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Family Law
University of Illinois School of Law
Wilson, Robin Fretwell

Family Law                        
Fall 2014
1. Who counts as a Family
·         City of Ladue v. Horn – What is a family; Can state regulate?
o   Issue May a municipality limit households to individuals related by blood or marriage?
o   Holding Yes, because dealing with economic and social legislation and not with a fundamental interest of a suspect classification, the test of constitutionality is whether the ordinance is reasonable and not arbitrary and bears a rational relationship to a permissible state objective
o   Definition of Family: people related by blood, marriage or adoption
o   Note: The constitution protects the right of families and Living together on long-term basis is not tantamount to marriage
·         Marvin v. Marvin (I) – Non-married couple’s agreement
o   Fact non married couple cohabiting for 7 years; hold out to public as H&W
o   Issue Is an oral K to pool resources during a relationship valid to the extent that it is not explicitly founded on the rendering of illicit sexual services?
o   Holding Yes, K is NOT enforceable if the sexual services are an explicit consideration for the agreement
§  So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such agreement
§  Express K is not needed
§  Reasonable expectations of the parties, based on their conduct and the nature of the relationship, allows for an implied K to pool resources or for a joint venture
§  What other ground she could argue
·         An action in Quantum Meruit (avoiding unjust enrichment)
·         Constructive Trust
·         Implied Agreement of Partnership of Joint Venture
·         Possibility of Resulting Trust
·         Marvin v. Marvin (III) – Palimony to the non-married couple
o   Fact couple never had any agreements and neither of them suffered harm during their cohabitation; Ct awarded rehabilitation award so she could resume the singing career she had dropped when she began living with Lee and become sel-supporting
o   Holding Under appropriate circumstances an award of support after termination of a non-marital relationship was possible and that the evolution of equitable remedies to protect the expectations of the parties to a non marital relationship in cases in which existing remedies prove inadequate is proper
§  Not in this case because the award must be supported by some recognized underlying obligation in law or in equity and it was not
·         Hofstad v. Christie – Non-married cohabitants share family relationship when they produce 2 kids and lived together for 10 years
o   Fact H and C cohabited and shared an intimate relationship which resulted in the birth of two children, and they resided together with their children
o   Holding By way of their sharing two children and living together for 10 years, the parties do share a family relationship
o   Holding Property accumulated before separation should be divided by determining the express or implied intent of the parties
§  H promise C they would become a co-owner and that he was going to put her name on title is evidence of donative intent
·         Ralph v. City of New Orleans – Recognition of Domestic Partnerships
o   Fact P, citizens and taxpayers in the City of New Orleans, filed suit against City that they acted ultra vires and without statutory authority, when they provided for the registry of “Domestic Partnership,” and subsequently used this registry as the a basis for its extension of health insurance to the unmarried people
o   Holding Recognition of domestic partnerships does not violate state law
§  Domestic Partnership: two people who have chosen to share one another’s lives in an intimate and committed relationship of mutual caring, who live together and have signed a declaration of domestic partnership in which they have agreed to be jointly responsible for basic living expenses incurred during the domestic partnership, and have established their partnership under the applicable code section
§  Live together: two people share the same residence
§  Recognition does not give any legal status and obligations, but it merely provides a mechanism whereby persons may register these partnerships in the City.
§  It does not control, regulate or direct domestic partnership
2. Canon Law
·         Law of Catholic church
·         Marriage is not just a legal fact, but an inter-personal and natural bond
·         Elements 1) Ability (impediment); 2) Capacity (to give the consent); 3) Consent; 4) Solemnization
3. Annulment
·         Illinois Prohibited Marriages
o   (750 ILCS 5/212) allowed to marry after the impediments are removed
§  1) Marriage entered into prior to the dissolution of an earlier marriage, civil union, or similar, unless they are seeking to convert their civil union to a marriage
§  2) Marriage between an ancestor and a descendant or between sibling whether the relationships by the half or the whole blood or by adoption
§  3) Marriage between an uncle and a niece, between an uncle and a nephew, between an aunt and a nephew, or between an aunt and a niece, whether the relationship is half or by whole blood
§  4) Marriage between cousins of the first degree; exceptions
·         both parties are 50 or older; or
·         either party show that the party to the proposed marriage is permanently and irreversibly sterile
§  5) Parties to marriage prohibited above who cohabit after removal of the impediment are lawfully married as of the date of the removal of the impediment
§  6) Children born or adopted of a prohibited or common law marriage are the lawful children of the parties
·         UMDA Prohibited Marriages §207
o   Same as above except it does not talk about cousins (4)
·         Illinois Declaration of Invalidity Grounds (750 ILCS 5/301)
o   1) Party lacked capacity to consent to the marriage at the time the marriage was solemnized, either because of mental incapacity or infirmity or because of the influence of alcohol, drugs or other incapacitating substances, or a party was induced to enter into a marriage by force or duress or by fraud involving the essentials of marriage
§  ex) falsely representing to the other party as a successful

iving apart
§  Potential Problem Granting H’s $ to W
·         Flood Gate
·         Intact Marriage: The state is less likely to intrude into the family relationship if it is intact
·         Intrusion of Privacy/Autonomy
·         Other duties were fulfilled unless necessaries
·         No adequate standard
·         Testimonial Privilege
o   Trammel v. U.S. – Voluntary testimony cannot be barred by adverse spousal testimony
§  Issue whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of his wife
§  Marital Privilege
·         (1) the privilege against adverse spousal testimony, which gives the testifying witness the privilege to refuse to testify against a spouse, even about non-confidential communications or acts; and
·         (2) the confidential marital communications privilege which may be asserted by either spouse to bar the testimony of the other regarding marital communications made in confidence
§  Fact H argues for the privilege against adverse spousal testimony to exclude the voluntary testimony made by the W
§  Holding The accused spouse cannot invoke the privilege against adverse spousal testimony to exclude the voluntary testimony of the witness spouse, the privilege against adverse spousal testimony belongs to the witness spouse alone.
·         He has ability to preclude testimony as to confidential information only, as applies with lawyers, doctors, priests
·         Marital Rape
o   Warren v. State – Sexual Assault by Husband to Wife
§  Issue whether H can be convicted of raping or committing sodomy on his wife
§  Rule Women are no longer men’s chattel
·         The marriage relationship carries no implied consent to criminal conduct
·         Marital Contracts
o   1) Marital Agreement Any agreement entered into during the marriage, but not in anticipation of divorce or separation
o   2) Separation Agreement A separation agreement occurs in anticipation of divorce or separation to specify the terms for dissolution outside of a formal hearing by the court
o   3) Prenuptial Agreement An agreement entered into by two individuals, in contemplation of their impending marriage, in order to determine their rights and interest in property upon dissolution or death
§  A premarital agreement is effective on marriage
§  Why have prenuptial agreement?
·         To protect self interest; to protect children; to protect business partners; nonmarital (unenforceable if conflict with state policy)