Select Page

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

Family Law
Davis Outline Fall 2014
A.     Introduction
–          Family Law is the states attempt to regulate personal relationships.
–          Two Categories of Relationships b/t (1) romantic partners & (2) children
–          Family includes:
·        Household: group that shares resources
·        Nuclear family: H +W +children
·        Related by blood or marriage
·        Commitment-based group
–          Rights and Duties of Family:
·        Right to Marry (p. 1)
–  Marriage is both a contract between individuals and a state-regulated status
–  Federal constitutional law sets the parameters for state regulation of marriage. Marriage – “the relationship that is the foundation of the family in our society” – is a fundamental right protected by the Constitution.
·        Presumptions Regarding Marriage (p. 2)
–  Presumptions of marriage are that parties are eligible to marry, that parties complied with formal marriage requirements, and that the person officiating was authorized to perform marriages. Probably the most frequently cited is the presumption that a person’s most recent marriage is valid, based on the assumption that no one would marry if a valid marriage already existed.
·        Conflicts of Law (p. 3)
–  Conflicts of law issues related to marriage are inevitable in a highly mobile society. Generally, states will recognize a marriage that was valid in the state in which the marriage occurred.
—   Two exceptions apply:
o   A state may refuse to recognize a marriage that violates a significant public policy of that state. 
o   A state may deny full faith and credit to its own residents who marry in another state to evade home state laws.
–  Mississippi follows the general rule extending full faith and credit to out-of-state marriages that do not violate significant public policy.16 Mississippi courts have ex- tended recognition to common law marriages not valid under Mississippi law, and to marriages between parties not eligible to marry in Mississippi.18 The Mississippi legislature has provided, however, that same-sex marriages violate state policies
·        Rights and Duties b/t Adults
–  H&W have enforceable rights/duties arising out of marriage.
–  None b/t adults & their extended family
–  None if you simply share resources w/a group; only enforceable rights & duties if it’s based on some K
–  Commitment-based group (ex: a couple that is not married) – no legal duties/rights
·        Rights and Duties b/t Adults & Children
–  De facto child – situation when adult acts in the role of a parent to a child, but is not blood-related or adoptive parent
—   Note: Less than 50% of households have a married couple w/in it
–  Who else do children live w/if not their married parents?  Grandparents, siblings, foster parents
–  Now possible to have 6 different parents through assistive reproductive technology (ART) (genetic mother, genetic father, intended mother, intended father, possibly a surrogate/birth mother and her husband as another father) Look for Intended Parent- whose idea was it to have the child?
B.     The Function of Marriage – Why do people get married & why does society foster marriage?
–          What are advantages of marriage to an individual?
·        1. Financial: Marry for Money; Joint income; Marriage tax benefits?  Married people pay more in income taxes than if single, but there are estate tax benefits for marriage; insurance (can get on spouse’s insurance program); Safety net; Military benefits: higher pay if married; Power of atty; health care; Gifts; SS benefits; Workers’ comp. benefits if spouse is injured; Various family discounts
–  Three types of Governmental Benefits for Married Couples
—   1. Direct government benefits: Social Security (can get even if divorced); Veterans (if one spouse has served in military- medical, stipends, insurance); Housing Benefits (publically subsidized unit- can inherit right if married)
—   2. Benefits that flow from Third Parties: flows from non-govt 3rd parties by way of govt regulation: Employer Benefits; Retirement funds; If spouse is negligently injured, can sue 3rd party for loss of consortium, loss of companionship, alienation of affection (steals love/affection from spouse)
—   3. Financial Benefits b/t the Parties (See State Regulation During Marriage section)
·        2. Personal: Emotional/Psychological; Love; Safety (esp for women); Companionship; Monogamy (stability, health reasons); Complimentary skills; Support (especially, in times of crisis); 2 extended families (+ & -); Social status; Identity (particularly for women, they used to identify w/husband’s careers, etc.); Studies show marriage improves health; Pressure; Fear of being/dying alone; Religion (state has basically adopted a religious sacrament and regulates it)
·        3. Children: Practical: Shared parenting and child care; Shared household chores; Children (if married, no stigma); Immigration; State-provided tort and property rights
·        4. Other: Citizenship; Marry for the wedding; Religious; Family; In-laws
–          What are advantages of marriage to society?
·        1. Stability – presumption that people who are married are more stable, more committed to saving and being productive members of society
·        2. *Financial benefits – less likely that family in poverty, so state doesn’t have to provide assistance thru food stamps, Medicaid, etc; 40% of female-headed houses are in poverty; Married couple serve as safety net and sharing income for household
·        3. Policing unit -People don’t want to act out in community where they know people.
·        4. Children – best raised in a household w/ 2 parents. Children of single-parent households are more likely to be delinquent.
C.     State Regulation to ENTER Marriage  (p.3)
–          Marriage: an agreement b/t a man and a woman to enter into a state-regulated (recognized) union.
·        State requirements affected by constitutional restraints, CL presumptions favoring marriage, & resolution of conflicts b/t states.
–          Marriage is not valid unless the parties:
·        (1) are eligible to marry under state law;
·        (2) comply with formal prerequisites for marriage; and
·        (3) enter the marriage voluntarily.
–          Persons eligible to marry. Mississippi law regulates the right to marry based upon kinship, existing marriage, age, gender, and mental and physical capacity
–          (1.) Eligibility Requirements: Kinship, Existing marriage, Age, Gender, Mental & physical capacity
·        1. Kinship
–  Too closely related by consanguinity (blood) or affinity (marriage) Statues from state to state differ. No one may marry his or her parent, grandparent, stepparent or step-grandparent, adoptive parent, sibling, half-sibling, aunt, uncle, first cousin, or his or her child’s widow or widower.  A marriage that is incestuous is void and may be annulled23 or dissolved through divorce.
–  Cannot be too closely related (for health reasons)
–  Rationale: Encourage ethnic diversity; reduce presumed conflict reduction w/in fam
–  MS statute includes: cannot marry child’s widow or widower or divorced spouse
–  MS does not recognize marriages permitted in other states but are prohibited under MS Law (have full faith and credit but not if violates public policy)

