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

Family Law
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 rules are odd-all the defendants were legally married in either a foreign country or state but the government said even though the marriage was valid, a crime was still committed. The crime is conspiring to be married for an illegal reason.
(3)   Marriage laws are state law and vary from state to state. The rule where marriage took place governs. Federal government has almost no say in who can marry who.
iii.    Terms of marriage relationship are determined by the state.
(1)   Antenuptial and prenuptial agreements may alter these terms.
iv.    Marriage Fraud Amendments of 1986
(1)   An alien who marries a citizen receives only a conditional immigration status, with the bona fides and continuance of the marriage to be reexamined after two years.
D.    Conclusion: there are a lot of contract based arguments for marriage validity. They usually come up in annulment or probate proceedings.
II.    State Regulation of and Substantive Restrictions on Marriage
A.    Kentucky Statutes
i.        KRS 402.010 Degree of Relationship that Will Bar Marriage
(1)   Incest Prohibition
(2)   Every state has one; but the definition of incest varies from state to state.
(3)   People closer than second cousins, by the whole or half blood, cannot be married in KY. (§1)
(4)   A marriage prohibited by §1 is void.
ii.      KRS 402.020 Other Prohibitions on Marriage
(1)   Marriage is prohibited and void:
(a)    With a person adjudged mentally disabled by a court;
(i)     Someone has brought a mental health warrant against you & jury trial has adjudged you mentally disabled. 
(b)   Bigamy
(c)    Not solemnized or contracted in the presence of an authorized person
(i)     Person who performed marriage was not authorized to do so by the church.
(ii)   Saving rule: If marriage is consummated and one person believes it is valid [the person was authorized to marry them] the marriage is valid.
(d)   Same-sex
(e)    Polygamy
(f)    Under the age of 16 (except as provided in paragraph 3)
(2)   Parental consent for underage marriage b/t 16 & 18.
(a)    Who may consent complicated; related to who has legal custody if there is a divorce.
(3)   Pregnancy-related marriage
iii.    KRS 403.120 Marriage; Court may Declare Invalid
(1)   States when the Circuit Court can enter a decree declaring a marriage invalid (i.e. obtain an annulment).
(a)    “judicial declaration of invalidity” = Annulment
(b)   But statute also applies in collateral attacks like a probate proceeding.
(2)   Section 1
(a)    Covers the contract-like reasons discussed in [I] above: lack of capacity, force or duress, fraud involving the essentials of marriage.
(b)   One party lacks the physical ability to consummate and the other party did not know of the inability at the time the marriage was solemnized.
(c)    The marriage is prohibited
(3)   Section 2: Statute of

ed if the state from which the people were domiciled recognizes common law marriage.
ii.      In re the Marriage of Winegard
(1)   Elements of a Common Law Marriage (proven by preponderance of the evidence):
(a)    Both parties have an intent and agreement to presently be husband and wife
(b)   Hold out as married or Public declaration of marriage status
(i)     Cohabitation
(ii)   There can be no secret common law marriage.
(2)   Common law marriage has the same legal effect & is subject to the same restrictions as ceremonial marriage (bigamy, etc.)
(3)   Agreement element always more difficult to prove; often agreement is assumed by the court from the evidence establishing “public declaration.”
B.     Presumption of Marriage and Putative Spouse
i.        Spearman v. Spearman
(1)   When there are two successive marriage, there is a series of presumptions and burden shifting:
(a)    Rebuttable Presumption arises in favor of the validity of the second marriage. Absent any contrary evidence, the second wife is deemed to be the lawful wife.
(b)   The first wife then has the burden of establishing the continuing validity of her marriage by demonstrating that it had not been dissolved by death, divorce, or annulment at the time of the second marriage.
(c)    Burden of demonstrating invalidity of the first marriage then shifts to the second spouse. Unless the second spouse can establish that her husband’s first marriage has been dissolved, the first wife qualifies as the lawful widow.
(2)   But the second spouse could qualify as a putative spouse: one whose marriage is legally invalid but who has engaged in a marriage ceremony or solemnization on the good faith belief in the validity of the marriage.
(a)    This may entitle the putative spouse to some of the property.
(i)     Here, either half of the proceeds or the premiums returned, depending on the law of the state.
C.     Unmarried Cohabitants
i.        Marvin v. Marvin
(1)   Cal. Court recognizes that is a man and woman live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property.
(a)    The express agreements are enforceable unless based on an unlawful meretritious consideration.
(2)   In this case, the court held that in the absence of an express agreement, the courts may look to other remedies:
(a)    Implied contract, implies agreement of partnership or joint venture
(b)   Constructive trust
(c)    Resulting trust
(d)   Quantum meruwit/Restitution/unjust enrichment.
(i)     Restitution requires expectation of payment
(3)   In this case, P can’t prove that D said she would get ½ of everything if she gave up her singing career and took care of him nor did his actions show this. Reliance theory not helpful either.
ii.      California law is the polar opposite of Illinois → held that such agreements are unenforceable for the reason that they contravene public policy.
KY: marital property requires you to be married; no rights similar to m/p arise from simply living together. But cohabitants could agree to have a joint venture w/o regard to marital status