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Family Law
Wayne State University Law School
Abramowicz, Sarah

Family Law

Professor Abramowicz

Fall 2011

1. Premarital Controversies

A. Breach of Promise To Marry (Heart Balm Actions)

1. Contract Law (Original method)

· Typical Contract Rules

1. Does state Statute of Frauds require writing (most exempt mutual promises to marry);

2. offer and acceptance;

3. Was there consideration;

2. Hybrid Method (Older Method)

· Breach is treated as a mix between contract and tort

· Allows for punitive damages

3. Curtailed

· some states retained the action, but have made it hard to bring

· Tennessee for example requires a signed document or two disinterested witnesses and has eliminated punitive damages for people over 60.

4. Eliminated (Modern Method)

· Most states, including Michigan, have eliminated the promise to marry. Some, such as New York have made it a felony to even suggest you would bring such an action


B. Gifts In Contemplation of Marriage

1. Three Theories For Wedding Rings

a. As Consideration

· The ring is viewed as consideration for the contract to marry. If the person who gives the ring breaks the marriage off, they cannot get ring back. If the other party does, they can.

b. As an absolute gift

· The ring is viewed as a gift. Once it is given and received it is the property of the person who received it, regardless of if the marriage happens or not. (Albinger v. Harris, 310 Mont. 27 (2002)

c. As a conditional gift (modern approach)

· Ring is given on the condition that marriage will occur. If it does not, it must be returned to the giver. (Meyer v. Mitnick, 244 Mich. App. 697 (2001)

2. Gifts from Parents

· Courts will tend to use equity to determine if a gifts should be given back. More likely to be returned if there is unjust enrichment. Bruno v. Guerra, 549 N.Y.S.2d 925 (Sup. Ct. 1990)

2. Entering Into Marriage

A. Formal Marriage

· Requirements

1. Intent to Marry

· Limited purpose marriages where BOTH parties agree that the marriage will be for limited purposes such as legitimizing a child are valid marriages (Schibi v. Schibi (Conn. 1949)

· Both parties must be able to agree.

1. No fraud

a. Strict View (old English)

· Only can void marriage for “error personae” The wrong person.

b. Majority View

· Fraud must go to essentials of the marriage

· Essentials are Sex and procreation. Wealth, status, and things like that do not count as fraud to void.

c. New York Standard

· Fraud must be material such that wouldn’t have consented to marriage absent the fraud.

· Opens the doors to lies about things other than sex and procreation to count.

2. No duress

· Third party duress

a. Majority View

· Voidable if the other party knew of the duress.

b. Minority View

· marriage is voidable regardless of if the other party knew of the duress or not.

3. Must be of age to consent

2. Marriage License

· A state approved license is a requirement to have a formal marriage

· What if there is Solemnization without obtaining a marriage license?

a) Majority View

· Recognize the Marriage as public policy favors valid marriages. (Carabetta (CT); Persad v. Balram (NY)

b) Minority View

· Do not recognize the Marriage. (Yaghoubinejad v. Haghighi (NJ)

3. Solemnization

· Having a ceremony to celebrate marriage

· Who can Solemnization marriage

1. Judge or Justice of

equal protection clause as having no rational basis but animus to a class. (Romer v. Evans (1996)

3. Same Sex Marriage

a. State by State

· Some states allow same sex marriage.

· some allow similar institutions such as domestic partnerships and civil unions with all or most of the same rights as marriage.

· Some states ban it all together (Michigan).

b. Defense of Marriage Act

· Makes it so the federal government will not recognize a same sex marriage even if the state does and allows states to choose not to recognize same sex marriages from other states.

C. Incest

1. Close Family Members (relations by consanguinity (blood)

· Banned by all states.

· In most places the act is criminalized as well.

2. Relations By Affinity (marriage)

· Banned by most states. Treated as if the person was a relation by blood.

3. Relations By Adoption

· Banned by most states. Treated as if the person was a relation by blood.

4. Relations Between First Cousins

· 25 states prohibit marriage; the others allow it.

· Some of those states which allow it place restrictions upon it.

· Wisconsin, Utah, Illinois, Indiana, Arizona require that the couple be incapable of procreation.

· Maine requires a genetic counselor’s certificate.

5. Impact Of An Incestuous Marriage

1. Marriage is Void.

2. Children used to be bastards.