Family Law – Williams – Spring 2013
Part I) Who May Marry: Restrictions
FUNDAMENTAL RIGHT TO MARRY:
A. Who May Marry Incest restrictions
SC Code: §20-1-10:
(a) All persons, except mentally incompetent persons and persons whose marriage is prohibited by this section, may lawfully contract matrimony.
(b) No man shall marry his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister, mother's sister, or another man.
(c) No woman shall marry her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother, mother's brother, or another woman.
d. This statute puts restrictions on who may marry
i. Voidable marriages = marriage that the statute prohibits
(1) They can only be annulled or ended during the course of the marriage. Once one party dies, the marriage is valid.
ii. Have to be of proper mental capacity
(1) Unless you are declared mentally incompetent, you cannot be denied your right to marry
2. SC Code § 16-15-20: Criminal Incest: Any sexual relationship between people listed in §20-1-10 is a crime
Any persons who shall have carnal intercourse with each other within the following degrees of relationship, to wit:
i. A man with his mother, grandmother, daughter, granddaughter, stepmother, sister, grandfather's wife, son's wife, grandson's wife, wife's mother, wife's grandmother, wife's daughter, wife's granddaughter, brother's daughter, sister's daughter, father's sister or mother's sister; or
ii. A woman with her father, grandfather, son, grandson, stepfather, brother, grandmother's husband, daughter's husband, granddaughter's husband, husband's father, husband's grandfather, husband's son, husband's grandson, brother's son, sister's son, father's brother or mother's brother
Shall be guilty of incest and shall be punished by a fine of not less than five hundred dollars or imprisonment not less than one year in the Penitentiary, or both such fine and imprisonment.
3. §20-1-15 à prohibits same sex marriage
A marriage between persons of the same sex is void ab initio and against the public policy of this State.
4. §20-1-100 à Age
a. Any person under the age of sixteen is not capable of entering into a valid marriage, and all marriages hereinafter entered into by such persons are void ab initio. A common-law marriage hereinafter entered into by a person under the age of sixteen is void ab initio.
5. §20-1-210 à license
a. It shall be unlawful for any persons to contract matrimony within this State without first procuring a license as is herein provided and it shall likewise be unlawful for anyone whomsoever to perform the marriage ceremony for any such persons unless such persons shall first have delivered to the party performing such marriage ceremony a license as is herein provided duly authorizing such persons to contract matrimony.
6. §20-1-220àwaiting period
a. No marriage license may be issued unless a written application has been filed with the probate judge, or in Darlington and Georgetown counties the clerk of court who issues the license, at least twenty-four hours before the issuance of the license. The application must be signed by both of the contracting parties and shall contain the same information as required for the issuing of the license including the social security numbers, or the alien identification numbers assigned to resident aliens who do not have social security numbers, of the contracting parties.
7. §20-1-250 àIf under 18, you must parental permission.
a. A marriage license must not be issued when either applicant is under the age of sixteen. When either applicant is between the ages of sixteen to eighteen and that applicant resides with father, mother, other relative, or guardian, the probate judge or other officer authorized to issue marriagelicenses shall not issue a license for the marriage until furnished with a sworn affidavit signed by the father, mother, other relative, or guardian giving consent to the marriage
8. SC – incestuous relationships are VOIDABLE not void.
a. Voidable: require legal decree to dissolve or can be ratified by consummation or cohabitating
i. E.g. temporary incapacitation because the marriage can be made valid later
b. Void: can never be ratified:
i. Includes:
(1) same sex
(2) polygamous
(3) permanently mentally incompetent
(4) underage
c. Affinity: legal relationship (related by marriage)
d.
A. Restriction on Who May Marry
· Traditional Restrictions: Incest, Age, Polygamy, Same Sex, Transsexual, other
1. Incest
1. Consanguinity (Sharon H.)– Blood Relationship
i. Determined by state statute.
ii. Distinguish between civil and cannon law.
2. Affinity (Back v. Back)– (i.e.: relationships established by law; marriage w/ in-laws, step relatives, or relatives by adoption)
i. Affinity ends at divorce
ii. Generally, the daughter/son of your spouse is your child.
iii. End of affinity relationship for marriage purposes
iv. Can a man marry the daughter of his ex-wife that is not his child?
1. Back; affinity terminated once the ex-wife died.
v. What about after a divorce?
1. Along w/ civil restrictions, most states have criminal restrictions.
2.
State v. Sharon (63) (half-bro and sis married, but she was a
former is treated as valid and binding until its nullity is ascertained and declared by a competent court.’’
o If either party is under the age of consent at the time of the marriage, ‘‘the marriage is inchoate and voidable.
o Thus, a ceremonial marriage where a party is under [the age of consent] is valid until set aside.’’
3. Same Sex
· Opposite sex requirement, civil unions, and same sex marriages0
o §20-1-15. Prohibition of same sex marriage
– Same sex marriage is void ab initio and against the public policy of this State.
– No debate in SC b/c in forbidden Constitution (plus have statute)
Part II) How do you get Married
1) Get a marriage license
2) Common Law Marriage
Hangrave: CL marriage occurs upon three events:
1) Declaration by the parties of an INTENT to marry
2) Cohabitation
3) Holding out of themselves to the community as being H and W
Intent- Shown by getting a document that said they were going to get married; Birth Certificate of Children; Beneficiary of Ins Policy; Filing Taxes (see Hargrave v. Duval-Couetil); Joint Bank Account; Loan Applications
Holding Out – Ring; Had ceremony;
Cohabitation – No set time what is cohabitation
South Carolina: A common-law marriage is established if a man and woman intend for others to believe they are married.
· When deciding whether common-law marriage has been formed, a lack of intent to be married overrides the presumption of marriage that arises from cohabitation and reputation. Callen v. Callen
· When there is an impediment to marriage, such as one party's existing marriage to a third person, no common-law marriage may be formed, regardless of whether mutual assent is present. Callen v. Callen
· If factual elements concerning intent of each party to be married to the other and a mutual understanding of each party's intent are present, then the court should find as a matter of law that a common-law marriage exists. Callen v. Callen
· When determining whether parties formed common-law marriage, fact finder is to look for “mutual assent”: the intent of each party to be married to the other and a mutual understanding of each party's intent. Callen v. Callen
· If live in another state that did not recognized C/L marriage, but moved to SC, are the C/L marriage elements met?
o No, C/L marriage can be formed until they moved to SC Callen v. Callen
· What if they lived in a state that recognized C/L marriage and then moved to SC?
o They are married
· What if C/L marriage, then move to state doesn’t recognize
o Married. Any marriage contracted outside the state held to be valid, will be valid in the other state (Halgrave)
