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Family Law
Villanova University School of Law
Becker, Lewis

Family Law Outline – Professor Becker, Fall 2011
A.      Marriage and Individual Privacy: Constitutional Right to Marry
I.        Overview
A.      The right to marry is imposed by state law
B.      To what extent does the federal constitution trump state law conditions as to the requirements of marriage?
C.      If some conditions are deemed violative of the federal constitution, those conditions are inoperable as unconstitutional.
II.      Loving  v. Virginia
A.      Court said that statutes prohibiting interracial marriages violated the EPC as an invidious racial discrimination
B.      Court said statute violates DPC bc freedom to marry has long been recognized as one of the vital rights essential to pursuit of happiness
III.    Zablocki v. Redhail (1978)
A.      RE: Right to marry when child support is in arrears
a.       Court struck down Wisconsin statute which said that a person cannot get a license to marry if that person has an outstanding, unpaid child support obligation (arrearage)
b.      This is the seminal case on methodology for determining when a state statute is unconstitutional for unlawfully restricting the right to marry.
B.      Zablocki is based on the following two sources of con law:
a.      Due Process Clause – 14th Am
(1)    Marriage is a fundamental right; protected under DPC (Griswold)
(a)    For DPC, must show: (1) denial of life, liberty, or property; and (2) denial occurred without DP of law.
(b)   Here, P has been denied liberty to marry (now must figure out whether he was also denied DP of law when state said he couldn’t marry bc of child support arrears) 
(2)    In determining whether there’s DP of law, there are 2 tests to apply, based on what kind of interest is at stake:
(a)   Rational Relationship Test
(i)      This is default test for DP review.
1.       Requires: (i) can state cite a reasonable state interest; and (ii) are means used (the statute) rationally related to achieving that interest?
(ii)    In Zablocki: state argued statute was rationally related to gov't interest of getting people to pay child support (rationale: denying marriage licenses to people w/ child support arrears would make them pay child support)
(iii)   So why does the state lose? à Bc Court didn’t apply rational basis test; they applied strict scrutiny bc marriage = a fundamental right
(b)   Strict Scrutiny
(i)      SS applies when a statute involves fundamental right.
1.       Requires: (i) a compelling state interest and (ii) the statute must be “closely tailored” to achieving only that interest.
(ii)    In Zablocki: Court said child support payment was compelling state interest, BUT statute not narrowly tailored enough; it has to be that this statute is literally the ONLY way you could achieve this state interest (E.g. denying him right to marry isn’t going to give him any more money; he could marry a wealthy spouse who could help him pay the child support; all kinds of other child support mechanisms they could have used)
(iii)   Zablocki does not apply to same sex marriage bc same sex marriage is not currently recognized as a fundamental right (Becker says “fundamental right” is something that has traditionally been affirmed for years by Courts)
b.      Equal Protection Clause – 14th Am.
(1)    No class of people can be treated differently from other classes of people
(2)    For EPC – must show that you’re in group that is treated differently than another group
(a)    In Zablocki: P was in group of people who have child support arrearages & group was treated diff. than people who did not have child support arrears. P argued this classification was discriminatory.
(3)    To determine whether a statute that classifies is violative of EPC, analysis is largely the same as DPC.
(a)    Rational Relationship Test (doesn’t apply here bc there was a fundamental right; so strict scrutiny applies instead).
(b)   Strict Scrutiny – applies here because right to marry is fundamental right. Means must be narrowly tailored.
B.      Formal and Informal Marriage
I.        Overview
A.      Marriage statutes are divided into two categories:
a.       Formality Statutes à HOW can marriage be performed?
b.      Substantive Statues à WHO can be married? (see below: Restrictions on Marriage)
II.      Formal Marriage Requirements
A.      Licensing
a.       If there’s no license, but marriage is solemnized, generally it’s VALID.
b.      If errors in marriage license (mistake or lie) as long as it doesn’t affect the ABILITY to marry, it’s VALID.
(1)    No per se invalidity because of mistake or failure to comply with licensing requirement as long as you’re otherwise eligible.
(a)    E.g. someone lies about their age on the marriage license – this marriage is still valid as long as the age doesn’t affect the ability to marry.
(b)   E.g. man doesn’t want to tell his potential wife that he has previously been divorced so he writes on his application that he has never been divorced, marriage is still valid.