he parties must (1) acquire a license and (2) solemnize the marriage through a ceremony (Today)
·        The formal requirements for entry into marriage are governed by state statute. Today, most states, including Mississippi, recognize only ceremonial marriages pursuant to a license.
–  License
—   Applicants must file a written, sworn application w/circuit clerk stating their names, ages, and addresses & names and addresses of their parents.
—   Remain on file for 3 days unless waiting period waived by judge.
—   Submit (1) proof of age, and a (2) medical certificate dated w/in 30 days of application showing they do not have syphilis.
–  Solemnization (p. 9)
—   Ceremony performed by an “authorized person”
o   Minister, rabbi, spiritual leader authorized by religion, or authorized state judge including justice ct judge if wedding w/in his county, any justice of the MS SC, any MS CoA, circuit court, chancery court or county court judge, and any justice court judge or county supervisor performing a ceremony within his or her county.
o   Marriage performed by a justice court judge outside of his jurisdiction was found void in Pittman v. Pittman
–  *If these 2 formal requirements are not met, it would be grounds for an annulment.
—   Mere irregularities or omissions in license don’t affect validity of a marriage. 
—   Failure to comply w/licensure provisions doesn’t affect the validity of a marriage solemnized in a ceremony and followed by cohabitation.
–          (3). Voluntary Consent to Marry:  (p. 10) Both must consent to enter marriage free of duress or coercion.
Lack of Consent:
·         arises when one party is defrauded or coerced into entering marriage, or if one or both enter the marriage as a joke.  Furthermore, consent may be lacking if one or both agree to go thru with the marriage ceremony without intending to live as husband and wife.
·        1. Fraud:  File w/in 6 mos of time fraud was or should have been discovered. In most states, to set aside a marriage for fraud, it must go towards the essence of the marriage: procreation.
–  (a). The “Essentials” Test (majority-MS; older, narrow)
o   Party is defrauded about the essence of the marriage: sexual obligations of marriage or procreation. Essentials test relates to sexual obligations of marriage.  Narrower view requires that fraud go to the “essence” of marriage, meaning that it must relate to the sexual obligations of marriage.91 Applying this test, courts have annulled marriages for misrepresentations about impotency, sterility, venereal disease, willingness to have children,95 and willingness to consummate the marriage.
—   Misrepresentations about personal characteristics not reason for annulment.
—   Examples:
o   Woman tells man she wants children, after married she changes her mind = fraud
o   Women tells man doesn’t want children, gets pregnant = not fraud
o   Woman lies about being pregnant w/another’s child= ground for annulment