Select Page

Family Law
University of Mississippi School of Law
Davis, Samuel M.

Family Law
Dean Samuel Davis
Fall 2012
Family Law- legal rights and duties based on relationship
Two  Divisions of Family law:
1.     Rights and duties between adults
2.     Rights and duties between adults and children
Legal Duties are mostly limited to people who have entered into marriage
Societal benefits of marriage:
Financial: 40% of female headed households are in poverty
Children:  Children who grow up in a single parent household have a high rate of delinquency
Stability: There is a presumption that people who are married are more stable.  The family serves as a private policing unit.  People are less likely to act in a responsible behavior on their own.  You have a commitment to a unit and the other person influences your behavior.
Which benefits absolutely require marriage?
State laws on tort and property
Military and social security benefits
Tax benefits
Through employment- insurance
A.  The Right to Marry
·         Fundamental right protected by the Constitution
·         Parental consent requirements have been upheld as rationally related to the legitimate interests in preventing unstable marriages. 
·         Presumptions: parties are eligible to marry, requirements have been complied with, official performing marriage were authorized to do so.
·         no recognition will be given to a marriage incestuous under Mississippi law if residents have attempted to evade the law by marrying elsewhere and returning to Mississippi to live.
B.  Regulation of Entry into Marriage
Marriage requires an agreement, and is a contract.  The parties set the terms of the contract, the obligations of contract, and how to exit the contract.
It’s a contract as far as you agree to get married, but you are agreeing to enter into a state defined status.  The state really sets how to enter into the contract and how to divorce.
3 general requirements to get married
1.     You have to be eligible to marry
2.     You have to meet formal requirements
3.     It has to be voluntary
There is a presumption that the parties are eligible to marry
Parties are (1) eligible to marry under state law; (2) comply with formal prerequisites for marriage; and (3) enter the marriage voluntarily.
Failure to comply with these requirements opens the marriage to annulment by the parties or, in some instances, by others.
1.     You can’t be too closely related-  cNo one may marry his or her parent, grandparent, step-parent or step-grandparent, adoptive parent, sibling, half-sibling, aunt, uncle, first cousin, or his or her child’s widow or widower. –  can’t marry people of certain degrees of kinship.  YOU CAN’T MARRY YOUR FIRST COUSIN IN MISSISSIPPI.   Reasons: the more you draw from the same gene pool, the more likely your children are going to be deformed.  Conflict reduction, if you didn’t have that taboo, then it would increase conflicts in small family based villages.  This marriage is VOID.
2.     You can’t get married if you’re already married. Marriage is void if one of the parties is already legally married. A lot of low income people try to marry twice, because they can’t afford divorce. When you do family law, ask someone who has been previously married about their divorce.  The SECOND marriage is presumed to be valid.  The burden is put on the first wife to prove that they were never divorced.  Has to go to every county where he and she lived in order to get a certificate saying no divorces exist.  If the first spouse dies, the second marriage is not valid.  The couple has to remarry because the first time they got married is void.
3.     Age:  Mississippi law prohibits marriage by a female under the age of fifteen or a male under the age of seventeen.  This limitation can be waived by a court. In MS you can’t get married if you are a woman unless you are 15 and if you are a man 17.  This is unconstitutional. You can get court permission if the woman is pregnant. Voidable rather than void. The marriage cannot be attacked collaterally by third parties.
4.     Opposite sex.  Not a requirement until 1997. Void
5.     You have to have mental capacity to marry.  You can’t marry if you have mentally ill at the time of the marriage without your knowledge.  Used to say insane or imbecilic.  Bell says it broadened the divorce statute to lesser mental diseases.  The annulment statute says adjudicated mentally ill.  Bell doesn’t know if this means that the annulment proceedings would establish that they are mentally ill or if they had to have a hearing declaring them mentally ill prior to the marriage Suit must be filed within 6 months of the marriage.
6.     Physical Incapacity: Spouses must also be physically capable of entering the marriage relationship. A marriage may be annulled based upon incurable impotency or if one of the parties is physically incapable of entering the marriage relationship.  Impotency refers to the inability to engage in intercourse, not sterility or infertility.
2) Formal Requirements
a) Common Law Marriage
·         Agreement to be married followed by cohabitation and
·         Holding themselves out to the public as being man and wife
·         Common law marriage abolished in 1956.
·         Common law marriage from other states is recognized in Mississippi
·         A party seeking to validate a common law marriage has the burden of proof
·         Elements of Common law marriage must be shown by clear, consistent, and convincing evidence
·         Common law marriage may only be dissolved through formal divorce proceedings
b) Ceremonial Marriage
1. Marriage license- have a marriage license on file with circuit clerk stating their names, ages, addresses, and the names and addresses of their parents, for 3 days, prove that you are of age, and don’t have syphilis
            i. A marriage may be annulled if the parties fail to comply with the statutory licensing requirements.
ii.  Mere irregularities  or omissions  in a license do not affect the validity of the marriage.
iii.  Complete failure to get a license, as opposed to failure to meet some of the licensing requirements, is not cured by ceremony and cohabitation
2. “solemnize” the marriage with a ceremony.  Ceremony must be performed by and authorized person: minister, rabbi, or spiritual leader of any religious body authorized by that religion in good standing with the state.  a justice court judge (but can only perform marriage in their own county)
3. Voluntary
a.     Duress or Coercion- old cases- modern application: victims of domestic violence, because of the violence that predated the marriage…
                                          i.    lack of consent occurs arises where one party is defrauded or coerced into entering marriage.
                                         ii.    Duress:   Marriage will be set aside if a party entered under duress or force.  Suit must be filed w/I six months. 
b.     Fraud:
I.             the “essentials” test- if you are fraudulent about the core essence of the marriage, then you can set it aside.    Core essentials meaning sex and procreation.  :  Misrepresentations about impotency, sterility, venereal disease, willingness to have children, and willingness to consummate the marriage.  “Do you want kids?  Interpreted in favor of practices that encourage procreation.  If you both say you want kids, then one changes their mind.  Can exit.  If you don’t want kids, and wife gets pregnant.  Can’t set aside marriage.  If wife tells husband she is pregnant to get married to him, can’t set aside.  If a woman lies about being pr

