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Family Law
University of Oklahoma College of Law
Spector, Robert G.

I.      Marriage

A.           Definitions and Benefits
1.       43 O.S. §§ 1 defines marriage:
a)      Personal relationship.
b)      Entered into and left under legal procedures.
c)      Civil contract.
2.       Marriage issues:
a)      Marriage is a status, determined by law;
b)      Marriage is a contract = can only be entered into by people capable of entering into contracts (e.g., look at capacity, fraud, and other contract problems.)
3.       Benefits of marriage = importance of determining who is and who is not married.
a)      Hospital visitation;
b)      Property rights;
c)      Wrongful death benefits;
d)      Tort claims;
e)      Joint income filing.

B.           Standard of Review
1.       Divorce and probate are equity cases = do not disturb the trial court’s ruling unless the judgment is clearly against the weight of the evidence. Carpenter v. Carpenter. = presumption that trial court is correct – on review, just look at whether the record indicates that the trial court could reach this decision.
2.       In a divorce action, the trial court is vested with wide discretion. Appellate courts will not disturb the trial court’s judgment absent an abuse of discretion or finding that the decision is clearly contrary to the weight of the evidence.

II.   Marriage Restrictions

A.           Bigamy (Traditional Restriction 1: Rule of Not Too Many).
1.       You can only be married to one person at any given time. Bigamous marriages (a subsequently simultaneous marriage) are void.
a)      Whitney v. Whitney (1942): W seeks to divorce H; he says they were never married. Court says even though they were never married, they give them a divorce for peace of mind. Consequence of the voided marriage is that property division is awarded differently – not according to marriage rules. Court treats couple as a “quasi-partnership” and awards property according to a K entered into by the couple. No alimony is given where there is not a marriage. Child support is unaffected – child issues are handled the same, regardless of whether marriage is valid.
(1)    Case highlights court decision-making and issues of whether family courts should follow blackletter law (standard rules for everyone) or have case-by-case consideration of what is best for the couple. Court could have gone 1 of three ways on this case:
(a)    If marriage is void, then everyone should take the property with their own name on it, and partition joint tenancy property. This would mean that he would get most of the property, because it was probably in his name. = she loses.
(b)    Putative Spouse Doctrine (Estoppel): treats non-marriage situations where one party reasonably relies on information from the other and thinks that they are married. Since he misrepresented to her, if she reasonably relied on his misrepresentation, the court could estop him from abandoning his commitments and treat as a valid marriage and divide property as such.
(c)    Quasi-Partnership argument: divide property according to a written K between the couple. This is the middle ground, and court chooses this method. Highlights ability for couples to engage in private ordering. Families can enter agreement which can be entered as a judgment in the divorce settlement (better than breach of contract)

B.           Constitutional considerations:
1.       Restrictions on marriage must not deny individuals the fundamental right to marry. Big issue is whether the constitutional test applies to just new restrictions on marriage, or also old ones (e.g., bigamy, incest, etc.).
a)      Zablocki v. Redhail (1978). WI statute denies marriage to individuals not current on child support payments or whose child is on welfare role. S. Ct. finds the statute unconstitutional, because marriage is a fundamental right (Loving v. Virginia, miscegenation laws struck down; EP & DP case) = state must show a compelling interest and have means narrowly tailored to meet those interests. Here, court finds a valid interest (child support), but the means are

o treat two scenarios the same, although as such, it seems to make the prohibition non-sensical:
(1)    “Straight line” scenario: Couple is married in one state, and later end up in OK.
(2)    “Circle” scenario: Couple begins in OK, leaves OK to marry, and returns. If this marriage is valid, then what’s the point of the statute?








D.          Age Restrictions (Rule of Not Too Young):
1.       43 O.S. § 3:
a)      Can marry at age 18 without any consent; between 16-18, you must have some form of consent. Marriages under 16 are basically prohibited, unless authorized by court (this doesn’t happen anymore – like for pregnancy, seduction)
b)      Marriages which violate age restrictions are voidable, not void. Only the parties to the marriage have standing to void the contract. (So, not their parents.)
c)      It must be attacked by a suit for annulment by the parties or appropriate guardians before the incapacity ceases. (can only be challenged during incapacity)
d)      Cohabitation after the incapacity ceases is a sufficient defense.
e)      At age of majority, the marriage becomes a common law marriage.
f)At that point, we don’t know whether the date of marriage relates back to the underage ceremony or to the age of majority.
2.       White v. McGee (OK, 1931):
Court finds that W, who is underage at time of marriage and was married w/out consent, is a “widow” when H dies and can claim wrongful death benefits. Such marriage is voidable, but not void. Not voidable unless statute indicates. Even though forbidden, the marriage is valid, because it was not challenged.