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Family Law
University of Kansas School of Law
Andrews, William B.

Changing Concepts Of Family
Defining family
1.       Defined by ordinance. Ladue, p.1. Upheld city ordinance defining family as one or more persons all of whom are related by blood, marriage or adoption.
a.       Conceptual family.
i.         Commitment to a permanent relationship, p.3.
ii.        Reciprocal obligation to support and care for each other, p.3.
b.       Constitutional protection.
i.         Equal protection. Applies strict judicial scrutiny to any statutes that impacts fundamental rights or creates suspect classes. Strict scrutiny requires such statutes serve a compelling governmental interest by the least intrusive means.
1)       Fundamental right. Includes the right to marriage.
2)       Suspect class. Race is suspect, sometimes sex.
ii.        Rational means. If equal protection is not affected, the statute need only satisfy the rational means test. Local government has a rational interest in protecting property value and zoning is generally a rational means of implementing that interest.
2.       No definition. Braschi. If there is no definition of “family” in the statute then court may define family, either broadly or narrowly. Without a definition the statute may be unconstitutional for vagueness.
Contractual arrangements
1.       Palimony by contract. Marvin (I), p.15. Palimony generally applies to dividing property between non-married parties by contract or as an equitable remedy to unjust enrichment. May also apply to support.
a.       Contract. Either express or implied.
i.         Express contract. May be oral or written.
1)       Valid and enforceable for non-sexual services such as house cleaning and companionship.
2)       Contracts for sex are contrary to public policy.
ii.        Implied contract. Conduct within the relationship may create an implied contract.
1)       If one party quits her job there may be an implication of support during the relationship.
2)       If there is a joint bank account that is used by both, there is an implication that part of the bank account is hers.
b.       Unjust enrichment. Consider net benefit from both tangible (money) and intangible (services) elements. If inequity is found, the court has the power to give the property to the rightful owner.
i.         Constructive trust. Property held by the defendant.
ii.        Resulting trust. Conveyed property to a third party.
2.       Generally no support without a contract. Marvin (III), p.21. Neither party in a non-marital relationship is entitled to money for support after the relationship ends unless there was
a.       Unjust enrichment; or
b.       An expectation of support by both parties.
Division of property without common law marriage
1.       Void as contrary to public policy. Hewitt, p.25. Defining marital status should be left to the legislature. If the state has outlawed common law marriage then recognizing equivalent contractual agreements would be contrary to public policy.
2.       Division available for domestic partnerships. Eaton, p.4-6 #1. Kansas allows equitable property division even if there is no common law marriage, provided that a domestic partnership exists.
a.       Domestic partnership. Two adults who chose to live together in an intimate and caring relationship where an agreement for joint responsibility for basic living expenses incurred during the domestic partnership. Must file a form with the county clerk stating that 2 people agree to be jointly responsible for basic living expenses.
Theories for compensation of cohabitants
Generally not entitled to recovery. Watts, p.31. Cohabitants are generally not entitled to recovery property acquired during unmarried cohabitation. The following theories may be used to argue for compensation.
1.       Marriage by estoppel. Representation of marriage to a third party is generally insufficient.
2.       Contract. May not apply because of public policy and meretricious relationship.
3.       Partition. Requires an initial ownership interest. Generally applies to joint owners that cannot decide how to divide the interest.
4.       Joint venture or partnership.
5.       Accounting. Court reviews the transactions to ensure equitable relief.
6.       Divorce statutes not applicable. Even though divorce statutes address division of property, the court will likely interpret the statutes to apply to married couples but not cohabitants.
No federal jurisdiction for divorce cases
Domestic relations exception. Anastasi, p.42. Even if diversity of citizenship and the amount in controversy requirements are satisfied for non-marital partnerships and the domestic relations the federal courts will not hear divorce cases. Federal court may hear contract cases. Difference depends on how state law would treat the case.
State’s Interest in Marriage
1.       Marriage defined.
a.       Status. Marriage is formed by contract, but once married it is a status. Contracts can be dissolved by mutual agreement. Marriage is status and can only be dissolved by divorce, even if both parties agree.
b.       Civil contract. Marriage created by the state. Not a religious or ecclesiastical union. Must be consensual and parties must be of age.
c.        Ceremony. Vows and member of the clergy.
d.       Opposite sex only. §23-101. Only marriages between a man and a woman are recognized. Same sex marriages have been deemed contrary to public policy.
2.       Courts favor finding marriage. Fisher, p.51. In close cases courts will try to find a marriage.
a.       Protect the spouse and entitle her to support.
b.       Protects the children (if any) by making them legitimate.
Constitutional issues regarding the regulation of marriage
The state may control the acts but not the beliefs of its citizens. The following are valid state actions and do not violate the free exercise clause.
1.       Religion prohibiting divorce. Sharma, p.61. Divorce may be granted even if one of the parties to the divorce practices a religion that prohibits divorce.
a.       Civil dissolution only. Divorce only dissolves the civil contract. The state h

     Statutory marriage requirements. Statutes that require a license are directory and not mandatory.
b.       No nexus requirement. No nexus requirement with the state. Courts may be reluctant to recognize a marriage from a state that the couple had no contact with other than the common law marriage.
c.        No time requirement. No requirement for time. Urban legend of 7 years is not supported.
d.       Impediments to marriage. If there is something that prevents marriage, marriage is not automatic upon its removal. A new present agreement to marry is required.
e.        No polygamy. Cannot form a second common law marriage.
Statutory marriage
1.       Ceremonial marriage. §23-104(a).
a.       Vow and license. License issued by the mutual declaration of the two parties before an authorized official in the presence of two witnesses over 18 after vow to take husband and wife.
i.         Authorized officials include currently ordained clergyman or religious authority.
ii.        No need for authorized official if it conforms to the customs and rules of the religious society of which they belong.
b.       Waiting period. §23-106. Three day waiting requirement to issue the license unless there is an emergency.
2.       Ceremony alone sufficient. Carabetta, p.151. Requirement of license is directory and not mandatory. A ceremony is sufficient to create a valid marriage even if a license is never obtained unless it is specifically characterized as void by the statute.
3.       License alone sufficient. Hames. The marriage is valid with a license even if the spouses did not exchange vows. 
Minimum requirements for marriage
Minimum age
1.       Age of majority. Common law minimum age requirements are 12 for girls and 14 for boys. In Kansas, both parties must be 18 unless there is parental consent. §23-101(b).
a.       Underage divorce. §38-101 (1-10). Allows for divorce even if under the age of majority (16 or 17).
2.       Requiring parental consent is Constitutionally valid. Moe v Dinkins.
a.       Privacy right to determine family interests. Parents have a privacy right to act in a manner that he or she perceives as being in the best interest of the child.
Mental Requirements
Marriage requires the following. Edmunds, p.186.
1.       Comprehension. Marriage is void if the impairment is such that the person does not understand the fundamental meaning of marriage. Mere mental weakness is not sufficient.