annulment can be obtained.
M.T. v. J.T.Post-op transexual got married. Difficulty in determining gender to say whether marriage was valid in a support claim. Court said she was a woman at time of marriage so H must pay support.
Bama:Alabama has a cooling off period that says that you cannot get a divorce until 30 days after you are married
o        Alabama also has a 60 day period saying that you cannot remarry until 60 days after your divorce.
Krug v. Krug (Bama) If you go to another state to avoid Bama’s marriage restrictions, then we will not recognize it as a valid marriage. However, if they live together as husband and wife and remain together as though they are husband and wife for beyond the 60 day period common law marriage is established in Bama. The impediment was removed, so the issue then became whether there was a valid common-law marriage.
McGlaughn v. McGlaughn (Bama) In proceedings following divorce, H assumed position that divorce was valid. Later, he said court had no jurisdiction, so it wasn’t valid. Court said he is equitably estopped from assuming a position inconsistent with the first position to the prejudice of the wife
Ex parte Edwards (Bama) – Court has power to impose disability to remarry upon party against whom divorce is granted. This rule would allow the non-wrong party to divorce. The wrong party could not remarry. Still on the books but we don’t prohibit them from marrying now.
o        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. Burden of proof for dissolution is on the person seeking dissolution.
o        Presumption of death after disappearance for 5 years (applies even if they end up being alive) Sec. 43-2-231.
o        Civil Death: In Alabama civil death occurs if a person is convicted of a felony and has served at least 2 years with a sentence of 7 or more years total. Spouse may marry another. Each state is different
Enforcing a Promise to Marry
o        Alabama has abolished the action for breach of promise to marry, seduction, criminal conversion, and alienation of affection.
o        Still recognize seduction of a female under the age of 19 – this poses a problem of equal protection because there is no protection for males similarly situated.  
Alienation of Affection
D.D. v. C.L.D. & T.K.J. III (Bama) Court says husband cannot bring a claim based on alienation of affection.
o        In Bama, Henley v. Rockett, court said that action for alienation of affection has been abolished. However, injunctive relief is still allowed to keep a 3rd party away from the spouse. When there is a legal separation, Bama does not allow injunctive relief.
Gifts in Co

Entered into freely and voluntarily with the spouse having competent independent advice and full knowledge of his or her interest in the estate and its approximate value.
•        If either of the above is met, the agreement is enforceable.
o        For a valid prenup in Bama, go with the second prong for your argument. The advice does not have to come from an attorney, but needs to be someone besides the other spouse’s attorney. Must disclose assets to future spouse.
o        Burden on proof is on the party trying to challenge the prenup.
McEvoy Attorney’s fees (Bama):
·         When parties in divorce settlement release all claims of alimony, the release includes claims for attorney’s fees. However, the court has discretion to award attorney’s fees.
Burnbury v. Burnbury (Bama)
o        Antenuptial agreement, even if not legally binding in Bama, could properly be used by divorce court as guide in division of property.
Merger and Incorporation
•        Merger – Substitution of rights and duties under the decree for those under the agreement. If an agreement is merged in a decree, the rights under the agreement may be enforced by such decree-effectuation devices as contempt, direct execution, etc. If the agreement is not merged, it retains a separate character and enforcement is under the normal processes for contract enforcement.
•        Whether an agreement is merged in a decree is a question of intent.
•        Incorporation – Specific reference to an agreement in a decree for purposes of identifying the agreement and establishing its validity.
§       As a general rule, incorporation of an agreement in a decree merges the agreement into the decree unless the agreement contains an explicit non-merger clause. By approving the agreement, the court adopts the non-merger clause as its intent unless the court specifically states otherwise.
Johnston v. JohnstonSeparated couple negotiated a separation agreement, which provided that it would be incorporated in but would not be merged with their divorce decree. Court granted divorce and incorporated the separation agreement. Court said P is precluded from attacking the validity of the agreement by the doctrine of res judicata b/c incorporation is tantamount to a final and binding adjudication of property rights and of the validity of the agreement.
o        A separation agreement incorporated into a divorce decree may not be collaterally attacked when its validity is conclusively established (res judicata). Therefore, the agreement survives as a separate and independent contractual arrangement between the parties. In contrast, if the agreement does not include a non-merger clause and it is incorporated in the decree, the agreement is superceded by the decree.
o        Johnston could not attack the agreement as a contract because it had become an order.
Tibbs v. Anderson (Bama) Closest Bama comes to a postnuptial agreement. Signed 2 hours after the wedding. Court uses the marriage as the consideration. Close enough in proximity to the marriage that the marriage could be used as consideration.