Swisher_FamilyLaw _Spring2011
Entering Marriage
a. Marriage as a status or contract
i. It is both — contractual consent of both parties required to acquire the status of marriage
ii. You are allowed to change or waive certain property rights in marriage, which is contractual activity
b. 3 parties to a marriage: Husband, Wife, and the State
i. Marriage as creating the most important relation in life … has always been subject to control of the state legislature (Maynard)
2. Statutory (Formal) Marriage
a. What do you need (Nelson):
i. A license
1. Provides legal institutions with your intent
2. Provides evidence of a valid marriage
3. Provides evidence to the state of your marriage
4. Shows you have capacity and intent to marry
5. Valid 30-60 days
ii. An authorized official, legal or religious, to perform the marriage
1. If you belong to a religious sect without ministers, the religious official from your sect may perform a traditional ceremony for that faith
iii. Most states have a 3-5 day waiting period between issuance of the license and when the marriage may take place
1. VA has a no wait period
2. Some states require blood tests for STDs or rubella
b. You can get married where either party resides or where the marriage is to be celebrated
i. Doesn’t have to be a recognized domicile of one of the parties
c. A majority of states have a directory marriage requirement, which requires only substantial compliance with state statutory requirements for a valid marriage
i. VA is a mandatory requirement state, but it has a curative statute 20-31 which says if there is an imperfection in the license or an imperfection in the marrying official AND there is a good faith belief in one of the parties that they’re married AND the marriage has been consummated, then the curative statute will prevail to overlook imperfections
d. A valid marriage may be proven through circumstantial evidence by:
i. Offering a valid marriage certificate or a record of the marriage
ii. Offering testimony of eyewitnesses who were present at the marriage ceremony
iii. Offering evidence of matrimonial cohabitation and community repute, which raises at least a rebuttable presumption of a valid marriage
3. Informal (but valid) marriage
a. Common Law Marriage — recognized in 12 states
i. Requires (Crosson v. Crosson):
1. Present intent and agreement
a. The intent to participate in a marriage ceremony in the future does not prove a couple’s non-marriage (Mattison v. Kirk)
2. Cohabitation and community repute
a. Can have a common law marriage in weeks or months
b. No real time requirement
ii. If a party in a common law union has a legal impediment to a valid marriage
1. Some courts recognize the marriage still exists after the impediment is removed under a “continuing agreement” rationale
2. Others say that an invalid common law marriage cannot turn into a valid common law marriage absent proof of a new agreement after the impediment is removed
b. Putative Marriage — recognized in 8 states
i. A curative marriage where one or both parties was ignorant of an impediment to the marriage
ii. Must be contracted with a good faith belief that the marriage was valid (Rebouche v. Anderson)
1. Don’t need community repute and cohabitation
c. Marriage by Proxy
i. Very few states actually say that both husband and wife must show up before the marrying official, but the states are split as to whether or not they recognize marriage by proxy
ii. Normally used during times of war
d. Marriage by Estoppel
i. Not a valid marriage, but the concept of estoppel means that a wrongdoer should not benefit from their wrongdoing
ii. More fraudulent basis than putative marriage where both parties can be innocently ignorant of the impediment
iii. Elements of Estoppel:
1. Representation of promise
2. Made with knowledge of the facts
3. To a party ignorant of the truth
4. With the intent that the other party act on it
5. When the other party has, in fact, been induced to rely on it
iv. 3 Rules apply:
1. A sister state will not recognize a marriage by estoppel; against the strong public policy
2. Sociological or Restatement Rule: It would be inequitable to allow the wrongdoer to get out of their marital obligations, so they will
uress, marriage in jest
1. In some states also voidable if marriage to a felon or a prostitute, or the spouse is pregnant by another man or recently impregnated another woman
c. Same-sex marriage
i. Defense of Marriage Act (DOMA): A sister state does not need to recognize a same sex marriage
1. Invalidated in Hawaii by Baehr v. Lewin
ii. Baker v. State in VT declared the prohibition against same-sex marriage unconstitutional, but left the remedy up to the legislature
iii. Mass. was the first state to recognize same-sex marriage in Goodridge v. Dept. of Public Health
1. Central issues was procreation — fertility is not a requirement of marriage, not is it grounds for divorce
2. Religion is not a valid reason for proscribing or excepting marriage
3. No rational relationship between the marriage status and the fact that the “traditional” marriage is the optimum family unit
a. An absolute ban bears no rational relationship to the economy or anything else
iv. 30 states, including VA, have passed legislation ruling against same sex marriages and civil unions
v. Most states use rational basis test as opposed to strict scrutiny
vi. Legal Formalism v. Legal Functionalism
1. Formalism (Positivism) — correct legal decisions are determined by pre-existing legislative and judicial precedents, and the court must reach its decision based upon a logical application of the facts to these pre-existing rules
2. Functionalism (Realism) — paramount concern is not logical and legal consistency, but socially desirable consquences
d. Plural Marriage
i. Void ab initio in most states
ii. Polygamy has long been prohibited, so the showing of a minimal number of prosecutions does not preclude the prosecution (Potter v. Murray City)
