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Family Law
University of Alabama School of Law
McGuire, Bill

Family Law Compiled
Tuesday, November 11, 2008
9:52 AM
1.       Family Law
A.    Annulment
1.       Oct Term, 2007-2008: Janda v. Janda
1.       Couple got married, never had sex. Wife got fed up, husband kept making promises, never “followed through.” He was just trying to get a green card.
2.       Basics
A.    Marriage: Relationship found on legal contract
1.       Rights & obligations that flow from that contractual relationship
1.       i.e. for spouse to collect to collect wrongful death, workman’s comp., inherit, there must be a legal marriage
2.       For child support, alimony, property division, there must be a valid marriage
2.       Four prerequisites to a valid marriage in Alabama
                                                                      i.            Must have all four
1.       Age Requirement: Nobody under the age of 16 has the capacity to contract marriage
                                                                      i.            If they lie, the marriage is not void, it if voidable
                                                                     ii.            Any person between the ages of 16 and 18 requires guardian/parental consent to get married
                                                                   iii.            Age of consent is 16
2.       Parties must be of sound mind
3.       Parties must have the ability to contract marriage
                                                                      i.            Most common situation: neither party can marry another person for a period of 60 days after getting a marriage license
                                                                     ii.            Also cases where courts have said you cannot remarry, period (mentally retarded couples)
4.       Cannot be related within prohibited degrees of kinship
3.       New provision: AOC has passed an amendment to AL Rules of Civ. Pro. that says no judgment (incl. divorce judgments) are final until they are entered onto the Ala. Court system
a.       Why is this important?
                                                                      i.            Appeal time (30 days) and 60-day waiting period begins to run when decree is entered on ALC computer
                                                                     ii.            Used to be when decree was stamped “filed” by court clerk
b.      People are remarrying on 61st day thinking they are divorced; they are not divorced yet so there are going to be annulments/bigamous marriages
4.       Alabama Marriage Protection Act, § 30-1-19
a.       Passed in 1998
b.      Marriage is inherently a unique relationship between a man and a woman
c.       Same sex marriages invalid in Alabama
d.      State of AL shall not recognize as valid any marriage of the same sex regardless of whether they are recognized in state where ceremonies are performed
e.      Probate judges cannot issue marriage licenses for same-sex licenses
5.       Two types of marriages recognized in AL
a.       Ceremonial Marriage
                                                                      i.            Must meet all of 4 requirements above, and

·         Public Recognition of the relationship (to co-workers, social, to IRS, etc)
·         Cohabitation
·         No specific words are intent are required
·         Couple must live as if they are husband & wife
·         Cohabitation
                                                                 vii.            Stringer v. Stringer
·         698 So.2d 194
·         Husband filed for divorce from wife, Carolyn Davis Stringer. Have same last name, husband says they are husband & wife in divorce papers. Wife filed answer, admitted they were husband & wife. Trial court found no common law marriage existed.
·         Lived together 15 yrs; had 5 children together
·         Filed joint tax returns together
·         Husband gets to trial, changes mind & testified that when he & his “wife” met, he was separated from his first wife who he eventually divorced. Carolyn became pregnant w/ his child. He just didn’t want her to struggle alone w/ the child, so he invited her to move in. But when she moved in, he “wasn’t ready to commit to a marriage,” but that he cared for her. Was reluctant to marry b/c of the old pain from the old marriage.
·         She was on his insurance, once went to courthouse to get married but wife forgot her drivers license