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Family Law
Villanova University School of Law
Becker, Lewis

:::::Chapter 2 – Marriage:::::
A. MARITAL AND INDIVIDUAL PRIVACY:
Constitutional Protections of Marriage:
Equal Protection – Loving v. Virginia.
14th Amendment Due Process – Zablocki v. Redhail
S. Ct. established marriage as a fundamental right (strict scrutiny review). 
B. FORMAL AND INFORMAL MARRIAGE:
1. Formal Marriage:
License (screening process), Solemnization (public record maker), witnesses, waiting time (3 days), physical exam. Substantive requirements (age, heterosexual, blood restr., consent).
Domicile is not generally required. Also, marriage will not be invalid if not solemnized properly if one or both parties were defrauded. No sex req. for formal marriage validity.
PA allows for annulment where W didn’t know H was impotent.
2. Informal Marriage – Common Law Marriage (CLM):
Alternative to formal marriage that originated in rural England (distance, sparse). It’s now declined (10 states left) -> many people can perform formal and there was a lot of fraud with it. 
Requires just Present-Intent to create Marital Relationship at that Time (“We Are Married”) and in some states if one spouse can’t testify, a Rebuttable Presumption if there’s proof of cohabitation and reputation.  Substantive requirements remain.
Staudenmayer v. Staudenmayer (PA): No CLM marriage. No present words exchanged. Both parties could testify so presumption didn’t apply.
Note: Dead Man’s Statute: Someone can’t testify as to what the deceased said when what they testify will be adverse to the estate’s interests. 
3. Choice of Law and Marital Validity:
Lex Loci validity. If marriage is valid where performed, it will be recognized as valid everywhere as long as its not void against public policy of a state. 
States recognize CLM marriages’ validity but not gay marriages. 
Renshaw v. Heckler: Valid CLM because PA permits CLM marriage based on rep and cohab. where present words could not be proven. W gets SSC benefits.   
No full faith and credit analysis because marriage creation is not like judgments.
Note: Fed laws rely on state law to define marital status/family relationships. 
C. ANNULMENT AND RESTRICTIONS ON MARRIAGE:
Substantive Requirements of Marriage Have to be Met for Validity:
1. Successive Marriages:
Monogamy controls principles, so states criminalize bigamy, do not honor polygamy, and ban subsequent marriages while one has a living spouse. Strict Scrutiny Zablocki legislation.
The last marriage, in a string of successive marriage, is presumed valid (Chandler v. Central Oil Corporation, Inc.). If alive, W1 can rebut presumption by showing she is still married and alive. If she can rebut, the later marriage is void. Presumption is hard to pass, because it’s tough to get records and sometimes location of H is unknown. 
Even if W1 dies or divorces H while W2 remains married (e.g. the impediment to validity is removed), the subsequent marriage is still invalid. H and W2 must remarry, prove CLM (if applicable), or look to a statute for validation.
The presumption’s rationale is that people generally act lawfully.
2. Consanguinity and Affinity:
Blood Restrictions on Marriage: Most family links are denied ability to marry each other based on a moral justification. Some restrictions have been lifted, but most remain. Some are crim.
Blood Marriage Validity is still determined Lex Loci:
Ex. 4 In Re May’s Estate (NY Trial Ct 1953): RI Jewish marriage between uncle and niece (NY residents) was valid as Jewish exception in RI and had to be honored in NY. Validity assessed under RI and marriage valid unless void for public policy.
Marriage Evasion Act: Limits forum shopping to circumvent domicile reqs.
3. Marital Capacity and Consent:
Age, Consent, no Fraud/Duress requirements. 
Fraud must be related to one of the Essentials of Marriage:
Ex 5. V.J.S. v. M.J.B. (S. Ct. NJ 1991): H and W married on condition that H use contraceptive. He didn’t. W got marriage annulled because the fraud went to one of the essential of marriage, the decision to have children. Rule: Fraud is not to change your mind. You have to have actual or implied misrepresentation that was basis of consent. 
Essentials of the Marriage Test:
Originally fraud as to just ability and willingness to have sex/reproduce (objective). Now more liberalized (subjective). Ex. 6 Haacke v. Glenn (concealment of H’s felon status was not deemed fraud under the old test, but under new test, H violated the essential purpose of marriage). 
4. Annulment:
Annulment removes a void marriage from the record (either party can bring it). If parties choose not to void a voidable marriage it is valid. If parties continue to live together, the marriage is ratified. (The Ratification Rule).  
No economic rights are afforded to parties annulling, unless by statute (to rectify innocent party’s econ. expectations). Putative Marriage: Gives benefits to innocent parties.
