Family Law Outline

Family Law:
Chapter One: Marriage

Restrictions on who can Marry
Whitney v. Whitney: (Traditional restrictions: bigamy)

Facts: woman wanted to divorce man and claimed “extreme cruelty”; man responded that he was previously married and that his subsequent marriage with woman was void due to the bigamy laws of state—no contract of marriage with second woman could have existed; trial court granted divorce on the grounds of the previous marriage; an appeal was made as to the property rights of the parties
Rule of Law: the Appeals court declared that when there is no valid marriage the statutory power to adjust property rights is inapplicable; but the power to adjust such rights is equitable

In a bigamous marriage (such as this) there is the formation of a quasi partnership

i. There is a contract made during litigation for the adjusting of their property rights and this contract is binding on the court
ii. Each was free to deal with each other as they wished

The trial court erred in not treating the contract as binding and not adjusting the property rights of the parties

Subsequent Issues:

Fraud – Possible cause of action. The only way around the divorce being the final hearing as to division of marital assets (e.g. a spouse has secret bank accounts).
Estoppel – If husband’s actions made wife think they were married, he is estopped from claiming they weren’t married.
Reputative Spouse Doctrine – Community Property States treat the “victim” of a bigamous relationship (The unknowing spouse) as if he/she was married. The court may still grant a divorce in this case in the interest of equity (quasi-contract or partnership)
No states recognize plural marriages. Freedom-of-religion argument overruled in Reynolds v. U.S. (1878).
Polygamous marriages are forever void
Common law marriages are valid in OK
Calling the dissolution of polygamous marriages a divorce does not entitle all the allowances of dissolutions of valid marriages

Court could have said that this was a bigamous marriage and that no division of property is needed; does not have to do this—can just say it is void

Court does not follow the law explicitly but creates a new avenue between other founded contract policies in order to dispense with justice (judicial interpretation of the law)

Allows the courts some leeway in discretion with family matters such as this

Estoppel would have given the judge total discretion which would make family law a crapshoot for advising clients

Zanlocki v. Redhail: (Constitutional Question)

Facts: case challenges a statute that forbids marriage in the state or elsewhere without court permission when the applicant has minor issue not in custody or is under obligation to pay child support; petitioner has minor child not in custody and has child support payments that he has not been able to make and was subsequently denied the court order granting permission to get married to another woman; challenged the constitutionality of the statute under the due process clause and the equal protection clause of the 14th
Rule of Law: Sup Court held that the statute was unconstitutional;

Both Loving v. Virginia and Griswold v. Conn. have held that the right to marry is fundamental thus protected by the due process clause and is a fundamental right of privacy of the due process clause

i. Any regulation of marriage that interferes with this right either directly or substantially indirectly is to be judged under strict scrutiny
1. reasonable regulations that do not significantly interfere with the right to marry can be legitimately imposed

The state interests supported by this statute are not judged to be closely tailored with the statute itself

i. Goals are not sufficiently met by the implementation of the statute
1. child support collection is not furthered and the counseling proposed by the state is not part of the statute in general
2. very underinclusive and overinclusive at the same time
Subsequent Issues:

Missouri Prison Case: Justice O’Connor defines what marriages are for and what they could entail

This definition and purpose of marriage could later face difficulties with issues of bigamy and incest

Catalano v. Catalano: (Traditional restrictions: incest)

Facts: petitioner married respondent in Italy, petitioner is the niece of respondent; marriage was legal in Italy (due to court permission) and the couple subsequently moved to Connecticut and had a son; years later the husband died and now the wife seeks the allowance of support payments due to her being the surviving spouse
Rule of Law: the Conn. Court declares that the marriage in Italy is and cannot be recognized as valid marriage in Connecticut due to state statutes, and therefore, petitioner cannot be recognized as a surviving spouse and cannot receive any support payments

Incest causes a marriage to be void

Subsequent Issues:

2nd Restatement of Conflicts §283 on page 12.

The marriage’s validity is determined by the state with the “most significant relationship” to the spouses.
Full Faith and Credit will be given to the marriages of other states unless there is a “strong public policy” argument against it in this state.

First cousins cannot be married in Oklahoma but their marriage is valid in Oklahoma if they are married in another state. 43 O.S. § 2
First cousins seeking marriage in Oklahoma can go to Texas, or another state that allows first cousin marriages, and get married there. Their marriage will be valid in Oklahoma. Why keep the Oklahoma law?
Over-/Under-inclusiveness Issue – blanket rules against incest are to prevent birth defects, interfamily sex abuse and the spread of STDs. But, this is not an issue in all incestual relationships.

· Probate homestead: the right to live in the family home until the estate is settled
· Widowers allowance: pays support to the widow from the decedents estate until the estate is settled

White v. McGee: (traditional restrictions: age)

Facts: petitioner and decedent were married at an age that the state does not allow for; after decedents death Petitioner wants to file a wrongful death suit on behalf of decedent but only the widow can bring such suits; issue is whether or not petitioner is the lawful surviving spouse of decedent
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