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Family Law
University of Mississippi School of Law
Bell, Deborah H.

THE MARRIAGE RELATIONSHIP

Right to Marry

The right to marry is a Constitutionally-recognized fundamental right.

Requirements for Marriage

Must be eligible to marry

Void vs. voidable

i. Void: invalid for ALL purposes; cannot be attacked by anyone at anytime; NO statute of limitations; children of deceased parent can attack deceased parent’s marriage to prevent surviving spouse from receiving inheritance (even years following the marriage)
ii. Voidable: marriage is defective in some way
1. Can only be by party or representative of party
2. Waived if not attacked:
a. Within six months of marriage OR
b. If innocent party knew
3. Innocent party may ratify

What makes a marriage VOID in Mississippi:

i. Bigamy: cannot be married to two people at once; second marriage is void for all purposes, even if first spouse dies
ii. Prohibited kinship: cannot marry first cousin
iii. Same-sex marriage

What makes a marriage VOIDABLE in Mississippi:

i. Age: voidable by women under 15 and men under 17
ii. Mental incapacity: must have capacity to understand the obligations of marriage
iii. Physical incapacity: impotence at time of marriage (ground for annulment)
iv. Pregnancy of wife by another without husband’s knowledge at time of marriage
v. Failure to comply with formalities (see below)
vi. Lack of consent

Must comply with formalities

Common-law marriage:

i. Requirements
1. Agreement to be married
2. Cohabitation
ii. Policy: used when ministers were scarce
iii. Abolished in Mississippi in 1956 (Miss. will still recognize (1) common-law marriages prior to 1956 and (2) common-law marriages valid in state where marriage was contracted (full faith and credit)

Two formal requirements now:

i. Licensure
1. Must be on file for three days
2. Must have certificate verifying neither party has syphilis
ii. Ceremony/solemnization
1. Must be performed by person authorized by religious organization to perform marriage ceremonies OR
2. Judge can do it

Must be voluntary

Consent required
Comes up in four instances

i. Fraud:
1. General rule governing fraud re personal attributes: cannot have marriage annulled on these grounds; prospective spouses must discern these things prior to marriage (e.g., job/income, cocaine addiction)
2. STDs: some jurisdictions allow annulment for fraud re STDs (goes to essence of marriage)
3. Desire for children:
a. Refusal to have children after claiming to want children: grounds for annulment (goes to essence of marriage)
b. Wife lets herself get pregnant even though she claimed not to want children: NOT grounds for annulment
4. Pregnant by another: grounds for annulment
5. Not pregnant though claimed to be pregnant: NOT grounds for annulment
ii. Duress: cannot force someone to marry
iii. Limited-purpose marriages: e.g., immigration
iv. Joke: some jurisdictions will annul, some will not

Effect of Annulment

In annulment, it’s as though marriage never existed. No property division and no alimony. If any property was accumulated during marriage, it will go to whoever holds title to it (just like roommates moving out).

With respect to children (i.e., child support/custody), rules are the same regardless of whether separation is effected by annulment or divorce. Child custody/support rules are the same even with regard to unmarried heterosexual couples.

Obtaining a Divorce

1. Mississippi is NOT a pure no-fault divorce state.
2. Two ways to obtain divo

i. H’s duty: provide support to W
ii. W’s duty: provide services to H
iii. These duties typically were not enforced against spouse in an intact marriage
d. Separate maintenance: if H leaves W without getting divorce, W is entitled to “separate maintenance” payments; court order requiring H who has left W to support W according to standard to which she has become accustomed
i. Still big deal in Mississippi since we do not have true no-fault divorce (lots of separations)
ii. Once couple is divorced, support rights are manifested in alimony
e. “Doctrine of necessaries”: if merchant provided W with necessaries because H failed to provide them, merchant could sue husband for value of goods/services provided
i. Mississippi has abolished doctrine of necessaries
f. Since 1979, duty of support runs both ways (husband can now get alimony upon divorce)
4. Tort rights
a. Interspousal immunity
i. Policy rational was twofold:
1. Promote marital harmony
2. Prevent fraud
ii. Interspousal immunity has been abolished in Mississippi, primarily to allow spouses to tap each other liability insurance coverage
iii. Spouses can now sue for personal injuries stemming from abuse in domestic violence situations
b. Marriage creates certain tort rights:
i. Wrongful death action
ii. Loss of consortium
iii. “Heart balm” actions:
1. Alienation of affection (alive and well in Miss.)
Criminal conversation (has been abolished in Miss.)