“Limited Purpose Marriage/Sham Marriage” may be asserted as a defense to marriage but courts often refuse to grant annulments in these situations.
Ex. 1: Marrying to just kid give a name then divorce (refused).
Ex. 2: Immigration Marriages – Marriage for provisional time period.
Ex. 3: Brittany Spears “We were just joking about marriage.” 
D. SAME SEX MARRIAGE:
1. Prima Facie Cases:
Constitutional Attacks:
Due Process – “Depriving us of liberty if you say we must be of the opposite sex.”
Equal Protection – “Treating us differently than heterosexuals.”
2. Standard of Review to Used:
Rational Relationship/Basis: Default rule; Easy test. Requires a legitimate state reason and that the legislature reasonably believes that the statue is related to the legitimate state purpose. 
Strict Scrutiny: Only applies if a fundamental right appears. Tougher. You need a compelling state interest and then the statute has to be tailored closely to effectuate only that interest. 
No state recognizes same-sex fundamental right to marry: Q: How could this be challenged? A: Say just like in Loving v. Virginia, there’s been no historical tradition because they’ve been historically discriminated against. 
3. A Case Study – Same Sex Marriage in MA:
Ex. 7 Goodridge v. Department of Public Health (S. Ct. MA 2003): Ps successfully sue state for marriage license on equal protection/due process grounds. Court says same sex marriage ban fails rational basis test, but does not claim gay marriage is a fundamental right. This is about legal protection. Same sex couples and their children miss out on numerous marriage benefits.
1. Gov Argues, “Providing a favorable setting for procreation”: 
Counter: Married people don’t have to have kids, sterile people can get married, women past menopause can marry.
2. Gov Argues, “Ensuring the optimal setting for child rearing, which is defined as a two parent (heterosexual) family”:  
Counter: Family definition is undefined. We allow gays to adopt, it’s all a best interest of the child’s standard.
3. Gov Argues, “Preserving scarce state and private financial resources”:
Counter: Economy is not damaged by same-sex marriage.
4. Gov Argues, “Gay Marriage is Immoral”:
Counter: State can’t discriminate against gays o

hare in deceased spouse’s estate. 
3. MARITAL TORTS:
Torts Recognized: Assault, battery, even STDs, negligence. IIED is more controversial because the court doesn’t want to put too much emphasis on emotions in the family context when a marriage breaks down. It’s also inconsistent with no fault divorce. So conduct must generally be extreme/outrageous.
Loss of Consortium Claims: Widely recognized for loss of sex/companionship (not for cohabs). 
(old school) Criminal Conversion: Recovery for adultery.
(old school) Alienation of Affection: Suits against 3rd party for breaking up marriage.
Both old school claims have been rejected by heart balm statutes (society changing). 
Tort Damages: Based on the extent of the impairment, but no punitive.
Spousal Immunity: CL – one spouse could not sue the other. Now they can.
Also, there’s a spousal privilege (Trammel)/refusal to testify.
D. FAMILY VIOLENCE:
Intro: Under-enforced against by cops/psychological dynamic underestimated. Legislation emerged providing such civil remedies for the victims as ex parte temporary injunctions, permanent injunctions and other protective orders, enforcement by contempt, shelters for victims, counseling/police training.
Violence Against Women Act: Developed to create penalty for interstate violence and mandated all states to give full faith and credit to protective orders of other states.
Protection from Abuse Order (PFA): Very important for lawyers to consider in family law. All states allow for it. Statutes provides (as per Ex. 10 Felton v. Felton (OH) (W wanted/received PFA):
1. Ex-parte Hearing (just one party needs to be present): Abuser still gets full hearing with notice/opp. to be heard, within 10 days or a short amount of time. This allows for immediacy. 
2. Definition of Abuse: Can be narrow (as in here, OH – req. of a threat of force and imminent harm) or broad (PA – even includes stalking). 
3. Burden of Proof: Preponderance of the Evidence/No need for corroborating witness.
4. Scope of the Order: Grants exclusive possession of house to petitioner to separate the parties. In PA a sole homeowner can be kicked out; temp custody rights over kids and maintenance orders granted, physical contact restrictions (150ft). Temp relief until perm resolution. 
Statutes apply to married persons, ex-spouses, unmarried cohabitants (sometimes same sex), in some states dating relationships, sometimes animals.  
5. Duration Order: Usually terminates after period of time (PA is 3 years), but can be renewed. 
6. Consequences Attaching to Order: Violator of order can be found in civil contempt, preferred arrest (no questions ask, cops arrest), order goes out to all law enforcement.
Order Enforcement is not enough sometimes – Castle Rock v. Gonzales: H violates order and kills kids. Order is not always good enough.
Tort Consequences of Domestic Abuse – IIED: