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Family Law
University of Kentucky School of Law
Graham, Louise Everett

Family Law
 
8/24/04
 
Getting Married
 
I.       Marriage as a Contract
A.    Capacity To Agree: Edmunds v. Edwards
i.        Annulment-a direct attack on a marriage; a proceeding, the primary purpose of which is to challenge marriage validity. 
(1)   Consequences of granting an annulment are different than a divorce-says this was never a valid marriage and therefore none of the rights arising from marital status attach. No division of property or alimony.
(2)   There are also Collateral Attacks on marriage: probate proceedings [spouses have entitlements → questions of whether someone is really a spouse].
ii.      Here, guardian claims husband lacked the capacity to consent to the marriage. 
(1)   What is guardian worried about?
(a)    Claims man doesn’t understand the financial responsibilities of marriage.
(b)   Client is being taken advantage of.
(2)   Guardian seeking an annulment is not uncommon in two situations:
(a)    People who are alleged to lack mental capacity to consent and
(b)   Minors who do not have legal personage and must have a guardian ad litum [GAL] to bring a lawsuit.
iii.    Marriage is like a contract b/c both parties must have capacity to consent to marriage. One issue in this case is how much capacity & how to measure.
(1)   Mere imbecility or weakness of mind is not sufficient to void a contract of marriage unless there be such mental defects as to prevent the party from comprehending the nature of the contract and from giving his free and intelligent consent to it.
(2)   A marriage is valid if the party has sufficient capacity to understand the nature of the contract and the obligations and responsibilities it creates.
iv.    Mental retardation (based on IQ scale) does not necessarily disqualify a person from consenting to marriage.
v.      KY Guardian statute:
(1)   Guardian v. Conservator [helps an incapacitated person to manage their finances] (2)   Full v. Limited Guardianship
(a)    Full-person under guardianship can make no decisions that have legal consequences, including marriage.
(i)     Must be completely incompetent.
(ii)   Requires a mental health inquest before a judge and possibly a jury to determine incapacity.
(b)   Limited-persons subject to guardianship for certain purposes only.
vi.    Annulments limited by statutes of limitation and standing.
B.     Fraud & Duress: Defenses to marriage K.
i.        Another reason to seek annulment: fraud involving the essentials of marriage.
(1)   ONLY this type of fraud → annulment
(2)   Either say you will have sex & you can’t/won’t or say that you didn’t have sex with someone else/get pregnant & you did/are.
(a)    Only reason for an annulment at common law.
(3)   Some courts expand this concept but others refuse to beyond (2).
(a)    New York Rule: any fraud is adequate which is material to the degree that had it not been practiced, the party deceives would not have consented to the marriage and is of such nature as to deceive an ordinarily prudent person.
ii.      False representations as to fortune, character, and social standing are not essential elements of the marriage and it is contrary to public policy to annul a marriage for fraud or misreprentation as to personal qualities.
(1)   Note cases give other examples of fraud i/t/e/,m
(2)   Not for saying rich or famous and actually poor and a nobody.
iii.    Wolfe v. Wolfe:
(1)   wife told new H that her first H had died; really they had gotten a divorce; New H was Catholic and was forbidden by his religion to marry a divorcee.
(2)   Court held that the fraud in this case went to the essentials of the marriage, H’s knowledge of which has rendered it impossible for him to continue to perform the duties and obligations of his marriage. 
iv.    Duress
(1)   Cases involving duress are rare. 
(2)   When it exists, it is sufficient to vitiate the consent necessary for marriage.
(3)   Duress does not exist when a man agreed to marry after being threatened with prosecution for the crimes of seduction or bastardy.
v.      Rule of validation-courts are very reluctant to invalidate a marriage when people have gone through a ceremonial marriage.
vi.    A marriage invalidated by fraud is voidable, not void therefore the marriage cannot be attacked or annulled after the death of one of the parties.
C.     Limited Purpose Marriage
i.        Limited purpose marriage is requested by some parties as another ground for annulment; a request of the court to grant relief to one of the parties to a marriage on the basis of his own admission that the marriage had been a sham.
(1)   Denials for granting an annulment in the cases cited because:
(a)    Reluctance to allow the parties to use annulment as a quick and painless substitute for divorce; a belief the courts should not be used as a means of carrying out their own secret schemes; and a desire to prevent injuries to third parties.
(2)   Some NY courts have held limited purpose marriages valid.
ii.      Lutwak v. US
(1)   Marriage for the illegal purpose of defrauding the immigration service.
(2)   Marriage r

(even if one of the parties has died)
(ii)   By a party to the marriage or a legal representative of the party.
(b)   (c) above
(i)     Must be brought within one year. 
(ii)   By either party (only)
(iii)But cannot be brought after a party has died.
B.     Monogamy:
i.        Potter v. Murray City
ii.      §1983 action by man who was fired from his job for practicing polygamy. Claims violation of free exercise of religion and his right to privacy.
(1)   Cases cited: Reynolds v. US; Wisconsin v. Yoder
(a)    Reynolds: Affirmed a conviction of a Mormon for practicing polygamy and rejected the argument that the prohibition against polygamy violated the free exercise of religion.
(i)     Tradition and history count a lot in this area.
(b)   Also argued right to privacy and desuetude law-both failed.
iii.    Bigamy usually occurs when one person having a living spouse marries another. Some states have exceptions, either by statute or case decision, allowing a defense for an accused bigamist whose spouse has disappeared for a specified period of time, usually 5-7 years.
C.     Incest:
i.        KRS 402.010 Incest statute, see above
(1)   Including once removed and half bloods.
(2)   Doesn’t include step-parents, brothers, sisters… Only blood relatives.
ii.      Rationale:
(1)   Genetics: Although the genetic reason is not enough to support the genetic rule. In fact, an inbred generation will eventually kill out all the diseased people.
(2)   Social morals-children in family unit shouldn’t be sexualized.
D.    Constitutional Limitations On State Regulation of Marriages
i.        Zablocki v. Redhail
(1)   Statute provides that a certain class of Wisconsin residents (any WI resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment) cannot marry without first obtaining a court order granting permission to marry.
(2)   Statute challenged as a violation of equal protection.
Held: Marriage is a “right of fundamental importance” and statutes