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Family Law
University of Dayton School of Law
Howarth, Cooley R.

Family Law
I. Changing Concepts of Marriage and Family

Function vs. Form
Form definition: Minority view or traditional view. A family is a related unit with a married parents.

Functional: Majority. Looks at how people interact, how they hold themselves out, financial commitments

People who are not related have no fundamental right to live together. City of Ladue

OTHER TYPES: Civil Unions, Domestic Partnerships

Contractual Arrangements-Cohabitation
Express Contracts
Express written contracts are most likely to be enforced by courts. Courts are willing to enforce agreements which divide property and finances, but limit the inclusion of equitable remedies which give the appearance of common law marriage or those given to married couples.

Implied Contracts
Distribution of Property Acquired During Cohabitation Depends On:
(1) continuous cohabitation
(2) duration of relationship
(3) purpose of relationship
(4) pooling of resources
(5) and intent of parties

Unmarried Cohabitation
An oral contract to pool assets or divide property and not founded on sexual services is enforceable. Express contract is not required. Marvin

An award for support after the termination of a non-marital relationship may be proper, and equitable remedies are available insofar as they would protect the expectations of the parties. Marvin III

Mutual property rights are not given to knowingly unmarried cohabitants. Hewitt

There is a freedom to contract that is promoted. Watts

Unmarried cohabitants may recover under unjust enrichment if based on direct contributions

State’s Interest
Uniform Marriage and Divorce Act
Formal Marriage is a personal relationship between a man and a woman arising out of a civil contract to which the consent of the parties is essential. A marriage licensed, solemnized, and registered is valid. It is more than a contract, it is a social relation. Maynard

Covenant Marriage: parties may elect to have their union terminable only on specific grounds.

Constitutional Issues
State must demonstrate a compelling state interest to deny a marriage license to same sex couples.

A divorce simply dissolves a civil contract. Sharma The grant of religious freedom does not protect polygamy-not in the traditions of the nation. Reynolds Marriage is not a property interest. Buchholz
Marriage is a privacy right protected by the Bill of Rights. Griswold A state may not discriminate between persons on the basis of their marital status. Eisenstadt No fundamental right to engage in consensual homosexual sodomy. Bowers When a statutory classification significantly interferes wit

Void-Voidable Distinction
Establishes that marital status never existed in law.

Void Marriage:
(1) offends public policy of the state
(2) needs no judicial action to establish its invalidity
(3) where parties are already married or related etc…

Voidable Marriage:
(1) needs to be terminated by court order.
(2) party used fraud or duress to induce the other party

A voidable remarriage terminates alimony from a prior marriage even if it is subsequently annulled. McConkey

Putative Marriage
Any person who has cohabitated with another to whom he is not legally married in the good faith belief that he was married to that person is a putative spouse until the knowledge of the fact that he is not legally married terminates his status. The putative marriage doctrine provides a method for safeguarding the economic interests of a party to a void or voidable marriage that has been annulled if that party cohabitated in good faith belief that the marriage was valid.
Determine Legal Eligibility

Minimum Age Requirements