Coats – Family Law Outline – Fall 2012
1. Marriage
a. 43 OS 1 – Marriage is a personal relation arising out of a civil contract to which the consent of parties legally competent of contracting and of entering into it is necessary.
b. Restrictions on Who Can Marry
i. Traditional Restrictions
1. Bigamy – Void
a. Polygamous or plural marriages are forever prohibited
b. Criminally proscribed in all states.
c. Parties to a bigamous marriage, once the impediment is removed, have a common law marriage if they continue to live together as husband and wife
2. Incest – Void
a. All states prohibit marriages between:
i. Brother and sister
ii. Parent and child
iii. Aunt and nephew
b. A few states permit marriages between uncle and niece when allowed by religion.
c. 20 States and D.C. permit marriage between first cousins, including TX. Oklahoma does not, but will recognize it if performed in other states.
d. Can’t remove the impediment
3. Age – Voidable
a. In Oklahoma, the age for marriage is 18, but persons between 16 and 18 can be married with parental consent.
b. Parties to an underage marriage, on obtaining legal age and removing the impediment, have a common law marriage if they continue to live together as husband and wife.
c. Death doesn’t void the marriage
4. Mental Capacity – Voidable
a. Marriage requires consent. Consent involves a voluntary agreement by a person with sufficient mental capacity to make an intelligent choice and to do something proposed by another.
b. Look at the mental capacity at the time of the marriage.
i. If the incapacity/impediment is removed and the parties continue to live together has husband and wife, it ripens into a common law marriage
c. Death doesn’t void the marriage
5. Same Sex – Void
a. Oklahoma prohibits same sex marriage and does not recognize same sex marriages performed in other states
b. Don’t think the impediment can be removed
c. How to determine the sex?
i. Birth Certificate – majority
ii. Chromosome Test
iii. Current Genitalia
d. Civil Union/Domestic Partnerships – give partners similar rights, but don’t always give full spousal status
e. Defense of Marriage Act (DOMA) federal law that doesn’t recognize same sex marriage and doesn’t require other states to recognize same sex marriages even if they are recognized in other states
i. Unclear if this applies to civil unions
6. 6 Month Rule, 43 OS 123 – Voidable
a. Illegal to marry any other person, other than your former spouse, within 6 months of the divorce decree
b. Once 6 month prohibition its it immediately ripens into a common law marriage
c. Death voids the marriage
ii. Void Marriage vs. Voidable Marriages
1. Void – Incest, Bigamy, Same Sex
a. Void marriages may be challenged by third parties and even after the death of the parties.
b. Can’t be enforced.
2. Voidable – Age, Mental Capacity, Fraud
a. Somebody has to do something to set it aside
b. Typically reflects a lesser public policy concern
c. Can be enforced
d. Can be ratified by the parties conduct after the removal of the legal impediment that made it vulnerable
iii. Remedies if Marriage is Voided
1. Quasi Partnership – Court can’t grant divorce, but can still adjust property rights and divide assets accordingly in the same manner as if they were in a partnership
a. No support alimony
iv. Constitutional Questions
1. Marriage is a fundamental right
2. Strict Scrutiny – when a statutory classification interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by a sufficiently important state interest and is closely tailored to effectuate that interest.
v. Recognition of Marriage Across Jurisdictions
1. Generally a marriage valid where the ceremony is performed is valid everywhere
a. Exceptions – strong public policy interests. Same sex, Incest.
2. 2nd Restatement Conflict of Laws: The validity of marriage will be determined by the local law of the state that has the most significant relationship to the spouses and the marriage.
c. Fraud and the Marriage Relationship
i. Person seeking to show fraud has the burden to show it by clear and convincing evidence
ii. Remedies
1. Annulment
2. Tort – IIED
iii. Elements of Common Law Fraud
1. False material representation
2. Made as a positive assertion which is either known to be false, or with reckless disregard for the truth
3. With the intention that it be acted upon
4. And which is relied upon by a party to that party’s detriment
iv. A misrepresentation inducing one to enter into a valid marriage must go to the essential ingredients of the marriage in order to sustain a finding of materiality sufficient to support a cause of action for fraudulent inducement to marry
v. Must ask if the Fraud goes to an Essential Ingredient of the Marriage?
1. Essential Ingredient
a. Concealing STD, concealing lacking the physical and mental ability to have sex, concealing Green Card only purposes, concealing former drug addiction and criminal record, inducing marriage by promising to compensate for loss of alimony support from previous marriage.
b. True claim of pregnancy coupled with false representation that the prospective spouse is the child’s
c. Subjective Test – If person wouldn’t have married but for the representation goes to the essence of the marriage.
2. Not Essential Ingredients
a. Misrepresentation of affection, concealment of lesbian activities, concealment of drug use, concealment of misdemeanor narcotics conviction coupled with periodic but not consistent narcotics addiction, concealment of prior marriage and divorce, concealment that inheriting the property of the spouse at death was motive for marriage.
b. False claim of pregnancy which women knows in fact does not exist.
d. Formalities for a Ceremonial Marriage
i. Marriage formalities governed by 43 OS 4-37
ii. Statutes say you must have a license, but common law marriage still recognized in Oklahoma
e. Common Law Marriage
i. Only 9 states, including Oklahoma, continue to recognized common
can be no palimony.
2. Divorce
a. Three Actions which can end a Marriage
i. Divorce (Dissolution of Marriage)
ii. Annulment
1. Mental incompetence
2. Nonage
3. Violation of the 6 month prohibition
4. Fraud that goes to the essence of the marriage
iii. Legal Separation (Alimony without Divorce)
b. 43 OS 101 – Lists 12 grounds for divorce.
i. Abandonment, adultery, impotency, prior pregnancy with another man, extreme cruelty, fraud, incompatibility, habitual drunkenness, gross neglect of duty, felony imprisonment, divorce decree from other state, 5 years of insanity.
ii. Divorce is available for both fault and no fault, but very few however are granted on any other ground other than incompatibility.
1. For a practical matter, most divorces are brought under a no fault ground since type concept of fault generally has no applicability to any of the financial aspects of the divorce
a. Exception – if the martial fault produced a diminution of the marital estate
iii. Have to be a resident of the county for 30 days (venue) and the state for 6 months prior to filing a divorce petition
c. Fault Divorce
i. Fault divorces given to one party or another
ii. Defenses
1. Denial
2. Condonation – a freely given pardon or forgiveness, carrying with it the implied conditions that the errant spouse not repeat the offense, that the errant spouse treat the other with conjugal kindness and that the errant spouse maintain good conduct in the future.
a. Can be implied – cohabitation, sexual intercourse
b. A breach of condonation occurs with a repetition of the condoned offense, the commission of a different marital offense, or with misconduct that would not in itself be sufficient to constitute a ground for divorce – failure to treat spouse with conjugal kindness or to maintain good conduct
i. The misconduct must amount to more than slight acts of coldness, unkindness, or mere quarrelling.
d. No-Fault Divorce
i. No fault divorce given to both parties
ii. Incompatibility – conflict of personalities so as to destroy marital harmony and cause no possibility of reconciliation
iii. Living Separate and Apart
1. Living in separate residences not enough, where a substantial number of the many elements and ties, which go into and make up the marital relationship and bind the parties together, are still present, the parties are not living separate and apart.
