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Family Law
University of Dayton School of Law
Wilhelm, Jenifer

Wilhelm – Family Law Outline – Fall 2010

· Marriage Requirements:
· Formalities
o Celebration
o Capacity
o Consent
§ Licensing and solemnization – some states require different things.
§ Always a waiting a period between marriage license and ceremony.
§ Certain solemnization requirements for the ceremony exist, i.e. who can perform the ceremony.
§ After the ceremony, the license must be registered by the person performing the marriage.
o State v. Denton: Even when the circumstances aren’t complied with, there is a goal to uphold the intention of the parties.
§ There are statutes that say marriages are void if you don’t comply with the rules of marriage for that particular state. This will be clear in the letter of the law.
§ Otherwise, majority of statutes will be vague and the marriage will generally be upheld without any major flaw.
· Consequences of violating marriage statues:
o Valid – a marriage that is free from impediments as to any requirement
o Invalid – one that suffers from an impediment
§ Void – never existed in the eyes of the state
· Bigamy, incest, basic minimal age limit.
· Attacked not only by parties in the marriage, but also interested third parties through annulment or other collateral actions.
· Can be attacked at any time.
· The impediment is incurable, no defenses.
§ Voidable – exists and has existed, but can be declared invalid.
· Parental consent is required but not given, lack of formalities
· Can only be attacked by one of the parties.
· Can only be attacked in a direct action for annulment
· Must come within the lifetime of the parties.
· The impediment is curable, can be fixed to satisfy the marriage requirements.
o Marital Privilege – legal right that excludes spouses from the obligation to testify about each other.

· Common Law Marriages:
o Hall case: factors in favor and against
o Elements:
§ Present agreement to be married
§ By parties competent to contract marriage
§ Accompanied by cohabitation as husband and wife
§ And treated within the community and held out as husband and wife
§ Must be present intent
· Proof must be clear and convincing by evidence of the party’s agreement or indirect evidence by the acts of the parties within the community.
· Depending on the jurisdiction, the majority requires clear and convincing of all the elements. The minority say an agreement can be conferred by how the parties are held out in the community.
· If you only have an agreement, a court is unlikely to uphold an agreement.
§ With a common law marriage, you must be eligible to be married.
· If one party is not eligible but the impediment is cured, can the common law marriage been upheld? The majority will uphold the intentions of the innocent spouse despite the impediment.
· Even knowledge of the impediment but continuing to live like husband and wife, the majority will not require a new agreement but will confer an agreement.
§ Putative spouse doctrine – doctrine’s purpose is to protect the financial and property interests of a person who enters into a bigamous marriage believing in good faith that it is a valid marriage. The person who is unaware his spouse is already married is called the “putative spouse.” In jurisdictions that recognize the putative spouse doctrine, the putative spouse will be entitled to marital property rights along with the legal spouse, that is, both spouses will share the property rights.
· Does not create a marriage, but will treat the putative spouse as if there was a valid marriage for certain

to something which renders the continuance of marriage impossible or dangerous.
§ But for test – defrauded party would not have gotten married but for the fraud.
o Innocent misrepresentation – the court will likely uphold the marriage.
o Defenses to annulment based on fraud – if you continue to cohabitate after coming upon knowledge of the fraud or if there is a long lapse of time, then the marriage will likely uphold the marriage.
· Choice of Law Question:
o Determine what jurisdictions law will rule when parties move place to place
o First question – do we have two or more states
§ If yes, do the laws conflict?
· If yes, does one of the states have an extraterritorial statue to guide what to do in this case?
o If no, then you must go to the validation theory.
o Validation theory – use the law of the state of celebration
§ Exceptions – if valid in celebration state but violates some public policy in the state of domicile and would be invalid, the court should use the law of the domicile state.
§ The law in the state of celebration would hold it invalid, but the law of the domicile state would find it valid, it should be found to be valid.
§ In common law marriages, there is no state of celebration. So you must apply to the state where the parties began living as husband and wife.
o What is a parties domicile?
§ Where a legally capable person chooses with an intent to remain indefinitely.