nancy by the entirety cannot survive divorce.  Automatically becomes joint tenancy with the right to survivorship after divorce in MS.
o    In the absence of a will, an estate is dvided equally between the deceased’s children and spouse
o    A surviving spouse who recives less than a statutory child’s share can renounce the will
Alternative to the Title system: Community property system- based on the notion of a marital partnership.  When a couple married, they formed an economic unit, and anything they did to earn money, they did for the partnership.  Anything that was earned by either of them or acquired through earnings, was community property. Community property earned 50/50.  Louisiana and Texas community property
Implications of a Community property system
1.     Means that the earner doesn’t have sole control over that property- they can’t transfer things without the other’s consent.
2.     Because it’s owned 50/50 the creditors of the non earner can reach those funds, even if it’s all in the other’s name. 
3.     What happens when the other dies- 50% of the property automatically does not go to his estate and his heirs
4.     Divorce- at divorce, 50% belongs to each
E.  The Duty of Support: Under the common law, a husband had a duty to support his wife.  A wife’s corresponding duty was to provide services to her husband without compensation.
·         In an intact family, his is more an aspiration than an enforceable obligation
·         Doctrine of Necessaries- old common law rule, if a husband does not provide for his family, then the wife could go to a doctor or merchant and obtain necessary services.  After Orr v. Orr, courts struggled with how to apply this doctrine.  MS did away with this
·         Spouses in Mississippi have no liability for the debts of the other in the absence of an express agreement to assume the obligation. 
1)    Separate Maintenance:  courts have the power to award support to a wife whose husband abandoned her without fault on her part:  she is not entitled to support if her conduct materially contributed to the separation. 
A decree of separate maintenance is “a judicial command to the husband to resume cohabitation with his wife, or in default thereof, to provide suitable maintenance of her.”
The standard for separate maintenance is the standard of living for the marriage.  Separate maintenance is often higher than alimony.
You cannot have property division in separate maintenance, because it’s assumed the couple will get back together.  You can get attorney’s fees.  The husband can also have to make payments to third parties like mortgages and daycare.  If the husband makes a good faith attempt to reconcile, and the wife rejects it and she is no longer entitled to separate maintenance.  There is no lump sum settlements allowed in separate maintenance.
            F.  Tort Actions
·         MS has abolished inter-spousal tort immunity, mostly because of Domestic Violence actions.  Problems in these actions are Statute of Limitations and claims releases in divorce arguments.