Select Page

Domestic Relations
University of South Carolina School of Law
Montgomery, John E.

Domestic Relations Outline
Fall 2006


Chapter One – When are Adult Partners a Family?

The Legal Treatment of Marriage and Cohabitation

Hewitt v. Hewitt (p. 10)

i. She supports him through professional school while they live unmarried together and have 3 children; so was Mrs. Hewitt entitled to a division of property after the couple’s split even though court said they were not married? Illinois court did not want to enhance the status of a cohabitation relationship by allowing the parties to use the same judicial remedies as divorce—against the public policy of strengthening and preserving the integrity of marriage
ii. Discussion on how finding for cohabitants would negatively impact marriage and society:
1. Possible avocation of meretricious relationships if court upholds; weaken marriage as foundation of family-based society; issue with surviving partner and status; how children would be affected; support and inheritance rights; sociological and psychological effects upon children; property and custody rights
iii. In South Carolina, this would be a common law marriage which is recognized in our state. Essence of C/L marriage is that holding oneself out to be man and wife is sufficient to be a valid marriage for all purposes. She would be fully protected in S.C. and any other states that recognize C/L marriage.
iv. Problem here is that they didn’t live in Iowa long enough, where common law marriages were recognized. If they did, Illinois would have recognized it under conflict of laws.
v. If not in C/L jurisdiction, look at other cases defining “family.” However, these are not the most persuasive because they deal with land use rather than marriage/family status
1. Another possibility for Mrs. Hewitt is to say there was an implied contract. If non-traditional definitions of family don’t apply, maybe contractual principles will. Consideration here would be intimate relations (sex). Probably won’t work.
2. Last argument would be equity. If “husband” holds himself out as married to Mrs. Hewitt for all these years to all these people, estoppel would apply.

Braschi v. Stahl Associates Co. (p. 13)

i. Two male permanent life partners lived together in rent-controlled apt. Tenant of record dies. Landlord attempted to evict other stating he was a mere licensee with no right to occupy apt. Court said state of NY’s definition of family was too rigid. Said to look at totality of circumstances. While there is an objective test, looking at dedication, caring, and self-sacrifice of parties should control. Look at functionality of relationship. As long as it’s an intimate relationship with intertwined economic, emotional, and financial strands, it will be a family.

City of Ladue v. Horn (p. 18)

i. Unmarried couple moved in w/ their individual children. City said that unless you are family by marriage, adoption, or blood, can’t live in that part of the state. Court used RB to allow judgment of lower court to stand and upheld ordinance on purported basis that it

n Columbia and one in Toronto for work reasons)
iii. Covenant (statutory provision with religious connotations behind it; rare)
iv. Common law (non-ceremonial)
1. Still legal in many states including SC; requires no formalities
2. Certain downsides of recognizing non-ceremonial marriages (no license or formal mechanism to prove marriage)
v. Limited Purpose Marriages (still may have legitimate and legal purpose so probably can’t get an annulment; parties go through the ceremony but may marry for non-traditional reasons; old people may do this so that one can have the other’s Social Security benefits, etc.)
vi. Sham Marriages – when people go through the ceremony but the marriage serves no legal purpose so annulment is possible (drunk; get married to evade laws such as in Lutwak); still have to go through the legal steps to get out of it

Problems, p. 164

i. V and G have sex. V gets pregnant. They get married. V falls in love with another man. Will annulment be granted? Most states say no because they got married for some legal purpose.
R and D are just friends. One night at party after too many drinks they decide to get married. After a couple of days when joke has worn off, they plan to secure