(2)    However, spouse could later seek to annul the marriage bc of fraud, but there is no per se invalidity of marriage licenses bc of these lies or mistakes as long as the people are otherwise capable of marrying.
B.      Solemnization
a.       Statutes require that a marriage must be solemnized by various types of civil or religious figures (e.g. judges, priests, etc)
(1)    NOTE: If you have a license but don’t have marriage solemnized, it’s NOT a marriage. (Caveat = common law marriage)
b.      What if parties are not aware that person performing solemnization in fact is not qualified under state statute to do so?
(1)    DOES NOT invalidate marriage if: EITHER or BOTH parties are not aware of the disqualification (Knapp v. Knapp).
(2)    Test is reasonableness – did either spouse reasonably believe person solemnizing them was capable (under statutory definition)?
(3)    E.g. husband gets his friend to pretend to be a judge and marry them → husband cannot later back out just because he got his friend to do the marriage since wife didn’t know; neither can the wife since she got into the marriage thinking it was valid!
c.       Self-Officiating
(1)    In PA, two people can solemnize their own marriage based on statute.
(2)    Statute designed for Quakers, but can apply to anyone theoretically.
d.      Essence of solemnization: CONSENT to be H & W
(1)    Some states say it’s the exchange of vows that counts as the consent.
(2)    Ex: H drops dead before priest says “I now pronounce you H & W” but Court held marriage still valid bc exchange of vows = sufficient consent
e.      Consummation Not Required to Solemnize (Berdikas v. Berdikas)
III.    Choice of Law & Marriage Validity
A.      Lex Loci Contractus (traditional approach)
a.       Place marriage takes place controls the requirements of the marriage.
(1)    Thus, marriage is valid in another state as long as it was valid in the state it

C.      Annulment & Restrictions on Marriage
Substantive Requirements for Valid Marriage (see below for requirements in detail)
1.       One spouse at a time
a.       Successive Marriages raises rebuttable presumption
2.       Blood Relation prohibitions
3.       Capacity & Consent
a.       Age
b.      Cognitive understanding
c.       Consent w/ no fraud
4.       Same-Sex/Opposite-Sex Marriage
I.        Successive Marriages
A.      General Rule: Single Marriage Rule
a.       Neither party at the time can have a pre-existing marriage for marriage to be valid
b.      Any prior marriage must have been terminated by:
(1)    Death;
(2)    Divorce, or
(3)    Annulment.
c.       Hypo: If H marries W1 in 2000 then attempts to marry W2 in 2005, the second marriage is void.
d.      “Void” means:
(1)    Never valid for any purpose;
(2)    Doesn’t have to be annulled to be invalid;
(3)    Validity can be attacked at any time by anybody who has standing
B.      Presumption of Validity of Marriage
a.       Presumptions that:
(1)    The later marriage is valid
(a)    i.e even though marriages are presumed valid, the later marriage enjoys a stronger presumption of validity
(b)   a presumption of validity, without proof, is not a sufficient basis for a bigamy conviction (State v. Rivera, Wash. 1999)
(2)    The marriage was contracted in GOOD FAITH  
(3)    The marriage was performed by someone w/ AUTHORITY
(4)    The parties had the CAPACITY to marry
b.      Thus, the one attacking the validity of the marriage ALWAYS has the burden of showing that its invalid.
C.      Removal of Impediments
a.       General Rule: Removal of Impediment does NOT per se validate 2nd/bigamist marriage
b.      Two additions to this general rule:
(1)    In CL marriage state, a CL marriage formed when impediment removed;
(2)    PA statute → once impediment is removed, if spouses continue to live together then they are per se married as of date of removal (23 Pa CSA sec. 1702(a)).
c.       Three Illustrative Scenarios:
(1)    Scenario #1: Where parties begin living together & there is an impediment but either or both are in bona fide ignorance of impediment, marriage will still be valid IF:
(a)    They continue to live together after the impediment is removed (e.g. by divorce or death of first spouse); AND
(2)    Scenario #2: Where parties begin living together w/ full knowledge of impediment, cases are in conflict as to whether or in what circumstances a CL marriage may be created upon removal of impediment:
(a)    Some states → such conduct cannot result in valid CL marriage without express consent to be H & W after removal of impediment
(b)   Other states → CL marriage can occur without any additional expression of consent